26 October 2022
Chairperson of the Commission, Commissioners, and welcoming in particular the newly inaugurated Commissioner; dear fellow delegates,
Centre congratulates [email protected]
The Centre for Human Rights congratulates the African Commission on celebrating the milestone of 35 years of its existence. It was, at the time of its establishment, not a foregone conclusion that the Commission would develop into a credible, independent and progressive human rights body that promotes and protects the right of all African people. It was the energetic and innovative dedication, professionalism and attentiveness of members of the Commission, and its supporting Secretariat, that over many years solidified it as Africa’s primary human rights body. We wish the current crop of Commissioners well in continuing this proud tradition.
The Centre calls for a fact-finding mission or other engagement with authorities in Chad
Following the shooting of at least 50 Chadians protesting the postponement of elections for around two years, and reports about the suspension of political parties and the imposition of a curfew, the Centre associates itself with the grave concern expressed by others. The Centre calls on the Commission to take all possible measures to undertake a fact-finding mission to Chad, in order to ensure accountability, and to preserve human security and uphold human rights. We further call on the Commission, under article 19 of the Protocol on the African Union Peace and Security Council (PSC), to formally bring to the attention of the PSC the human rights concerns, and to cooperate with the PSC to engage the Chadian authorities on the underlying causes that gave rise to the human rights violations since 20 October in Chad.
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States and the Commission should take measures to implement the Commission’s decisions
The Centre draws attention to one of the perennial problems besetting the Commission’s protective mandate, which is the non-implementation by states of the Commission’s recommendations. Examples abound.
In 2003, this Commission called on Eritrea to ‘release or bring to a speedy and fair trial the 18 journalists (including Mr Dawit Isaak) detained since September 2001 and to lift the ban on the press; grant detainees immediate access to their families and legal representatives; and take appropriate measures to ensure payment of compensation to the detainees’. In 2007, the Commission urged the State of Eritrea to ‘order the immediate release of the 11 detainees, namely, Petros Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud Ahmed Sheriffo, Berhane Ghebre Eghzabiher, Astier Feshation, Saleh Kekya, Hamid Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre Selassie; and recommended that Eritrea compensate the abovementioned persons.
In a case in which the Centre was involved, that of Gabriel Shumba v Zimbabwe, the Commission required Zimbabwe to ‘pay adequate compensation to the victim for the torture and trauma caused’; and to bring those who perpetrated the violations to justice. The State was required to report on the implementation of these recommendations within three months from the date of notification, which was in 2012. Ten years have lapsed, and no remedies has been issued and to our knowledge, no report was submitted to the Commission.
The Commission in 2020 adopted two decisions in which it found Egypt in violation of the Charter.
In one case, Mohammed Abderrahim El Sharkawi (represented by EIPR and OSJI) v Egypt, the Commission requested the State to take all necessary measures to put in place preventive safeguards to avoid the recurrence of similar violations, and ensure that Emergency Law No. 162 of 1958, Articles 126 and 129 of the Egyptian Penal Code, and the Egyptian Criminal Procedure Code, and all other relevant laws and practices are brought into conformity with the African Charter, and relevant international law;; to acknowledge the violations suffered by the victim, ‘accept responsibility, and issue a public apology’; to pay adequate compensation to the Victim in the amount of 1 million Egyptian Pounds (approximately USD 140, 000 at the time of filing); and to investigate the violations through an independent commission of inquiry, and prosecute those responsible. The state was required to inform the Commission within 180 days of the measures taken to implement the decision. More than two years have lapsed, and no remedies has been issued and to our knowledge, no report was submitted to the Commission.
In the second case, George Iyanyori Kajikabi v Egypt, the Commission was required to ‘reopen the investigations into the violations and hold the commanding officers who were conducting the breakup of the protest accountable for the human rights violations that were committed’, to ‘provide compensation to all the Victims, including the Victims in this Communication for the violations suffered, in accordance with national laws; and to revise the laws in relation to police and regulation of assemblies to bring it in line with the rights in the African Charter, and in particular to review the Egyptian Police Act 109 of 1971 to bring it in line with the various Guidelines of the Commission cited in the analysis above, as well as the principles of necessity and proportionality. As in the first case, above, the Commission requested the state to inform it within 180 days of the measures taken to implement the decision. Similarly, more than two years have lapsed, and no remedies has been issued and to our knowledge, no report was submitted to the Commission.
The Centre urges Eritrea, Zimbabwe and Egypt, and all other states that have not reported on their compliance with the Commission’s decisions, to do so; and if they have not implemented these decisions and specifically remedial recommendations issued to it by the African Commission, to do so without delay. We also encourage the Commission to put into place a fully functional Compliance Monitoring Unit, and a publicly accessible and continuously updated database setting out the status of implementation of the Commission’s decisions.
The Commission should adopt guidelines to enhancing referral of cases to African Court
The Centre for Human Rights recalls that the African Commission was one of the drivers towards the establishment of the African Court on Human and Peoples’ Rights (African Court). The African Court was created to complement the Commission’s protective mandate. These two bodies have existed side by side for some sixteen years. Over these years, the Commission has referred only 3 cases to the Court.
We note that Rule 130 of the Commission’s 2020 Rules of Procedure explicitly allows for referral by the Commission to the Court in instances when the Commission has not yet made a determination on the admissibility of the Communication. While this is commendable, the Commission should without delay develop transparent guidelines on the circumstances under which such cases will be referred to the Court, and apply these guidelines to relevant cases. Although the current Rules do not explicitly allow the Commission to refer to the Court cases in which the Commission has found states in violation of the Charter, this possibility is clearly allowed for under article 5(1) of the Court Protocol.
The Centre calls on the Commission without delay to develop clear guidelines for referral of cases under article 5(1)(a) of the Protocol to the African Charter on the Establishment of an African Court (Court Protocol). These Guidelines could be based on factors that clarify why a binding (rather than a quasi-judicial) judicial decision is required, and may include: (i) the nature of these case, for example, consideration should be given to transfer instances of provisional measures to the Court, since the Commission’s authority in this regard is not based on the Charter but the Commission’s Rules of Procedure (ii); and urgency of the case; (iii) the stated unwillingness to comply with the Commission’s decisions, or (iv) a record of non-compliance with the Commission’s decisions by the states complained against.
The Centre is concerned about ongoing shrinking civic space for civil society
The Centre notes with extreme concern the targeted efforts by various African governments to close civic space. Various types of anti-NGO measure are adopted in various forms across Africa. One such measures is limiting, capping, or excluding foreign funding and staff hires.
Under the 2009 Civil Society Organizations Law in Ethiopia, for example, NGOs that received more than 10 percent of their funds from foreign sources were designated “foreign agents.” This Law was replaced with a 2019 Proclamation requiring CSOs to allocate 80% of their budget to operational costs and 20% to administration. This requirement has a debilitating effect particularly on NGOs conducting advocacy, rather than direct services to communities. For advocacy/ accountability NGOs, allocation of more of their budget for administrative activities is indispensable for their operation.
This form of legislation seems to have a domino effect. Russia was one of the first states to successfully implement this form of legislation, passing a 2012 federal law tackling foreign funding of “political activities” by NGOs. Since then, a number of states—including Sudan—have created remarkably similar restraints.
Other forms of restriction include establishing onerous registration requirements that are subject to broad bureaucratic discretion; permitting improper state interference in the internal affairs and operations of civil society organizations; and excluding organizations from material areas of activity that are deemed political.
On 5 November 2021, the Zimbabwe authorities introduced proposed amendments to the Private Voluntary Organisations (PVO) Amendment Bill purportedly to comply with the Financial Action Task Force (FATF) recommendations to address terrorism abuse in the non-profit organisation sector, allow for efficient regulation and registration of Private Voluntary Organisations (PVOs), and prohibit PVOs from “political lobbying”. The Bill does not comply with the obligation imposed by the African Charter on the state to respect the right to freedom of association and assembly. It further violates the right to privacy, the right to a fair hearing and the right to administrative justice. The PVO Bill will lead to gross over-regulation and interference in the internal affairs of CSOs in Zimbabwe, arbitrary criminalisation of civic actors on such spurious grounds as supporting or opposing a political party and prohibition on access to foreign funding.
The Centre for Human Rights calls on the African Commission to urge the Government of Zimbabwe to abandon the PVO Bill and introduce a CSO regulatory framework after widespread genuine consultation with the affected sector. We are extremely concerned by the targeted efforts to close civic space by the government of Zimbabwe, through introduction of amendments to the Private Voluntary Organisations Bill to effectively make civil society organisations an extension of government. The Government of Zimbabwe is encouraged to cease targeting of NGOs by top government officials through hate speech; and abandon or amend after genuine consultations with civil society actors, and the Private Voluntary Organisations Amendment Bill, 2021 to allow for enabling civic space without interference. The government of Zimbabwe must also consider the possibility of self-regulation of civil society actors to enable them to maintain their watchdog role.
The Commission should express concern about possible adoption of Ghanaian Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill 2021
The Centre draws attention to the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill 2021, which is directed not only against people who are different because of their sexual orientation, or gender identity, and sex characteristics, but also against anyone who expresses support or sympathy toward LGBTI friends, co-workers, family members or neighbours. The Bill renders a crime ‘engaging or participating in an activity that promotes, supports sympathy for or a change of public opinion towards an act prohibited under the Bill’. If adopted, this Bill would pit citizen against citizen, fuelling stigma, discrimination and the potential for violence. In fact, since the introduction of this Private Member’s Bill, an increase of all forms of violence against sexual and gender minorities, including ‘corrective rapes’, has been reported in Ghana.
The Centre calls on the government of Ghana to take a firm position to oppose the adoption of a law that would deny full citizenship to a significant segment of society, and which would foment intolerance and encourage violence based on sexual orientation and gender identity. The Centre further urges the Commission to engage the government of Ghana in order to arise its concerns about the adoption of the proposed law.
The Commission should explore the use of Resolution 275 as a means to combat ‘conversion therapy’
The African Commission in Resolution 275, adopted in 2014, calls on African states to protect all persons against violence and other human rights violations on the basis of their real or imputed sexual orientation or gender identity and expression. Yet, conversion practices, in their various forms, persist in Africa. These practices take on various forms, including talk ‘therapy’, beatings, so-called “corrective rape” and other forms of sexual assault. Conversion practices have a negative impact on the physical and mental health of LGBTQ survivors with many of them experiencing depression, social anxiety, substance abuse and thoughts of or attempts of suicide. In some cases, these practices can amount to torture, cruel, inhumane and degrading treatment.
The Centre for Human Rights (together with Outright Action International) strongly urges states, in accordance with Resolution 275, to end all acts of violence, including those which constitute conversion practices, committed by non-state actors such as medical practitioners, religious and traditional actors and others, through due diligence investigation of cases of violence and discrimination against LGBTQ+ people and ensuring they have access to justice. We further urge states to put in place measures to support victims and survivors of conversion practices within their jurisdictions and ensure they have access to justice as well as psychosocial services.
The Commission should provide normative guidance to states on intersex persons
During this session, the Centre launched a study and report cataloguing the violation of intersex persons’ rights, prepared in collaboration with intersex persons and organisations on the continent. The indignities and discrimination that intersex persons suffer are not based on their sexual orientation or gender identity, but are due to perceived differences in their sex development, often related to genitalia or hormones. Some of the most pervasive violations they experience are: genital normalising surgeries in medical settings to correct genitalia to make them conform with societal stands; mutilation by traditional birth attendants; a lack of appropriate legal recognition and administrative processes to allow intersex persons to acquire or amend birth certificates and identity documents; and unfair discrimination in schools, health care facilities, competitive sports, work, and in detention facilities.
The fact that intersex persons constitute a small and often invisible group within society does not make them less deserving of our concern and the Commission’s attention. We therefore urge the Commission to take note of the study results, and consider adopting normative guidance (for example, in the form of a resolution) to assist states to correct the misunderstandings on intersex persons among the general public, and to provide legal protection to address the plight of intersex Africans through a human rights-based approach.
The ratification of Disability Rights, Older Persons and Social Security Protocols should be expedited
The African Union member states have adopted four substantive protocols to the African Charter. The most well-known is the Maputo Protocol, which has been in force since 2005. The most recent is the Protocol on the Rights of Citizens to Social Assistance and Social Security, which the AU Assembly adopted earlier this year, in January 2022.
Ratification is not a guarantee that rights are respected. But ratification signals a commitment and allows for accountability for upholding these commitments. Without ratification and entry into force the adoption of norms and standards are rendered empty gestures.
Almost seven years after its adoption, which was on 31 January 2016, the Protocol on the Rights of Older Persons in Africa has achieved only 6 ratifications: those of Lesotho (in 2018), Benin (2019), Ethiopia (in 2020), Kenya and Malawi (in 2021) and Rwanda (in 2022). At this rate, at an average of one ratification per year, this Protocol will reach the required 15 state parties to ensure its enter into force only in another 9 years, that is, by the year 2031.
Almost five years after its adoption, which was on 18 January 2018, the Protocol on the Rights of Persons with Disabilities in Africa has been ratified by only 3 state parties to the African Charter (Kenya, Rwanda and Mali). If this ratification rate is maintained, that is, three every five years, the Protocol will reach the 15 ratification required for its entry into force only in another 20 years, that is, by the year 2042!
The Centre for Human Rights urge all state parties to the Charter that have not yet done so, to ratify the Disability Rights, Older Persons and Social Security Protocols. We also urge the Commission to intensify its efforts to ensure that ratification of these treaties is expedited.
For more information, please contact:
Prof Frans Viljoen
Centre for Human Rights, University of Pretoria
Tel: (012) 420 3228 or mobile: 073 3934181