Historically, the idea of human rights protection mechanism in Africa was first conceived in the

early 1960’s. At the first Congress of African Jurists, held in Lagos, Nigeria in 1961, the
delegates adopted a declaration (referred to as the ‘Law of Lagos’) calling on African
governments to adopt an African treaty on human rights with a court and a commission i.
However, at the time African governments did not take serious steps to promote this concept.
The 1963 Charter establishing the Organization of African Unity (OAU) imposed no explicit
obligation on member states for the protection of human rights. The OAU’s founding Charter
only required states parties to have due regard for human rights as set out in the Universal
Declaration of Human Rights in their international relations ii In 1967 the Law of Lagos was
revived on the need for regional protection of human rights in Africa. The United Nations (UN)
through The UN Human Rights Commission facilitated the creation of a regional human rights
system in Africa. The African Charter is also referred to as the ‘Banjul Charter’ was adopted by
the OAU Assembly on 28 June 1981, in Nairobi, Kenya. After ratifications by an absolute
majority of member states of the OAU, the Charter came into force on 21 October 1986 iii. The
three primary organs of the African system of Human Rights are the African Commission on
Human and Peoples’ Rights herein referred as the African Commission, the African Court
on Human and Peoples’ Rights and the African Committee of Experts on the Rights and
Welfare of the Child (Child Rights Committee).

Introduction.

The African system is the youngest of the three Judicial or Quasi-Judicial Regional Human rights
systems and was created under the auspices of the African union. It includes a commission and a
court with complimentary mandates i.e. the African Commission on Human and Peoples Rights
herein referred to as the “African Commission” and the African Court of Human and Peoples
Rights all of which assess State’s compliance with Human Rights standards. The African
Commission on Human and Peoples Rights is established under article 30 of the African
Charteriv and its major role is to promote Human and Peoples Rights and ensure their protection
in Africa. were retaliated in the case of Good v Botswana (2010)AHRLR 43 (ACHPR 2010) v
where they noted that ‘An African Commission on Human and Peoples' Rights, shall be
established within the Organization of African Unity to promote human and peoples' rights and
ensure their protection in Africa under article 30 of the African Charter’. It is constituted by 11
members chosen from amongst African Personalities of the highest reputation who are known
for their high morality, integrity, impartiality and competence in matters of human and people’s
rights having been elected by the assembly of Heads of State and government from a list of
persons nominated by the State parties of the African Charter vi. Chapter II of the African Charter
provides for the mandate of the Commission and it is to promote Human and Peoples Rights vii
according to article 45(1) of the African Charter, Ensure the protection of human and people’s
right under the conditions laid down in the African Charter under article 45(2) and Interpretation
of the provisions of the African Charter subject to article 45(3). The Commission was
inaugurated on 2nd November, 1987 in Addis Ababa, Ethiopia and its Secretariat has
subsequently been located Banjul, the Gambia.

Body

The African commission has tried to play a significant role in the promotion, protection and
realization of human and people’s rights in Africa since it has been able to adjudicate a number
of disputes for example in the case of Constitutional Rights Project v.
Nigeriaviii, Communication 60/91, Wahab Akamu, Gbolahan Adeaga and others were sentenced
to death under the Robbery and Firearms (Special provision) Decree No. 5 of 1984 which did not
provide for any judicial appeal of sentences that were a subject to confirmation or disallowance
by the Governor of a state. The complainant alleged that they were tortured to extract
confessions while in custody. The commission declared that there was a violation of fundamental
rights as described in Article 7.1(a) of the Charter and thus recommended the Government of
Nigeria to free them and made a planned mission to ensure that the violation was no more.
Similarly in Good v Botswanaix Kenneth Good, an Australian national, teaching at the University
of Botswana, had his employment terminated after his expulsion from Botswana on 31 May
2005, Good without any substantial reasons for the decision neither was there any process to
challenge it administratively. The High Court ruled that the President’s exercise of his powers
under section 7(f) was not reviewable which led to the dismissal of the appeal to the Court of
Appeal on grounds that “the president, in making such declarations, was empowered to act in
what he considered to be the best interest of the country, without judicial oversight”. The African
Commission held that the President’s decision had infringed his rights to information and to
freedom of expression and noted that the rights (“to protect the rights or reputation of others, for
national security, public order, health or morals”) were not absolute and could be limited,
referring to the Declaration of Principles on Freedom of Expression in Africa, and that
restrictions on the exercise of rights were only permissible when they were “provided by law,
served a legitimate interest and were necessary in a democratic society. It therefore concluded
that the President’s actions were unnecessary, disproportionate and incompatible with the
practices of democratic societies, international human rights norms and the African Charter in
particular”(pg.89)x and thus called upon Botswana to provide Good with adequate compensation
and take steps to bring the Immigration Act into line with international human rights standards,
specifically the ACHPR. In (World Organization against Torture and Others V Zaire, 1989), 15
people were tortured by military at Kinsuka near Zaire River as alleged on 19 January, 1989.
They were subjected to severe forms of torture thus several people protested their treatment and
they were detained and held indefinitely. Communication 47/90 describes in detail many
arbitrary arrests, detention, torture among others. Communication 56/91 concerned the
persecution of the Jehovah’s witnesses which was a religious group. Communication 100/93
contained allegations of tribalism, mismanagement of funds, poor service delivery and
restrictions on freedom. Evidence was adduced to that effect and the Commission tried to on
more than one occasion to engage the government of Zaire but it was all in vain. The
commission therefore held that the facts constituted serious or massive violations of the African
Charter namely Article 4, 5, 6,7,8,9.2, 10.1, 12.2, 16, 17, 18.3 and 26. Such actions by the
Commission have continued to promote and protect human rights.

The Commission is mandated to interpret the provisions of the Charter upon a request by a state
party, organs of the AU or individuals. However according to the ordinary session of the
African Commission on Human and People’s Rights that was held from the 21 st of October-
the 9th of November, 2022xi, no organ of the AU has referred any case of interpretation of the
Charter to the Commission none the less 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 Charter for example through different
websites such as the https://www.achpr.org/legalinstruments/detail?id=49 where it provides a
detailed interpretation of the articles of the African (Banjul) charter on Human and People’s
rights.
However, despite of the fact that the African commission on Human and Peoples Rights has
played a significant role in the promotion, realization and prevention of violations of Human
Rights in the African System, it has to a larger extent not made a meaningful impact on the
protection and realization of human and people’s rights on the continent due to some challenges
and this has tarnished the name of the African System of Human rights as good as useless
because of the following reasons.

Negative/challenges

Most of the decisions taken against all States that have violated the rights enlisted under the
African Charter by the African Commission on Human and Peoples Rights have not been
complied with thus making the African system as good as useless on the perception that they are
not legally binding among the states parties xii. In (Angola: Amnesty International submission to
the African Commission, 2012)Amnesty International, was concerned about Angola’s apparent
unwillingness to cooperate with the International Human Rights Bodies and organizations
including the African Commission, in the promotion of human rights in the country and contrary
to Article 62 of the African Charter, it was noted that Angola had not complied with the
decisions of the African Commission taken against it. Article XII (1) of the African Commission
Declaration of Principle on Freedom of Expression in Africa stated that sanctions for defamation
should never be so severe as to inhibit Freedom of Expression and the Resolution on Repealing
Criminal Defamation laws in Africa calls on states “to repeal criminal defamation laws or in suit
laws” which impede freedom of speech according to the African Commission on Human and
Peoples Rightsxiii. It was noted that in spite of all this, article 40 (4) of the Angolan Constitution
stated that anyone who committed an infraction in the course of exercising their Freedom of
Expression was to be held liable including criminally and this article effectively placed criminal
sanctions on defamation cases and entrenched the imposition of prison sentences for defamation
contained in Angola’s Criminal Code. In 2011, Parliament had passed a cybercrime law which
included Criminal sentences for defamation and contained the provisions that posed a serious
threat to freedom of Expression. In (Institute for Human Rights and Development in Africa v
Republic of Angola, 2009), the complainant alleged that the group of Gambians was expelled
from Angola en masse on 23rd May 2014 and that in addition to the 217 Gambians, tens of
thousands of other Nationals had been expelled from Angola in the same Year which was
contrary to Article 12 (5) of the African Charter which prohibits mass expulsion of Non
Nationals. The ACPHR ruled that mass expulsion was a special threat to Human Rights, adding
that a Government action specially directed at specific National, Racial, Ethnic or Religious
groups was generally qualified as discriminatory in the sense that none of its characteristics had
any Legal Basis or could constitute a source of particular incapacity. This was similar in the
other communication on p.12 in the reportxiv. In both communications, the African Commission
stated that the Government had violated Art. 12(4) and (5) of the African Charter but in spite of
the decisions and recommendations by the African Commission for Angola to redress these
violations, the Angolan Authorities had continued to forcibly expel non-nationals from the
territory en masse and without due process i.e. According to the report, from 2008, hundreds of
thousands of Non-nationals, the majority of whom were from the DRC had been forcibly
expelled en masse from the country and according to the International Committee for the
Development of peoples, at least 55,000 Nationals of the DRC were expelled in 2011 alone.
These forcible expulsions had been accompanied by sexual violence, torture and other cruel,
inhuman and degrading treatment and that in 2009, there were reports of people who were dying
of Asphyxiation due to the overcrowded conditions in which they were transported to the Border.
Angola had also failed to submit its reports since 1988 and that its current submission was only
the second one since the country accede to the African Charter in 1990 regardless of article 62 of
the African Charter.

In regards to mechanisms established to follow up on the implementation of the decisions of the

Commission, the Representatives from Kenya and Madagascar in (Report on The Second
Regional Seminar on the Implementation of Decisions of the African Commission on Human
and People's Rights, 04 - 06 September 2018, p. 4) noted that generally, most African states in
the East and southern Region with a few exceptions have established inter-ministerial
committees to monitor decisions of treaty Bodies and prepare reports in accordance with the
ratification of legal Human Rights instruments however the committees face certain operational
challenges including inadequate financial resources, capacity constraints such as limited
knowledge of instruments, competing priorities , lack of statistical data on various rights
obligations. In terms of the legislative and organizational structure of the respective NRHIs xv,
there was lack of legislative authority of NRHIs to hold their Governments accountable, compel
them to implement their decisions and implementations further exuberating by efforts of States
Parties to leave them on shoe string budgets that often place severe limitations on their output. In
regards to the implementation of NGO’s, need for information sharing between the commission
and NGO’s to ensure their proactive role in the implementation of the decisions of the
commission. The ACPHR noted that it had inadequate commitment of the States Parties, lack of
communication and visibility i.e. delay in the publication of the Commission’s
recommendations.

Many states lag behind with their obligation to submit state reports under the Charter, thus
depriving the Commission of a regular opportunity for reviewing the state’s human rights record.
States have generally lacked political will to comply with the recommendations of the
Commission. In the Communication 319/06 - Interights & Ditshwanelo v. The Republic of
Botswana, the Respondent State was urged to submit the requested submissions within one
month by 7 March 2007. By a Note Verbale dated 24 April 2007, the Commission reminded the
Respondent State of its request for the latter’s response to the Complainants submissions on
Admissibility and requested the State to make the required submission by 10 May 2007. By the
same Note Verbale, the Commission informed the Respondent State that if the requested
submission was not made, the Commission might have been obliged to take a decision on
Admissibility based on the facts before it, in line with Rule 117(4) of the old Rules of Procedure.
At its 41st Ordinary Session held from 16 to 30 May 2007, in Accra, Ghana, the Commission in
the absence of any response from the Respondent State, acted on the evidence before it in line
with Rule 117(4) and declared the Communication Admissible. So from this case it can be seen
that member states are not willing to comply with the activities of the commission thus
preventing the commission from realizing its mandates.

Reforms

In regards to the ACHPR’s Lack of monitoring mechanisms, it should; institutionalize a mechanism to

monitor the implementation of its recommendations and decisions and Continuously report on the non-
implementation of its decisions to the policy organs, to enable the Executive Council to urge State
parties to comply. In terms of Lack of communication and visibility, it should: Develop a communication
strategy taking into account the special relationships between the Commission, States Parties, NHRIs
and consult these stakeholders in the formulation of the strategy; Collaborate with all stakeholders
including NHRIs in disseminating recommendations and decisions of the Commission with a view to
ensure maximum visibility for necessary action; Ensure sustained
communication/interaction/engagement with relevant stakeholders to increase the level of
implementation of the Commission’s decision including during promotion missions; Organize additional
implementation seminars to ensure continued dialogue with and between States Parties, NHRIs and
NGOs. The ACHPR should also in order to support stakeholders Proactively engage with NHRIs and NGOs
during the process for application of Affiliate Status and Observer Status with the Commission and
ensure that they comply with their duties therein, including ensuring regular attendance at sessions,
Organise training sessions and implementation seminars on its working methods, the complaints
handling procedure and related issues for all stakeholders; Develop guidelines in the respective AU
working languages with indicators to assist States Parties and NHRIs in monitoring the implementation
of its decisions/recommendations, Provide information to NHRIs on concluding observations and other
decisions through NANHRI, with a view to widely disseminate and publicize decisions at the national
level, NANHRI and the Commission to strengthen collaborative relationship including, to utilize the
resources at the disposal of NANHRI.

Bibliography
Institute for Human Rights and Development in Africa v Republic of Angola, Communication 292 (ACPHR
2009).

International, A. (2012). Angola: Amnesty International submission to the African Commission. London,
United Kingdom: Amnesty International Publications.

Rights, A. C. (04 - 06 September 2018). Report on The Second Regional Seminar on the Implementation
of Decisions of the African Commission on Human and People's Rights. Zanzibar, Tanzania:
African Union.

Rights, A. C. (2022, November 21st). ACHPR. Retrieved from An Organ of the African Union: ACHPR:
https://achpr.au.int/en/about/mandate

World Organization against Torture and Others V Zaire, Communication 25 (ACPHR 1989).
i
A Guide To The African Human Rights System Published by: Pretoria University Law Press (PULP), 2016
ii
Ibid.
iii
Ibid note i
iv
The African (Banjul) Charter on Human and People’s Rights adopted on the 27 th of June 1981, OAU Doc. CAB/LEG/67/3
rev.5, 21 I.L.M.58(1982), And entered into force on 21 October 1986
v
pg.57
vi
Article 33 of the African Charter
vii
This can be done through collection of documents, undertaking studies and researches on African Problems in the field
of Human and people’s rights, organizing seminars, symposia and conferences, disseminate information, encourage
national and local institutions concerned with Human and people’s rights and give its views or make recommendations to
Governments formulating and laying down principles and rules in relation to Human and Peoples Rights and Fundamental
freedoms upon which African Governments may base their legislations, through cooperation with African and
International Institutions concerned with the promotion and protection of Human and people’s rights.
viii
African Commission on Human and Peoples' Rights, Comm. No. 60/91 (1995).
ix
(2010)AHRLR 43 (ACHPR 2010)
x
African Law Reports 2010
xi
(ACHPR, 2022)
xii
(Report on The Second Regional Seminar on the Implementation of Decisions of the African Commission on Human and
People's Rights, 04 - 06 September 2018, p. 2)
xiii
Meeting at its 48th Ordinary Session held in Banjul, the Gambia from 10 th -24th November 2010 Acphr Res 169 (XIViii)
(2010)
xiv
Communication No. 156/96 Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des
Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au Sénégal
and Association Malienne des Droits de l’Homme au Angola
xv
National Human Rights Institutions