Building a Europe for and with children

Access of children to African human rights protection system

Helen Seifu
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’ Rights

• 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 Peoples' Rights

• 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 People’s Rights

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 African Charter.

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 Rights

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 media.

5. The complainant must have exhausted all available domestic legal remedies.

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 do so.

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

1. Opportunities

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 human rights.

2. Challenges

General

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 international standards.