Part 3 The effectiveness of the African human rights system in responding to allegations of torture

By Christopher Kato Mpanga

The African Commission’s Communications Procedure

One of the key roles of the African Commission is to safeguard the peoples’ and human rights stated in the Banjul charter following the available procedures.93

To accomplish this, articles 48 to 49 of the Charter authorized the African Commission to receive and to evaluate the communications set forth by one country alleging that another state signatory of the Charter has contravened one or more sections of the document.94

In addition, article 55 of the Banjul Charter empowered the African Commission to accept, and to assess communications from individuals, and organisations claiming that a state signatory has breached one or more of the provisions set out in the agreement.95

The complainants are allowed to pull out their submissions at any time. In such circumstances, the Commission would terminate the proceedings without issuing any ruling.96

As stated by rule 111 of the African Commission’s Rules of Procedure, before giving its recommendations regarding a communication to a state party concerned, the Commission may notify the state if it's going to institute provisional measures to avoid irreversible damage to the party involved.97

Registration of Communications

The African Commission’s communications are normally submitted to the Secretariat of the Commission, located in Banjul, The Gambia. Upon reception of a communication, it is recorded under a file number in the Commission’s official list of communications. 98 Thereafter, the secretariat recognises its reception of the complainant’s message. In case more information is needed, the complainant is promptly informed.

Nevertheless, it is important to note that filing a complaint at the secretariat is not an assurance that it is going to be considered by the commission. Where a complaint is made against a country that is not party to the Banjul Charter, the grievance will not be recorded, and the complainant will be notified accordingly.

However, neither the African Charter, nor its rules of procedure offer legal representation, or legal aid for individuals filing communications to the Commission.

Well as the Commission’s individual complaints process is straightforward, hiring a lawyer to assist a victim in submitting a case is increasingly becoming important. This is because the Commission’s legal framework is gradually becoming more

complicated.

An International Human Rights legal practitioner is more likely to have the requisite skills to file a case before the Commission owing to the various technical issues that could come up. For instance, during the admissibility test stipulated in Article 56 of the Banjul Charter, more so when a concerned country’s domestic legal remedies have not been fully maximised owing to their ineffectiveness, or overly prolonged procedures.

This means that torture victims whose rights under the Banjul Charter could have been violated might not be able to secure justice from the Commission, as they cannot afford to hire lawyers to assist them in the process. Consequently, this creates injustice for such victims as they are unable to register their communications with the Commission.

Nevertheless, different human rights NGOs have come up to avail legal representation and legal aid to victims submitting complaints to the Commission. Such NGOs, especially those with observer status have helped to pressurize the Commission to avail faster reviews on their communications. Therefore, a victim who cannot afford legal representation can seek help from such NGOs in submitting their communication to the commission.

However, despite the availability of this option, questions still arise for cases where victims might not be taken on by human rights NGOs owing to being under-resourced, among others. This means that access to justice for such victims through NGOs, to the African Commission, might be impeded.

Seizure of the Communication

According to article 55 of the Banjul Charter, after a complaint has been recorded, it has to be considered by the commission. Consequently, when the Commission’s secretariat gets a communication against a country which ratified the Charter, a summary of the complaint is made and issued to each commissioner. As a result, a letter is dispatched to the complainant confirming that the communication has been received.

Having submitted the communication to every commissioner, the secretariat has to wait for a reply from not less than seven of the eleven members of the commission to show that they have been presented with the complaint, and have accepted seizure. On the other hand, in a circumstance where the secretariat fails to get a minimum of seven responses, the complaint would be tabled to before every commissioner at the Commission’s upcoming meeting.107

At this meeting, the commission would make a decision as to whether they would take on the complaint. This would be done by considering if the communication puts forth any breach of the Charter, or if the complaint was submitted in line with the established procedure as stated by article 55 of the Charter. Article 55 (2) of the Banjul Charter stated that a complaint shall be taken on by the commission if a simple majority of its members, that is to say, six members agree.

Once a communication has been considered by a simple majority of the commissioners, the secretariat would then be instructed to notify the complainant and the concerned country that the communication shall be reviewed on admissibility at the commission’s next sitting. In addition, the two parties involved are requested to present their comments within a stint of 12 weeks from the day the notification was issued. It is only at this stage that the country being complained about is fully informed about the communication.109

Pre-requisites for admissibility of a communication

As outlined below, Article 56 of the Banjul Charter set out seven admissibility guidelines for individual or related communications.

First, the communication has to show the author(s) name be it an individual or representatives of an NGO, even though the complainant requests to be kept anonymous. Nevertheless, upon being granted the permission to be kept anonymous, the communication would be accorded a letter in the alphabet, for example, C.

In addition, providing one’s name and address would ease the communication between the complainant and the Commission. If the communication has no name or address, it will not be taken on.

Second, the communication ought to refer to the provisions of the Banjul Charter and/or the OAU charter it claims to have been infringed. A complaint which does not show a contravention of one of the two charters will not be considered.

Third, the complaint ought not to be written in abusive language. Offensive language would prevent the communication from being considered.

Fourth, the communication should not be entirely based on news reports. The complainants ought to investigate and verify the authenticity of their facts prior to petitioning the commission.

Fifth, the complaint has to be made after exhausting all the domestic legal remedies, unless such processes have been overly prolonged.

Sixth, the communication ought to be presented to the Commission as early as possible, or within an appropriate portion of time from the point at which all the domestic remedies have been exhausted, or where the authors notice that processes will be overly prolonged.

Finally, the complaint should not be one which was settled in the past, or is in the process of being resolved through a credible international human rights system. For example the OAU, of the United Nations Human Rights Committee.

However, in Ligue Camerounaise des Droits de I'Homme v Cameroon (2000) AHRLR

61, despite having the medical evidence backing up torture claims as stipulated in Rights International v Nigeria (2000) AHRLR 254 (ACHPR 1999), the communication was pronounced inadmissible. This is because it had insulting language. That is to say, among others, the communication referred to Cameroon’s government as a regime of tortures. Although the Banjul Charter authorises the African Commission to pronounce a complaint inadmissible if it has been written in an insulting manner, the commission should have considered the substance, as opposed to the form in this communication.

In addition, it could be contended that not many legal practitioners, victims of torture,

or human rights advocates are fully aware of the Commission’s decorum. This could be because the Commission has not raised much awareness regarding its communication procedures to a good number of state signatories.Therefore, the Commission should have considered issuing a caution for such a mistake owing to the fact that it was the complainant’s first time to breach the procedure. The preservation of human rights ought to be considered as priority as opposed to legal technicalities which may not easily be understood by non-expert victims, or complainants.

Acceptance of a Communication

Admissibility of a complaint is the determination of the Commission as to whether a seized communication pursuant to article 55 of the Banjul Charter meets all the criteria set out in Article 56 of the same document. If a communication presented does not meet all the criteria set out in Article 56 of the Banjul Charter, it is rendered inadmissible. Consequently, the case is closed.

A decision on admissibility can only be made after the complaint has been communicated to the concerned country, and such a country has been given the chance to make its comments. The complainant and the country concerned are given a period of three months to make their comments after receiving the communication.

After examining the cases set forth by the state and the complainant, the Commission may make their ruling on the matter. When a ruling regarding admissibility is made on a complaint, it is communicated to its author and the state concerned. A ruling made on admissibility is final.

Nevertheless, a communication pronounced inadmissible could be re-evaluated in the long run if the complainant can table evidence showing that the reasons for rejecting the communication no longer exist. Conversely, if a communication is accepted, the parties involved are notified and instructed to send their comments on the merits of the case.

Amicable resolution

When a complaint has been considered admissible, the Commission avails itself to the contending parties to secure a cordial settlement of the disagreement. If the two parties show interest in amicably resolving the case, the Commission designates a rapporteur, in most cases the Commissioner who has been in charge of the matter, or a Commissioner in charge of the advancement of the Commission’s work in the country concerned, or a team of commissioners.

If an amicable resolution is achieved, a report indicating the terms and conditions of the agreement is tabled before the Commission during its meeting, thus ending the dispute. On the contrary, if the parties have not been able to reach an amicable resolution, a report is presented to the Commission by the concerned commissioners so that the commission can make a ruling on the merits of the case.

Evidence

Having satisfied the terms outlined in article 56 of the Banjul Charter, the complainant ought to make accurate allegations by providing the relevant documents where possible, and avoiding tabling generic accusations.

Similarly, a denial of the accusations by the state is not sufficient. The state ought to provide specific rejoinders and evidence disproving the claims.

Consideration of the merits

Once a communication is pronounced admissible, the commission goes ahead to consider the key issues of the complaint. Having examined the important issues of the complaint in compliance with the Banjul Charter and relevant international human rights instruments, the commission’s Secretariat makes a draft ruling on the merits of the case using the available facts. This helps to guide the commissioners in their decision making process. Once a final decision is made by the Commission, the contending parties are notified of the outcome.

During the session, the contending parties are allowed to make oral or written submissions to the Commission. The commission treats the complainants and the accused countries equally during the proceedings. The decision on the merits is an outcome of the application of the Banjul Charter and relevant international human rights law instruments with regard to the accusations made by the complainant, and the rejoinders presented by the concerned state.

In circumstances where the accused country fails to respond to the allegations made against it, thus failing to collaborate with the commission, the commission uses the available facts to make its ruling. Nevertheless, the fact that the accusers’ claims were not challenged, or that they were partially dismissed by the alleged state does not guarantee the commission’s endorsement of the authenticity of the accusations.

The commission can use the powers given to it under article 46 of the Charter to employ any favourable investigation techniques to evaluate such allegations presented to it by obtaining information from other sources, or from third parties. After assessing the arguments made by either party, the commission may make its ruling as to whether or not there has been a contravention of the charter. If it finds a breach, the commission makes its recommendations to the concerned country.

Recommendations or decisions made by the Commission

The Commission’s rulings are called recommendations. The recommendations are issued after the evaluation of the facts presented by the contending parties through the commission’s proceedings. The proceedings often entail the ruling on admissibility, an explanation of the sections of the Banjul Charter invoked by the complainant, and a response to whether the facts tabled constitute a contravention of the Charter. If a breach of the Charter is found, the actions to be undertaken by the country concerned to resolve the contravention, among others, are outlined in this section.

However, the authority given to the African Commission is quasi-judicial. Therefore, its recommendations do not have the legal authority to bind the countries concerned. As a result, there are many challenges in persuading member states to put in place national frameworks to implement the recommendations made by the commission in different communications. For example, in the Good v Botswana [2010] where a university professor brought a case to the Commission owing to being expelled for criticising the country’s presidential system, Botswana disregarded the Commission’s rulings because they were not legally binding.

The Commission found Botswana to have breached articles 1, 2, 7(1)(a), among others of the Banjul Charter and recommended the state to compensate the complainant, and to make sure that its immigration laws adhere to international human rights requirements. In response, the government of Botswana asserted that they will not implement the rulings made by the commission. This is because it did not have any legally binding powers.Much as there have not been any rulings regarding torture levied by Uganda’s security forces from the Commission’s communication procedure, going by Botswana’s example, it is likely that a country like Uganda would violate such recommendations. This is because they are not legally binding. As a result, this would affect the African Commission's effectiveness in implementing its recommendations whilst dealing with tourture levied by security forces in Uganda.

Nevertheless, the communications recommendations made by the African Commission are issued in the Commissioner's Annual Activity Report which is presented to the OAU Assembly as stipulated by article 54 of the Banjul Charter. If the suggestions are taken on by the assembly, they are given the authority to bind the countries concerned, and are published.

However, it is arguable whether the African Commission’s decisions are always implementable. The wording used by the Commission does not often help the concerned states in singling out what exactly ought to be practically done to implement the ruling. This challenge arises even in cases where a respondent state is willing to implement the Commission’s recommendations. For example, the Commission does not have consistent rulings as regards to the remedies issued in its individual communications.

The commission has issued various rulings, including instances where the commission has made no recommendations at all in individual and state communications. The reasons given are often ambiguous.

Follow-up on the African Commission's recommendations

The Commission has not yet put in place a process to monitor the implementation of its guidelines. Nevertheless, the commission’s secretariat sends letters to remind the countries which were found to have contravened the provisions of the charter to honour their commitments stipulated in article 1 of the Banjul Charter. For instance, to acknowledge the rights, freedoms, and obligations encompassed in the Charter, and to put in place legislative and other means to implement them. The first letters are issued soon as the Commission's Annual Activity Report has been adopted by the assembly, and the succeeding ones are posted whenever it is found necessary.

However, there is a challenge of enforcement. There is no framework that coerces countries to implement the commission’s recommendations. Most of the hopes for implementation remain in the cooperation of the concerned countries. Civil Society Organisations (CSOs) and legal practitioners litigating before the Commission are uncertain about the frameworks which the concerned countries use to act on the Commission’s recommendations. Various NGOs seeking to lobby African states to implement the Commission’s recommendations have commented that they do not know who exactly to talk to.

In addition, there may not be any government official or legal practitioner specifically assigned to manage human rights decisions and their implementation. In most cases, government’s legal advisors are expected to deal with various international law issues with the help of international experts. Therefore, their skill set to handle international legal issues may be inadequate. Besides, in most cases, there is hardly any legal framework to support the implementation of the recommendations. Similarly, national legislations hardly address particular international rulings.

Nevertheless, as compared to the advanced implementation frameworks set out in the American and European systems, it is not a surprise that African states are struggling to establish mechanisms to support the Commission's recommendations.This is because the American and European systems are much older and have produced a significantly greater number of judgments as opposed to the African system. In addition, there is hardly any incentive to motivate African states to institute national frameworks to implement the Commission's decisions. This could partly be because the African Commission is not taking follow up seriously. Consequently, owing to the various African State’s reluctance to implement the Commission’s recommendations, it is unlikely that the Commission's communications’ decisions curbing torture by security forces in Uganda would be implemented.

Framework for bilateral communications

The presentation of communications to the African Commission by countries party to the Banjul Charter claiming that another country party to the charter has breached the provisions of the document is conducted by two mechanisms stipulated in articles 4853 of the Charter, and guidelines 93 to 101 of the African Commission’s Rules of Procedure.

The first framework outlined in article 48 authorizes the Commission to receive and examine complaints from a country only after the country has attempted to resolve the disagreement with the contending country and failed. If the disagreement is not resolved within three months, one of the two countries can present a complaint to the commission through the chairperson, and inform the other country.

The second mechanism permits a country which is not interested in inter-state talks with the accused country to raise an issue of human rights breaches straight to the Commission, by writing a communication to the Chairperson of the Commission, the

OAU Secretary General, and the concerned country.

For these two mechanisms, the charter calls for the Communication to be categorically written to the Chairperson of the Commission, and also requires the dissatisfied state to inform the accused country itself as opposed to the commission having to do so.

Under both frameworks, the Commission can only examine a communication after establishing that all the available domestic avenues of resolving the disagreement have been used, unless it is apparent that achieving such remedies would be overly prolonged.

The commission may, if it deems it fit, request the contending countries to avail it with the relevant facts. In addition, when assessing the issue, the Commission may invite the countries to table oral or written submissions. The main objective of the commission in either process is to secure an amicable resolution.

Nevertheless, after attempting all necessary ways to achieve a friendly resolution founded on the basis of human and people’s rights, the commission prepares a report within an appropriate period of time to the concerned countries, and notifies the AOU Assembly of Heads of State and Government about the report. If it considers it necessary, the Commission can state its recommendations in its report to the assembly.

However, as opposed to the Inter-American and European systems of human rights, the interstate procedure is hardly used by state signatories of the Banjul Charter. The system is hardly used despite the fact most African states have grossly breached the provisions of the Charter. Traditionally, African countries have always embraced the principle of non-interference. Consequently, the African Commission hardly has vast experience in this area.

In addition, as compared to the Inter-American and European procedures, the interstate communication procedure has been criticised as too state centred. This is because the African Commission has portrayed itself as a mediator of interstate disputes, as opposed to working as a watchdog for human rights violations.

Conclusion

In conclusion, whilst examining the systems of the African Commission, this dissertation has highlighted the weaknesses of the African Commission in providing justice to torture victims in Uganda.


The fact that there are no torture cases which have been successfully prosecuted at the African Commission, yet the country’s security forces continue to torture people is alarming.

This writer recommends an institution of a group of experts to review and effect reforms in the African Commission as regards to torture carried out by security forces. With effective reforms, this might help the commission to function more effective