2. (1982)21(1)I.L.M.58.68.

3. Arts.30 and 45. The Commission was established and set up on 29 July 1987. Doc-OAU AFR/COM/HPR 2(1). Annex 11.

4. E.g. Regional Seminar on Human Rights in Developing Countries. 8–22 Feb. 1966, UN Doc.ST/TAO/HR/25: Seminar on Establishment of Regional Commissions on Human Rights with Special Reference to Africa, 2–15 Sept. 1969, Cairo, UN Doc.ST/TAO/HR/38; Seminar on Study of New Ways and Means to Promote Human Rights with Special Reference to the Problems and Needs of Africa, 23 Oct.-5 Nov. 1973. Dar-es-Salaam, UNa Doc.ST/TAO/HR/49.

5. Suggested at the 1967 seminar organised by the ICJ on the “Function of Law in the Development of Human Communities with Special Reference to Africa”.

6. Proposed at the “African Conference on the Rule of Law” in Lagos. 3–7 Jan. 1961.

7. Such a Commission was actually set up in 1964 but failed to function as it was unable to form a quorum and was thus eventually dissolved.

8. This was the format that was followed by the OAU. “Decision on Human Rights and Peoples' Rights in Africa”, Decision 115(XVI) Rev.l OAU Doc.AHG/115(XVI)( 1979).

9. E.g. in the Working Group at the Monrovia Seminar organised by the UN in 1979, UN Doc.ST/HR/SER.A/4(1979).

10. Arts.47–54.

11. Art.55(l).

12. Art.55(2).

13. Art.58 reads:“(1) When it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples' rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases. (2) The Assembly of Heads of State and Government may then request the Commission to undertake an in-depth study of these cases and make a factual report, accompanied by its findings and recommendations. (3) A case of emergency duly noticed by the Commission shall be submitted by the latter to the Chairman of the Assembly of Heads of State and Government who may request an in-depth study.”

14. Art.58(2).

15. In Libreville. Gabon. 18–28 Apr. 1988.

16. Previous rr.l 14(l)a and b. The Commission developed a “methodology” for dealing with the communications at its third session: First Activity Report of the African Commission on Human and Peoples' Rights, Documentation 1, p.4. para.26.

17. American Convention on Human Rights. Arts.44 and 45. Both the European Convention on Human Rights. Art.25. and the International Covenant on Civil and Political Rights, through its Optional Protocol, require State parties specifically to accept the respective complaints procedures before they can be used by individuals.

18. As stipulated by Art.41. Constant calls have been made by the Commission for further assistance from the OAU: see e.g. 6th Annual Activity Report 1992–1993, African Commission, Banjul (1993), p.7. The Commission does receive some outside funding for promotional trips from the Raoul Wallenburg Institute and other bodies.Google Scholar

19. Art.59 reads: “(1) All measures taken within the provisions of the present Charter shall remain confidential until such time as the Assembly of Heads of State and Government shall otherwise decide. (2) However, the report shall be published by the Chairman of the Commission upon the decision of the Assembly of Heads of State and Government. (3) The report of the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.”

20. E.g. respectively. Commissioner Umozurike, “The African Charter on Human and Peoples' Rights”, in Benedek. Human Rights in Europe and Africa (1992). p. 108 and ex-Commissioner Moleleki Mokama was concerned as “the OAU Summit consists of the very guilty parties” and that “international public concern was the best form of protection for human rights”: Odinkalu. Interview with Moleleki Mokama. Interights (1993).Google Scholar

21. E.g. the 5th Report states only the number of communications received so far and that the Commission had taken “preliminary and provisional measures” in respect of them: 5th Annual Activity Report of the African Commission, 1991–1992. African Commission, Banjul (1992). p.7.Google Scholar

22. African Commission on Human and Peoples' Rights. 7th Annual Activity Report 1993–1994, covering the 14th and 15th Ordinary Sessions (Dec. 1993 and Apr. 1994). African Commission. Banjul (1994) ACHPR/RPT/7th: African Commission on Human and Peoples' Rights. 8th Annual Activity Report 1994–1995, covering the 16th and 17th Ordinary Sessions (Oct./Nov. 1994 and Mar. 1995). African Commission, Banjul (1995) ACHPR/RPT/8th: African Commission on Human and Peoples' Rights. 9th Annual Activity Report 1995–1996. African Commission, Banjul. AHG/207(XXXII).

23. 8th and 9th Reports, ibid.

24. 6th Report, supra n.18. ACHPR/Rpt/6th; Annex XI.

25. The text of both the Reports under the heading “Protective Activities” does indicate that details are provided in the Annexes and. interestingly, the 7th Report, supra n.22. at para.37, even states that this is “in accordance with Article 59”. presumably referring to the publication of the Report provided for in Art.59(2).

26. Resolution on Nigeria, of 17th session, adopted 22 Mar. 1995,8th Report, supra n.22. Annex VIII.

27. Account of the Internal Legislation of Nigeria and the Disposition of the African Charter on Human and Peoples' Rights. Doc.II/ES/ACHPR/4. p.7.Google Scholar

28. As required by Art.59(2) and (3).

29. E.g. at the recent 10th ICJ workshop on NGO participation in the work of the African Commission one commissioner replied, to a concern voiced that the communication procedure should be more open, that “it is necessary for the Commission to tread cautiously at the start … next time maybe we will give reasons for our decisions but please do bear with us as we may do more harm than good to African populations”: author'.s own transcripts of the 10th ICJ Workshop on NGO Participation in the African Commission. 23–25 Mar. 1996. Ouagadougou. Burkina Faso.

30. Constitutional Rights Project of Nigeria published two decisions by the Commission concerning Nigeria in its magazine. Constitutional Rights Journal. July'Sept. 1995. One of these was used by a Nigerian judge. Justice Morounkeji Omatayo Onalaja. to take a case which it would not have been possible to do under national legislation. High Court, Lagos, 5 May 1996.

31. Amendments to the Rules of Procedure, ACHPR/AMEND.RP(DANKWA)/XVI1I. 18th Ordinary Session. 2–11 Oct. 1995. Praia, Cape Verde. The amended Rules of Procedure will be given throughout this article and the previous rules will be detailed where relevant.

32. I have cited cases with the reference number of the Commission, name of complainant and State, then (in parentheses) the report in which it can be found and the number it appears at. In her recently published work. The African Commission, Practices and Procedures (1996). Ankumah also gives details of communications received and decided by the Commission and I have referred to these for clarification. However, the intention of this article is to focus on the decisions emanating from the Commission itself.

33. R. 106, previous r. 105.

34. Previous r.103. How many communications are received in the form of a questionnaire is not public knowledge. Amended r.104 no longer requires the communication to be sent to the Secretary General of the OAU but to the Secretary of the Commission.

35. Previous r. 110.

36. The Commission gives the State three months to respond to this initial contact (r.l 17 (4)): communication No.70/92, Ibrahim Dioumessi, Sekou Kamke, Ousmane Kaba v. Guinea (7th Report, supra n.22. at No.41).

37. R.I 16. previously r.l 14. Cases have been considered together if e.g. they were against the same State. See communications No. 16/88 joined with 17/88 and 18/88. Comité Culturel Pour la Democratie au Benin v. Benin (8th Report, supra n.22, at Nos.2–4).

38. R.115, previous r. 113.

39. Previous r. 114 listed the conditions in a different order from Art.56 and added others, which was clearly undesirable. This has been remedied by the amended r. 116, which merely requires the Commission to determine questions of admissibility in accordance with Art.56.

40. Also previous r. 114(3)a.

41. Reported 8th Report, supra n.22, at No.19.

42. If, however, the case is one that falls within Art.58 and indicates serious or massive violations it is possible that this anonymity requirement may be dropped—“the communication is not submitted in the name of a specific victim, nor does the complainant allege grave and massive violations”; 8th Report, idem. p.19.

43. Previous r. 114(3)d.

44. E.g. against Ghana, communication No.4/88, Coordinating Secretary of the Free Citizens Convention v. Ghana (7th Report, supra n.22, at No.4), which did not ratify until 1 June 1989; against Lesotho, communication No.33/89, Simon B. Ntaka v. Lesotho (idem. No.24), which ratified in Feb. 1992.

45. Previously No.56/91 (8th Report, supra n.22. at No.23).

46. Kenya ratified on 23 Jan. 1992.

47. “The author is incoherent and his complaints are vague. The communication is inadmissible”; 7th Report, supra n.22, at p.22.

48. Previous r.H4(3)b. The amended Rules do not explicitly require this.

49. Reported 7th Report, supra n.22. at No. 12.

50. 7th Report, idem. p.70.

51. Communications Nos. 104/94.109–126/94, supra n.41 (also reported 7th Report, idem. No.48): communication No.63/92, Congress for the Second Republic of Malawi v. Malawi (idem. No.35).

52. Communication No. 104/94. ibid.

53. Communication No.35/89, Seyoum Ayele v. Togo (7th Report, supra n.22, at No.25).

54. Reported idem. No. 1.

55. Previous r. 115.

56. Communication No.57/91, Tanko Bariga v. Nigeria (7th Report, supra n.22, at No.34).

57. Communication No.106/93. Amuh Joseph Vitine v. Cameroon (idem. No.49).

58. This was reiterated in the previous r.l 14(l)a. (3)b, which has been deleted from the amended Rules.

59. At present this is only two States: Ethiopia and Eritrea.

60. Inter alia against the US, e.g. communication No.2/88. Iheanyichukwa A. Ihebereme v. USA: against Yugoslavia, communication No.3/88, Centre for the Independence of Judges and Lawyers v. Yugoslavia: against Bahrain, communication No.7/88. Committee for the Defence of Political Prisoners v. Bahrain: and against Indonesia, communication No.38/90. Wesley Parish v. Indonesia (all 7th Report, supra n.22. at Nos.2.3, 7,27 respectively).

61. Communication No.12'88. Mohamed El-Nekheily v. OAU (idem. No.11).

62. Communications Nos.104/94,109–126/94. supra n.41.

63. The amended Rules of Procedure leave it to the Charter in respect of who may submit a case. supra n.31. but the 9th Report. supra n.22. indicates that the rule has. in fact, continued to be followed in practice.

64. Reported 8th Report, supra n.22, at No.12.

65. No information was given as to any decision over who should bring the case.

66. Previous r. 114(2). deleted in amended Rules.

67. Communication No.31/89, Maria Baes v. Zaire (8th Report, supra n.22, at No.5): communication No.39/90, Annette Pagnoule v. Cameroon (idem. No.6): communication No.22/88, International Pen v. Burkina Faso (7th Report, supra n.22, at No. 19). Interestingly, the complainant was released due to the intervention of a commissioner in communication No. 11/88, Henry Kalenga v. Zambia (idem. No.10).

68. Communication No.66/92, Lawyers Committee for Human Rights v. Tanzania (7th Report, idem. No.36). The amended Rules do not expressly contain this provision.

69. Charter of the Organisation of African Unity. 1963.479 U.N.T.S. 39: (1963) 2 I.L.M. 766.

70. It is possible that the previous r. 114(3) was supposed to be the same but this is not clear as no cases have been made public by the Commission on this ground. However, as a comparison, in Rafael v. Austria, 26 CD. 54.9 Y.B. 46. where insulting language was used in the complaint, the European Commission held the case to be inadmissible on grounds of abuse of procedure.

71. Communication No. 12/88. supra n.61.

72. Previous r.l 14(3)e. which was differently worded. The amended Rules deleted this provision.

73. African Commission on Human and Peoples' Rights. Review of the African Commission on Human and Peoples' Rights, Vol.1. Banjul. Oct. 1991. RevAfCommHPR, p.12.Google Scholar

74. Previously r.114(3)g, which did not match Art.56(4), the latter recognising that remedies may not exist at all with its inclusion of the words “if any”, r. 114(3)g requiring only the “available” remedies to be exhausted. The amended rule removes the inconsistency.

75. In particular under the European Convention on Human Rights: see Davidson, Human Rights (1993), p.52.Google Scholar

76. E.g. communication No.45/90, Civil Liberties Organisation v. Nigeria (7th Report, supra n.22. at No.31): communication No.131/94, Ousman Manjang v. The Gambia (idem. No.51).

77. In 9th Report, supra n.22., at No.l.

78. Reported 8th Report, supra n.22, at No.17.

79. Communication No.90/93. Paul S. Haye v. The Gambia (idem. No. 16).

80. See Ankumah, . op. cit. supra n.32. at p.69.Google Scholar

81. Communication No.53/91. Alberto Capilao v. Tanzania (8th Report, at No.7 and 7th Report, at No.32–both supra n.22).

82. Communications No.60/91. Constitutional Rights Project v. Nigeria (in respect of Waheb Akamu, G. Adega and others) and No.87/93. Constitutional Rights Project (in respect of Zamani Lakwot and 6 others) v. Nigeria (both 8th Report, idem. Nos.9.15 respectively).

83. The Commission also stated that such remedies were neither “adequate nor effective”. The latter word is not found in either the Charter or the previous or amended Rules concerning individual communications but is in the amended r.97 governing inter-State complaints. It is likely that the Commission is following the precedent set by other international cases.

84. In respect of communication No. 129/94 against Nigeria, reported, supra n.27 at p.1.Google Scholar

85. Communications Nos. 16/88, 17/88 and 18/88, El Had Boubacare Diawara v. Benin (8th Report, supra n.22, at No.4); communication No. 138/94. International Pen on behalf of Senn and Sangare v. Cote D'lvoire (xywidem. No.22); communication No.135/94. Kenyan Human Rights Commission v. Kenya (9th Report, supra n.22. at No.5).

86. E.g. communication No.8/88. Nziwa Buyingo v. Uganda (8th Report, idem. No.l).

87. Communication No.86/93, M. S. Ceesay v. The Gambia (idem. No.14).

88. As it did in communication No.97/93, John K. Modise v. Botswana (7th Report, supra n.22. at No.47).

89. Supra nn.82 and 84.

90. Op cit. supra n.27, at p.2.Google Scholar

91. Previous r.114(3)g with slightly different wording.

92. Op. cit supra n.27. at p.l.Google Scholar

93. Idem. p3.

94. Previous r. 114(3)h.

95. E.g. communication No.127/94, Sana Dumbuya v. The Gambia (8th Report, supra n.22. at No.20). where the Commission had waited since 1988 for a reply: communication No.8/88, supra n.86. Art.56(6) adds that the communication may be submitted in a reasonable time from the date the Commission is seised of it.

96. European Convention on Human Rights. Art.26: American Convention on Human Rights. Art.46(l)b.

97. Reported 7th Report, supra n.22. at No. 14.

98. Presumably the UN Human Rights Committee, but this is not explicitly stated in the text.

99. As detailed supra, amended r. 114 contains no admissibility conditions but merely refers to the Charter. Previous r. 103(1 )g stated that the author may be required to give details of the extent to which his case “is already being considered” by another body. In the amended r.104(l)g these words are replaced by “has been settled”.

100. Reported 7th Report, supra n.22, at No.39.

101. A et al. v. S (1991) Selected Decisions, p. 17. Under Art.5(2)a the Committee will not deal with cases that are under consideration under any other procedure of international investigation or settlement.Google Scholar

102. See e.g. in respect of the UN Human Rights Committee. Millan Sequiera v. Uruguay. Communication No.R 1/6,1 H.R.LJ. 231: Celibeni v. Uruguay.Communication No.R 13/56, 2 H.R.LJ. 145: in respect of the European Commission on Human Rights, the Irish case. Application 493/59.4 Y.B. 302.

103. E.g. A.M. v. Denmark. Communication No.R 26/121.3 H.R.LJ. 188.

104. Communication No.67/91. Civil Liberties Organisation v. Nigeria (7th Report, supra n.22. at No.37).

105. Communication No.43/90. Union des Scolaires Nigériens-Union Générate des Etudianls Nigéens an Benin v. Nigeria (idem. No.30); communication No.55/91, International Pen v. Chad (idem. No.33), where the details given stated the possibility of the author' death.

106. Communication No.93/93. International Pen v. Ghana (idem. No.46): communication No.136/94. William Courson v. Zimbabwe (8th Report, supra n.22. at No.21).

107. Art.57 reads: “Prior to any substantive consideration all communications shall be brought to the knowledge of the State concerned by the Chairman of the Commission.”

108. R.113.previousr.111.

109. Communication No.8/88, supra.86. where the Commission, having waited since 1988 for a reply on exhaustion of local remedies, finally declared it inadmissible in 1995. Communication No.67/91. supra n.104. In one case the Commission made an innovative suggestion that the author contact a named NGO for assistance: communication No.97/93, supra n.88.

110. Communication No.67/91, ibid. where the “fourth deadline was reached” for a reply from the author.

111. R.I 18.previousr. 116(1).

112. R.118(2), previous r.116(2).

113. R.118(2). previous r.117(4).

114. R. 119(2), amended from four months in previous r. 117.

115. Communications Nos.129/94 and 101/93. supra n.84.

116. Supra n.27. at p.5.Google Scholar

117. Ibid.

118. Previousr. 118.

119. Art.46 allows the Commission to “resort to any appropriate method of investigation: it may hear from … any other person capable of enlightening it”.

120. Communication No. 16/88, joined with 17/88 and 18/88. supra n.37. where “notices of hearing” were sent.

121. Communication No.74/92, Commission Nationale des Droits de l'Homme et des Libertés v. Chad (9th Report, supra n.22, at No.3).

122. Jean Y. Degli (on behalf of N. Bikangi) v. Togo (7th Report, supra n.22. at No.43).

123. Supra n.82.

124. ACHPR/COMM/AO44(201) o f l 3 Feb. 1995.

125. Previousrr. 118, 109, title of r,118 respectively. Amended rr. 120. 111, 118 are the same.

126. Op. cit. supra n.27, at p.7.Google Scholar

127. Idem. p.6.

128. Previous r. 118(l).

129. Communication No.64/92. Krischna Achutan (on behalf of Ateke Banda); No.68/92. Amnesty International on behalf of Orton and Vera Chirwa: No. 78/92. Amnesty International on behalf of Onon and Vera Chirwa v. Malawi (8th Report, supra n.22. at No.ll).

130. 8th Report, idem. p.7.

131. Idem. p.8.

132. Ibid.

133. Supra n.82.

134. Communications Nos.64/92.68/92,78/92. supra n.129.

135. Communication No. 101/93. Civil Liberties Organisation in respect of Nigerian Bar Association v. Nigeria (8th Report, supra n.22, at No. 18).

136. Supra n.82. In addition, see cases brought by Amnesty International, supra n.129.

137. Delcoun v. Belgium (2689/65) Judgment. 1 E.H.R.R. 355. (1970) Series A. No.ll.

138. Communications Nos.64/92.68/92,78/92, supra n.129.

139. Op. cit. supra n.27.

140. It is suggested that what the Commission is referring to is the “independence of the courts” requiring protection in Art.26.

141. Communication No.101/93. supra n.135.

142. Ibid.

143. Communications Nos.25/89,47/90.59/91 and 100/93, supra n.77.

144. Op. cit. supra n.27.

145. Such “clawback” clauses are found in a number of the arts., such as Art.6. and permit limitations on the particular right if the “reasons and conditions [are] previously laid down by law”, thus appearing to give free rein to governments to pass national legislation that may conflict with the rights guaranteed under the Charter.

146. Art.59(2) states that “a report shall be published” but it is not entirely clear to which report this is referring.

147. Supra nn.82 and 135 respectively.

148. Although in communications Nos.64/92.68/92 and 78/92. supra n.l 29. the information made public does not indicate what the government was required to do to rectify the situation, this is not to say that the Commission did not tell the government itself what was necessary.

149. Communications Nos.64/92.68/92. 78/92. ibid.

150. 8th Report, supra n.22. at p.6.

151. This was decided at the 2nd Extraordinary Session in Kampala. Dec. 1995.

152. Held in Ouagadougou. Burkina Faso, from 26 Mar. to 4 Apr. 1996.

153. The mission was initially planned for 16–21 Feb. but this was cancelled. At the 19th session the government sent a representative to the session and several NGOs from Nigeria were present and called for the mission to go ahead.

154. To Togo, Senegal and Mauritania. The 17th session transcripts reveal that other missions have not been undertaken for various reasons: the State refused permission to enter: it did not reply to a request for a visit: or there were problems of financing the trip. Missions have been suggested to Sudan and Zaire: 8th Report, supra n.22. at p.6.

155. According to the transcripts of the 17th session a report on the Togo mission was made but on investigation no one at the Secretariat was aware of its existence.

156. Commissioner Dankwa commented at the 19th session that he had in fact done this in respect of one communication.

157. Resolution on the African Commission on Human and People's Rights, note A4:6th Report, supra n.18, at p.8.Google Scholar

158. Art.58 is quoted supra n.13. For an analysis of Art.58 see Odinkalu and Mdoe. Article 58 ofthe African Charter on Human and Peoples Rights: A Legal Analysis ana" Proposals for its Implementation. Interights (1996).

159. Ankumah. “The Emergency Provision of the African Charter on Human and Peoples Rights”. Review of the African Commission on Human and Peoples Rights. Vol.4 (1994). It could be possible to use Art.46 and avoid the restrictions that the OAU would place on the Commission.

160. Reported 7th Report, supra n.22. at No.52.

161. Communication No.83/92.88/93.91/93 joined. Jean Yaovi Degli (an nom du Corporal N. Bikangi). Union Interafricaine des Droits de L Homme. Committee International de Jurisles v. Togo (8th Report, supra n.22. at No. 13 and 7th Report, idem. No.43).Google Scholar

162. Resolution AHG/230(XXX)OAU requested the Secretary General to convene a meeting of experts to discuss ways of strengthening the Commission and the idea of a Court. This group met in Cape Town in Sept. 1995. Comments from States on the Draft Protocol are being awaited. Once received, the document may be amended accordingly, and then presented to the Council of Ministers of the OAU for their approval. As few States have submitted any observations it may be some time before the Protocol is adopted.

163. ACHPR/LEG/GEM/XIX.