Established by the African Charter on Human and Peoples' Rights, which came into force on 21 October 1986 after its adoption by the Assembly of Heads of State and Government of the Organization of African Unity (OAU), the African Commission on Human and Peoples' Rights is charged with ensuring the promotion and protection of Human and Peoples' Rights throughout the African continent.
The procedure followed by the Commission in considering complaints is of a highly confidential nature. Complaints can be made by States (against other States Parties) or by others (physical or moral person, private or public, African or international persons). In the latter case, the Commission considers complaints at the request of the majority of its members.
PROVISIONAL MEASURES: If the victim's life, personal integrity or health is in imminent danger, the Commission has the powers under Rule 111 of its Rules of Procedure to adopt provisional measures, thereby urging the State concerned not to take any action that will cause irreparable damage to the victim until the case has been heard by the Commission. The Commission can also adopt other urgent measures as it sees fit.
ADMISSIBILITY OF COMPLAINTS: Individuals and organisations may lodge a complaint with the African Commission alleging that a State Party to the Charter has violated one or more of the rights guaranteed.(1) For a complaint to be admissible:
- The communication 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 media;
- 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;
- The communication must not deal with a matter, which has already been settled by some other international human rights body.
THE MERITS: In accordance with Rule 119, if the Commission decides that a complaint is admissible, it will inform the State concerned and the complainant. The State is then given 3 months to reply to the Commission providing explanations on the complaint and suggesting a way in which to remedy the situation. These will be forwarded to the complainant who will be given an opportunity to reply.
FRIENDLY SETTLEMENT: Once a communication is declared admissible, the Commission may offer its good offices to facilitate a settlement of the dispute. If a friendly settlement is reached, a report containing the terms of the settlement is presented to the Commission at its session. This will automatically bring consideration of the case to an end. If no agreement is reached, a report is submitted to the Commission and the Commission will take a decision on the merits of the case.
DELIBERATIONS: During the session in which the Commission is hearing the substance of the complaint, the Parties can make written or oral presentations to the Commission. Where the Commission does not have sufficient information from the Parties, it may undertake an ex officio investigation, obtaining information form any other source.
THE DECISION/REMEDY: On the basis of all of the information received, the Commission will make its 'observations' known to the parties. If a violation is found, it will make recommendations to the State Party concerned. However, the Commission does not have much power to secure compliance with its recommendations.
THE SPECIAL RAPPORTEUR ON PRISONS AND CONDITIONS OF DETENTION IN AFRICA
The mandate of the Special Rapporteur on prisons and conditions of detention in Africa was created in 1996 by decision of the African Commission. Its primary functions are monitoring and fact-finding, but additionally, it may receive information from individuals, organisations and others. It can carry out fact-finding visits to States Parties and publish the findings of these visits. It may recommend certain courses of action based on the information received, and respond to urgent matters coming within its purview.
THE GUIDELINES AND MEASURES FOR THE PROHIBITION AND PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN AFRICA (THE ROBBEN ISLAND GUIDELINES)
The 'Robben Island Guidelines' were adopted at the 32nd session of the African Commission in October 2002. The Guidelines encourage ratification of regional and international instruments prohibiting torture, and urge States to cooperate with the African Commission on Human and Peoples' Rights and its Special Rapporteurs as well as the United Nations Human Rights treaty bodies and thematic and country-specific special procedures. Significantly, the Guidelines set out a range of practical measures for States to undertake that are aimed at eradicating torture, such as: putting in place safeguards to prevent torture; ending impunity for alleged perpetrators; and assisting survivors.
THE AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS
An African Court on Human and Peoples' Rights was established on 25 January 2004. Under Article 5 of the Protocol on the Establishment of an African Court on Human and Peoples' Rights, those who are entitled to submit cases to the Court include: the Commission, the State Party which has lodged a complaint to the Commission, the State Party against which the complaint has been lodged at the Commission, the State Party whose citizen is a victim of the human rights violation and African Intergovernmental Organizations. In addition, Article 5(3) specifies that "The Court may entitle relevant Non Governmental organizations (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 27 of the Protocol specifies that: "if the Court finds that there has been violation of a human or peoples' rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation. 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."