A Culture of Non-Compliance? A Challenge to the African Commission and African Court

32nd Ordinary Session of the African Union | Addis Ababa, 10 February 2019, Paul Kagame, Creative Commons.

25 May 2022 saw various countries commemorate “Africa Day”. Africa Day is an annual commemoration of the founding of the Organisation of African Unity (“OAU”), established on 25 May 1963 in Addis Ababa, Ethiopia. The OAU, now the African Union (“AU”), is the largest regional (or continental) organisation globally, with fifty-four State members.

The OAU’s formation was profound and signified Africa embarking on a journey to eradicate all forms of colonialism from the continent, promoting the unity and solidarity of African States and defending their sovereignty, territorial integrity, and independence. The story of the OAU/AU has been narrated elsewhere and this post is not intended to repeat that story. Rather, the post concerns the effectiveness of the AU and its institutions today.

Despite Africa Day being a moment to celebrate the strides that have been made by the AU and its adopted soft power instruments such as the AU Constitutive Act, African Charter on Democracy, Elections and Governance, Lomé Declaration and Africa Agenda 2063, it is also a day to reflect on some of the shortcomings.

In particular, this post focuses on the African Commission on Human and Peoples’ Rights (“African Commission”) and the African Court on Human and Peoples’ Rights (“African Court”). These two institutions were established under the African Charter on Human and Peoples’ Rights (“ACHPR”), the regional document setting out the human and peoples’ rights in Africa, which has received near-universal ratification (the exception being the Kingdom of Morocco).

The African Commission is the quasi-judicial supervisory body for upholding the ACHPR and considers alleged human rights violation cases (referred to as “communications”) and makes quasi-judicial recommendations based on its findings. It automatically has jurisdiction over all State parties to the ACHPR.

In contrast, the African Court provides legally binding judicial decisions and has jurisdiction to adjudicate all cases brought before it that concern the interpretation and application of the ACHPR and any other human rights instrument, provided it is ratified by the State party concerned. Of some historical interest is that the Commission was the preferred institution to resolve and adjudicate human rights violations instead of a court of law.

Two possible reasons have been proffered for this: first, human rights violations should be resolved through mediation and conciliation (which would best be achieved via a commission), as opposed to the adversarial courts of law, which result in wins or losses. Second, member states of the OAU were worried about their newly acquired sovereignty and did not want a regional court, with binding powers, to interfere with its sovereignty.

Perforce, criticisms abound. The Commission was charged with being a “façade, a yoke that African leaders have put around our necks”. Frankly, it was considered a feeble institution, lacking any real power to make any meaningful contribution to human rights.

Regardless of these initial criticisms, the African Commission has robustly engaged with the provisions of the ACHPR and has created a rich jurisprudence. For instance, it has interpreted certain rights not explicitly enumerated to be implied from other rights. Take the right to housing and the right to food, for example. The African Commission in SERAC v Nigeria held that these rights are derived from the right to property (Article 14), the right to enjoy the best attainable state of mental and physical health (Article 16) and the protection accorded to the family (Article 18).

The African Commission has also explicated the scope and ambit of the duties of States. To this end, it held that States must protect individuals from violations committed by non-State actors. In other words, a State’s failure to provide sufficient safeguards to protect the rights in the ACHPR would amount to an infringement of those rights even if the State is not directly the cause of such a violation.

However, States have tended to ignore or not comply with the recommendations of the African Commission. There is generally a lack of a political will to implement these recommendations. This is exacerbated by the fact that the African Commission does not have follow-up mechanisms to monitor the implementation of its recommendations.

“There is a serious culture of non-compliance and non-enforcement of the ACHPR, which undermines the legitimacy and credibility of the Commission and Court’s judgments and orders.”

One of the chief reasons for this, as identified by the African Commission in 2017, is the lack of funding. The Commission has complained that it lacks the requisite funding to establish and develop mechanisms to assist it with reporting, following up, gathering information and enforcing its recommendations. Moreover, even though State parties to the ACHPR must report on issues of concern and the effective implementation of the recommendations, these reports are provided late and are sometimes not provided at all. It is, to an extent, engaged in a Sisyphean struggle.

Unlike the African Commission, the African Court’s jurisprudence is relatively limited, albeit significant. The African Court hears matters referred to it by the African Commission, brought by a State party or African intergovernmental organisations, or direct access by individuals or non-governmental organisations (“NGOs”).

Unfortunately, the direct access route is frustrated by the requirement that States submit an optional declaration agreeing that the Court has the competence to receive and adjudicate matters brought by individuals and NGOs. Most States have elected not to deposit this optional declaration (about eight State parties have deposited these declarations). This has unsurprisingly limited the reach and jurisprudence of the Court. That is not the end of the frustrations.  

The African Commission can refer cases of non-compliance to the African Court, which can give binding orders. However, most of the non-complying States have not submitted to the jurisdiction of the Court. This demonstrates that there is an urgent need for States to embrace and submit to the jurisdiction of the African Court, which may lead to a decisive break from the culture of non-compliance and non-enforcement that seems to characterise continent’s approach to these regional human rights norms.

The ACHPR, through the African Commission and Court, has rich jurisprudence, which has “reconstructed the human rights corpus”. However, without sufficient compliance mechanisms, what is the significance of rich jurisprudence beyond academic interest? There is a serious culture of non-compliance and non-enforcement of the ACHPR, which undermines the legitimacy and credibility of the Commission and Court’s judgments and orders.

In the long run, absent radical interventions, the ambitious promises of the ACHPR will ring hollow.