UNIVERSITY OF LAGOS

SCHOOL OF POSTGRADUATE STUDIES

FACULTY OF LAW

HUMAN RIGHTS LAW 1 (JIL 811)

2023/2024 ACADEMIC SESSION (FIRST SEMESTER) LL.M CLASS

SEMINAR PAPER PRESENTED IN PARTIAL FULFILLMENT OF

THE REQUIREMENTS FOR THE AWARD OF MASTERS OF LAW
(L.L.M) DEGREE

PRESENTED BY:
OLUBUNMI BUKOLA MOSES
MATRIC NUMBER: 239061099

SEMINAR TOPIC 10: HUMAN RIGHTS ENFORCEMENT: A CASE

STUDY ON AFRICAN COMMISSION ON HUMAN AND PEOPLE’S
RIGHTS.

COURSE LECTURERS:
DR. R. A KARIBI-WHYTE
DR. S.A IGBINEDION
DR. E.E OJOMU

JANUARY, 2024.

TABLE OF CONTENT

1
Abstract 3

1. 0 Introduction 4
1.1 Brief History of Human Rights in Africa 5-7
1.2 Overview of the African Human Rights Instruments 7-9
2. 0 Enforcement of Human Rights: Overview of The African Commission on
Human and Peoples’ Rights 9-10
2.1 The Functions of the African Commission 10-11
2.2. The Sttructure of the African Commission 12-13
2.3. The Complaint Procedure 13-16
2.4. Nature of the Decision of the African Commission 17-18
2.5. Enforcement of Human Rights in Some Selected Cases 18-21
2.6. Challenges of African Commission in Enforcement of Human Rights 21-23
2.7. Proposed strategies in achieving Greater Effectiveness 23-25
3.0. Other Complementary Institutional Enforcement Mechanisms 25
3.1. The African Court on Human and Peoples’ Rights 25-28.
3.2. African Court of Justice and Human Rights 29-31
3.3 Relationship between the African Commission and the African Court 29-31
3.4. Analysis of other Regional Human Rights Mechanisms 31
European Court of Human Rights 31-32
Inter-American Court of Human Rights 33
Inter-American Commission of Human Rights 34-35
4.0 Recommendation and Conclusion 35
4.1 Recommendations 35-37
4.2 Conclusions 37
Endnotes

ABSTRACT

2
This paper provides a case study analysis of the role of African Commission on Human
and Peoples’ Rights, its recognized structure, function, and mode of operation on
enforcement of Human Rights in Africa, its other complimentary enforcement
institutional mechanism; and also highlight numerous challenges and setbacks which tend
to dissuade and have in fact, hindered the effectiveness of the commission while
performing its duties.

It concludes by highlighting the challenges analyzed and proffering recommendations on

for effective delivery in achieving the objective of the African Commission on Human
and Peoples’ Rights, which is the protection of human and peoples’ rights, promotion of
human and peoples’ rights and interpretation of the African Charter on human and
peoples’ rights within the African region.1

1.0 INTRODUCTION

1
https://achpr.au.int/en/about (assessed on 15 February, 2024)

3
The belief that everyone, by virtue of his or her humanity, is entitled to certain human
rights is fairly new. Its roots, however, lie in earlier tradition and documents of many
cultures; it took the catalyst of World War II to propel human rights onto the global stage
and into the global conscience. Throughout much of history, people acquired rights and
responsibilities through their membership in a group – a family, indigenous nation,
religion, class, community, or state. Most societies have had traditions similar to the
"golden rule" of "Do unto others as you would have them do unto you." The Hindu
Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran (Koran), and the
Analects of Confucius are five of the oldest written sources which address questions of
people’s duties, rights, and responsibilities. In addition, the Inca and Aztec codes of
conduct and justice and an Iroquois Constitution were Native American sources that
existed well before the 18th century. In fact, all societies, whether in oral or written
tradition, have had systems of propriety and justice as well as ways of tending to the
health and welfare of their members.2

The English Bill of Rights of 1688 was the first document to use the language of rights’,
the intention of the bill was to ensure that royal absolutism was firmly dissolved in favour
of the monarchy’s accountability to parliament thus; it gave rights to parliament not the
people. However,, these two events in England (Magna Carla 2015 and English Bill of
Rights 1688) remain a catalyst for evolution of human rights in our world. 3 Nearly a
decade later the English Bill of Rights 1688 it formed the basis of American declaration
of independence 1776 which claimed that “we hold this truths to be self-evident, that all
men are created equal, they are endowed by their creator with certain inalienable
rights…”4 also the French declaration of 1789 was drafted and signed, aftermath of social

2
http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-1/short-history.htm (assessed on 15 February,
2024)
3
Askia Karibi-Whyte,International protection on human rights: Students companion series 3, pg. 15
4
Tokunbo Ige,and Olamide Lewis, Human Rights Made Easy an introductory text on human rights 2nd edition, 1995,
pg x

4
and political upheavals and bloody revolution to end colonial rule in America and France
- to put an absolute end to monarchy.5

Drawing on the African Charter for Human and Peoples’ Rights (the African Charter)
and buttressed by the vigorous support of civil society organizations, the African
Commission not only gives a voice to the victims of abuses, but has been increasingly
effective in encouraging African states to live up to their human rights obligations. With
the establishment of African Court for Human and Peoples’ Rights (the African Court)
and a drastic increase in the African Commission’s resources in early 2008, opportunities
to strengthen the fight for human rights in Africa now exist.6

1, 1 Brief History of Human Rights in Africa

The origins of the African human rights system can be traced back to 1963 and the
creation of the Organization for African Unity (OAU). The OAU founders were
motivated on the one hand by a pan- African desire to unite the continent and on the other
hand, a desire to protect their hard-won independence; they therefore created a political,
anti-colonial, and anti-apartheid organization. One could argue that two human rights
based principles inspired the OAU, namely those of self-determination and anti-racism.
However, any human rights principles at the OAU almost always lost out to the
organization’s overriding principle of non-intervention in state affairs, as well as its focus
on the economic development of its newly independent members.7

Nonetheless, by the late 1970s, mounting pressure changed this situation. As early as
1961, a cadre of dedicated African and international jurists were the first to officially

5
BJ O’Byrne, Human Rights: An introduction (London: Pearson Education Limited 2003)p.75. On Akia Karibii-
Whyte, International protection of Human Rights, Student companion series 3, 2024,p.15.
6
N.F Nzuka Seminar Paper on Human Rights Enforcement: A case study of African Commission on Human and
people’s rights @ www. africanreview.org/docs/rights/grandbaby.pdfhttps://unilag.academia.edu/izukanwanze
assessed on 15 February, 2024 on Michael W.,(Ed) The Fight for Human Rights in Africa: Perceptive on the African
Commission on Human and Peoples’ Rights @ p 11 available online at
www.dd-rd.ca/site/_PDF/.../demDev/African-Commission-2008.pdf (accessed February 10th, 2012)
7
N.F Nzuka Seminar Paper on Human Rights Enforcement: A case study of African Commission on Human and
people’s rights @ www. africanreview.org/docs/rights/grandbaby.pdf https://unilag.academia.edu/izukanwanze@
assessed on 15 February, 2024

5
launch the idea of an African human rights commission 8. Through the 1960s and 1970s,
these jurists began advocating for an African human rights charter. Their efforts were
reinforced by civil society organizations, different church-based groups and the media,
who were putting pressure on the OAU by exposing some of the most blatant human
rights abuses in Africa. Civil society has in fact played a key role throughout the
development of the African human rights system9.

In 1961, a first inter-African meeting held between a number of lawyers giving important
recommendations of the improvement of Human Rights in Africa under the title of The
Lagos’ the recommendation suggested that an establishment of an African Human Rights
Charter with a court to which individual and groups may resort to 10. The OAU later
developed this idea much later through strong agitation from the public, non-
governmental organisation ad international community; the African Charter on Human
and People’s Rights was adopted in June 198111

In a departure from the OAU regime, in 2000, African leaders used the constitutive act of
the AU—the successor to the OAU—to express their determination “to promote and
protect human and peoples’ rights...” Drawing on human rights commitments made at
the 1979 the United Nations sponsored seminar in Liberia on regional human rights
commissions that already existed in other parts of the world, but with special reference to
Africa12, AU leaders committed themselves to implementing the principles found in the
African Charter. At the heart of these efforts is the African Commission. It is responsible
for supervising the implementation of the African Charter in all member states; actual
implementation of the African Charter rests with the African Court13.
8
N.F Nzuka Seminar Paper on Human Rights Enforcement: A case study of African Commission on Human and
people’s rights : International Commission of Jurists, Human and Peoples’ Rights in Africa and the African Charter,
Report of a Conference held in Nairobi from December 2 – 4, 1985, Geneva,
Switzerlandhttps://unilag.academia.edu/izukanwanze assessed on 15 February, 2024
9
N.F Nzuka, ibid: Michael W.,(Ed) The Fight for Human Rights in Africa: Perceptive on the African Commission on
Human and Peoples’ Rights https://unilag.academia.edu/izukanwanze. pg.13 assessed on 15 February, 2024
10
Askia Karibi-Whyte, International Protection of Human Rights, Students Companion Series 3 pg. 45
11
Entered into force 21 October,1986
12
https://digitallibrary.un.org/record/11101?ln=en assessed on 15 February, 2024
13
N.F Nzuka, ibid: Michael W.,(Ed) The Fight for Human Rights in Africa: Perceptive on the African Commission on
Human and Peoples’ Rights pg. 13 @ https://unilag.academia.edu/izukanwanze assessed on 15 February, 2024

6
The African Commission provides citizens and states with a regional complaints
mechanism to pursue violations of the African Charter and other recognized human rights
protocols. The African Court is, in theory, the implementing organ of human rights for
the AU. It has the mandate to pass judgment on human rights cases brought before in
particular as it relates to the African Commission, remains to be determined14

The African Commission has also developed several special mechanisms, which it uses
to address specific human rights themes on the continent. For instance, Special
Rapporteurs have been named for prisons, women’s rights, freedom of expression,
protection of human rights defenders, extra-judicial execution, torture, and refugees15

1.2 Overview of the African Human Rights Instruments

The African Union (AU) is an inter-governmental organization established in 2002. It

replaced an earlier inter-governmental organization known as the Organization of African
Unity (OAU). Currently all 55 independent nations located on the African continent, or
on islands offshore, are AU member states16.

In addition to promoting human rights and democracy, the AU's stated objectives include
protecting the sovereignty, territorial integrity, and independence of its member states;
fostering regional economic development and integration; and maintaining peace and
stability on the African continent. Much of the AU's work in the field of human rights is
accomplished through the drafting of multilateral treaties17.

African Charter on Human and Peoples' Rights

Also known as the Banjul Charter (for the city in Gambia in which it was signed), this
treaty was adopted by the OAU, the AU's predecessor, in 1981, Fifty-four of the AU's 55
member states have ratified the Charter.

14
Ibid pg.14
15
ihttps://achpr.au.int/en/special-mechanisms assessed on n15 February,2024
16
https://guides.ll.georgetown.edu/c.php?g=273364&p=6025371 assessed on 15 February, 2024
17
ibid

7
In addition to safeguarding "first generation" civil and political rights and "second
generation" economic and social rights, the Charter also explicitly recognizes "third
generation" group rights, such as the right of indigenous peoples to self-determination
and to collectively develop natural resources18.

The African Conference on the Rule of Law held in Lagos in 1961 declared, inter-alia:

That in order to give full effect to the Universal Declaration

of Human Rights of 1948, this Conference invites the African
Governments to study the possibility of adopting an African
Convention on Human Rights in such a manner that the
conclusions of this Conference will be safeguarded by the
creation of a court of appropriate jurisdiction and that
recourse thereto be made available for all persons under the
jurisdiction of signatory states.
The 18th Assembly of Heads of State and Government of the OAU meeting in Nairobi,
Kenya adopted the African Charter in 1981. The Charter came into effect on 21 st October
1986, after its ratification by majority of Africans States.

The African Charter was predicted on principle of cultural relativity 19 of human rights.
According to OAU “All that could be said about this document… is that it strive ti secure
a certain flexibility equilibrium, and to emphasize certain principles and guidelines of an
organisation as well as the aspiration of the African people. It seek not to isolate man
from society but as well that society must not swallow the individual….”20

The inclusion of the right to development is yet another significant innovation . The
rationale is that most African States are still under-developed or at most developing. In
effect, the citizens cannot afford the basic necessities of life which will enable them to
enjoy the negative rights.21

18
ibid
19
Osita Nnamani Ogbu, Human Rights Law and Practice in Niigeria 2nd revised edition, vol, 1. Pg. 74
20
Ibid on OAU (AHG/102/XVII: June 1981
21
Ibid

8
State Parties to the Charter are saddled with the responsibility/duty to promote rights and
freedom contained in the Charter22, duty to guarantee the independence of the Court and
to allow the establishment of Human Rights Organisations.23.

The Charter imposes duty on every individual within the State Parties as follows:

 Duty to the family, society the state and international community24

 Duty to respect, not to discriminate against fellow being25
 Duty to preserve the harmonious development of the family to respect parent and
maintain them in case of need26
 Duty to preserve national community27
 Duty not to compromise the security of the state of origin or resident28

Including other duties listed in the article29 The Charter also listed out unqualified rights

2.0 ENFORCEMENT OF HUMAN RIGHTS IN AFRICA: OVERVIEW

OF AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS.

The African Charter established the African Commission on Human and Peoples’
Rights.30 The Commission was inaugurated on 2 November 1987 in Addis Ababa,
Ethiopia31. The African Commission did not have a permanent Secretariat after its
inauguration and thus, for the first five sessions, its activities were co-ordinated from the
OAU General Secretariat in Addis Ababa. The Secretariat of the African Commission is
now located in Banjul, The Gambia, and became operational on 21 October 1986. The

22
Article 24
23
Article 26
24
Article 27
25
Aricle 28
26
Article 29 (1)
27
Article 29 (2)
28
Article 29 (3)
29
Article 29 (4-8)
30
Article 30.African Charter on Human and People’s rights Part II Chapter I.
31
https://achpr.au.int/en/about assessed on 15 February, 2024

9
Commission reports to the Assembly of Heads of State and Government of the African
Union (AU)32.

To fulfill its mandate, the Commission evaluates complaints ("communications") brought

by individuals alleging violations of rights guaranteed under the Charter and other
instruments, conducts on-site visits and fact-finding missions, and issues
recommendations based on its findings. It also establishes standing committees, working
groups, rapporteurships, and other "special mechanisms" to investigate and report on
human rights abuses.

The Commission has jurisdiction over the rights set out in the African Charter. Its duties
include examining national reports on the situation of human rights which each State is
required to submit every other year, adopting resolutions and declarations, country visits,
and adjudicating communications (complaints) submitted by Member States, individuals,
and NGOs.

Functions of the Commission

In addition to performing any other tasks, which may be entrusted to it by the Assembly
of Heads of State and Government, the Commission is mandated by the African Charter
on Human and Peoples’ Rights to carry out these three major functions:

 The protection of human and peoples' rights 33 : The Commission carries out
sensitisation, public mobilisation and information dissemination through seminars,
symposia, conferences and missions.34
 The promotion of human and peoples' rights35: The Commission ensures
protection of human and peoples’ rights through its communication procedure,

32
https://www.justiceinitiative.org/publications/african-commission-human-and-peoples-rights). Assessed on 15
February, 2024
33
Article 45 1 (a).African Charter on Human and People’s rights Part II Chapter I.
34
https://achpr.au.int/en/about/mandate assessed on 15 February, 2024
35
Article 45 1 (b).African Charter on Human and People’s rights Part II Chapter I.

10
 friendly settlement of disputes, state reporting (including consideration of NGOs’
shadow reports), urgent appeals and other activities of special rapporteurs and
working groups and missions36.
 The interpretation of the African Charter on Human and Peoples' Rights. 37 : The
Commission is mandated to interpret the provisions of the Charter upon a request
by a state party, organs of the AU or individuals. No organ of the AU has referred
any case of interpretation of the Charter to the Commission. However, a handful of
NGOs have approached the Commission for interpretation of the various articles
of the Charter. The Commission has also adopted many resolutions expounding
upon the provisions of the Charter38.
 Provisions of the Charter upon a request by a state party, organs of the AU or
individuals. No organ of the AU has referred any case of interpretation of the
Charter to the Commission. However, a handful of NGOs have approached the
Commission for interpretation of the various articles of the Charter. The
Commission has also adopted many resolutions expounding upon the provisions of
the Charter39.

2.1 The Structure of the Commission

• Composition

The Commission consists of 11 members elected by the AU Assembly from experts

nominated by the state parties to the Charter 40. The Assembly considers equitable
geographical and gender representation in electing the members of the Commission.

36
ibid
37
Article 45 1 (c).African Charter on Human and People’s rights Part II Chapter I.

38
https://achpr.au.int/en/about/mandate assessed on 15 February, 2024
39
https://achpr.au.int/en/about/mandate assessed on 15 February, 2024
40
Article 31.African Charter on Human and Peoples’ rights Part II

11
Members of the Commission are elected for a six-year term and are eligible for
reelection41. There are two ordinary sessions each year, usually in March/April and
October/November, and also extraordinary sessions

Once elected, the commissioners serve in their personal capacity and not as
representatives of their respective countries. Previously, some members of the
Commission held high political offices at the national level, which affects the
Commission’s independence. The AU in April 2005 issued a note verbale to member
states prescribing guidelines for nomination of members to the Commission which
excluded senior civil servants and diplomatic representatives42.

• Bureau of the Commission

The Commission elects its Chairperson and Vice-Chairperson as the Bureau of the
Commission. They are elected for a term of two years and are eligible for re-election
once. The Bureau coordinates the activities of the Commission and supervises and
assesses the work of the Commission’s Secretariat. The Bureau is also empowered to take
decisions on matters of emergency between the sessions of the Commission. It is
however obligated to present a report on the situation to members at the next session of
the Commission43.

• Secretariat of the Commission

The Chairperson of the AU Commission appoints the Secretary of the African

Commission including other support staff necessary for the effective discharge of the
Commission’s mandate. The Secretariat provides administrative, technical and logistical
support to the Commission44.

41
Article 36.African Charter on Human and Peoples’ rights Part II
42
https://achpr.au.int/en/commission/overview assessed on 15 February, 2024
43
https://achpr.au.int/index.php/en/commission/overview assessed on 15 February, 2024
44
ibid

12
2.3 Complaint procedure of the Commission

Applicants initiate a case through a letter of introduction. The Commission may decide to
seize itself of the case, at which point the applicant is invited to provide submissions on
admissibility, the State is given an opportunity to respond, and the applicant may file a
reply. The Commission will then issue a decision on admissibility, and if the case is held
to be admissible, the parties provide similar submissions and responses on the merits of
the case45.

Decisions on admissibility are usually made based solely on the written submissions,
although the Commission may schedule an oral hearing. Oral hearings are more common
at the merits stage, when they may be called by the Commission or requested by a party,
although cases may be decided based solely on the written submissions.

 Who can submit a communication to the commission?

Anybody, either on his or her own behalf or on behalf of someone else, can submit a
communication to the commission denouncing a violation of human rights. Ordinary
citizens, a group of individuals, NGOs, and states Parties to the Charter can all put in
claims. The complainant or author of the communication need not be related to the victim
of the abuse in any way, but the victim must be mentioned 46. Complaining on behalf of
someone else, for example, a prisoner who can't submit a communication himself or who
does not want the authorities to know that he is petitioning is very helpful47.

 Legal Representation

Since the preparation, submission and processing of a communication is a relatively

straightforward procedure, a complainant or author can act on his or her own without the
need for professional assistance. However, it is always useful to seek the help of a
lawyer. A lawyer would understand the technical aspects better and would therefore be

45
https://achpr.au.int/en/guidelines-submitting-complaints assessed on 15 February, 2024
46
ibid
47
ibid

13
able to advise, recommend, help to interpret the rights alleged to have been violated,
draw up additional arguments, and set out the case in an efficient manner that will
demonstrate to the Commission that one or more rights have been violated. The
complainant or his/her legal representative (if any), need not travel to the Commission's
session to present or defend a case. The case can be started and concluded only through
correspondence with the Secretariat of the Commission48.

However, should the complainant opt to be present at any session of the Commission, the
Commission will grant him or her audience. It should be noted that the Commission does
not offer legal assistance to complainants. Persons in need of such assistance may
approach one of the various legal assistance groups which exist in most countries or the
National Bar Association49.

The African Commission practice is that complaints from individuals as well as NGOs
are accepted. From the case law of the African Commission it is clear that the
complainant does not need to be a victim or a family member of a victim. The African
Commission in SERAC v Nigeria50 expressed its thanks to the two human rights NGOs
which brought the matter under its purview… This is a demonstration of the usefulness to
the African Commission and individuals of actio popularis, which is wisely allowed
under the African Charter.

Conditions for submitting a communication

Article 56 of the African charter outlines seven conditions that must be met before a
communication can be considered by the Commission. These are as follows:, must
include the author's name even if the author wants to remain anonymous; the
communication must be compatible with the Charter of the OAU and with the present
Charter; the communication must not be written in insulting language directed against the
state or the OAU; the communication must not be based exclusively on news from the

48
Ibid.pg
49
ibid
50
(2001) AHRLR 60 (ACHPR 2001)

14
media, expounding on this requirement in communication 147/95 and 149/95, Jawara v
the Gambia, the commission reasoned it would be damaging if the communication were
rejected because some aspect of it are based on news disseminated through the mass
media …the issue therefore should not be whether the information was gotten from the
media, but whether the information is correct 51; the complainant must have exhausted all
available domestic legal remedies; the communication must be submitted within a
reasonable time from the date of exhaustion of domestic remedies and t must not deal
with a matter which has already been settled by some other international52

How Many Violations per communication

From the wordings of article 58(1), of the Charter, it would seem that the Commission
can only consider a communication when the latter reveals a series of serious and
massive violation of human and peoples' rights and only after the Assembly of Heads of
state and Government has requested it to do so. However, the practice of the Commission
has been to consider every communication even if it refers to only a single violation of
the Charter. The rationale behind this practice is that a single violation still violates the
dignity of the victim and is an affront to international human rights norms.

What a communication should include in order to be valid

All communication must be in writing, and addressed to the Secretary or chairman of the
African commission on Human and Peoples' Rights. There is no form or special format
that must be followed, but a communication should contain all the relevant information.
If the communication is submitted by an individual or group of individuals, it should
include the name(s) of the complainant or complainants, their nationalities, occupation or
profession, addresses and signatures. If the communication emanates from an NGO, it

51
Sabelo Gumedz, Human Rightd Law Journal on bringing communication before African Commission of Human
and Peoples’ rights at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.corteidh.or.cr/
tablas/R21582.pdf. assessed on 15 February, 2024
52
African Commission on Human and Peoples’ Rights, information sheet (3) communication procedure,
Organisation for African unity @ https://achpr.au.int/en/communications-procedure.ssessed on 15 February, 2024

15
should include the address of the institution and the names and signatures of its legal
representatives53.

If the communication is from a State Party, the names and signature of the State
representative, together with the national seal would be required. Each communication
should described the violation of human and/or peoples' rights that took place, indicate
the date, time (if possible), and place where it occurred. It should also identify the State
concerned. The communication should also include the victim's names (even if the latter
wants to remain anonymous, in which case, this should be stated), and if possible, the
names of any authority familiar with the facts of the case54.

It should also provide information indicating that all domestic legal remedies have been
exhausted. If all remedies were not exhausted the communication should indicate the
reasons it was not possible to do so. The complaint should also indicate whether the
communication has been or is being considered before any other international human
rights body, for instance, the UN human Rights committee55.

As a general rule, the communication should state only the facts and not be written in
vulgar or insulting language. The complaints should be drafted in a clear, simple and
straightforward manner, free from unnecessary rhetoric. Any complainant failing to meet
these requirements will be notified and where necessary, asked to furnish the commission
with further information56.

Emergency Communications

Every communication should indicate if the victim's life, personal integrity or health is in
imminent danger. In such emergency situations, the Commission has the powers under
Rule 111 of its Rules of Procedure adopt provisional measures, thereby urging the State
concerned not to take any action that will cause irreparable damage to the victim until the

53
ibid
54
ibid
55
ibid
56
ibid

16
case has been heard by the Commission. The Commission can also adopt other urgent
measures as it sees fit57.

Standard format for the Submission of Communications

As mentioned earlier, there is no hard and fast rule or format for the submission of
communications to the commission, but the following simplified guidelines will make it
much easier for would-be complainants to submit their communications.

The guidelines are in two categories: (inter-State communications) and other (or
individual communications). These are contained in articles 48 and 49 for states and
article 5 of the African Charter for individual.

2.4 Nature of Decision

Technically, the African Commission’s decisions are not binding on States since the
Commission is not a court with judicial powers58. They are simply recommendations. In
other words, the State is not required to follow the decision of the African Commission
and there is no enforcement power if decisions are not implemented. In practice most of
the States that have been examined by the Commission under the Article 55 complaints
procedure have not complied with its decisions. Nevertheless, the African Commission’s
decisions are authoritative interpretations of the African Charter, and therefore, whether a
State is violating its binding obligations under the Charter.

The lack of binding jurisdiction and enforcement powers at the Commission led the AU
to establish an African Court on Human and Peoples’ Rights, the decisions of which will
be binding59.

2.6 Enforcement

57
ibid
58
Article 53 of the African Charter
59
https://www.african-court.org/wpafc/welcome-to-the-african-court/

17
The African Charter does not contain any provision for enforcement of the Commission’s
findings and recommendations, which are not formally binding on AU Member States.
However, the Chairman publishes a record of the Commission’s activities, including its
Views, which is then submitted to the Assembly (Activity Reports). Special Rapporteurs
may also instigate a dialogue with the relevant governments, approach the press, and
collaborate with their UN counterparts to help implement the Commission’s
recommendations. Finally, the Commission can refer cases to the African Court on
Human and Peoples’ Rights.

2.5 Enforcement of Human Rights in some selected cases

Although the African Commission’s independence does not appear to have been
compromised, it has nevertheless been criticized as being generally unable to act as a
forceful guardian of human rights. However, an analysis of the Commission’s decisions
in recent times does suggest that the Commission is generally becoming more robust in
performing its mandate. Thus on its interpretation of the African Charter, the African
Commission has been mostly positive and sometimes even innovative. Furthermore, the
African Commission has been successfully addressing the deficiencies in the African
Charter through its practice, evolving procedures and jurisprudence, the selected cases
mentioned below will clearly demonstrate how the African Commission despite the non-
binding nature of its decisions, has been able to expand the frontiers of human rights in
Africa. These decisions virtually cover the individual as well as peoples’ rights.

I. Civil and Political Rights

The Charter recognizes the following civil and political rights: The prohibition of
discrimination (Art. 2); equality (Art. 3); bodily integrity and the right to life (Art. 4);
dignity and prohibition of torture and inhuman treatment (Art. 5); liberty and security
(Art. 6); fair trial (Art. 7); freedom of conscience (Art. 8); information and freedom of
expression (Art. 9); freedom of association (Art. 10); assembly (Art. 11); freedom of

18
movement (Art. 12); political participation (Art. 13); property (Art. 14); and
independence of the courts (Art. 26).

 In Media Rights Agenda and Others v Nigeria60 the Commission ruled against
the Abacha government’s clampdown on freedom of expression, and determined
that politicians should be provided less protection from freedom of expression
than other people. As with many of the seemingly more bold decisions of the
Commission, this decision was unfortunately handed down only after the Abacha
regime had fallen. Nevertheless, a positive precedent was set.
 In Amnesty International and Others v Sudan61, the imposition of Shari’a law
on non-Muslims in Sudan was held to violate freedom of religion.
 In Commission Nationale des Droit de l’Homme et des Libertés v Chad 62 , the
African Commission held that the state’s failure to protect people under its
jurisdiction during a civil war against attacks by unidentified militants, not proven
to be government agents, constituted a violation of the right to life. The
commission finds that there have been serious and massive violations of Articles
4,5,6,763.

(b) Socio-economic rights

The African Charter recognizes “a right to work under equitable and satisfactory
conditions” (Art. 15), a right to health (Art. 16) and a right to education (Art. 17). The
African Commission, in one case has dealt extensively with the issue, and has in effect
held that some internationally recognised socio-economic rights which are not explicitly
recognised in the Charter should be regarded as being implicitly included. SERAC v
Nigeria64 decision dealt with the destruction of part of Ogoniland by Shell, acting in
collaboration with the government of Nigeria. The African Commission held that the
60
(2000) AHRLR 200 (ACHPR 1998
61
(2000) AHRLR 297 (ACHPR 1999).
62
(2000) AHRLR 66 (ACHPR 1995)
63
Human Rights Law Library, University of Minnesota @ http://hrlibrary.umn.edu/africa/comcases/74-92.html
assessed on 15 February, 2024
64
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001).

19
presence of an implicit right to “housing or shelter” in the African Charter has to be
deduced from the explicit provisions on health, property and family life in the African
Charter. Similarly, a right to food has to be read into the right to dignity and other rights.
It was accepted, without argument or reasoning, that the Ogoni’s constituted a “people”.
While it is worthy of note that the approach of the African Commission of filling in the
gaps in the African Charter as was done in the SERAC case could be seen as a creative
and bold move on the part of the African Commission, but it could also be argued that a
too wide divergence between the African Commission’s interpretation of the African
Charter and the African Charter itself could compromise legal certainty65.

(c)Peoples’ rights

As regard peoples’ rights, it must be noted that the African Charter went further than any
other international instrument. All “peoples”, according to the African Charter, have a
right to be equal (Art. 19); to existence and self-determination (Art. 20); to freely dispose
of their wealth and natural resources (Art. 21); to economic, social and cultural
development (Art. 22); to peace and security (Art. 23); and to a satisfactory environment
(Art. 24). Clearly part of the reason for the recognition of “peoples’ rights” lies in the fact
that entire “peoples’ have been colonized and otherwise exploited in the history of Africa.
The concept of “peoples” has been referred to in some of the cases before the African
Commission, including the following:

(i) In Jawara v the Gambia,66a case concerning the 1994 coup d’état against the
democratically elected government of The Gambia, the Commission held that this
violated the right to self-determination of the people of The Gambia as a whole. The
same conclusion was reached when the Abacha government in Nigeria annulled
internationally recognised free and fair elections67.

65
Op. cit supra fn.7 assessed on 15 February, 2024
66
(2000) AHRLR 107 (ACHPR 2000
67
Constitutional Rights Project and Another v Nigeria (2000) AHRLR 191 (ACHPR 1998) Para 52

20
In the abovementioned SERAC’s case, the Commission held that the right to a
satisfactory environment in Article 24 requires the state “to take reasonable … measures
to prevent pollution and ecological degradation, to promote conservation, and to secure
an ecologically sustainable development and use of natural resources.”

2.6. Challenges of African Commission in Enforcement of Human Rights

The Charter charges the Commission with three principal functions: examining State
reports, considering alleged violations, and expounding the Charter. Every two years,
States must submit a report on the normative measures taken to give effect to the
individual and group rights and the obligations of the States. The Commission has drawn
up guidelines for this national periodical report supplemented by general directives on
what kind of information the report must furnish. While the examination of States'
reports has served as a forum of discussion with NGOs and normative understanding of
the Charter through interpretation of its provisions, many critics have been addressed to
the process of examination.

The Commission does not issue concluding remarks or a 'concluding evaluation' of state
reports. Individual commissioners express views in the course of examining state reports
but no uniform position is taken by the Commission on the various issues raised. The
examination of state reports usually ends with profuse thanks or encouragements to the
state representative. The Commission does not adequately advise state parties on how to
improve their human rights situation68.

Since its inauguration in 1987, the Commission has published a body of case law through
the "Commission Annual Activity Report." Over the years, a wide range of substantive
and procedural issues, including economic, social and cultural rights have been discussed

68
Moussa Samb. Fundamental Issues and Practical Challenges of Human Rights in the Context of the African
Union,vol.15 issue 1, article 15 on George Msgwunya, Examination of state reports by African Commission : A
critical appraisal annual human rights journal (200102p.268-284 sp.p.278 @
https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1128&context=annlsurvey. Assessed on 18
February, 2024

21
before the Commission69. Unfortunately, the decisions are not binding and attract a little
attention from governments, the human rights community and the academic journals. A
very controversial provision of the Charter is Article 59(1) that provides "all measures
taken within the provisions of the present Charter shall remain confidential until such a
time as the Assembly of Heads of States shall otherwise decide". In practice, the
Assembly did block publication of reports which have not been yet released 70. Another
big constraint to the Commission's effectiveness is the principle of non-interference
between States seems still entrenched. To this day, the Commission has heard only one
inter-State complaint since its establishment. The main reason why so few complaints
have been lodged is because there is a lack of political will on the part of African State or
Government to hold one another accountable for violations of fundamental freedoms.

The Commission's shortcomings are mostly practical and political matters. These include
matters such as the funding of the system, the absence of compliance and supportive
political will on the part of State parties.

The Assembly has shown little interest in properly considering the submissions of
violations of human rights in such reports or in ensuring that member states comply with
either their state reporting obligations or adverse decisions on individual
communications. However, the Assembly’s consideration of the reports has raised fears
that the system’s legitimacy may be undermined as the very people whose human rights
practices are scrutinized are the ones taking the final decision. It was noted previously
that Zimbabwe’s protest against the report of the fact-finding mission of the African
Commission prompted the suspension of its seventeenth annual activity report.

Similarly, the Assembly authorized the publication of the Commission’s nineteenth

annual activity report by excluding annexes containing resolutions on Eritrea, Ethiopia,
69
Moussa Samb. Fundamental Issues and Practical Challenges of Human Rights in the Context of the African
Union,vol.15 issue 1, article 15 on Chidi Odinkalu Anselem”The role of cae and complaint procedurein African
Regional Human Rights System” African Human Rights Kaw Journal )2001) 2pp,225-241 Q
https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1128&context=annlsurvey assessed on 18
february,2024
70
ibid

22
the Sudan, Uganda and Zimbabwe. These examples illustrate that the problematic
efficacy and legitimacy of the African human rights system can be largely ascribed to a
lack of commitment and political will from African states and AU political organs to
execute their responsibilities under the African Charter. This raises inevitable questions
as to whether the African Court will influence this situation. It remains to be seen if and
how the Assembly will enforce Court judgements when a state party fails to execute such
a judgement contrary to its obligations under the Protocol on the African Court.

2.7. Proposed strategies in achieving Greater Effectiveness

In ensuring a greater effective and more efficient African Commission, Umozurike in his
cited work proffered the remedies71.

(a) The division of 52 African states among 11 Commissioners results in each of them
having, in some cases, as many as four states, to promote human rights. Since they work
part-time, they are unable to work effectively. The European Commission had a member
from each member-state and the Inter-American Commission has seven members and
promotion is not included in their functions. The size of the African continent and the
large number of states require a larger number of commissioners. I align myself with
Umozurike that the number be doubled.

(b) The funding for the Commission should be increased for effective promotion of
human rights throughout the continent. If it has not already done so, the African
Commission should open a desk for the fundraising outside the AU. The expected
sources should be states, international institutions and private sources that are disposed to
funding human rights.

(c) The qualifications for Commissioners are stated to be: "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

71
N.F Nzuka, ibid: on Op.cit Udombana Pp. 67 - 69 Human and Peoples’ https://unilag.academia.edu/izukanwanze.
pg.13 assessed on 15 February, 2024

23
having legal experience." Although Commissioners are not strictly required to be
lawyers, those selected so far have been lawyers. The interpretation of legal documents
requires the expertise of lawyers. Although human rights have become interdisciplinary,
the job of Commissioners requires lawyers and especially those who have done further
work in human rights. They must also have the moral courage to make pronouncements
against erring governments, whether their own or foreign. A Commissioner should
therefore be more than just a lawyer; he should, in the words of the Charter, be
"competent in matters of human and people’s' rights”.

(d) The Commission should do more to advertise its work and disseminate its
publications. There should be more cooperation with the media, NGOs and institutions of
higher learning. Publicity is a potent weapon in the field of human rights, as without it, it
is impossible to achieve the full effect from efforts expended. Many of its decisions are
not known in the states from which the complaints originate beyond those who are
directly affected. Collaboration with those suggested will remedy this shortcoming72.

3.0 Other Complementary Institutional Enforcement Mechanisms

3.1 The African Court of Human and People’s Rights

Establishment

The African Court is the judicial arm of the African Union and one of the three regional
human rights courts, the others being the European Court of Human Rights and the Inter-
American Court of Human rights. It was established to protect human and peoples’ rights
in Africa principally through judicial consideration of human rights complaints. The
Court’s permanent seat is in Arusha, the United Republic of Tanzania.

The African Court on Human and Peoples’ Rights (the Court) is a continental court
established by African countries to ensure the protection of human and peoples’ rights in
Africa. It complements and reinforces the functions of the African Commission on

72
N.F Nzuka, ibid: @ https://unilag.academia.edu/izukanwanze assessed on 15 February, 2024

24
Human and Peoples’ Rights73. The Court was established by pursuant to Article 1 of 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) which was adopted by
Member States of the then Organization of African Unity (OAU) in Ouagadougou,
Burkina Faso, in June 1998. The Protocol came into force on 25 January 2004 74.34 States
have ratified the Protocol75.

To date, only eight (8) of the thirty-four (34) State Parties to the Protocol have deposited
the declaration recognizing the competence of the Court to receive cases directly from
NGOs and individuals. The eight States are: Burkina Faso, The Gambia, Ghana, Guinea-
Bissau, Mali, Malawi, Niger and Tunisia76.* The Court applies the provisions of the
African Charter on Human and Peoples’ Rights (the African Charter) and other human
rights instruments ratified by the States concerned. It does not have criminal jurisdiction
like the International Criminal Court77.

Mandate

The African Court was established to complement the protective mandate of the African
Commission on Human and Peoples’ Rights (the African Commission – often referred to
as the Banjul Commission), which is a quasi-judicial body charged with monitoring the
implementation of the African Charter. The African Court applies the provisions of the
African Charter and other human rights instruments ratified by the States concerned78.

Mission

The Mission of the Court is to complement the protective mandate of the African
Commission on Human and Peoples’ Rights by strengthening the human rights protection

73
https://www.african-court.org/wpafc/welcome-to-the-african-court/ assessed on 24 February, 2024
74
ibid
75
ibid
76
ibid
77
https://www.african-court.org/wpafc/basic-information/. Assessed on 18 February, 2024
78
ibid

25
system in Africa and ensuring respect for and compliance with the African Charter, as
well as other international human rights instruments, through judicial decisions79.

Core Values80

The Court bases its core values on the African Charter and other internationally
recognized principles of human rights and the promotion of the rule of law. The Court
continues to foster and uphold the following core values:

 Judicial independence and impartiality as between all litigants, parties and

stakeholders.
 Fair and impartial application and interpretation of the provisions of the African
Charter, other relevant international human rights treaties, the Protocol and the
Rules.
 Transparent and ethical accountability in all operations of the Court.
 Upholding every individual’s freedom to enjoy basic civil, political, social,
economic and cultural rights.
 Collaboration with relevant stakeholders in pursuance of the Court’s objective of
protecting human and peoples’ rights.
 Non-discrimination and equality in performance of the Court’s work.
 Integrity of the Judges and staff working at the Court.
 Providing equal access to all potential users of the Court.
 Responsiveness to the needs of those who approach the Court.

The strategic objectives81

The Court’s Strategic Objectives for the planning period 2021- 2025 emanate from the
mandate of the Court are:

 Improve Judicial Processes

79
ibid
80
ibid
81
ibid

26
  Enhanced outreach and cooperation
 Strengthened Institutional Capacity

Ordinary Sessions

The Court holds Ordinary Sessions, four times a year, lasting for four weeks usually in
March, May, September and November, and holds Extra-Ordinary Sessions if necessary.
The sittings normally take place at the seat of the Court; however, the Court may decide
to sit in any other Member State of the African Union82

Jurisdiction

The African Court’s jurisdiction extends to “all cases and disputes submitted to it
concerning the interpretation and application of the African Charter, the ACHPR Protocol
and any other relevant Human Rights instrument ratified by the States concerned. It can
issue advisory opinions at the request of a Member State of the African Union, the
African Union or any of its organs, or any African organizations recognized by the
African Union.

With respect to contentious cases, it can receive complaints from:

i. The African Commission;

ii. The State Party which has lodged a complaint to the African Commission;
iii. The State Party against which the complaint has been lodged at the African
Commission;
iv. The State Party whose citizen is a victim of human rights violation; [and]
v. African Intergovernmental Organizations

The most important improvement of the ACHPR Protocol on the African Charter regime
was the binding and enforceable nature of the Court’s findings, as compared with the
82
ibid

27
Commission’s non-binding recommendations enforceable only by the Assembly of the
African Union. Once the Court finds that there has been a violation of human or peoples’
rights, it “shall make appropriate orders to remedy the violation, including the payment of
fair compensation or reparation.” The judgments are “final and not subject to appeal 83.”
Thus, the African Court’s power is not merely restricted to the ability to inform and
persuade—as is the case with the African Commission—but extends to imposing
sanctions necessary to remedy the human rights violation.

3.2. African Court of Justice and Human Rights

Article 18 of the Constitutive Act of the African Union established the African Court of
Justice. On 1 July2008, the AU adopted the Protocol on the Stature of the African Court
of Justice and Human Rights (which merged the earlier courts in nomenclature and
purpose)84

The Court has both contentious and advisory jurisdiction. Unlike Article 28 of its Statue,
the Court has jurisdiction over a wise expanse of treaties of a general nature or
specifically on human rights, including all treaties adopted by OAU, AU, the African
Charter on the Welfare of the Child, all other human rights treaties entered by AU
member states and many more. Article 17 (2) specifically confers the Human Rights
section of the Court with competence to hear all cases relating to human and peoples’
rights85 Hearings shall be in public, unless the Court or either party applies for the session
to be closed. The Court has powers to indicate provisional measures which ought to be
taken to preserve the respective rights of the parties. It could also give a judgment in
default.

83
ACHPR Protocol, Article 27
84
Askia Karibi-Whyte, international protection on human rights, student’s companion series 3 on
[email protected]
85
Ibid.at i.703

28
Decisions of the Court shall be final and binding on the parties.252 Parties shall
guarantee execution of the decisions of the Court.253 In the event that a party fails to
comply; the Court shall refer the matter to the Assembly, which shall decide upon
measures to be taken to give effect to that decision, 254 including imposition of
sanctions86.

3.3. Relationship between the African Commission and the African Court

Both the Commission and the Court have a mandate of promoting and monitoring the
African Charter on Human and People’s Rights, , the African Court of Human and
Peoples’ Rights merged with the African Court of Justice to create the African Court of
Justice and Human Rights. Both institutions continue to operate during the period of
transition necessary before the entry into force of the 2008 treaty. Both the Commission
and the Court are competent to examine situations of human rights violations and
complaints or communications filed by Member States or individuals87.

In addition to States, individuals and NGOs can submit communications to the African
Commission for Human and People’s Rights, which is competent with regard to all States
Parties to the African Charter on Human and People’s Rights (currently fifty-three
States). Nevertheless, such communications are subject to various admissibility
conditions.

Individuals and NGOs can file complaints before the African Court of Justice and Human
Rights, but only against States that expressly accepted its jurisdiction.

The African Charter provides that the African Commission submit its activity reports to
the Assembly of Heads of State and Government. Reports may be published only after
they have been considered and approved by the Assembly. The Protocol on the African
Court similarly requires the Court to submit a report to each regular session of the
Assembly. Although this practice is no different from that of other regional human rights
86
Ibid at fn.13 assessed 0n 18 February, 2024
87
ttps://guide-humanitarian-law.org/content/article/3/the-african-commission-and-african-court-for-human-
rights/. . assessed on 23 February, 2024

29
bodies, the experience has not been comforting in Africa. In many instances, the
Assembly has served merely as a rubber stamp for the publication of the Commission’s
reports88.

The Protocol nevertheless tries to maintain a balance between the work of the Court and
the Commission. The Commission is the preliminary body for the settlement of disputes
between two states or between an individual and a state. In other words, the Commission
serves as an organ of investigation to help the Court’s judgment on the case. It will play a
prominent role as a filter mechanism89.

3.4. Analysis of other Regional Human Rights Mechanisms

The protection of international human rights began at International plane, but it was
observed that some of the rights enunciated must trickle down not only to state parties but
regions must partake. It was this that necessitated regional instruments to take care of
human rights issues within the regions. The first region to respond to a specific right
instrument is the Europe. Followed by the Americas, and then Africa, later Middle East
and Asia,90

(a) The European Court of Human Rights

The European Court of Human Rights is based in Strasbourg; the role of the court is set
out in the text (Arts 46-56). Members of the court are elected by the Consultative
Assembly and members are made up of corresponding members of the Council of
Europe. Candidate are required to be of high moral character and sit in the court on
individual capacity and are not to hold any incompatible position when serving as judges
of the court. Only a state party or Commission could bring a case to the Court as of right

88
https://issafrica.org/chapter-6-relationship-of-the-african-commission-and-the-african-court-with-other-key-
entities. Assessed on 23 February, 2024
89
N.F Nzuka Seminar Paper on Human Rights Enforcement: A case study of African Commission on Human and
people’s rights fn88 Ibid p 97 - 98. @ www.
africanreview.org/docs/rights/grandbaby.pdfhttps://unilag.academia.edu/izukanwanze assessed on 23 February,
2024
90
Askia Karibi-Whyte supra. Pg 37

30
and the jurisdiction of the court extends to all matters of interpretation and application
arising under the convention91.

The Court of Justice made it clear that provision of Community Law must be construed
and applied by Member States with reference to principles of fundamental rights. Besides
highlighting the convention as a source of general principles to which it will have
recourse, the ECJ’s ruling suggested that provision of community law must be construed
and applied by Member States with reference to those principles.92

The European Court of Human Rights has given important decisions, whose
jurisprudence has been well accepted by other regions for its logic. Some of the decisions
have a wide-reaching implication for the international community. In the German case of
Hauer v Land Rheinland-Pfalz93 . The plaintiff sought to challenge the decision of an
administrative authority in Germany which had not granted her authorization in respect of
planting new grapes on her land, The Court held that … fundamental rights form an
integral part of the general principles of the law, the observance of which it ensures,
drawing inspiration from the constitutional traditions common to the Member States.
Therefore, measures which are incompatible with rights recognised in constitutions of the
Member States would also be unacceptable to the Community. Similarly, international
treaties for the protection of fundamental rights to which the Member States are
signatories can supply guidelines which would be followed within the framework of
Community law.

In terms of the specific right to property, it was deemed to be guaranteed in the

Community legal order, in accordance with ideas common to the constitutions of the
Member States and also reflected in the First Protocol of the ECHR. All the wine-
producing countries had restrictive legislation concerning the planting of vines and so the
restriction imposed by the regulation was not per se unlawful. As such, the restriction was

91
Ibid, pg. 42
92
Javaid rehman, International Human Rights Law: A practical approach, Peason Education Limited 2003. Pg.184
93
Ibid. fn. 79. Pg.183 Hauer v Land Rheinland-Pfalz 44/79 (1979)ECR 3727

31
justified by Community objectives of general interest and did not infringe the substance
of the right to property.

(b) Inter-American Court of Human Rights

Article 33 establishes the two organs that…shall have competence with respect to matters
relating to the fulfillment of the commitments made by the State Parties' the Inter-
American Commission of Human Rights and the Inter-American Court of Human Rights.

Chapter VII of the Convention deals with the Inter-American Court of Human Rights. As
the Court itself has stated, The Inter-American Court of Human Rights is an autonomous
judicial institution whose purpose is the application and interpretation of the American
Convention on Human Rights. The Court exercises its functions in accordance with the
provisions of the aforementioned Convention and the present Statute94.

The Court exercises adjudicatory and advisory jurisdiction. Its adjudicatory jurisdiction
shall be governed by the provisions of Articles 61, 62 and 63 of the Convention; its
advisory jurisdiction is governed by the provisions of Article 64 of the Convention 95. The
Court shall consist of seven judges, nationals of the member states of the OAS, elected in
an individual capacity from among jurists of the highest moral authority and of
recognized competence in the field of human rights, who possess the qualifications
required for the exercise of the highest judicial functions under the law of the State of
which they are nationals or of the State that proposes them as candidates. No two judges
may be nationals of the same State96.

94
https://www.corteidh.or.cr/estatuto.cfm?lang=en. Assessed on 28 February, 2024
95
Ibid
96
Ibid

32
The right to summit case to the Court is limited to States, Parties and the Commission 97
Individuals do not have such a right. In order for the Court to hear a case, the procedures
set out in Article 48-5098

(c) Inter-American Commission of Human Rights

The IACHR is a principal and autonomous organ of the Organization of American States
(“OAS”) whose mission is to promote and protect human rights in the American
hemisphere. It is composed of seven independent members who serve in a personal
capacity. Created by the OAS in 1959, the Commission has its headquarters in
Washington, D.C. Together with the Inter-American Court of Human Rights (“the Court”
or “the I/A Court H.R.), installed in 1979, the Commission is one of the institutions
within the inter-American system for the protection of human rights (“IAHRS”)99.

The formal beginning of the IAHRS was approval of the American Declaration of the
Rights and Duties of Man at the Ninth International Conference of American States held
in Bogota in 1948. There the OAS Charter (hereinafter “the Charter”) was adopted,
which declares that one of the principles upon which the Organization is founded is the
“fundamental rights of the individual.”

Full respect for human rights appears in several sections of the Charter, underscoring the
importance that the Member States attach to it. In the words of the Charter, “the true
significance of American solidarity and good neighborliness can only mean the
consolidation on this continent, within the framework of democratic institutions, of a
system of individual liberty and social justice based on respect for the essential rights of
man.” The Charter establishes the Inter-American Commission on Human Rights
(IACHR) as one of the principal organs of the OAS whose function is to promote the

97
Article 61, para 1
98
Janusz Symonides, Human Rights International Protection Monitoring Enforcement.2003 UNESCO Publishing.
Pg.194
99
https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/mandate/what.asp. Assessed on 2 March, 2024

33
observance and protection of human rights and to serve as a consultative organ of the
Organization in these matters.

The work of the IACHR rests on three main pillars:

 the individual petition system;
 monitoring of the human rights situation in the Member States, and
 the attention devoted to priority thematic areas.
Operating within this framework, the Commission considers that inasmuch as the rights
of all persons subject to the jurisdiction of the Member States are to be protected, special
attention must be devoted to those populations, communities and groups that have
historically been the targets of discrimination. However, the Commission’s work is also
informed by other principles, among them the following: the pro homine principle,
whereby a law must be interpreted in the manner most advantageous to the human being;
the necessity of access to justice, and the inclusion of the gender perspective in all
Commission activities.100

4. Recommendation and Conclusion

4.1 Recommendations

This paper has examined the strengths and impediments of the African commission on
human and people’s rights, Undoubtedly the commission still has a long way to go in its
enforcement obligations because of the constraint to its powers and majorly because it
has no legal standing to issue authoritative and binding decisions which has seriously
undermined the commission as an effective and meaningful human rights enforcement
mechanism in Africa.

Be that as it may, the African system of enforcement of human rights disposes of a large
range of tools that make possible the effective promotion and protection of human rights
in the region.

100
Ibid

34
This is not to say that the African system as it looks today is an achieved one, however
we need to accord the commission with some credit and proffer solutions on how to
improve the institution and remedy its shortcomings.

It is therefore recommended that the African charter be reviewed in order to expand the
enforcement powers or mechanisms of the commission with a view to setting it on the
same pedestal with the African Court, or even the European Court, in which case, instead
of merely lashing out recommendations, it can also impose some measure of sanction on
human rights violators.

Secondly, expunge from the Charter clawback clauses which permit in normal
circumstances, breach of an obligation for a specified number of reasons.

Furthermore, there is need to resolve the issue of lack of compliance by states with
periodic reporting in other to measure up with it international standards, for instance,
various reporting mechanisms exist under the UN human rights instruments ranging from
the CERD, ICCPR, ICESCR, CEDAW, CAT and CRC. Reporting under each of these
instruments is done to a Committee which the instrument has established and in all cases,
the state parties are required to submit reports on measures they have taken to
implement the particular Convention to the Secretary-General of the UN, who in turn
makes them available to the particular Committee. The committee examines the reports
and makes suggestions and general recommendations which are taken to the General
Assembly.

Also, at the regional level, Article 57 of the Revised European Convention provides to
the effect that the Secretary-General of the Council of Europe has the right to request
from any High Contracting Party any to furnish Commission with such information,
which the Commission might request from them. Under this system, once the request is
made by the Commission, the state party must furnish it.

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To overcome the problem of ignorance of the activities of African Commission and the
existence of African Human Rights Court, there is need for the commission to carry out
elaborate public awareness campaign of its mandate at the urban and rural level.

In the meantime, the African Commission and the African Court should take advantage
of what is available to them and do their best to efficiently protect human rights in the
region. With the establishment of African Human Rights Judicial bodies it is believed
that if these recommendations are religiously implemented, the African Commission, as a
human rights institution Africa, will give meaning and positive effect to the African
Charter and other international, regional and sub-regional human rights instruments
ratified by African States.
4.2 Conclusions
The continent of Africa represents a serious test for those wanting to ensure an effective
system of protecting individual and collective group rights. The modern history of Africa
has been an unfortunate one. And the transition from repressive colonial regimes to
independent statehood has not been satisfactory. In many instances, soon after
independence, dictatorial and authoritarian regimes took charge of the Independent states
and showed little regard for human dignity and human rights.
In today’s global village, crime against humanity should be seen as a crime against all
mankind. As a matter of fact, a threat to peace in one part of the world – consequent
upon human rights violation can easily snowball into global catastrophe. This is why
international community cannot fold its arm and sees a leader brutalize his/her
population. Human Rights are like air, it knows no barrier; they blow across the globe for
the sustenance of human beings irrespective of their creed, religion, ethnic background,
sex, age and status.

Endnote
N.F Nzuka, ibid: @ https://unilag.academia.edu/izukanwanze assessed on 15 February, 2024
https://www.african-court.org/wpafc/welcome-to-the-african-court/ assessed on 24 February,
2024s
https://achpr.au.int/en/about (assessed on 15 February, 2024)
http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-1/short-history.htm (assessed on

36
15 February, 2024 ttps://guide-humanitarian-law.org/content/article/3/the-african-commission-
and-african-court-for-human-rights/. . assessed on 23 February, 2024
https://issafrica.org/chapter-6-relationship-of-the-african-commission-and-the-african-court-
with-other-key-entities. Assessed on 23 February, 2024

Books
Human Rights Law and Practice in Niigeria 2nd revised edition, Osita Nnamani Ogbu,
International Protection of Human Rights Askia Karibi-Whyte
Human Rights made Easy by Tokunbo Ige

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