African Commission on Human and Peoples’ Rights
The African Commission on Human and Peoples’ Rights (the “Commission”) is the core human rights institution within the AU and is responsible for interpreting the African Charter on Human and Peoples’ Rights (the “Charter”). It’s work is guided by the vision of:
“…an Africa characterised by respect for and observance of human rights, where the rights guaranteed under the Charter are known and advocated for by African people; and promoted, protected, respected and fulfilled by the State Parties.”
The Commission meets twice a year in ordinary session, with the possibility of extraordinary sessions if the need arises. It consists of 11 members elected by the AU Assembly from experts nominated by states parties to the African Charter on Human and Peoples’ Rights (the “Charter”) and each has a six year mandate that is renewable. Each Commissioner serves as an independent expert (i.e. serve in their personal capacity) and cannot be employed as a senior civil servant or diplomatic representative during their tenure.
In addition to Commissioners, there is also a Bureau and a Secretariat that help to carry out the Commission’s duties. It consists of a Chairperson and Vice-Chairperson, each of whom are elected by the Commission. The Bureau of the Commission coordinates the activities of the Commission, and supervises and assesses the work of the Commission’s Secretariat. As well as taking decisions on matters of emergency between the Commission’s sessions. The Secretariat provides administrative, technical and logistical support to the Commission. It consists of a Secretary and support staff, all appointed by the Chairperson of the Commission.
Overall, Commission is responsible for (Article 45, ACHPR):
• Promote human and peoples’ rights and in particular:
To to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights and, should the case arise, give its views or make recommendations to Governments.
- To formulae and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislation.
- To cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.
- Ensure the protection of human and peoples’ rights under conditions laid down by the present Charter – including the submission of an annual report to the Assembly with recommendations.
- Interpret all the provisions of the present Charter at the request of a State Party, an institution of the OAU or an African Organisation recognised by the OAU.
- Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.
• Rules of Procedure of the African Commission on Human and Peoples’ Rights 2010
• A guide to the African Human Rights System
• Contact the Information and Documentation Centre (IDOC) of the Commission
How does it help tackle violence against women?
Violence against women is not only a criminal act – it is a violation of women’s fundamental rights and freedoms. As the AU’s primary organ for the promotion and protection of human rights, the Commission is empowered to ensure women’s rights are equally upheld by states parties (to the Charter) and determine which actions are required by states to ensure this happens (for an example, visit our ‘landmark cases’ page on EIPR and INTERIGHTS v. Egypt). The Commission accomplishes this work through a number of actions, including the review of state reports and review of individual communications. It has also created the Special Rapporteur on the Rights of Women in Africa to assist in the protection and promotion of women’s rights throughout the region.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the “Maputo Protocol”) is also one of the legal human rights instruments the Commission oversees. In this regard, the Commission may accept communications and parallel reports related to state parties’ compliance with the Maputo Protocol’s provisions. [Note: the Maputo Protocol is women-specific treaty that complements the Charter, providing a gendered perspective to the Charter’s provisions. Violence against women is directly addressed within the text of the Maputo Protocol under Article 4:
“4.1. Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.”
State obligations include the obligation “to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public.” (Article 4(2)(a)). The Maputo Protocol recognizes a variety of initiatives which States Parties must take, such as identifying the causes and consequences of violence against women (Article 4(2)(c)) punishing perpetrators and providing rehabilitation to victims, and promoting “peace education through curricula and social communication in order to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women.”(Article 4(2)(d))
Other provisions in the Maputo Protocol reinforce state responsibility to end all form of discrimination against women (see Article 2) – the driving force behind gender-based violence. You may visit our page on this treaty for more information.
As part of its work, the Commission may adopt resolutions during its sessions. These resolutions are formal expressions of the opinion of the Commission on a range of topics related to its mandate. Strictly speaking, resolutions are not treaties and do not require ratification from states parties, however they are considered authoritative statements on the content of legal duties assumed by states in specific contexts or with regard to a specific issue.
Some of the Commission’s resolutions related to gender-based violence include:
• 66: Resolution on the Situation of Women and Children In Africa
• 110: Resolution on the Health and Reproductive Rights of Women in Africa
• 111: Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence
• 165: Resolution on the Prevention of Women and Child Trafficking in South Africa during the 2010 World Cup Tournament
• 230: Resolution on the need for a study on the situation of women human rights defenders in Africa
• 260: Resolution on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services
• 262: Resolution on Women’s Right to Land and Productive Resources
• 275: Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity
• 283: Resolution on the Situation of Women and Children in Armed Conflict
• 284: Resolution on the Suppression of Sexual Violence against Women in the Democratic Republic of Congo
• 288: Resolution Condemning the Perpetrators of Sexual Assault and Violence in the Arab Republic of Egypt
• 335: Resolution on the Situation of Internally Displaced Persons in Africa – ACHPR/Res. 335 (EXT.OS/XIX) 2016
• 336: Resolution on Measures to Protect and Promote the Work of Women Human Rights Defenders – ACHPR/Res. 336 (EXT.OS/XIX) 2016
• 344: Resolution on the fight against impunity in Africa – ACHPR/Res. 344(LVIII) 2016
• 347: Resolution on the Human Rights issues affecting the African Youth – ACHPR/Res. 347(LVIII) 2016
The Commission also has the power to issue General Comments. These can be used to clarify states’ report obligations (e.g. requiring information on a specific issue must be included in reports) or to suggest approaches to implementing treaty provisions. They can also be written as interpretations and updates of the human rights treaty, often clarifying the meaning of specific provisions or highlighting thematic issues relevant to the treaty. In other words, they provide orientation for the practical implementation of human rights and form a set of criteria for evaluating the progress of states in their implementation of these rights.
Like resolutions, General Comments are not treaties and do not need ratification by states parties. Strictly speaking they are not legally binding, however they are considered authoritative statements on the content of legal duties assumed by states parties.
For examples of General Comments related to gender-based violence, read the excerpts below.
General Comments on Article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
“…Given the susceptibility of women to HIV and related rights abuses in Africa, the African Commission recognises that the societal context based on gender inequalities, power imbalances and male dominance has to be addressed and transformed in order for women to meaningfully claim and enjoy freedom from violence, abuse, coercion and discrimination.” (para. 3)
General Comment No. 2 on Article 14.1(a), (b), (c) and (f) and Article 14.2(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
“Sex-related violence against women is widespread in almost all African countries, including rape, incest, violence by a partner in the intimate space, including marital rape and first sexual experiences that occur by coercion. These acts of violence are some of the causes of mortality and morbidity, including the transmission of HIV and other sexually transmitted infections. They also generate unwanted pregnancies and the use, by victims, of unsafe abortion with its consequences such as psychological trauma.” (para. 14)
Joint General Comment of the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on ending Child Marriage
The Commission has prepared a joint General Comment on child marriage, with the African Committee of Experts on the Rights and Welfare of the Child on ending Child Marriage (30 January 2018). In this General Comment, it was noted that “girls are disproportionately at risk of and affected by child marriage, this Joint General Comment specifically aims to address some of the factors that make girls more susceptible to child marriage and its impacts, including their reproductive capacities and persistent gender inequality and discrimination against women. The disproportionate impact of child marriage on children with disabilities, migrant children, children who are refugees and children in child headed households is similarly noted.”(paragraph 5)
Guidelines on combating sexual violence and its consequences in Africa
The African Commission has published a set of comprehensive guidelines on how States should prevent, prosecute, punish and provide reparation for sexual violence of all kinds. These guidelines are based on African and international human rights law and standards, therefore are authoritative and describe State obligations in a comprehensive manner. The Guidelines contain important practical information about preventive strategies such as awareness raising in the general population, among children and young people, and among professionals who deal with the consequences of sexual violence. The Guidelines also contain practical details about the medical care that victims of sexual violence are entitled to – physical, mental, sexual and reproductive healthcare. The Guidelines also deal with State obligations to take a comprehensive policy approach to the issue which prioritises the implementation of gender equality – including national action plans, gender-responsive budgeting, and data collection.
Civil Society Engagement: Individual Communications, Parallel Reports and Observer Status
Note: The Commission does not have the authority to decide the guilt or innocence of an individual, nor can it overturn a state’s ruling in this regard. It may only issue judgments regarding a specific state’s compliance with its human rights obligations. It should also be noted that complaints may only be made against a member state, if that state has ratified the relevant treaties under the Commission’s authority.
The right of individual complaint gives particular strength to the human rights instruments of the AU. Individuals, groups or organisations can file a complaint to the Commission about a state party’s failure to promote and/or protect women’s rights. Complaints, however, must relate to the provisions of the Charter and/or one of the other human rights treaties the Commission has jurisdiction over – for example, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the “Maputo Protocol”).
Before filing a complaint to the Commission, certain criteria must be met. These determine the ‘admissibility’ of the complaint and are the first step in ensuring the Commission may hear the case. Broadly, these requirements are (see Article 56, African Charter on Human and Peoples’ Rights):
1. Applications must include the author’s name, even if anonymity is requested
2. Are compatible with the Charter of the Organization of African Unity or with the present Charter
3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity
4. Are not based exclusively on news discriminated through the mass media
5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged
a. For more information on exhausting domestic remedies, see Minority Rights Group International’s ‘Guidance: Exhausting domestic remedies under the African Charter on Human and Peoples’ Rights’.
6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter
7. Do not deal with cases which have been settled by these states involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter
Provisional measures (Rule 79-80, Rules of Procedure). If the Commission receives information that demonstrates the need for urgent action, it may take provisional measures to ensure the safety of the applicant(s) concerned in the communication. These measures are intended to immediately address the harms suffered by survivors while the Commission and other bodies of the AU undertake further measures to resolve the situation concerned.
Recommendations. If the Commission determines that a state has violated a women’s rights, it will issue recommendations in order to repair the harm suffered by the survivor. It will also determine what steps must be taken to prevent further occurrence of the human rights violation.
Although the Commission itself does not have the power to enforce its decisions, it may refer cases to the AU Assembly if evidence suggests the state has taken action to implement the recommendations.
Want more? The Commission has produced information sheets with information on individual communications:
• Information Sheet No. 2: Guidelines for the Submission of Communications
• Information Sheet No. 3: Communication Procedure
Under Article 62 of the African Charter on Human and Peoples’ Rights (see also: the Commission’s rules of procedure), states parties must submit a report to the Commission every two years. These reports must contain information on a state’s legislative action or other measures taken for the purpose of giving effect to the rights and freedoms of the Charter (as well as the rights under the Maputo Protocol – as long as the state has ratified it).
The Commission invites input from civil society actors to be used in their review of state reports (see Rule 74(2) of the Commission’s rules of procedure). This gives civil society actors the opportunity to present alternative evidence, views, findings and/or raise issues that are not covered by the state report. Input from civil society is submitted in the form of a report and parallel to the state report concerned. These reports are often referred to as “shadow” or “parallel” reports. They must be submitted to the Secretariat of the Commission at least 60 days prior to the examination of the relevant states report. Once submitted, the Commission reviews each parallel report with the state’s submission and then issues concluding observations based on its findings.
Secretariat of the Commission
31 Bijilo Annex Layout, Kombo North District
P.O Box 673 Banjul, The Gambia
Tel: 220 4410505/6; 2304361 | Fax: 220 4410504
Want more? Association Justice, Peace and Democracy (Angola), International Service for Human rights (Switzerland) and Conectas Human Rights (Brazil) have produced a resource on the state reporting procedure of the Commission
• All states reports and concluding observations can be found on the Commission’s website
• The Commission provides states with a detailed outline of the reporting procedure
As of September 2016, 477+ non-governmental organisations have been given observer status with the Commission. This status provides approved organisations the opportunity to participate in the Commission’s sessions. Broadly, this status allows organisations to:
• Present at the opening and closing sessions of all Sessions of the Commission
• Access documents of the Commission
• Receive invitations to attend closed sessions
• Make statements on issues of concern
• Be called to the floor to respond to questions directed at them by participants during sessions
• Request issues be included in the provisional agenda of the Commission’s session
Resolution 33 (African Commission on Human and Peoples’ Rights, 1999) provides guidelines and criteria for organisations that wishing to apply for observer status. If an organisation meets the criteria, it must submit a written application to the Secretariat in accordance with the requirements outlined in Chapter 1 of Resolution 33’s annex.
Secretariat of the Commission
31 Bijilo Annex Layout, Kombo North District
P.O Box 673 Banjul, The Gambia
Tel: 220 4410505/6; 2304361 | Fax: 220 4410504
Want more? The African Centre for Democracy and Human Rights Studies hosts an NGO Forum preceding the Commission’s ordinary sessions, and has more information on how to get involved with the Commission and its work