The African system

The Organisation of African Unity (OAU) provided the framework under which the African system was created. It was under its auspices that the first instrument of Human Rights protection in the region was adopted. This mechanism is the 1981 African Charter on Human and People’s Rights, which came into effect on 21 October 1986, and which, today is applicable throughout all of the countries in the continent. Nevertheless, since 2002, the OAU has been replaced by the African Union (AU) which has taken over its role in this matter.  

In accordance with Article 30 of the Charter, an African Commission on Human and Peoples’ Rights was established in 1987. It is composed of 11 experts each acting in his own name, and it is officially mandated with the promotion and protection of human rights in Africa. The possibility of filing individual communications is part of the mechanisms provided for in this respect.  

Any person may submit a communication or complaint. It is not a requirement to do so through a lawyer. The procedure is set partly through written communication and partly by hearings. On receiving the complaint, a preliminary examination by the Secretariat on the admissibility will be carried out and a definitive decision will be made on this point. The plaintiff may request an audience at this stage of the procedure. If the complaint is declared admissible, the Commission will embark on a substantive consideration of the merits of the case and will then invite the parties to present their arguments at the hearing.  

The plaintiff has the right at all times to make additions to his complaint. As for the Commission, it has the duty to include every element pertinent to the consideration of the complaint. For each new element, the State involved has a three month period at its disposal to reply. The Commission may use its powers to make inquiries, to call on experts, to adopt provisional measures of protection, gather evidence, hear witnesses, etc…

The conclusions of the Commission, namely its findings on whether there exists one or more violations, or the absence of any violation and, when relevant, recommendations concerning compensations, are forwarded to the Conference of Heads of State and Government for their adoption, following which they are published. These conclusions come from an organ which is quasi-jurisdictional and, as such, are not binding. However this does not diminish its non negligible authority.  

It was at this juncture, until recently, that the complaint procedure within the African system came to an end. However in 2004, the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights came into effect. It established a judicial body whose aim is to “complement the protective mandate” of the Commission. The jurisdiction of the African Court also extends “to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other African human rights Convention ratified by the States in question”. The only instances which are entitled to submit cases to the Court are the Commission, the State party against which the complaint has been lodged at the Commission, and the State of which the victim is a national.  

The Court shall only consider individual communications which have already been examined by the Commission. The procedure for those complaints that the Commission and the States cannot or will not bring before the Court comes to an end therefore with the adoption of the Commission’s report.  

When considering any case before it, the Court will conduct its proceedings in public, unless there is a decision to the contrary on exceptional grounds. The Court will offer its help in order for the parties to reach a friendly settlement. The Court must return its verdict within 90 days from the end of its deliberations. The decision of the Court which is binding and not subject to appeal will be notified to the Council of Ministers who shall monitor its execution.  

The implementation of the Court was considerably delayed due to the decision to merge it with the Court of Justice of the AU. Therefore, the true merit of this institution as a mechanism for the protection of Human Rights is still to be demonstrated.