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Protectors or Pretenders? - Government Human Rights Commissions in Africa, HRW Report 2001



International Standards: The Paris Principles

Important Factors

Examining the Record in Africa

Innovative and Positive Contributions by Commissions

Regional Iniatives

The Role Of The International Community





    Regional Iniatives

    The African Commission on Human and Peoples' Rights

      The African Commission on Human and Peoples' Rights [African Commission] is responsible for promoting and protecting the rights guaranteed in the regional treaty, the African Charter on Human and Peoples' Rights [African Charter], which was adopted in 1981 and entered into force in 1986.18 The African Commission was established in 1986 when the charter came into force, to monitor states' implementation of the rights the African Charter enumerated. It is made up of eleven members, who are nominated by states parties and then elected by the entire OAU assembly. Members serve for six years in their personal capacities rather than as representatives of their governments.

      Articles 26 and 45 of the African Charter encourage the creation of national human rights institutions by governments, providing that states parties shall, among other things, "allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed," and that the African Commission "encourage national and local institutions concerned with human and peoples' rights."
      The African Commission is increasingly encouraging member states to create national human rights institutions. In its Plan of Action for the years 1996 to 2001, adopted at its 20th ordinary session in Mauritius, October 1996, the African Commission declared its intent to encourage the establishment of national human rights institutions and the development of a program to reinforce such structures.19 In April 1999, the African Commission submitted a document to the first OAU ministerial conference on human rights in Africa, held in Mauritius, in which it discussed the formation of national human rights institutions in Africa.20 In the Grand Bay (Mauritius) Declaration and Plan of Action adopted by the conference (to be distinguished from the African Commission's own Mauritius plan of action), African foreign ministers and ministers of justice, "recalling the recommendations made by the Second Conference of National Human Rights Institutions," affirmed that the primary responsibility for the promotion and protection of human rights lies with the state, and accordingly "urge[d] States to establish national human rights institutions and to provide them with adequate financial resources and to ensure their independence."21 Beyond this, the African Commission has not made greater efforts towards a more nuanced and advocacy-oriented approach to ensure that the national human rights institutions set up in Africa are autonomous and credible. Additionally, the African Commission has not played a protective role in supporting human rights commissioners that face government pressure or reprisal for their work, nor has the African Commission addressed the existing commissions that are weak or compliant.

      Another issue that has arisen with regard to the African Commission is whether national human rights commissions should be able to obtain observer status similar to nongovernmental human rights organizations or whether they should be treated as delegates of their government. According to the rules of procedure of the African Commission, adopted in 1995, nongovernmental organizations may be granted observer status and participate in the public sessions of the commission and its subsidiary bodies, but no provision is made for national human rights institutions. With the increase in the number of national human rights institutions, several applied to the commission for observer status, led by the Nigerian National Human Rights Commission, leading to some controversy as to the propriety of granting them the same status as nongovernmental bodies. Concerns were raised about the possible misuse of this observer status by governments. The debate was further complicated by the fact that several of the African Commission commissioners were also serving members of the national human rights commissions in their countries.

      The African Commission temporarily suspended the granting of observer status to any organization following a resolution to that effect adopted at the instance of the commission's secretary at the June 1998 OAU summit. A working group of commissioners was established to consider the issue, and at its 24th ordinary session held in Banjul, The Gambia, in October 1998, the commission adopted a resolution deciding "to grant observer status to any African national institution established in Africa and functioning according to internationally recognized norms and standards." The commission laid down the following criteria that should be fulfilled before observer status would be granted:

    the national institution should be duly established by law, constitution or by decree;

    that it shall be a national institution of a state party to the African Charter;

    that the national institution should conform to the Principles relating to the Status of National Institutions, also known as the Paris Principles, adopted by the General Assembly of the United Nations under Resolution 48/134 of 20th December 1993;

    that a National Institution shall formally apply for status in the African Commission.22

      The rules for observer status are somewhat broad and not particularly discriminating in distinguishing between autonomous and compliant commissions.

      As of the 26th ordinary session of the commission in Kigali, November 1999, the rules of procedure had yet to be amended to reflect this resolution, nor had any national human rights institution in fact been granted the new status, though applications had been received from Nigeria, South Africa, Benin, Libya, and Sierra Leone. In practice, however, representatives of national human rights institutions have been allowed to participate in and contribute to the public sessions of the African Commission, sometimes sitting with states' delegations, sometimes with NGO representatives.

      Strong arguments can, and have, been made by human rights commissioners that there is value in granting national human rights institutions a distinct status from their government delegations at African Commission meetings in order to allow the human rights commissioners the ability to independently comment on or question their government's position on human rights issues. However, the African Commission must ensure that a government does not use the fact that its national human rights commission participates as an observer to obscure government abuses or to undermine the contribution by local NGOs from the country.

    Regional Conferences on National Human Rights Institutions

      Since 1996, government human rights commissions in Africa have met twice and have instituted a biannual meeting. While still at the early stages, the regional coordination has allowed the various commissions on the African continent to meet each other and jointly discuss their activities and roles formally and informally. The meetings provide a good opportunity for sharing diverse experiences, activities, and difficulties. This regional interaction has evolved due largely to the initiative of Dr. Solomon Nfor Gwei, the head of the Cameroonian human rights commission.

      These regional efforts are in addition to growing interaction at the international level. National human rights institutions have a special status separate from their governments and from the consultative status given to NGOs at the U.N. Commission on Human Rights. Also, an International Co-ordinating Committee of National Institutions, open to institutions in conformity with the Paris Principles, has been endorsed by a resolution of the U.N. Commission on Human Rights.

      Article 45(1)(c) of the African Charter enjoins cooperation "with other African and international institutions concerned with the promotion and protection of human and peoples' rights." The Paris Principles also list as a responsibility cooperation with "the United Nations and any other agency in the United Nations system, the regional institutions and the national institutions of other countries which are competent in the areas of the protection and promotion of human rights" (Section A(3)(e)).

      The first meeting of African national institutions was held in February 1996, where several human rights commissions came together and met in Yaounde, Cameroon for the first time. The Yaounde meeting drew up the Yaounde Declaration and established a coordinating committee of African human rights commissions that would collaborate closely with the Office of the U.N. High Commissioner for Human Rights to follow up on the Yaounde conference; facilitate the activities to mutually strengthen them; plan meetings every two years alternating with international conferences; and negotiate representative status at the African Commission and U.N. bodies dealing with human rights.23

      The second regional conference of African national institutions was held in Durban, South Africa in July 1998 with the stated goals of developing networks among the commissions, discussing strategies for promoting human rights, and strengthening the capacity of the institutions. Over 150 participants attended from African and other human rights commissions, observers from African states, and U.N. and diplomatic representatives, including Mary Robinson, the U.N. High Commissioner for Human Rights. The conference adopted the Durban


      Other sub-regional meetings have also been organized, including the first Mediterranean Encounter of National Institutions for the Promotion and Protection of Human Rights, in Marrakech, Morocco, in April 1998 which came up with the Marrakech Declaration. In March 1999, the third West African Human Rights Forum brought together West African human rights commissions from the ECOWAS countries to foster greater coordination and integration in the sub-region.

      While regional interaction serves a useful opportunity to exchange ideas, it is important that these meetings do not become pro forma gatherings where weak human rights institutions can gain legitimacy through their attendance without being pushed to account for their activities or lack thereof. Participating human rights commissioners from the various countries should ensure that these meetings make their institutions individually and collectively stronger and more effective as a result of this coordination.

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