On 25 April 2015 the African Commission on Human and Peoples’ Rights voted in favor of granting the Coalition of African Lesbians [CAL] Observer Status. This came after a seven year struggle by CAL and a broad based civil society working in solidarity with CAL. Many human rights activists and defenders on the African continent and all over the world celebrated this decision with CAL.
This decision was important for many reasons, one of which is the recognition by the main human rights body of the African Union of the fact of the work of CAL as being in support of the African Charter on Human and Peoples’ Rights. CAL is a human rights organization.
1. What is happening?
At the recently concluded 25th African Union Summit and during the consideration of the report of the African Commission of Human and People’s Rights, the Executive Council of the African Union made the following decision:
“REQUESTS the ACHPR to take into account the fundamental African values, identity and good traditions, and to withdraw the observer status granted to NGOs who may attempt to impose values contrary to the African values; in this regard, REQUESTS the ACHPR to review its criteria for granting Observer Status to NGOs and to withdraw the observer status granted to the Organization called CAL, in line with those African Values”.
2. Why is this a problem?
2.1. The challenge to the independence of the African Commission
We are deeply concerned that this request by the Executive Council, constitutes a challenge to the independence of the African Commission on Human and Peoples’ Rights [ACHPR].
The ACHPR is the main body which is mandated by the African Charter on Human on People’s Rights with the promotion and protection of human rights and the *only body within the African Union which is charged with interpreting the African Charter on Human and Peoples’ Rights.
The work of the African Commission on Human and Peoples’ Rights is critical to the advancement and protection of all human rights for all. Their work as a body which is independent from states and from other AU organs means that we have an institution that can set human rights standards in Africa and to monitor the implementation of these standards.
The African Commission on Human and Peoples’ Rights sets standards on human rights that AU member states must follow. Where states fail to honor their human rights obligations, the African Commission on Human and Peoples’ Rights has a mandate to hold States accountable for human rights violations.
As such, it is one of the key institutions on the African continent which enables accountability for human rights situations across the continent. We need the ACHPR to function with a high level of skill, integrity and independence and to ensure that its own rules of procedure are known, respected and adhered to by itself and by others, including states and other AU organs.
The African Commission does not exist to mirror or reflect the prejudices of AU member States or the other AU organs that might have other considerations in their work foreign to or not fully compliant with human rights principles and standards.
We are concerned that the request of the Executive Council of the African Union threatens the independence of the African Commission on Human and Peoples’ Rights.
2.2. The Executive Council acted beyond the scope of its powers
We are also concerned that the Executive Council, in making such a request, has misunderstood the nature of its powers under article 59 (3) of the African Charter, which reads as follows:
“The report on 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.”
The duty to consider the report cannot be construed to mean the power to overturn the decisions of the African Commission and to substitute the decisions of the Commission with those of the Executive Council. In the unlikely event that the obligation to consider a report includes overruling and substituting the decision of the African Commission, without so much as a deliberation on engagement with the decision itself, these powers make a mockery of the processes undertaken by the African Commission on Human and Peoples’ Rights and undermines the basic rules of administrative justice.The African Commission has set out a procedure for eligibility in granting Observer Status to eligible non-governmental organisations. CAL has met the requirements for granting of the Observer Status. The decision of the African Commission can only be revisited on the basis of new evidence becoming available and applicable to all NGOs granted with Observer status before the ACHPR. The Executive Council had no powers to do what it purported to do in making this request to the African Commission on Human and Peoples’ Rights as there is no relationship of hierarchy between the ACHPR and the Executive Council where it comes to its work on substantive human rights issues, including the interpretation of the African Charter of Human and Peoples’ Rights and the deriving Rules of Procedures.
2.3. The decision of the Executive Council is arbitrary
2.3.1. The decision by the Executive Council to request the Commission to withdraw the observer status is arbitrary. The Executive Council requests that the African Commission must take into account fundamental African Values and withdraw the observer status. The African Charter on Human and Peoples’ Rights sets out a range of human and peoples’ rights. Over the past 30 years, the African Commission has consistently and deliberately sought to give meaning and content to the various provisions of the African Charter. African values have never been defined in the African Human Rights Systems to mean that human rights organisations may not receive observer status. There is no evidence that CAL may (our emphasis) attempt to impose values contrary to African values. The decision to grant Observer status to the Coalition of African Lesbians is an affirmation of the right to freedom of association and the right to be free from discrimination. There is no basis for the suggestion that African values are the sole criteria for granting Observer Status.
2.3.2. Criteria for granting Observer Status have been established in a Resolution adopted by the African Commission in 1999. Article 2(a) indicates that the applicant must “[h]ave objectives and activities in consonance with the fundamental principles and objectives enunciated in the OAU Charter and in the African Charter on Human and Peoples’ Rights.” Objective and principles of the African Union are spelled out in articles 3 and 4 of the Constitutive Act, which mention, among others, unity and solidarity, peace, democratic principles, good governance, human rights, rule of law, good governance, gender equality, but not African values or traditions.
2.3.3. If African values are fundamentally distinct and incompatible with human rights values to the extent that the AU can override human rights at will, the value of the African Charter on Human and Peoples’ Rights is questionable.
3. What do we want?
From the African Commission on Human and Peoples’ Rights
1. We call on the African Commission on Human and Peoples’ Rights to reflect on and respect its own independence as the only body mandated to interpret the African Charter on Human and Peoples’ Rights;
2. We call on the African Commission on Human and Peoples’ Rights, based on their independence, to defy an unlawful instruction from the Executive Council of the African Union and to uphold its own independent decision to grant CAL Observer status;
3. We call on the Chairperson of the African Commission on Human and Peoples’ Rights to strongly and outspokenly defend the decisions, resolutions and recommendations of the ACHPR before the AU political organs without independence, integrity and freedom from prejudice or personal/emotional bias.
Human rights defenders and activists in civil society
4. We call on all civil society formations, human rights defenders and all Africans of conscience to recognize that the failure of the Executive Council of the African Union to respect the independence of the African Commission and its rules of procedure is only in part about the Coalition of African Lesbians. It is, in the main, an issue of the very future of the protection of human rights on the continent and the shrinking of CSO space before the African Union bodies. If we don’t have a credible human rights bodies that can take decisions that can be respected by member States, we will not be in a position to ensure accountability by our states to fulfil their human rights obligations to address human rights violations and discrimination.
5. We call on all civil society formations, human rights defenders and all Africans of conscience to recognize the crises that this challenge and threat to the independence of the ACHPR presents to advancing civil, political, economic, social and cultural rights on the African continent. When we disable the independence of the ACHPR – or allow it to be disabled – we open the door to political interference, arbitrariness, dictatorship and all sorts of threats to human dignity, freedom and equality. We lose our space to set standards for human rights on the continent and we lose our capabilities to ensure that states are held accountable for human rights violations and abuses and discrimination
The African Commission on Human and Peoples’ Rights is *our institution as the AU itself and its various organs should be. We must defend the ACHPR’s independence.
A human rights body that is not independent is just as a good as a non-existent body. We cannot stand by and watch as this independence is challenged and eroded.
6. We call on all civil society formations, human rights defenders and all Africans of conscience to act now to support the African Commission on Human and Peoples’ Rights in asserting its independence. You can do this by signing on the Statement to Defend the Independence of the African Commission on Human and Peoples’ Rights. We also urge you to start and sustain the conversation about this threat to the independence of the African Commission with people involved in your work and in your activist and social circles.
National Human Rights Institutions and the Network of African Human Rights Institutions
7. We call on the NHRIs and the African Networks to discuss and recognize the threat that this request from the Executive Council poses to the independence of the African Commission on Human and Peoples’ Rights and to the integrity of the Regional human rights system
8. We further call on these human rights institutions to develop and implement concrete actions to defend the independence of the African Commission on Human and Peoples’ Rights and by extension, the African Human Rights System.
9. We call on all states in the African Union to preserve and defend the independence and integrity of the African Commission on Human and Peoples’ Rights.
10. We call on all states to respect the decisions of our collective human rights body in Africa and to desist from political interference in the work of the African Commission on Human and Peoples’ Rights.
FOR MORE INFORMATION AND TO GET INVOLVED CONTACT
Fadzai Muparutsa – firstname.lastname@example.org or at 011 403 0004/7