The African Commission on Human and Peoples’ Rights (ACHPR) is a quasi-judicial treaty body whose creation and mandate are defined under the African Charter (Art. 30 and 45). 1 The Commission has its seat in Banjul, The Gambia, and holds a mandate to ensure the promotion and protection of Human Rights on the African continent (Art. 45). The Commission is mandated “to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organize seminars and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights and, should the case arise, give its views or make recommendations to Governments”, as well as to formulate principles and rules “aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms” and interpret the provisions of the Charter (Article 45). The Commission officially meets in session twice a year to adopt country specific resolutions on serious Human Rights violations and/or thematic resolutions, 2 and to examine state reports and communications on Human Rights violations submitted for its attention. It also provides normative guidance by way of general comments and published studies while also issuing urgent appeals to governments when necessary. It can also hold extraordinary sessions, in particular to deal with pending communications.
What rights are protected?
The Commission protects a large set of rights enshrined in the African Charter, which encompasses civil and political rights, economic, social and cultural rights as well as those protected by the Protocol on the Rights of Women in Africa. At the time of its adoption, the African Charter was particularly innovative for its comprehensive approach to Human Rights, granting the same status to economic, social and cultural rights as to civil and political rights, and recognising collective rights 3 .
Individual Rights enshrined in the African Charter (art. 2 to 18)
Civil and Political Rights:
- Right to non-discrimination (art. 2)
- Right to equality before the law (art. 3)
- Rights to life and physical and moral integrity (art. 4)
- Right to the respect of the dignity inherent in a human being, the prohibition of all forms of slavery, slave trade, physical or moral torture and cruel, inhuman and degrading punishment or treatment (art. 5)
- Right to liberty and to security of the person and the prohibition of arbitrary arrests or detention (art. 6)
- Right to a fair trial (art. 7)
- Freedom of conscience and religion (art. 8)
- Right to receive information and freedom of expression (art. 9)
- Freedom of association (art. 10)
- Freedom of assembly (art. 11)
- Freedom of movement, including the right to leave and enter one’s country and the right to seek and obtain asylum when persecuted (art. 12)
- Right to participate in the government of one’s country and the right of equal access to public service (art. 13)
- Right to own property (art. 14)
Economic, Social and Cultural Rights:
- Right to work under equitable and satisfactory conditions and receive equal pay for equal work (art. 15)
- Right to physical and mental health (art. 16)
- Right to education and the freedom to take part in cultural activities (art. 17)
- Right of family, women, aged or disabled to specific measures of protection (art. 18)
The African Commission has set up a Working Group on economic, Social and Cultural Rights, and in 2011 adopted a set of guidelines aimed at detailing states’ obligations under the Charter. The guidelines 4 refer to the role of states in protecting Human Rights from harm by other actors, including private actors. These guidelines may assist the Commission and the Court in examining future communications relating to corporate involvement in violations of economic, social and cultural rights.
In May 2018, the African Commission proceeded to issue the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment. These guidelines among other things, emphasize that “all individuals, communities and legal entities, most notably industrial enterprises such as companies involved in extractive industries, have the duty for the protection and preservation of the environment,” 5 and that States must uphold the obligations of transparency and accountability in relation to the exploration and development of natural resources, particularly when this is done by foreign owned companies.
Peoples’ Rights enshrined in the African Charter (art. 19 to 24)
Also called collective or solidarity rights, peoples’ rights refer to the rights of a community (ethnic or national) to determine their governance structures and the development of their economies and cultures. They also include rights such as the right to national and international peace and security, the right of peoples to freely dispose their wealth and natural resources and the right to a satisfactory environment favourable to their development.
Centre for minority Rights development and mRG on behalf of endorois community v. the Republic of Kenya 6
The Endorois are semi-nomadic pastoralists who were evicted from their ancestral land in and around Lake Bogoria in Kenya’s Rift Valley in the 1970s, in order to pave way for the creation of a national park. 7 The Endorois, with the assistance of Minority Rights Group International (MRG), took the case to the ACHPR. In 2010, the Commission ruled that the Kenyan government had violated the Endorois’ rights to religious practice, to property, to culture, to the free disposition of natural resources, and to development, under the African Charter (Articles 8, 14, 17, 21 and 22, respectively). The Commission also established that the government should restitute the Endorois ancestral lands, ensure unrestricted access to Lake Bogoria, pay adequate compensation for all losses suffered, pay royalties regarding existing economic activities, and engage in dialogue with the complainants 8 . For the first time, an African indigenous peoples’ rights over traditionally owned land have been legally recognised (in a context where the very concept of indigeneity is being questioned). “The Commission’s decision has not only awarded a full remedy to the Endorois community but has also significantly contributed to a better understanding and greater acceptance of indigenous rights in Africa.” 9
Disappointingly, an assessment of the implementation of the Endorois ruling points to limited progress for the community insofar as the substantive aspects of the decision are concerned. The registration of the Endorois Welfare Council (EWC) stands as the only fully implemented aspect of the decision. The Kenyan government’s failure to fully implement the decision compelled the African Commission in 2013 to pass an unprecedented resolution which rebuked Kenya for failing to provide an implementation roadmap for the decision. 10
The Kenyan government finally responded in September 2014 by establishing a Task Force on the implementation of the decision. 11 Unfortunately, this Taskforce failed to achieve progress in implementation because it did not provide for the membership or effective consultation of the Endorois, the structure of its mandate was focused on studying rather than actually implementing the decision and it lacked resources to fund implementation. 12 However, some measure of progress has been made on implementation through the sustained advocacy efforts of the community and its partners. A key example of this successful advocacy is the memorandum of understanding which the Endorois entered into with the Kenya Wildlife Service, Baringo County Council and the Kenyan Commission to UNESCO that recognises Lake Bogoria as Endorois ancestral land and requires Endorois inclusion in land management 13 .
Institute for Human Rights and Development and Others v Democratic Republic of Congo, Communication 393/10 14
In 2004, a small number of armed rebels tried to take control of Kilwa, a fishing town in the Democratic Republic of Congo (DRC) located in an isolated area about 50 km away of a copper and silver mine, where Anvil Mining Company (Anvil Mining), an Australian-Canadian mining company, had operations. In response to the unrest in Kilwa, the Congolese army was indiscriminately bombed and pillaged the town and arbitrarily detained, tortured and summarily executed civilians. Over 70 civilians were killed; others died later from wounds sustained through torture. Following investigations, the UN asserted the army had perpetrated war crimes. It also found that Anvil Mining had provided extensive logistical support to the military action in Kilwa, including the provision of transport, fuel, food and perhaps even payments for a number of the soldiers. 15
Domestic proceedings were brought against the involved soldiers and Anvil employees, without success. The UN High Commissioner for Human Rights expressed concerns about political interference in the judicial process. Judicial proceedings were also brought against Anvil employees in Canada and Australia where Anvil Mining has offices but were unsuccessful. Hence, a complaint on behalf of eight victims was brought before the African Commission on Human and Peoples’ Rights by human rights groups including RAID, ACIDH and IHRDA.
In June 2016, after seven years of proceedings, the Commission held that the government of DRC had violated a range of human rights under the African Charter on Human and Peoples’ Rights including the rights to life (Article 4), fair trial (Article 7), property (Article 14) and economic, social and cultural development (Article 22), as well as the prohibition against torture (Article 5), the protection from arbitrary arrest (Article 6), and the duty to guarantee the independence of the courts (Article 26). It also recognized that the state was in breach of the right to housing. The Commission publicly rebuked Anvil Mining and emphasized “the need and legal imperative for entities engaged in extractive industries to undertake their activities with due regard to the rights of host communities…This includes the non-participation or non-support in the perpetration of violations of human and peoples’ rights.”
The Commission requested the government to take steps to prosecute and punish both state agents and Anvil employees involved in the violations. It awarded the victims US $2.5 million – the highest compensation amount ever awarded by the Commission – and urged the government to identify and compensate additional victims and their families who were not named in the complaint. The Commission also recommended, among other measures, that the state formally apologize to the people of Kilwa, exhume and bury with dignity the bodies cast into mass graves, construct a memorial, rebuild schools, hospital and roads destroyed during the attack, as well as provide trauma counselling for affected individuals. The Commission directed DRC to ensure that the implementation of the decision be supervised by a Monitoring Committee including representatives of victims and a member of the Commission in charge of the countryand that the government report back on steps taken towards implementing the decision within 180 days. This case was groundbreaking in several different ways, most notably because the Commission explicitly directed DRC to take action against Anvil Mining officials.
Unfortunately, the DRC government has so far not engaged with enforcing this decision. There is no record of the government having sent any communication within the 180 day deadline to inform the Commission on actions taken and the monitoring committee has also not been established yet. NGOs continue to urge the government to take action. In December 2017, the Chairperson of the Commission’s Working Group on Extractive Industries, Environment and Human Rights sent a letter to Anvil Mining, encouraging the company to acknowledge responsibility for breaching its duty of care through a public statement and contribute to the reparations that the Commission awarded the Kilwa victims. 16
Rights enshrined in the Protocol on the Rights of Women in Africa
The African Commission also deals with alleged violations of the rights protected by the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. 17 This Protocol, adopted by the African Union on 11 July 2003 (entered into force on 25 November 2005) as a supplementary protocol to the African Charter on Human and Peoples’ Rights, is particularly innovative regarding the protection of women’ rights. In the context of business activities, the following rights are of particular relevance:
- Right to economic and social welfare (art. 13)
- Right to food security (art. 15)
- Right to adequate housing (art. 16)
- Right to positive cultural context (art. 17)
- Right to a healthy and sustainable environment (art. 18)
- Right to sustainable development (art. 19)
- Right to inheritance (art. 21)
As provided by Article 27 of this Protocol “The African Court on Human and Peoples’ Rights shall be seized with matters of interpretation arising from the application or implementation of this Protocol”.
Against whom may a communication be lodged? 18
According to the African Commission’s Guidelines for the Submission of Communications, a communication must be lodged against a State Party that has ratified the African Charter, and it must relate to violations of a right guaranteed by the Charter and committed after the State party’s ratification. The Commission has asserted that the obligations of States under the Charter include the duty to “respect, protect, promote and fulfil these rights”. The duty on states to protect those on their territory from harm by non-state actors is well established. 19 States have primary responsibility for ensuring the implementation of the rights protected under the Charter. The issue of whether the African Charter also provides for direct accountability of non-state actors is currently a matter of debate.
However, unlike other Human Rights instruments, the African Charter explicitly refers to the duties of individuals. 20 It is not yet clear whether such duties may be enforced against individuals under the Charter, nor whether complaints against a non-state actor, as opposed to a state, would be admissible before the African Commission. 21 Notably, the Charter refers to individuals and not persons, the latter term often-including individuals and companies (that is, physical and legal persons), whereas the former is usually exclusively used to refer to natural persons.
Extraterritorial application: any possibilities within the African Charter?
The African Charter does not explicitly state that, to be admissible, a communication must relate to a violation which occurred “within the jurisdiction” of the state against whom the communication is being lodged. So far, there is only one case of extraterritorial application of the African Charter, which concerns the single inter-State communication decided so far, lodged by the Democratic Republic of Congo against Rwanda, Burundi and Uganda. The DRC presented a communication alleging massive Human Rights violations in Congolese provinces, committed by the armed forces of Rwanda, Burundi and Uganda. Upon examination of the communication, the Commission found the respondent states responsible for different violations of the African Charter, saying “that the violations complained of are allegedly being perpetrated by the Respondent States in the territory of the Complainant State” 22 and urging them to abide by their obligations. It should also be noted that none of the states involved raised the issue of the territory as reason for the communication to be deemed inadmissible. 23
Another possible scenario could be to bring a communication against an African state for violations committed in another African state, by or with the complicity of companies headquartered in the former State (eg. a case where a South African mining company is involved in violations of Human Rights in Ghana). Chances of a favourable decision would most probably increase if it involves the participation of a State-owned enterprise, or another State agent such as an export-credit agency. So far no communication has been brought directly against a corporation. However, one case examined by the Commission has dealt with a non-state actor as a defendant. Considering that the Charter specifically addresses individuals’ rights and duties, it is argued that the African system may offer interesting possibilities to submit cases directly against companies. 24
Who can file a communication?
Ordinary citizens, a group of individuals, NGOs and States Parties to the Charter are all able to submit a communication to the Commission.
Individuals can complain on behalf of others. The complainant need not be related to the victim of the violation (but the victim must be mentioned – see below).
Under what conditions?
A communication may only be presented:
- If local remedies have been exhausted (art. 56(5)). There can be exceptions to this rule however, including where remedies are not available, effective or sufficient. 25
- If the matter has not already been settled by another international Human Rights body (art. 56(7)).
- If the matter is submitted within reasonable delay from the date of exhaustion of all domestic remedies (art. 56(6)), including all the possibilities for appeal. The Commission will evaluate each matter on a case-by-case basis and consider the circumstances of the matter needed to base its decision. A communication could also be accepted if it appears that the condition of reasonable delay has not been met, due to the fact that the individual did not have the necessary means to seize the Commission.
Process and outcome 28
If a person or an organisation, person (natural or legal, private or public, African or international) submits a communication, the Commission will consider it at the request of the majority of its members.
The Commission will first ensure that the conditions of admissibility of the communication have been met.
A complainant can act on his or her own without the need for professional assistance. However, it is always useful to seek the help of a lawyer. It should be noted that the Commission does not offer legal assistance to complainants.
Most of the procedure is handled in writing through correspondence with the Secretariat of the Commission. However, the complainant may be requested to present his views on the admissibility and the merits of the case at one ACHPR’s session.
The Commission’s final decisions are made in the form of recommendations to states. They constitute incentives for the states to take all necessary measures to cease and redress violations of the Charter. Decisions on communications of the Commission provide clear guidance to states on how to achieve implementation of the Charter and its related instruments.
Before submitting its views on a communication, it is possible for the Commission to recommend the state concerned to take provisional measures to avoid irreparable damage being caused to the victim of an alleged violation. 29 Communications sent to the Commission should therefore indicate if the victim’s life, personal integrity or health are in imminent danger.
Strengths: The communication procedure before the ACHPR:
- Gives the possibility for victims, group of individuals and NGOs to directly refer a case before the Commission without prior acceptance by the State concerned;
- Can be a channel for individuals and NGOs to access the African Court. The Commission can petition the African Court after having received communications presented by individuals or NGOs on serious and massive Human Rights violations or when a State Party did not implement the decisions of the Commission;
- Puts political pressure on the State concerned.
- The procedure takes a long time (2 years minimum in theory and between 4 to 8 years on average).
- The decisions are recommendations and their implementation depends on the will of States. The Commission is nevertheless taking measures to ensure compliance with its recommendations, especially with regard to the seizure of the African Court.
The Commission in action in corporate-related Human Rights abuses
The case of shell in Nigeria 33
The Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, Communication No. 155/96, African Commission on Human and Peoples’ Rights
In March 1996, two NGOs, the Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) submitted a communication to the ACHPR. The communication noted that the government of Nigeria had been directly involved in oil production through the state owned oil company, the Nigerian National Petroleum Company (NNPC), which encompasses the majority of shareholders in a consortium with Shell Petroleum Development Corporation (SPDC). It was alleged that this involvement had caused severe damage to the environment, and consequently led to health problems among the indigenous Ogoni population. The communication also alleged that the Nigerian Government had condoned and facilitated these violations by placing the legal and military powers of the state at the disposal of the oil companies.
The communication therefore alleged violations of Articles 2, 4, 14, 16, 18, 21, and 24 of the African Charter. In October, 1996, the communication was deemed admissible by the African Commission, which determined in 2001 that the government of Nigeria had violated these articles.
The Commission appealed to the Nigerian government stop all attacks on the Ogoni people, investigate and prosecute those responsible for the attacks, provide compensation to victims, to prepare environmental and social impact assessments in future and to provide information on health and environmental risks.
The Commission based its decision on the African Charter and the other treaties to which Nigeria is a signatory, as well as on international resolutions and declarations. These include: ICESCR, ICERD, CRC, CEDAW, UDHR, the Vancouver Declaration on Human Settlements, the Declaration on the right to development, the Draft Declaration on the Rights of Indigenous Peoples, 34 the UN Sub-Commission on prevention and discrimination of Minorities resolution 1994/8 and the Universal Declaration on the Eradication of Hunger and Malnutrition.
The government of Nigeria has an obligation to protect the rights enshrined in these various instruments and must take all appropriate measures to protect individuals from rights violations perpetrated by third parties, including transnational corporations. In this case, it was also possible to establish direct government involvement in the rights violations, because the government itself was the majority partner in the oil consortium and the owner of the private company.
It seems that little has been done following the Commission’s decision to clean the environmental pollution of the Ogoni land, or to compensate the communities affected. Besides, the unilateral decision of Nigeria, made on 4 June 2008, to replace the Shell Petroleum Development Company of Nigeria (SPDC) with the Nigerian Petroleum Development Company (upstream subsidiary of the NNPC) has been seen by the Ogoni populations as “a further attempt to deny their stakeholders rights”. 35
The ACHPR has a well-established jurisprudence relating to economic, social and cultural rights and the decisions of the Commission regarding the international recognition of economic, social and cultural rights as well as governments’ responsibility concerning transnational corporations’ activities within their territory are encouraging. However, it is at the moment not possible to directly accuse a transnational corporation. Complaints can only be brought before the Commission if it can be shown that the violation is due to the state’s failure to protect. Yet the question of the responsibilities of states and businesses for the impact of corporate activities on Human Rights still remains insufficiently explored, and victims should not hesitate to use the system for matters involving companies. As revealed by the Ogoni case in Nigeria, the Commission has the potential to reassert the responsibility of African States to protect Human Rights from harm by foreign transnational corporations.
The inability of the African Commission to enforce its decisions remains a serious weakness.