6.3 African Human Rights System: African Union and African Court on Human and Peoples' Rights

African Union's Human Rights Focus

Organizational Structure and Objectives

The African Union (AU) was established in 2002 as the successor to the Organization of African Unity (OAU), which had existed since 1963. Where the OAU focused primarily on decolonization and sovereignty, the AU shifted toward a broader mandate that includes promoting unity, solidarity, and cooperation among African states, with a much stronger emphasis on human rights and governance.

• The Assembly of Heads of State and Government serves as the main decision-making body, meeting annually to set policies and priorities
• The AU Commission functions as the executive branch, implementing Assembly decisions and managing day-to-day operations
• The AU currently has 55 member states

Human Rights Promotion Efforts

The AU fosters democratic principles, popular participation, good governance, and the rule of law across the continent. To advance these goals, it established two dedicated human rights bodies:

• The African Commission on Human and Peoples' Rights (quasi-judicial, advisory role)
• The African Court on Human and Peoples' Rights (judicial, issues binding decisions)

The AU has also adopted key instruments that reinforce its human rights commitments. The African Charter on Democracy, Elections and Governance (2007) sets standards for democratic governance, constitutional transfers of power, and the rejection of unconstitutional changes of government. Agenda 2063, the AU's long-term development blueprint, includes human rights protection as a core component of its vision for a prosperous and peaceful continent.

African Commission on Human Rights

Mandate and Authority

The African Commission on Human and Peoples' Rights is a quasi-judicial body established under the African Charter. "Quasi-judicial" means it can hear complaints and make recommendations, but unlike a court, its decisions are not legally binding on states.

The Commission's core functions include:

1. Promoting human rights through research, education, and awareness campaigns
2. Interpreting provisions of the African Charter when requested by states, AU organs, or recognized organizations
3. Receiving communications (complaints) from individuals, NGOs, and states alleging human rights violations
4. Conducting fact-finding missions to member states to investigate human rights situations and provide recommendations

The Commission also issues resolutions, guidelines, and general comments that provide interpretive guidance on the African Charter and other human rights instruments. These shape how states understand their obligations, even though they aren't binding in the same way court judgments are.

Jurisdiction and Collaboration

The Commission has jurisdiction over all AU member states that have ratified the African Charter. As of now, all 54 eligible member states have ratified it, giving the Commission continent-wide reach.

To strengthen its impact, the Commission collaborates with:

• National human rights institutions (NHRIs) within member states
• Civil society organizations and NGOs
• Regional and international bodies, including the UN human rights system

This collaborative approach matters because the Commission itself has limited enforcement power. It relies on partnerships and political pressure to push states toward compliance.

Significance of the African Charter

Unique Features and Rights Recognition

The African Charter on Human and Peoples' Rights (also called the Banjul Charter) is the primary human rights instrument of the AU. Adopted in 1981 and entering into force in 1986, it stands out from other regional human rights treaties in several ways.

Most notably, the Charter includes three categories of rights in a single document: civil and political rights, economic, social, and cultural rights, and collective (peoples') rights. The European and Inter-American systems, by contrast, initially separated these into different instruments.

The Charter also recognizes rights that are distinctive to the African context:

• Right to development (Article 22)
• Right to a satisfactory environment favorable to development (Article 24)
• Right to national and international peace and security (Article 23)

Another unique feature is that the Charter imposes duties on individuals, not just rights. Articles 27-29 outline duties individuals owe to their families, communities, and the state. This reflects the Charter's emphasis on African values and traditions, promoting a culturally grounded approach to human rights.

Implementation and Influence

The Charter established the African Commission as its implementing body and has been supplemented by important additional protocols:

• The Protocol on the Rights of Women in Africa (Maputo Protocol, 2003) goes further than many international instruments on issues like reproductive rights, protection from harmful traditional practices, and women's participation in political processes
• The Protocol on the Establishment of the African Court on Human and Peoples' Rights (1998) created a judicial body to complement the Commission

The Charter serves as the legal framework for human rights litigation at the national, sub-regional, and continental levels. Domestic courts in several African states have cited Charter provisions in their rulings, and it has influenced the development of national constitutions and legislation across the continent.

Impact of the African Court

Jurisdiction and Authority

The African Court on Human and Peoples' Rights, operational since 2006 (its protocol entered into force in 2004), was created to complement and reinforce the Commission. While the Commission makes non-binding recommendations, the Court issues binding judgments.

The Court has jurisdiction over cases concerning the interpretation and application of:

• The African Charter
• The Court's own Protocol
• Any other relevant human rights instrument ratified by the state concerned

This last point is significant: it means the Court can apply treaties beyond just the African Charter, giving it a broad legal toolkit.

When the Court finds a violation, it can:

• Order the state to pay compensation to victims
• Prescribe specific measures to remedy the violation

However, there's a major limitation. For individuals and NGOs to bring cases directly to the Court, the relevant state must have made a special declaration under Article 34(6) accepting the Court's competence to hear such cases. Only about a third of the states that have ratified the Court's protocol have made this declaration, which significantly restricts access.

Contributions and Challenges

The Court has developed African human rights jurisprudence through decisions on issues including:

• Freedom of expression and media rights
• Political participation and fair trial rights
• Indigenous peoples' rights, including landmark cases on land rights

The Court's biggest challenge remains enforcement. Compliance with its judgments depends on the political will of member states. Some states have withdrawn their Article 34(6) declarations after unfavorable rulings (Tanzania and Rwanda, for example, have taken steps in this direction), which raises concerns about the Court's long-term effectiveness.

To strengthen its impact, the Court collaborates with national courts, regional economic communities (like ECOWAS and the EAC, which have their own human rights jurisdiction), and civil society organizations. These partnerships help promote awareness of the Court's decisions and build pressure for state compliance.