Access of children to African human
rights protection system
The African Child Policy Forum
I. Human rights instruments pertaining to
the protection of child rights in Africa
The major human rights instruments in Africa
include the following:
• The African Charter on Human and Peoples’
• The African Charter on the Rights and Welfare
of the Child
• Protocol to the African Charter on Human and
Peoples' Rights on the establishment of an African Court on Human and
• Protocol to the African Charter on Human and Peoples' Rights on the Rights
of Women in Africa (Maputo Protocol)
II. Human rights monitoring in the African
human rights system
Generally, there are three main institutions
that are in charge of monitoring the compliance of Member States with the
African Charter and the other African human rights instruments. These are:
the African Commission on Human and People’s Rights, the African Committee
of Experts on the Rights and Welfare of the Child and the African Court of
Human and People’s Rights.
A. The African Commission on Human and
The Commission is established in 1981 and based
in Banjul (The Gambia). It consists of 11 members, who sit for a six year
renewable term. It meets twice a year, with sessions usually lasting up to
10 days. The basic functions of the Commission include:
• promoting human and peoples' rights through
studies, seminars, and awareness raising in the member countries;
• protecting these rights through reporting and
complaints procedures; and
• interpreting the human rights anchored in the
The Commission has three human rights
monitoring: procedures: state-reporting procedure, inter-state complaints
procedure; and individual complaints procedure.
1. State-reporting procedure
Under this procedure, state parties are
required to submit a report to the Commission every two years on their
advances in complying with the African Charter. NGOs are also allowed to
submit reports on their own behalf (“shadow reports”) and can be granted
observer status with the Commission. In 2001, the Commission started to
issue concluding observations with regard to the reports considered.
2. The inter-state complaints procedure
Under this complaints procedure, there are two
ways of settling disputes.
The first option allows a state that considers
another party to have violated the provisions of the Charter, to inform the
other party by written communication, as well as the secretary-general of
the AU and the Chairman of the Commission. The accused state then has the
opportunity to provide a written explanation to the enquiring state. If no
settlement is reached within three months of the original complaint, both
parties have the right to refer the matter to the Commission.
In the second option, a state may directly
lodge a complaint of an alleged violation of the Charter with the
Commission. If no amicable solution can be achieved, it prepares a report
stating the facts, findings, conclusions and recommendations, which are sent
to the states concerned and the Assembly of Heads of State and Government.
At any rate, the inter-state complaints
procedure is rarely used (so far (2006), it has only been used on one
occasion by the Democratic Republic of Congo against Burundi, Rwanda and
Uganda in 1999.
3. The individual complaints procedure
Pursuant to this procedure, states, individuals
or organisations on behalf of an individual may submit a complaint to the
Commission. Complaints have to be sent to the Secretariat of the Commission,
which can register the complaint upon receipt. After that the complaint is
then forwarded to the Commission, which has to decide by simple majority
(six members) whether it is seized with it after examining whether the
complaint alleges any prima facie violation of the Charter and whether it is
properly submitted according to the provisions of Article 55 of the Charter.
If the Commission decides to consider the complaint, it has to take a
decision on the admissibility. In order for a communication to be considered
further, it has to be part of a systematic pattern of gross human rights
violations. If the Commission wants to proceed with the case, the AU
Assembly of Heads of State or Government are notified of the case. They may
then request the Commission to undertake an in-depth study and submit a
factual report accompanied by its findings and conclusions. The final
decision of the Commission, the so-called recommendation, is not legally
binding on state-parties.
The entire procedure is confidential. The final
decision is only published by the Commission if the AU Assembly of Heads of
State and Government agree. Decisions on the basis of individual complaints
that have been made available to the public are annexed to the Annual
Activity Reports of the Commission.
B. The African Committee of Experts on the
Rights and Welfare of the Child
The committee of experts was established in
2002 on the basis of Article 32 of the African Charter on the Rights of the
Child and consists of 11 members. It has two monitoring mechanisms:
reporting and individual complaints procedure
With regard to reporting procedure states are
required to submit reports to the Committee every three years. Where as
based on individual complaints procedure any individual, group, or NGO
recognised by the AU, by a member state or by the United Nations, may lodge
a complaint on any matter covered by the Charter.
C. The African Court of Human and People’s
The Protocol establishing the African Court on
Human and Peoples' Rights entered into force in 2003. The court is comprised
of 11 judges and is seated in Arusha, Tanzania. Basically, the Court
complements the protective mandate of the African Commission. It has
jurisdiction over all cases and disputes submitted to it concerning the
interpretation and application of the Charter and any other relevant human
rights instrument ratified by the states concerned.
The Court has advisory jurisdiction as well as
adjudicatory jurisdiction. With regard to Adjudicatory jurisdiction the
Commission, states, individuals and NGOs may institute complaint. The Court
may also entitle relevant NGOs that enjoy observer status before the
Commission and individuals to institute cases directly before it, provided
that the state against which the application is lodged has made a
declaration that it accepts the competence of the Court to receive such
communications. The judgements of the Court are binding and the states
concerned must comply with the judgement and guarantee its execution. The
Council of Ministers of the AU monitors its execution.
With regard to the Court's Advisory
jurisdiction, The Court itself at the request of a member state of the AU,
the AU itself or any African organisation recognised by the AU may provide
an opinion on any legal matter relating to the Charter or any relevant other
human rights instrument, provided that the subject matter of the opinion is
not being examined by the Commission.
III. Access of children to the African human
rights protection system
At the moment the most relevant institutions
individuals including children can access to realise their rights is the
African Commission. Accordingly if the right of an individual is violated by
a state party, he/she can submit a communication to the Commission. The
communication must in one way or another demonstrate that the State has
violated one or some of the rights in the Charter.
Ordinary citizens, a group of individuals, NGOs
and States Parties to the Charter can all present claims. The complainant or
author of the communication need not be related to the victim of the abuse
in any way, but the victim must be mentioned. Since the preparation,
submission and processing of a communication is a relatively straightforward
procedure, a complainant or author can act on his or her own without the
need for professional assistance. The Commission does not offer legal
assistance to complainants.
Article 56 of the African Charter outlines
seven conditions that must be met. These are:
1. The communication must include the author’s
name, even if the author wants to remain anonymous.
2. The communication must be compatible with the Charter of the OAU and
with the present Charter.
3. The communication must not be written in insulting language directed
against the state or the OAU.
4. The communication must not be based exclusively on news from the
5. The complainant must have exhausted all available domestic legal
6. The communication must be submitted within a reasonable time from the
date of exhaustion of domestic remedies.
7. The communication must not deal with a matter that has already been
settled by some other international human rights body.
From the wordings of Article 58(1) of the Charter, it would seem that the
Commission can only consider a communication when the latter reveals a
series of serious and massive violation of human and peoples’ rights and
only after the Assembly of Heads of State and Government has requested it to
Every communication should indicate if the victim’s life, personal
integrity or health is in imminent danger. In such emergency situations, the
Commission has the powers Under Rule 111 of its Rules of Procedure adopted
provisional measures, thereby urging The State concerned not to take any
action that will cause irreparable damage to the victim until the case has
been heard by the Commission. The Commission can also adopt other urgent
measures as it sees fit.
IV. Opportunities and challenges
In spite of its shortcomings, the African Commission is still a
worthwhile focus for children's rights advocacy. The Commission’s complaint
mechanism is available as a further means to address human rights violations
when justice has not been obtained in national courts. The influence of its
decisions will grow the more it is used.
As a regional human rights institution, its decisions and recommendations
can provide guidance for all states that are parties to the African Charter.
Thus, the scope of its potential influence is great.
While there is no mechanism to enforce its decisions and recommendations,
the experience of human rights advocates at the international level has
demonstrated that publicly declaring human rights violations in an
international forum can be embarrassing and harmful to governments and may
encourage them to act.
The creation of the African Court may serve to further define the role of
the Commission and provide a more effective institutional structure for
promoting and protecting human rights, but the Court itself will have to be
careful to avoid the weaknesses experienced by the African Commission.
At the same time, the growth of the African human rights system to
include a Court is a hopeful development for the promotion and protection of
Many people in Africa do not appreciate human rights and how to use them
to prevent abuses from occurring or to remedy abuses that have occurred.
Many people are also unaware of both the African Charter and the African
Commission as well as how to use them to protect human rights. The
inefficiency of national legal systems for the average person seeking
justice makes the situation worse. Culture is another constraint. In many
African communities, children have a lower status that does not prioritise
their rights. At the same time, willingness to discuss human rights issues
varies between different regions within the continent and between different
groups within countries.
Specific challenges related to the commission
There are a number of challenges related to the
Commission. Firstly, the Commission is under funded and has problems with
efficiency and effectiveness. Secondly, although the Charter has been in
effect since 1987, very few State Reports have been submitted. As of 2000,
only 23 states had submitted their initial reports, three second reports had
been sent, and only one third report. This demonstrates that the Commission
has been unable to ensure compliance with this requirement. Thirdly, the
development of certain procedural practices has restricted the Commission’s
effectiveness. Complaints are considered in closed sessions; thus, the
public is unable to observe the process. This practice raises some questions
about the transparency and credibility of the work of the Commission, which
is easily misunderstood or ignored since it is unseen. And last, the
Commission has no means of ensuring that its decisions and recommendations
are implemented. It can state its opinion on human rights cases and on
government obligations, but it lacks an effective means of enforcement.
V. Conclusions and recommendations
To effectively protect the rights of children in Africa, the following
points could be recommended:
• the ratification of all relevant regional human rights instruments by
all African states.
• the African Commission was a step in the direction. However, a regional
human rights system worth its name needs strong institutions to anchor to
its norms and values.
• the African Committee of Experts on the Rights and Welfare of the Child
should be effective in order to fully enforce individual complaints, which
is a step forward even from the CRC which does not allow such mechanism.
• all regional human rights instruments should be translated in to local
languages to raise the awareness of the general public.
• state parities have to examine their national legislations and take all
the necessary legislative measures to harmonise their laws with regional and