AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
Addis Ababa, ETHIOPIA P. O. Box 3243 Telephone +251115- 517700 Fax : +251115- 517844
Website : www.africa-union.org
EXECUTIVE COUNCIL
Thirteenth Ordinary Session
24 – 28 June 2008
Sharm El-Sheikh, EGYPT
EX.CL/446(XIII)
ACTIVITY REPORT OF THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS, SUBMITTED IN CONFORMITY WITH ARTICLE 54 OF THE
AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
EX.CL/446(XIII)
Page 1
ACTIVITY REPORT OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS, SUBMITTED IN CONFORMITY WITH ARTICLE 54 OF THE AFRICAN
CHARTER ON HUMAN AND PEOPLES’ RIGHTS
Introduction
1.
The African Commission on Human and Peoples’ Rights (“the African
Commission”, “the ACHPR”) is presenting herewith, its Report to the Assembly of
Heads of State and Government, in line with Article 54 of the African Charter on
Human and Peoples’ Rights (“the African Charter, “the Charter”).
2.
The Report covers the period May 2007 to May 2008.
3.
During this period, the African Commission held two Ordinary Sessions, and
one Extraordinary Session: the 42nd Ordinary Session of the Commission, the 43rd
Ordinary Session of the Commission, and the 4th Extraordinary Session of the
Commission.
4.
The 42nd Ordinary Session was held from 15-28 November 2007, in
Brazzaville, Republic of Congo. The Report of this Session, as well as the activities
carried out in the Inter-Session period preceding it, are contained in the 23rd Activity
Report of the ACHPR, attached hereto as Annex I.
5.
The 43rd Ordinary Session was held from 7-22 May 2008, in Ezulwini, in the
Kingdom of Swaziland. The Report of that Session and the activities undertaken in
the Inter-Session period preceding it are contained in the 24th Activity Report of the
African Commission, also attached hereto as Annex II.
6.
The 4th Extraordinary Session was held in Banjul, The Gambia, from 17-23
February 2008, and is, therefore, an integral part of the 24th Activity Report of the
African Commission.
7.
The 23rd and 24th Activity Reports referred to above, describe developments
within the African Commission, as well as some of the activities undertaken by the
African Commission during the reporting period. The Reports also provide an
overview of the general human rights situation on the continent during this period;
some of the challenges facing the African Commission; the financial and
administrative situation of the Secretariat of the Commission; and progress regarding
the construction of the Commission’s headquarters.
Swearing in of New Members of the Commission
8.
It will be recalled that four new members of the African Commission were
elected at the July 2007 Summit of the AU Heads of State and Government, and one
member was re-elected. These five members of the Commission were duly sworn in
during the 42nd Ordinary Session of the Commission. These members are:
i.
Commissioner Angela Melo (re-elected);
EX.CL/446(XIII)
Page 2
ii.
iii.
iv.
v.
Commissioner Catherine Dupe Atoki;
Commissioner Soyata Maiga;
Commissioner Kayitesi Zainabo Sylvie;
Commissioner Yeung Kam John Yeung Sik Yuen.
Election of the Bureau
9.
Also at its 42nd Ordinary Session, the Commission elected Honorable Justice
Sanji Mmasenono Monageng and Dr. Angela Melo, as Chairperson and ViceChairperson, respectively, in accordance with its Rules of Procedure.
Review, Renewal, Reallocation of Mandates of Special Mechanisms, and
Responsibility for Countries
10.
During the 42nd Ordinary Session, the African Commission reviewed its
Special Mechanisms, and reconstituted them as follows:
a.
Focal Point and Coordinator on the Rights of Older Persons
i.
ii.
iii.
b.
Follow-up Committee on the Implementation of the Robben Island Guidelines
i.
ii.
iii.
iv.
v.
vi.
c.
Commissioner Catherine Dupe Atoki – Chairperson (new appointment)
Mr. Jean-Baptiste Niyizurugero - Vice
Chairperson (membership
renewed)
Mrs. Hannah Forster – membership renewed
Ms. Karen McKenzie – membership renewed
Mr.Malick Sow - membership renewed
Ms. Leila Zerrougui – membership renewed
Working Group on Economic and Social Rights
i.
ii.
iii.
d.
Commissioner Yeung Kam John Yeung Sik Yuen – Chairperson (new
appointment)
Commissioner Reine Alapini - Gansou – old member
Mr. Yassir Sid Ahmed El Hasssan – old member
Commissioner Angela Melo – Chairperson (old member)
Commissioner Catherine Dupe Atoki – new member
Mr. Ibrahim Kane – membership renewed
Working Group on Specific Issues Relevant to the Work of the Commission
i.
ii.
iii.
iv.
v.
vi.
vii.
Commissioner Angela Melo – Chairperson (old member)
Commissioner Kayitesi Zainabo Sylvie – new member
Commissioner Pansy Tlakula – membership renewed
Mr. Alpha Fall – membership renewed
Ms. Julia Harrington – membership renewed
Mr. Ibrahima Kane – membership renewed
Mr. Chidi Anselme Odinkalu – membership renewed
EX.CL/446(XIII)
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e.
Working Group on Indigenous Populations/Communities
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
f.
Commissioner Musa Ngary Bitaye – Chairperson (old member)
Commissioner Soyata Maiga – new member
Commissioner Mumba Malila – membership renewed
Ms. Marianne Jensen – membership renewed
Mr. Mohammed Khattali – membership renewed
Ms. Naomi Kipuri – membership renewed
Mr. Kalimba Zepharin – membership renewed
Dr. Albert Barume – old member
Mr. Melakon Tegegn – old member
Working Group on the Death Penalty
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
g.
Commissioner Kayitesi Zainabo Sylvie – Chairperson (new appointment)
Commissioner Bahame Tom Mukirya Nyanduga – old member
Prof. Carlson E Anyangwe – old member
Ms. Alya Cherif Chammari - old member
Mr. Mactar Diallo – old member
Prof. Mohamed S. El-Awa – old member
Prof. Philip Francis Iya – old member
Ms. Alice Mogwe – old member
Special Rapporteurs
i.
ii.
iii.
iv.
v.
h.
Commissioner Reine Alapini-Gansou - Special Rapporteur on Human
Rights Defenders in Africa(renewed);
Commissioner Mumba Malila - Special Rapporteur on Prisons and
Conditions of Detention in Africa(renewed);
Commissioner Soyata Maiga - Special Rapporteur on the Rights of
Women in Africa (new appointment);
Commissioner Bahame Tom Mukirya Nyanduga - Special Rapporteur for
Refugees, Asylum Seekers, Internally Displaced Persons and Migrants
in Africa(renewed);
Commissioner Pansy Tlakula - Special Rapporteur on Freedom
of
Expression in Africa (renewed NB: this mandate was also expanded to
include Access to Information, to make it the Special Rapporteur on
Freedom of Expression and Access to Information in Africa).
Responsibility for countries
i.
Commissioner Sanji Mmasenono Monageng
Mauritius and Mozambique;
- Lesotho, Liberia,
ii.
Commissioner Angela Melo - Angola, Cape Verde, Equatorial Guinea,
Guinea Bissau, and Principe and Sao Tome;
iii.
Commissioner Reine Alapini-Gansou - Cameroon, Democratic Republic
EX.CL/446(XIII)
Page 4
of Congo, Mali, Senegal, Togo and Tunisia;
iv.
Commissioner Catherine Dupe Atoki - Djibouti, Egypt, Ethiopia, Somalia,
and Sudan;
v.
Commissioner Musa Ngary Bitaye - Ghana, Nigeria, Sierra Leone, and
Zimbabwe;
vi.
Commissioner Soyata Maiga - Central African Republic, Gabon, Guinea,
Libya and Niger;
vii.
Commissioner Mumba Malila - Kenya, Malawi, Tanzania and Uganda;
viii.
Commissioner Bahame Tom Mukirya Nyanduga - Botswana, Eritrea,
Rwanda, Seychelles and South Africa;
ix.
Commissioner Kayitesi Zainabo Sylvie - Algeria, Burkina Faso, Burundi,
Cote d’Ivoire and Mauritania;
x.
Commissioner Pansy Tlakula - Namibia, The Gambia, Swaziland and
Zambia;
xi.
Commissioner Yeung Kam John Yeung Sik Yuen - Benin, Chad,
Comoros, Madagascar, and Saharawi Arab Democratic Republic.
The 4th Extraordinary Session of the African Commission, 17-23 February,
2008, Banjul, The Gambia
11.
Also during the 42nd Ordinary Session, the Commission decided to hold an
Extra-Ordinary Session, as indicated in paragraph 3 of this Report. The outcome of
this Session is incorporated in the 24th Activity Report attached hereto.
Human Rights Situation on the Continent
12.
Generally, the picture of the human rights situation on the continent over the
past one year remains bleak and a cause for concern. The African Commission
continues to receive numerous reports of human rights violations of all sorts,
including extrajudicial killings, torture and inhuman and degrading treatment and
punishment; restriction on freedom of expression and the press, association,
assembly, arbitrary detention and arrests of journalists, human rights defenders and
political opponents.
13.
During the reporting period, among other things, and in conformity with the
African Charter, the Chairperson of the African Commission sent urgent appeals to
some Member States to draw their attention to allegations of human rights violations
received by the African Commission, and requesting their urgent intervention in order
to avoid the risk of irreparable harm being occasioned to the alleged victims.
14.
The Commission also sent letters to the Republic of Kenya in the aftermath of
the last elections and the Transitional Federal Government of Somalia, requesting
EX.CL/446(XIII)
Page 5
authorisation to undertake fact-finding missions to their respective countries, to follow
up on allegations of massive and serious violations of human rights in these
countries.
15.
In the same light, the Commission sent a letter to the Republic of Zimbabwe,
requesting authorisation to undertake a pre-election mission to the country to discuss
with relevant stakeholders, the measures put in place to protection of human rights
before, during, and after the run-off Presidential election.
16.
The Commission is still to receive authorisations from all 3 States Parties
concerned.
Communications
17.
During the 42nd Ordinary Session, 81 Communications were tabled before the
African Commission for consideration: 11 on seizure, 42 on admissibility, 27 on
merits, and 1 on review.
18.
During the 43rd Ordinary Session, 80 Communications were tabled before the
African Commission: 7 on seizure, 45 on admissibility, 28 on merits, and 1 on review.
19.
The decisions on the Communications that were finalised during the reporting
period are attached to the Report of the Session at which they were decided: 1 to the
23rd Activity Report, and 2 to the 24th Activity Report.
State Reports
20.
At its 42nd Ordinary Session, the African Commission examined the Periodic
Reports of Rwanda, Tunisia and Algeria.
21.
At its 43rd Ordinary Session, the Commission examined the Periodic Reports
of The Sudan and the United Republic of Tanzania.
22.
The State Report of the DRC had also been programmed for consideration,
but this did not take place because the Member State did not come to the Session to
present its Report as scheduled.
23.
After consideration of the State Reports of Rwanda, Tunisia, Algeria and
Tanzania, the Commission adopted Concluding Observations and Recommendations
on the Reports, which have been forwarded to the respective countries.
24.
Due to time constraints, however, the Commission had not, as at the time of
the preparation of this Report, finalised Concluding Observations and
Recommendations in respect of the State Report of The Sudan.
25.
The Republic of Namibia had submitted its State Report to the Commission.
However, the Report could not be considered during the 43rd Session, due to the
already congested agenda. Consequently, consideration of the State Report of
Namibia would be included in the agenda of the Commission’s 44th Ordinary Session.
EX.CL/446(XIII)
Page 6
26.
The African Commission would like to take this opportunity to
congratulate those States that have complied with their reporting obligations
under Article 62 of the African Charter; and also to encourage those States that
have overdue reports to submit them as soon as possible.
27.
The Commission would also like to reiterate the fact that it is important
for States Parties to submit their reports because it enables the latter to
establish the extent to which it is, in terms of complying with Article 62 of the
Charter. In addition, the State reporting exercise facilitates experience sharing,
best practices and lessons learnt.
28.
The status of submission of State Reports as at the 43rd Ordinary
Session of the Commission is as reflected in the Annexures to the present
Report.
Resolutions
29.
During the reporting period, the Commission adopted 22 Resolutions: 18
during the 42nd Ordinary Session of the Commission; 2 during the 4th Extra-Ordinary
Session; and 2 during the 43rd Ordinary Session of the Commission. These
Resolutions are listed in Annexes I and II, and are also available on the
Commission’s website: www.achpr.org.
Promotional Missions
30.
The African Commission undertook two promotional missions to 2 State
Parties during the reporting period: to Malawi and to Zambia. The Reports of these
missions are being prepared, and will be considered by the Commission during its
44th Ordinary Session.
31.
It is imperative that States Parties respond to the requests of the Commission
and authorise missions to be carried out in their countries, because this is the only
way they can assist the Commission to carry out its mandate of promoting and
protecting human rights.
Fact-Finding Missions
32.
During the reporting period, the African Commission undertook 2 Fact-finding
Missions: to Mali and to Mauritania.
33.
The Reports of these Missions were considered and adopted at the 42nd
Ordinary Session of the Commission, and were transmitted to the respective States
Parties, for observations, comments and implementation. The comments of the two
States on the Reports are still awaited.
Relations with partners
34.
The African Commission continued to work closely with different human rights
stakeholders, mostly through participation in Conferences, Workshops and Seminars.
In addition, the Commission and its partners continued its tradition of organising a
EX.CL/446(XIII)
Page 7
series of promotional activities prior to both the 42nd and 43rd Ordinary Sessions.
Affiliate Status
35.
Within the framework of its cooperation with different human rights
stakeholders, to date, the African Commission has granted Affiliate Status to 21
National Human Rights Institutions.
Observer Status
36.
Also within the same framework of cooperation with different human rights
agents, the African Commission has also granted Observer Status to 380 NGOs.
Budgetary matters
37.
In accordance with Executive Council Decision EX.CL/322 (X), adopted at its
Tenth Ordinary Session held from 25 – 26 January 2007 in Addis Ababa, the African
Commission presented and defended its budget for the first time before the relevant
AU Policy Organs.
38.
The budget approved for the African Commission for the 2008 fiscal year is
US$6,003,856.86, comprising an Operational Budget of US$4,584,390.00, and a
Programme Budget of US$1,419,466.86.
39.
The basis for the increased resources was three-fold: to facilitate the
Commission’s effective implementation of its mandate; to remove the Commission’s
reliance on donor funding; and to ensure that the Commission is seen as being
independent.
Staff matters
40.
Decision EX.CL/322 (X) further requested the African Commission, in
collaboration with the AUC, to propose a new structure for the Secretariat of the
ACHPR.
41.
A new Structure was duly proposed for the consideration of the AU Policy
Organs, and the Sub-Committee on Structures has reviewed the proposals and
made recommendations to the PRC. However, consideration of these
recommendations has been put on hold, while waiting for the new management team
at the AUC to present its own structural requests, so that these can be considered
together.
Extra-Budgetary Resources
42.
As in the past, during the period May –December 2007, the Commission
continued to rely on extra-budgetary resources received from various partners, as
reflected in Annexes I and II of this Report. However, this changed following the new
financial year, after the ACHPR had been granted resources to carry out its mandate.
43.
This notwithstanding, the financial support arrangements which had previously
EX.CL/446(XIII)
Page 8
enabled the Commission to function, are presently on hold, while ways are being
explored to regularise them and bring them into mainstream AU budgetary
processes.
Adoption of the Strategic Plan of the ACHPR
44. During the 42nd Ordinary Session, the African Commission adopted its Strategic
Plan for the period 2008 – 2012.
Construction of the Headquarters of the Commission
45.
The Commission has continued to engage with the Host Authorities on the
issue of the construction of the Commission’s Headquarters, including, among other
things, the Chairperson of the Commission and the Secretary meeting with the VicePresident of the Republic of The Gambia to discuss the matter.
46.
The Commission has been assured that the Government is taking steps to
have the Headquarters of the Commission constructed, and that a plot of land has
been allocated for the construction of the Commission’s Headquarters, and the Line
Ministry is in the process of establishing whether a lease agreement already exists in
favour of the Commission.
47.
In addition, the Commission has been informed that the lease on the current
building where the ACHPR is operating expires at the end of August 2008, and that,
therefore, the Secretariat will have to be relocated to new premises. Consequently,
the Secretariat has identified a new rental building, and communicated the same to
the Host Authorities, for necessary action, pending the construction of a more
permanent Headquarters for the Commission.
48.
A response is still being awaited regarding the rental building.
5th Extraordinary Session and proposed venue of the 44th Ordinary Session
49.
The African Commission decided to hold its 5th Extraordinary Session from 2129 July 2008, to further consider its Revised Rules of Procedure, and deal with the
backlog of Communications and other outstanding matters.
44th Ordinary Session of the Commission
50.
The African Commission also decided to hold its 44th Ordinary Session in the
Federal Republic of Nigeria, from 10 – 24 November 2008.
Adoption of this Activity Report
51.
In accordance with Article 54 of the African Charter on Human and Peoples’
Rights, the African Commission submits this Activity Report to the 13th Ordinary
Session of the Executive Council of the African Union, for its consideration and
transmission to the 11th Summit of Heads of State and Government of the African
Union.
EX.CL/446(XIII)
Annex I
23RD ACTIVITY REPORT OF THE AFRICAN COMMISSION
ON HUMAN AND PEOPLES’ RIGHTS
AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
Addis Ababa, ETHIOPIA
OAU, Addis Ababa
P. O. Box 3243
Telephone 002511-115 517 700 Cables:
Website: www. africa-union.org
ANNEX I
23RD ACTIVITY REPORT OF THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES’ RIGHTS
10
INTRODUCTION
2. This is the Twenty-Third (23rd) Activity Report of the African Commission on Human
and Peoples’ Rights (the “African Commission”, the “Commission”, the “ACHPR”).
3. This report covers the period, May 2007-November 2007, and has two (2)
annexures.
4. The 42nd Ordinary Session of the ACHPR was held in Brazzaville, Republic of
Congo from 15-28 November 2007.
EVENTS ON THE MARGINS OF THE SESSION
5. The 42nd Ordinary Session was preceded by a series of events. These events
include the following:
i. The Workshop on African Constitutions organized by the African Union
Commission (AUC) from 5 – 6 November 2007;
ii. The Seminar to commemorate the 20th Anniversary of the African
Commission, organised by the AUC in collaboration with the African
Commission from 8 – 9 November, 2007;
iii. The NGO Forum organised by the African Centre for Democracy and
Human Rights Studies, in collaboration with the African Commission from
10 – 12 November, 2007;
iv. The Meeting of the African Commission’s Working Group on Indigenous
Populations/Communities in Africa, held from 10 – 11 November, 2007;
v. The Seminar on Elections Observation in Africa, organised by the AUC
from 12 – 13 November, 2007;
vi. The Consultative Meeting on Indigenous Issues in Africa organised by the
UN Office of the High Commissioner for Human Rights in collaboration
with the African Commission, from 12 – 13 November, 2007;
vii. The meeting of the African Commission’s Working Group on Specific
Issues which took place on the 16th, 18th and 22nd November 2007, to
discuss the Revised Rules of Procedure of the African Commission; and
viii. A Musical Concert on 17th November organised by the African
Commission to celebrate the Commission’s Silver Jubilee.
6. The objectives of these events were, on the one hand, to commemorate the
twentieth anniversary of the African Commission, and on the other, to enhance the
promotion and protection of human and peoples’ rights on the Continent.
DELAYED START TO THE SESSION
7. At the request of the Host Authorities, the 42nd Ordinary Session which was to start
on 14 November 2007, commenced on 15th November. The Agenda of the Session
is attached to the present Report as Annex I.
ATTENDANCE AT THE SESSION
8. The following members of the African Commission attended the Session:
Commissioner Sanji Mmasenono Monageng - Chairperson;
Commissioner Angela Melo-Vice-Chairperson;
Commissioner Reine Alapini-Gansou;
Commissioner Catherine Dupe Atoki;
Commissioner Musa Ngary Bitaye;
Commissioner Zainabo Sylvie Kayitesi;
Commissioner Soyata Maiga;
Commissioner Mumba Malila;
Commissioner Bahame Tom Mukirya Nyanduga;
Commissioner Pansy Tlakula;
Commissioner Yeung Kam John Yeung Sik Yuen.
9. Outgoing Vice -Chairperson, Commissioner Yasser Sid Ahmed El Hassan also
attended part of the Session, and presided over the Opening Ceremony, on behalf
of the outgoing Chairperson, Commissioner Salimata Sawadogo, who could not
attend.
OPENING CEREMONY
10.
At the Opening Ceremony, speeches were delivered by the out-going Vice
Chairperson of the African Commission, Mr. Yasser Sid Ahmed El Hassan; the
representative of Non-Governmental Organizations (NGOs), Ms. Collette
Letlojane; the representative of the AU Commission, H.E Julia Dolly Joiner Commissioner for Political Affairs; and a representative of AU member States,
Honourable Minister of Justice from Central African Republic.
11.
H.E. Mr. Isidore Voumba, Prime Minister of the Republic of Congo in Charge of
Coordination of Government Action and Privatisation, delivered the welcome
address and officially opened the 42nd Ordinary Session of the ACHPR.
12.
A total of five hundred and fifty seven (557) participants attended the 42nd
Ordinary Session of the Commission, including four(4) National Human Rights
Institutions, forty one(41) African and International NGOs, seven (7)International
and Intergovernmental Organizations and twenty-three(23) States Parties.1
13.
In his address, Commissioner El-Hassan stated that the 42nd Session marks
twenty years of existence of the African Commission. He noted that despite the
efforts made by the international community, the human rights situation in
Somalia, the Darfur region of the Sudan, Chad, the Democratic Republic of Congo
and Zimbabwe remains a challenge, due to the persistence of armed conflicts and
political crisis. He also stated that human rights defenders should be protected
1
Angola, Algeria, Botswana, Burkina Faso, Cameroon, Cote d’Ivoire, DRC, Egypt, Ethiopia, Ghana,
Libya, Mali, Nigeria, Rwanda, Saharawi Arab Democratic Republic, Republic of Congo, Senegal,
South Africa, Sudan, United Republic of Tanzania, Tunisia, Uganda, and Zimbabwe.
2
from human rights violations when undertaking their activities.
14.
The Vice-Chairperson welcomed the decision of the AU to allow the ACHPR to
prepare and defend its own budget and to present a new Structure before the
Permanent Representative Committee (PRC), to enhance the capacity of human
resources of the Secretariat of the African Commission. He also welcomed the
revised Rules of Procedure, and the Strategic Plan which the Commission
intended to adopt at the Session. He indicated that while the ACHPR has been
confronted with challenges, it remains steadfast and determined to execute the
mandate entrusted to it.
15.
The Vice-Chairperson also emphasized that respect for fundamental human rights
should be the foundation of the AU Government that is currently being debated by
AU policy organs.
16.
He also paid tribute to the outgoing Chairperson, Mrs. Salamata Sawadogo, and
wished her well in her new position as the Minister of Human Rights in her
country, Burkina Faso.
17.
In his opening speech, the Prime Minister, stated that a large number of African
people are ignorant of the existence of the Charter, and that the dissemination of
this legal tool is very important to all African countries. He noted that by hosting
the 42nd Session, the Congolese Government is proud to contribute to the
dissemination of the Charter and promotion of the rights enshrined therein.
18.
The Prime Minister also stated that, the January 2002 Constitution of the Republic
of Congo domesticated all treaties ratified by the Republic of Congo, but conceded
that a lot still remains to be done to ensure the enjoyment by all the Congolese
people of the rights guaranteed under these treaties. He said the Government is
strongly committed to peace and security, and that adherence to the enjoyment of
other rights such as the right to health, to development, including women and
children’s rights, remains on the agenda of the State.
19.
The Prime Minister concluded by congratulating the newly elected
Commissioners, as well as the re-elected Commissioner and declaring the
Session officially opened.
SWEARING IN OF NEW COMMISSIONERS
20.
Four new members of the Commission elected at the July 2007 Summit of the AU
Heads of States and Government, and the re-elected member, were duly sworn
in. These are;
-
Commissioner Angela Melo (re-elected);
Commissioner Catherine Dupe Atoki;
Commissioner Soyata Maiga;
Commissioner Zainabo Sylvie Kayitesi;
Commissioner Yeung Kam John Yeung Sik Yuen.
3
ELECTION OF THE BUREAU
21.
The Commission elected Commissioners Sanji Mmasenono Monageng and
Angela Melo as Chairperson and Vice-Chairperson, respectively, in accordance
with its Rules of Procedure.
COOPERATION AND RELATIONSHIP WITH NATIONAL HUMAN RIGHTS INSTITUTIONS
AND NGOS
22.
During the Session, the Commission considered the applications of two (2)
National Human Rights Institutions (NHRIs) seeking Affiliate Status before it, and
in accordance with its Resolution ACHPR/Res.31(XXIV)98, granted Affiliate
Status to the following National Human Rights Institutions:
i. The National Human Rights Commission of Mali; and
ii. The National Commission for Human Rights and Liberties of Cameroon.
23.
This brings the number of NHRIs with Affiliate Status before the African
Commission to twenty - one (21).
24.
The African Commission appealed to State Parties to the African Charter that had
not yet done so, to establish NHRIs, and to strengthen the capacities of existing
ones, in compliance with the Paris Principles, and with its own Resolution on
National Institutions.
25.
The African Commission also considered the applications of eight (8) NGOs
seeking Observer Status before it. In accordance with its Resolution on the
Criteria for Granting and Enjoying Observer Status to Non-Governmental
Organizations Working in the field of Human and Peoples’ Rights, ACHPR
/Res.33 (XXV) 99, adopted in 1999, the African Commission granted Observer
Status to the following NGOs:
i. Forum des Organisations nationales des droits
(FONADH/Mauritania);
ii. Centre for Environment and Development (Cameroon);
iii. Droits de l’homme sans frontière (DHSF- Chad);
iv. SOS-Kinderdorf International (the Gambia);
v. African Policing Civilian Oversight (APCOF-South Africa);
vi. Nigerian Bar Association (NBA-Nigeria);
vii. Associacao Justica, Paz e Democracia (Angola); and
viii. People Opposing Women Abuse (POWA- South Africa).
26.
de
l’homme
This brings the number of NGOs with Observer Status before the African
Commission to three hundred and seventy-five (375).
4
ACTIVITIES OF COMMISSIONERS DURING THE INTER-SESSION
Commissioner Sanji Mmasenono Monageng
Report on activities as Commissioner
27. During the intersession, Commissioner Monageng attended a conference
organized by the Commonwealth Magistrates and Judges Association in
Bermuda, where she presented a paper on “Gender Issues in the context of
Human Rights in the Wider Commonwealth”. Her presentation focused on the
Commission and its work.
28. She represented the Commission as a judge in the final stage of the Africa Moot
Court Competition in Dakar, Senegal, on 10 September 2007, at the invitation of
the Centre for Human Rights, University of Pretoria, South Africa.
29. She also represented the Commission in the activities organised by the
Secretariat of the ACHPR in Banjul, The Gambia, to mark the Africa Human
Rights Day on 21 October 2007, as well as in the week-long series of the activities
to commemorate the 20th Anniversary of the African Commission.
30. Together with Commissioner Bitaye, she accompanied the Secretary to the
Commission in engaging the authorities in Banjul, The Gambia, to follow up on
progress regarding the construction of the Commission’s Headquarters.
31. Between 5 and 6 of November 2007, she attended a Workshop on African
Constitutions organized by the AUC, in Brazzaville, Republic of Congo.
32. She also attended the Workshop jointly organized by the Secretariat of the
Commission and the (Political Affairs Directorate) PAD, in Brazzaville, Republic of
Congo, from 8 -9 November 2007, to commemorate the 20th Anniversary of the
African Commission. She presented the keynote address at the Workshop.
Report of activities as Chairperson of the Follow -Up Committee on the Implementation
of the Robben Island Guidelines on Prevention and Prohibition of Torture
33.
Commissioner Sanji Mmasenono Monageng, in her capacity as the Chairperson
of this Special Mechanism, stated that during the intersession, the Committee was
engaged in popularizing the Robben Island Guidelines through Commissioners
who undertook promotional missions to respective countries. She indicated that a
continental conference is being planned for 2008, to review progress and chart a
way forward.
5
Commissioner Angela Melo
Report of activities as Commissioner
34.
Commissioner Melo sent Notes Verbales to the Government of the Democratic
Republic of Congo requesting authorisation for a promotional mission. She is
awaiting a response.
35.
In March 2007, the Government of Algeria agreed to a joint mission of the
Chairperson of the Commission, and the Special Rapporteurs on the Rights of
Human Rights Defenders and the Rights of Women. However, this was not
possible due to logistical constraints.
36.
The Government of the Federal Republic of Ethiopia has invited Commissioner
Melo to Ethiopia for a mission; the dates are still to be agreed upon.
37.
The Government of Mauritania has invited Commissioner Melo to carry out a
mission in the country, which she will do as soon as a date is agreed upon. The
Commissioner also indicated that she plans to carry out missions in Lesotho,
Equatorial Guinea and Tunisia.
38.
Commissioner Melo attended and participated a number of Workshops, Seminars
and Conferences during the intercession period, including the following:
i. Workshop on “Reviewing an Analysis of Experiences and Lessons from
other Human Rights Institutions from the Continent”, organised by the
Centre for Conflict Resolution in Cape Town, South Africa, from 28-29 June
2007;
ii. Seminar organised by the UN Special Rapporteur on Torture, held in
Geneva, Switzerland on 24 September 2007; and
iii. NGO Forum organised by the African Centre for Democracy and Human
Rights Studies from 10-12 November 2007 in Brazzaville, Congo.
Report of activities as Special Rapporteur on the Rights of Women in Africa
39.
Commissioner Angela Melo, in her capacity as Special Rapporteur on Women,
reported on the status of ratification of the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa (the Protocol).
40.
During the intersession, she sent the following correspondences on various
matters relating to the Protocol:
i. Women Lawyers Association in Kenya, Tanzania and Zambia proposing
collaboration, especially regarding discriminatory laws;
ii. COMESA and ECOWAS, regarding collaboration on issues relating to
gender issues in Africa;
iii. the IPAS African Alliance, thanking the Alliance for its collaboration during
the Seminar for African Women Ministers and Parliamentarians on Unsafe
6
iv.
v.
vi.
vii.
Abortion Maternal Mortality in Africa;
the Centre for Conflict Resolution, requesting formal collaboration with
them, with regards to Article 10 of the Protocol;
Minister of Foreign Affairs in Tanzania, thanking the State Party for
ratifying the Protocol;
the Minister of Defence in Mozambique, encouraging him to include
women in the Mozambican Armed forces deployed in AU and UN
Peace Keeping in Darfur;
the Minister of Women and Social Action in Mozambique, to organise a
National Seminar to discuss a program for harmonisation of all Regional
instruments; and
the Minister of Home Affairs in Mozambique, to encourage the
implementation of Articles 4, 8, and 9 of the Protocol.
41.
Commissioner Melo also sent Notes Verbales to all Member States of the AU
asking them to provide input into the development of a matrix of constitutional
provisions regarding gender equality and women’s rights in their respective
countries.
42.
In addition, Commissioner Melo attended and participated in a number of
Workshops, Seminars and Conferences during the intercession period, including
the following:
i. Workshop for Regional Women Leaders, Ministers and Parliamentarians,
organised by IPAS African Alliance in collaboration with the ACHPR from
26-29 June 2007, where she delivered a speech and a Press Statement in
Nairobi, Kenya;
ii. Conference on Global Safe Abortion, organised by the Marie Stopes
International Foundation in collaboration with IPAS and Abortion Rights, in
London from 23-24 October 2007, where she delivered a speech;
iii. Seminar in Maputo, Republic of Mozambique on the Prevention of
Trafficking in Women in the SADC region, organised by UNESCO from 6-7
November 2007; and
iv. FIDH campaign for the ratification and implementation of the Protocol on
the Rights of Women, held in Brazzaville, Republic of Congo, on 13
November 2007.
43.
Commissioner Melo also collaborated with other Institutions and Partners such as
the Fundacao para o Desenvolvimento of the Communities in Mozambique (FDC),
which will start supporting the Special Rapporteur in disseminating the Protocol on
radio in Mozambique; and Oxfam which has indicated its willingness to cooperate
on the dissemination of the Protocol.
Commissioner Musa Ngary Bitaye
Report on activities as Chairperson of the Working Group on the Indigenous
Populations/Communities in Africa
44.
Commissioner Musa Ngary Bitaye, in his capacity as Chairperson of this Working
7
Group, indicated that the Group had undertaken the following activities among
others, during the intersession:
i. Publication of the Advisory Opinion of the African Commission on the
United Nations Declaration on the Rights of Indigenous Peoples in English
and French;
ii. Distribution and dissemination of the Working Group’s Report, and its
Summary;
iii. Seminar for Journalists on the Rights of Indigenous Peoples, held in
Arusha, Tanzania, in November 2007. This Seminar brought together
journalists from the East and the Horn of Africa, particularly from Ethiopia,
Kenya, Rwanda, Tanzania, and Uganda, and identified strategies for
involving journalists in the advocacy for the rights of indigenous peoples.
As a follow-up, the Working Group has planned a Regional Seminar for
Central Africa and a National Media Seminar in Tanzania, for December
2007;
iv. Research and Information visit to Gabon in October 2007, to hold
meetings with relevant stakeholders, gather information and undertake
research on indigenous issues in the country;
v. Joint Seminar with the Office of the UN High Commissioner for Human
Rights on the implementation of the UN’s 2nd Decade on the Rights of
Indigenous Peoples, organised from 12-13 November 2007 in Brazzaville,
Republic of Congo, drawing participants from Kenya, Burundi, Mali,
Ethiopia, Cameroon, Rwanda and the DRC;
vi. Meeting in Brazzaville, Republic of Congo, from 10-11 November 2007,
where several issues were considered; and
vii. Publication of the Working Group’s Report in Portuguese.
45.
The Working Group’s country mission to the Republic of Burkina Faso planned
between 15 - 26 of October 2007 could not be carried out because of logistical
constraints.
46.
Furthermore, the Working Group planned to undertake country missions in Kenya,
Rwanda and Tanzania, but there was no indication of acceptance from them. He
therefore urged these countries and their representatives during the 42nd Session
to kindly respond to the requests positively.
Commissionner Reine Alapini-Gansou
Report of activities as Commissioner
47.
On 14 of June and 8 of July 2007, Commissioner Gansou moderated two
sessions of popularization in Benin, using the local Beninese language called
nago, on the relevant provisions of the Beninese Persons and Family Code.
48.
On 22nd June 2007, she participated in a Consultative session between non-state
actors, representatives of the Government of Benin and the EU representatives, to
prepare activities for the launching of the 10th European Development Fund
(EDF).
8
49.
She made a presentation for the African Systems of the Protection of Human
Rights at a Regional Training Seminar organised by the UNESCO Office and
other development partner s on 10 July 2007 in Cotonou, Benin.
50.
She carried out a working mission, with Commissioner Nyanduga, from 22-28
September 2007, in Montréal, Canada at the invitation of the Centre, “Rights and
Democracy”.
51.
She participated in setting up a coalition for the enhanced representation of
women in the decision making process in Benin from July 2007.
52.
She also participated in a Regional Seminar on the role of Parliamentarians in the
promotion and protection of human rights in Ouagadougou, Burkina Faso, from 30
September to 2 October 2007, where she made presentations on the African
Charter and the Rights of Women in Africa, and on the role of the Special
Mechanisms of the Commission.
53.
She participated in a sub-regional Seminar on the follow-up to the
recommendations of the Committee of Experts on the Rights of the Child in
Burkina Faso, from 6-8 November 2007, where recommendations were made for
a better implementation of the UN Convention on the Rights of the Child.
54.
She reported that press releases were also issued on the human rights situations
in the DRC, Cote d’Ivoire and Zimbabwe.
55.
She stated that the Republic of Congo has reacted positively to her Note Verbale
pertaining to her visit to the country, and those preparations for the visit are
underway.
Report of the activities as Special Rapporteur on Human Rights Defenders in Africa
56.
Commissioner Reine Alapini-Gansou, in her capacity as the Special Rapporteur
for this Special Mechanism, participated in the NGO forum held in Brazzaville,
Congo, from 10-12 November 2007 where she also met with Human Rights
Defenders Organisations to find out about the challenges they have faced in their
activities.
57.
She participated in a sub-regional seminar in Sierra Leone on “Building the
Capacities of Human Rights Defenders,” organised by the International Service for
Human Rights (ISHR) in collaboration with the members of civil society from 23-27
July 2007, and another one in Bujumbura, Burundi, from 15-18 October 2007.
58.
She participated in a national workshop in Lome, Togo, on “The role of National
Human Rights Institutions in the Protection of Human Rights Defenders,” from 3-4
September 2007. During this workshop, she made a presentation on the African
system of promotion and protection of the rights of Human Rights Defenders in
general, as well as on her specific mandate.
9
59.
She also launched, in the context of the international campaign on the rights of
Women Defenders, the posters prepared by the Women Defenders of Togo.
60.
On the 16 of October 2007, during the sub-regional workshop on Human Rights
Defenders organised in the Great Lakes region in Bujumbura, Burundi, she held a
meeting with the Minister of Human Rights of Burundi on the human rights
situation in that country.
61.
She also presented a Report on the mandate of the Special Rapporteur, in which
she made some recommendations.
Commissioner Mumba Malila
Report of activities as Commissioner
62.
In his capacity as a member of the Commission, he participated in the following
seminars and workshops:
i. Female Judges Association of Zambia Seminar in June 2007 in Lusaka,
Zambia, on “Access to Justice”;
ii. AU workshop on Post - Conflict Reconstruction and Development Policy,
17 -19 July 2007, organised by the AU in Lusaka, Zambia. The Workshop
dealt with issues of reconciliation, amnesties, peace building and
economic development for countries emerging from political conflict;
iii. Workshop on Trial Observation, held on 27-28 July 2007, organised by
SADC Lawyers Association and Zimbabwe Lawyers for Human Rights,
held in Lusaka. Commissioner Malila presented two papers at this
Workshop;
iv. Training Seminar of Franciscans International, organised for South African
Countries, in Lusaka, held on 15-22 September 2007. He presented a
paper on the ACHPR as a Mechanism for the Promotion and Protection of
Human Rights.
63.
In September 2007, he wrote the foreword to the ZARAN AIDS Law Manual, in
which he highlighted the Commission’s position on HIV and AIDS and human
rights.
64.
On 25 October 2007, he participated in the launching of the HIV and AIDS Charter
and Phase Five Research Report of the Women and Law in Southern Africa.
Report of activities of the Special Rapporteur on Prisons and Conditions of Detention in
Africa
65.
Commissioner Mumba Malila, in his capacity as Special Rapporteur on this
Mechanism, reported that, notwithstanding the potential of this Special Mechanism
and its capacity for making a real difference in the rights of prisoners in Africa,
10
there is a backlog in its activities due to lack of resources. In particular, planned
missions to Tunisia and Malawi, for instance, could not be undertaken for financial
reasons.
66.
He reported that since the last Session in Ghana, in May 2007, numerous
requests have been received to undertake prison inspection. However, visits to
various countries including Liberia, Ethiopia, Zimbabwe, Congo Brazzaville and
Cameroon have been impossible due to lack of resources.
Commissioner Bahame Tom Mukirya Nyanduga
Report of activities as Commissioner
67.
Commissioner Nyanduga attended a workshop on “Effective and Accountable
Policing Oversight,” organised jointly by the Kenya National Human Rights
Commission and the African Police Civilian Oversight Forum from 11 to 14 June
2007 in Nairobi, Kenya.
68.
On 21 and 22 July 2007, he took part in an Experts Meeting convened by the
Commonwealth Secretariat in London. The objective of this meeting was to
prepare a Commonwealth Model National Plan on Human Rights, scheduled to be
launched in Kampala, Uganda, in mid-November 2007.
69.
From 28 to 29 July 2007, he participated in a Policy Advisory Seminar organised
by the Centre for Conflict Resolution of the University of Cape Town, South Africa.
70.
On 31 August 2007, he presented a paper entitled, “Monitoring and Enforcement
Mechanisms: Sharing Experiences on the Work of Special Mechanisms and
Complaint Procedures of African Commission on Human and Peoples’ Rights,” at
a Training Workshop organised by the Southern African Human Rights Trust,
SAHRIT, in Pretoria, South Africa.
71.
From 20 to 30 September 2007, he travelled with Commissioner Reine AlapiniGansou to Canada at the invitation of Rights and Democracy, where he gave
lectures to a number of Canadian universities. He also held discussions with
professors, policy research institutions as well as students human rights groups in
Montreal and Toronto.
72.
On 19 October 2007, he represented the African Commission at a hearing before
the High Level Panel on the Audit of the AU Organs in Addis Ababa. His
presentation covered key areas that will enhance the mandate of the Commission.
73.
On 26 October 2007, he presented a paper to the “Annual Conference of the East
Africa Law Society��, held in Mombasa, Kenya. His paper covered the relationship
between the African Commission and the African Court on Human and Peoples’
Rights.
74.
On 11 and 12 November 2007, he participated in the NGO Forum preceding the
11
42nd Ordinary Session of the Commission.
75.
He gave an interview on the situation of refugees and displaced people in Africa,
and other related human rights issues, which appears in a book titled, “Africa’s
Long Road to Rights-Reflections on the 20th Anniversary of the African
Commission on Human and Peoples’ Rights.”2
Report of the activities as Special Rapporteur on Refugees, Asylum Seekers, Internally
Displaced Persons (IDPs) and Migrants in Africa
76.
Commissioner Bahame Nyanduga reported on the situation of refugees, asylum
seekers, IDPs and Migrants in Africa, in particular in countries affected by
conflicts, namely: the DRC, Darfur-Sudan, Central African Republic, Chad,
Somalia, Northern Uganda and Cote D’Ivoire. He observed that the conflict in
these countries impacts negatively on the human rights of these people, in
particular women and children.
77.
From 19 to 27 August 2007, he undertook a Fact-Finding Mission to Mali and
Mauritania regarding the question of Mauritanian refugees in Mali. He, inter alia
commended the Government of Mauritania for the successful implementation of
the democratisation process ushered in following the Parliamentary elections in
November 2006 and Presidential elections in March 2007, which had enabled the
government to adopt a new policy of bringing all Mauritanian refugees back to
Mauritania.
78.
The Special Rapporteur noted that on 12 November 2006, a tripartite agreement
was signed between the UNHCR, Senegal and Mali, respectively, to facilitate the
repatriation of refugees from Senegal and Mali.
79.
He commended the adoption by the United Nations Security Council of Resolution
1769(2007) of 31st July 2007 which establishes the AU-UN Hybrid Operation in
Darfur, (UNAMID). He welcomed the UN-backed Peace Agreement in the Cote
d’Ivoire, and called on the ACHPR to monitor the negotiations between the
Government of the Republic of Uganda and the Lord Resistance Army (LRA).
80.
From 19 to 20 September 2007, he participated at an IDP Conference in Geneva
at the invitation of the Representative of the UN Secretary General on the Human
Rights of IDPs.
81.
On 20 September 2007, he held discussions with the Sudan Contact Group on 19
September 2007, composed of special mechanisms of the UN, on the fringes of
the UN Human Rights Council September Session, in Geneva.
82.
On 20 September, he attended a meeting of the Steering Committee established
by the Representative of the UN Secretary General on the rights of IDPs, to
examine the studies undertaken in relation to the draft manual legislators on the
protection of IDPs’ rights.
2
Hakima Abbas(ed) 2007, published by FAHAMU, a Human Rights NGO based in Nairobi, Kenya.
12
83.
From 8 to 10 October 2007, he attended the 6th Conference of African National
Human Rights Institution; held in Kigali, Rwanda. The theme of the Conference
was “The Role of NHRIs in the Protection of Refugees and IDPs in Africa.”
Report on the Working Group on the Death Penalty
84.
Commissioner Bahame Nyanduga reported that the Working Group on the Death
Penalty continued to monitor the trend in Africa whereby some States have
abolished the death penalty, while others have continued to observe a moratorium
on the death penalty.
Commissioner Pansy Tlakula
Report of activities as Commissioner
85.
Commissioner Tlakula was invited by the Human Rights Development Initiative
(HRDI) to a workshop on “The African System for the Promotion and Protection of
Human Rights and the Protection of the Rights of People Living With AIDS
(PLWAs)” held in Pretoria, South Africa on 24 July 2007.
Report of activities as the Special Rapporteur of Freedom of Expression in Africa
86.
Commissioner Pansy Tlakula, in her capacity as Special Rapporteur for this
Special Mechanism, gave a report of activities undertaken during the period under
review. These activities included the following:
i. The Workshop, co-hosted with the Electoral Commissions Forum of SADC
Countries (ECF), on “Elections, Freedom of Expression and Information in
the SADC Region”. The Workshop took place from 20-21 August 2007, in
Luanda, Angola;
ii. The 15th Annual General Meeting of the Southern African Broadcasting
Association (SABA) held in Windhoek, Namibia, from 21 - 24 October 2007
which addressed the theme of “Public Broadcasting and Regional
Integration”. During this workshop, she presented a paper on “Principles of
Freedom of Expression as the Basis for Broadcasting Reforms on the
African Continent”; and
iii. The Workshop on Access to Information, Media and Accountability, at the
Lake Naivasha Sopa Resort in Kenya, from 2-3 November 2007, where
she gave the keynote address on the state of Freedom of Expression and
Access to Information in Africa, in which she underlined the timely nature
of the Workshop, in view of the upcoming December 2007 elections.
87.
Commissioner Tlakula carried out a written interview with Fahamu: Networks for
Social Justice, to feature in the special issue of Pambazuka News on human and
peoples’ rights, to commemorate the 20th Anniversary of the ACHPR. This
interview has been published in “Africa’s Long Road to Rights: Reflections on the
13
20th Anniversary of the African Commission on Human and Peoples’ Rights.”3
88.
She also reported that she has strengthened her working relationship with Mr
Ambeyi Ligabo, the UN Special Rapporteur on the Promotion and Protection of
the Right to Freedom of Opinion and Expression.
89.
She noted with great concern in her report the situation of the right to freedom of
expression in The Gambia, Niger and Somalia, where reports of allegations of
violations of the right to freedom of expression were brought to her attention.
90.
She thanked all Member States that are making efforts to promote the right to
freedom of expression, and made some observations and recommendations that
will enable these States to implement this right. These included making an appeal
to States that will hold elections in the coming months, to ensure that the right of
freedom of expression and access to information, which are prerequisites for free,
fair and credible elections, are respected.
SPECIAL MECHANISMS
Distribution of special mechanisms
91.
The African Commission appointed the
independent experts as set out hereunder:
following
Commissioners
and
b. Focal Point and Coordinator on the Rights of Older Persons
iv. Commissioner Yeung Kam John Yeung Sik Yuen - Chairperson
v. Commissioner Reine Alapini - Gansou - Member
vi. Mr. Yassir Sid Ahmed El Hasssan - Member
b. Follow-up Committee on the Implementation of the Robben Island
Guidelines
i.
ii.
iii.
iv.
v.
vi.
Commissioner Catherine Dupe Atoki - Chairperson
Mr. Jean-Baptiste Niyizurugero - Vice Chairperson (membership renewed)
Mrs. Hannah Forster – member (membership renewed)
Ms. Karen McKenzie – member (membership renewed)
Mr.Malick Sow - member (membership renewed)
Ms. Leila Zerrougui – member (membership renewed)
e.
Working Group on Economic and Social Rights
i. Commissioner Angela Melo - Chairperson
ii. Commissioner Catherine Dupe Atoki - Member
iii. Mr. Ibrahim Kane - Member
3
Hakima Abbas (ed), Africa’s Long Road to Rights: Reflections on the 20th Anniversary of the
African Commission on Human and Peoples’ Rights, 2007.
14
f.
Working Group on Specific Issues Relevant to the Work of the
Commission
viii. Commissioner Angela Melo – Chairperson
ix. Commissioner Zainabo Sylvie Kayitesi – member
x. Commissioner Pansy Tlakula - member
xi. Mr. Alpha Fall - member
xii. Ms. Julia Harrington - member
xiii. Mr. Ibrahima Kane - member
xiv. Mr. Chidi Anselme Odinkalu - member
e.
Working Group on Indigenous Populations/Communities
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
Commissioner Musa Ngary Bitaye – Chairperson
Commissioner Soyata Maiga – member
Commissioner Mumba Malila - member
Ms. Marianne Jensen – member
Mr. Mohammed Khattali - member
Ms. Naomi Kipuri - member
Mr. Kalimba Zepharin – member
Dr. Albert Barume – member
Mr Melakon Tegegn - member
f.
i.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
Working Group on the Death Penalty
Commissioner Zainabo Sylvie Kayitesi - Chairperson
Commissioner Bahame Tom Mukirya Nyanduga – member
Prof. Carlson E Anyangwe
Ms. Alya Cherif Chammari
Mr. Mactar Diallo
Prof. Mohamed S. El-Awa
Prof. Philip Francis Iya
Ms. Alice Mogwe
Renewal of appointments
92.
The African Commission renewed the appointments of the following:
i.
ii.
iii.
iv.
v.
Commissioner Reine Alapini-Gansou as Special Rapporteur on Women
Rights Defenders in Africa;
Commissioner Mumba Malila, as Special Rapporteur on Prisons and
Conditions of Detention in Africa;
Commissioner Soyata Maiga as Special Rapporteur on the Rights of
Women in Africa;
Commissioner Bahame Tom Mukirya Nyanduga as Special Rapporteur for
Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in
Africa; and
Commissioner Pansy Tlakula, as Special Rapporteur on Freedom
of
Expression in Africa - this mandate was also expanded to include Access
to Information, so that it is now the Special Rapporteur on Freedom of
15
Expression and Access to Information in Africa.
RE-ALLOCATION OF COUNTRIES OF RESPONSIBILITY
93.
The Commission reviewed the countries for which individual Commissioners
would be responsible as follows;
xii. Commissioner Sanji Mmasenono Monageng: Lesotho, Liberia, Mauritius
and Mozambique;
xiii. Commissioner Angela Melo: Angola, Cape Verde, Equatorial Guinea,
Guinea Bissau, and Principe and Sao Tome;
xiv. Commissioner Reine Alapini-Gansou: Cameroon, Democratic Republic
of Congo, Mali, Senegal, Togo and Tunisia
xv. Commissioner Catherine Dupe Atoki: Djibouti, Egypt, Ethiopia, Somalia,
and Sudan;
xvi. Commissioner Musa Ngary Bitaye: Ghana, Nigeria, Sierra Leone, and
Zimbabwe;
xvii. Commissioner Soyata Maiga: Central African Republic, Gabon, Guinea,
Libya and Niger;
xviii. Commissioner Mumba Malila: Kenya, Malawi, Tanzania and Uganda;
xix. Commissioner Bahame Tom Mukirya Nyanduga: Botswana, Eritrea,
Rwanda, Seychelles and South Africa;
xx. Commissioner Zainabo Sylvie Kayitesi: Algeria, Burkina Faso, Burundi,
Cote d’Ivoire and Mauritania;
xxi. Commissioner Pansy Tlakula: Namibia, The Gambia, Swaziland and
Zambia;
xxii. Commissioner Yeung Kam John Yeung Sik Yuen: Benin, Chad,
Comoros, Madagascar, and Saharawi Arab Democratic Republic.
CONSIDERATION OF STATE REPORTS
94.
In accordance with the provisions of Article 62 of the African Charter, the Republic
of Algeria, the Republic of Tunisia and the Republic of Rwanda, all presented their
Periodic Reports to the African Commission. During the examination of these
State Reports, the Commission engaged the respective States Parties in a
constructive dialogue with regards to the enjoyment of human rights in their
countries.
95.
At the end of the examination, the African Commission adopted Concluding
16
Observations, and Recommendations with respect to the Rwanda State Report,
and transmitted the same to the State Party. Due to time constraints, the
Commission was not able, at the time of this Report, to adopt the Concluding
Observations and Recommendations, in respect of Algeria and Tunisia.
STATUS OF SUBMISSION OF STATE PARTY REPORTS
96.
The status of submission and presentation of State Reports as at the 42nd
Ordinary Session of the Commission stood as follows:
No.
Category
1.
States which have submitted and
presented all Reports
States which have submitted all their
Reports and will present the next Report
at the 43rd Ordinary Session of the
African Commission
States which have submitted two (2) or
more Reports but still owe more
Reports
States which have submitted one (1)
Report but still owe more Reports
States which have not submitted any
Report
2.
3.
4.
5.
Number
of States
15
3
7
13
15
97.
Details of the above Status of Submission of State Reports are as follows:
a.
States which have submitted and presented all their Reports (15)
No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
b.
State Party
Algeria
Cameroon
Central African Republic
Egypt
Kenya
Lybia
Mauritania
Nigeria
Rwanda
Seychelles
South Africa
Tunisia
Uganda
Zambia
Zimbabwe
States which have submitted all their Reports and will present the next
17
Report at the 43rd Ordinary Session of the ACHPR (3)
State Party
Congo(DRC)
Sudan
Tanzania
No.
1.
2.
3.
c.
States which have submitted two or more Reports but owe more Reports (7)
No.
1.
2.
3.
4.
5.
6.
7.
d.
Status
3 overdue Reports
1 overdue Report
6 overdue Reports
3 overdue Reports
2 overdue Reports
1 overdue Report
2 overdue Reports
States which have submitted one report but owe more (13)
No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
e.
State Party
Benin
Burkina Faso
Gambia
Ghana
Namibia
Senegal
Togo
State Party
Angola
Burundi
Cape Verde
Chad
Congo(Brazzaville)
Guinea Republic
Lesotho
Mali
Mauritius
Mozambique
Niger
Saharawi Arab Democratic Rep
Swaziland
Status
4 overdue Reports
3 overdue Reports
5 overdue Reports
3 overdue Reports
2 overdue Reports
4 overdue Reports
2 overdue Reports
4 overdue Reports
5 overdue Reports
5 overdue Reports
1 overdue Report
1 Overdue Report
3 overdue Reports
States which have not submitted any Report (15):
No.
1.
2
3
4
5
6
7
8
9
State Party
Botswana
Comoros
Côte d'Ivoire
Djibouti
Equatorial Guinea
Eritrea
Ethiopia
Gabon
Guinea Bissau
Status
10 overdue Reports
10 overdue Reports
7 overdue Reports
8 overdue Reports
10 overdue Reports
4 overdue Reports
4 overdue Reports
10 overdue Reports
11 overdue Reports
18
98.
10
11
12
13
Liberia
Madagascar
Malawi
Sao Tome and Principe
12 overdue Reports
7 overdue Reports
7 overdue Reports
10 overdue Reports
14
15
Sierra Leone
Somalia
12 overdue Reports
10 overdue Reports
The African Commission continues to urge States Parties to the African Charter
that have not yet done so, to submit their Initial and Periodic Reports. States
Parties are also reminded that they can combine all the overdue Reports into a
single Report, for submission to the African Commission.
PROTECTION ACTIVITIES
99.
Pursuant to Articles 46-59 of the African Charter, during the period covered by the
23rd Activity Report, the African Commission undertook several measures to
ensure the protection of human and peoples’ rights on the continent. This
included, among others, writing Urgent Appeals to Member States, in reaction to
allegations of human rights violations received from stakeholders.
100. During the 42nd Ordinary Session, the African Commission considered eighty-one
(81) Communications, eleven (11) on seizure, forty-two (42) on admissibility,
twenty- seven (27) on merits, and one (1) on review. Further consideration of the
above Communications was deferred to the 43rd Ordinary Session, for various
reasons.
101. The Commission considered Communication 307/2005 – Obert Chinhamo v
Republic of Zimbabwe, and decided to declare it inadmissible. The decision is
attached to the present Report as ANNEX III.
ADOPTION OF REPORTS
102.
During the Session, the African Commission adopted the Report of the Factfinding Missions to the Republics of Mali and Mauritania. These will be transmitted
to the respective States Parties for their comments.
ADOPTION OF THE STRATEGIC PLAN
103. The Strategic plan of the African Commission for the period between 2008-2012
was adopted during the 42nd Ordinary Session of the African Commission.
ADOPTION OF RESOLUTIONS
19
104. During the Session, the African Commission adopted the following Resolutions:
i. Resolution on the Renewal of the Mandate and Appointment of
Chairperson and Members of the Follow-up Committee on the
implementation of the Robben Island Guidelines;
ii. Resolution on the Renewal of the Mandate and Appointment of the Special
Rapporteur on Prisons and Conditions of Detention in Africa;
iii. Resolution on the Renewal of the Mandate and the Appointment of the
Chairperson of the Working Group on the Death Penalty;
iv. Resolution on the Appointment of the Chairperson and Members of the
Working Group on Economic, Social and Cultural Rights in Africa;
v. Resolution on the United Nations Declaration on the Rights of Indigenous
Peoples;
vi. Resolution on the Establishment and Appointment of Focal Point on the
Rights of Older Persons in Africa;
vii. Resolution on the Ratification of the African Charter on Democracy,
Elections and Governance;
viii. Resolution on the Expansion of the Mandate and Re-appointment of the
Special Rapporteur on Freedom of Expression and Access to Information
in Africa;
ix. Resolution on the Situation of Human Rights Defenders in Africa;
x. Resolution on the Renewal of the Mandate of the Special Rapporteur on
Human Rights Defenders in Africa;
xi. Resolution on the Renewal of the Mandate and Composition of the
Working Group on Specific Issues Relevant to the Work of the
Commission;
xii. Resolution on the Renewal of the Mandate and Appointment of the Special
Rapporteur on the Rights of Women in Africa;
xiii. Resolution on freedom of expression and the upcoming elections in
Zimbabwe;
xiv. Resolution on the Composition and Renewal of the Mandate of the
Working Group on Indigenous Populations/Communities in Africa;
xv. Resolution on the Renewal of the Appointment of the Special Rapporteur
on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants
in Africa;
xvi. Resolution on the Right to a remedy and reparation for Women and Girl
Victims of Sexual Violence;
xvii. Resolution on Migration and Human Rights in Africa;
xviii. Resolution on Strengthening the Responsibility to Protect in Africa
ORGANIZATION OF CONFERENCES AND SEMINARS
105. During the intersession, the Secretariat of the African Commission, in
collaboration with the University of The Gambia (UTG) organised a lecture on the
African Human Rights System in Banjul, The Gambia on 19 October 2007.
106. A meeting was also jointly organised between the Commission and the
Department of Political Affairs of the AUC from 8-9 November 2007, to
commemorate the 20th Anniversary of the African Commission.
20
107. An Orientation Seminar was organised on 14 November 2007 in Brazzaville,
Republic of Congo. The objective of the Seminar was to welcome the newly
elected Commissioners and introduce them to the work of the Commission.
108. Due to lack of funds, the Commission could not organize other seminars and
conferences earmarked for the period under consideration.
109. The African Commission reiterated its intention to organize more seminars and
conferences on selected human rights issues, and called upon its traditional
partners and State Parties to collaborate with it in the organization of these
activities.
FINANCIAL AND ADMINISTRATIVE MATTERS
110. Under Article 41 of the African Charter, the AUC is responsible for meeting the
cost of the African Commission’s operations, including the provision of staff,
financial and other resources, necessary for the effective discharge of its
mandate.
Staffing
111. The following 13 staff are approved for the ACHPR Secretariat as per the Maputo
Structure:
Executive Secretary
1
Senior Legal Officer Protection 1
Senior Legal Officers Promotion 2
Adm. and Finance Officer
1
Bilingual Secretary
1
Documentation Officer
Vacant since May 2006
Clerk
1
Drivers
2
Cleaner
1
Security guards
2
112. Despite this staff complement and several staff members availed to the
Secretariat by various partners, the Commission continues to experience acute
capacity constraints. This is exacerbated by the expanded scope of work of the
Commission since its establishment. The staffing situation will worsen with the
departure of 6 short-term staff, 3 Legal Experts, and 2 interns at the end of
December 2007.
Budgetary allocation
113. During the 2007 financial year, the Commission was allocated one million, one
hundred and ninety-nine thousand, five hundred and fifty seven United States
Dollars and eighty cents ($ 1,199,557.80).
21
114. Out of this amount, forty-seven thousand United States Dollars (USD 47,000) was
allocated for promotion and protection missions of the Commission. No budgetary
allocations were made for programmes such as research, training/capacity
building, activities of Special Mechanisms, seminars/workshops/conferences, or
commemorative activities to mark important events, like the Africa Human Rights
Day.
115.
In accordance with Executive Council Decision EX.CL/322 (X), the African
Commission submitted its proposed budget for 2008, to the relevant AU Policy
Organs for consideration, and decision.
Extra-budgetary resources
116. The African Commission endeavoured to mobilize extra-budgetary resources to
supplement AU funding. In this regard, the African Commission benefits financially
and materially from the partners discussed below.
Danish Human Rights Institute
117. The Secretariat of the African Commission is supported by the Danish Institute for
Human Rights by financing the post of a Legal Expert to develop the ACHPR
Strategic Plan (2008-012). A total amount of 51,995.5 (fifty-one thousand, nine
hundred and ninety-five point five USD) for the period 2005/2006 and 2006/2007
with possibility of renewal has been given to the Commission for this purpose.
Rights and Democracy
118. The Canadian NGO, Rights and Democracy, continued to support the
Commission with two Canadian Legal Officers. It also provided partial funding for
the participation of the ACHPR Secretariat in the AU Regional Officers Budget
Workshop organised by the AU Headquarters, the Orientation Seminar for the
New Commissioners, as well as meetings of the Commission to elaborate its
Rules of Procedure and harmonization of these Rules with those of the African
Court on Human and Peoples’ Rights.
Danish International Development Agency
119. DANIDA, through the International Working Group on Indigenous Affairs (IWGIA),
supports the activities of the Commission’s Working Group on Indigenous
Populations/Communities (WGIP) through the International Working Group on
Indigenous Affairs (IWGIA). The European Union, through the International Labour
Organization (ILO) is also supporting the activities of the WGIP. Details of support
from partners is attached to this Report as Annex II.
120. The African Commission expresses its profound gratitude to all donors and
partners, whose financial, material and other contributions have enabled it to
discharge its mandate during the period under review.
22
121. The extra-budgetary resources notwithstanding, however, the financial and human
resource situation at the Secretariat of the African Commission still remains a
matter of grave concern.
PROPOSED VENUE FOR THE 43RD ORDINARY SESSION
122. The African Commission decided that the 43rd Ordinary Session will be held
between 15-29 May 2008 at a venue still to be determined.4
ADOPTION OF THE TWENTY THIRD ACTIVITY REPORT
123.
4
In accordance with Article 54 of the African Charter on Human and Peoples’
Rights, the African Commission submits the present Twenty Third Activity Report
to the 12th Ordinary Session of the Executive Council of the African Union, for its
consideration and transmission to the 10th Summit of Heads of States and
Government of the African Union, to be held in Addis Ababa, Ethiopia.
The Secretariat was informed after the Session that the 43rd Ordinary Session will be hosted by
Swaziland from 15-29 May 2008.
23
LIST OF ANNEXURES
Annexure I
Agenda of the 42nd Ordinary Session held from 14 – 28 November
2007 in Brazzaville, Republic of Congo
Annexture II
Support from partners
Annexure III
Decision on Communication finalised at the 42nd Ordinary Session
24
Annex I
Agenda of the 42nd Ordinary Session held from
15-28 November 2007 in Brazzaville, Republic of
Congo
AGENDA OF THE 42nd ORDINARY SESSION OF THE AFRICAN
COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
(From 15th to 28th November. 2007, Brazzaville, Republic of Congo)
Item 1: Opening Ceremony (Public Session)
Item 2: Swearing in of new Members of the African Commission (Public
Session)
Item 3: Election of the Bureau of the African Commission (Private Session)
Item 4: Adoption of the Agenda (Private Session)
Item 5: Organisation of Work (Private Session)
Item 6: Human Rights Situation in Africa (Public Session)
a) Statements by State Delegates and Guests;
b) Statements by Intergovernmental Organisations;
c) Statements by National Human Rights Institutions; and
d) Statements by NGOs.
Item 7: Cooperation and Relationship with National Human Rights Institutions
and NGOs (Public Session)
i. Relationship with National Human Rights Institutions;
ii. Consideration of applications for Affiliate status;
iii. Relationship with NGOs; and
iv. Consideration of applications for Observer status.
Item 8: Consideration of State Reports (Public Session):
a) Status of Submission of State Party Reports
b) Consideration of -:
i.
The Periodic Report of Algeria;
ii.
The Periodic Report of Tunisia; and
iii.
The Periodic Report of Rwanda.
Item 9: Promotion Activities (Public Session)
a) Presentation of the Activity Reports of Members of the Commission;
b) Presentation of the Report of the Special Rapporteur on Prisons and
Conditions of Detention in Africa;
2
c) Presentation of the Report of the Special Rapporteur on the Rights of Women
in Africa and the status of ratification of the Protocol to the African Charter on
the Rights of Women in Africa;
d) Presentation of the Report of the Special Rapporteur on Refugees, Asylum
Seekers and Internally Displaced Persons in Africa;
e) Presentation of the Report of the Special Rapporteur on Human Rights
Defenders in Africa;
f) Presentation of the Report of the Special Rapporteur on Freedom of
Expression in Africa;
g) Presentation of the Report of the Chairperson of the Working Group on the
Implementation of the Robben Island Guidelines;
h) Presentation of the Report of the Chairperson of the Working Group on the
Indigenous Populations/Communities in Africa;
i) Presentation of the Report of the Chairperson of the Working Group on
Economic, Social and Cultural Rights in Africa;
j) Presentation of the Report of the Working Group on Specific Issues Relevant
to the Work of the African Commission;
k) Report of the Working Group on the Death Penalty; and
l) Organisation of Conferences and Seminars.
Item 10: Appointments of: (Private Session)
a) Special Rapporteurs
•
•
•
•
•
The Special Rapporteur on Prisons and Conditions of Detention in
Africa;
The Special Rapporteur on the Rights of Women in Africa;
The Special Rapporteur on Freedom of Expression in Africa;
The Special Rapporteur on Human Rights Defenders in Africa; and
The Special Rapporteur on Refugees, Asylum Seekers, Internally
Displaced Persons and Migrants.
b) Members of Working Groups
•
•
•
•
•
Working Group on Indigenous Populations;
Working Group on Death Penalty;
Working Group on Specific Issues Relevant to the Work of the
ACHPR ;
Working Group on Economic and Social Rights; and
Follow-up Committee on the Robben Island Guidelines.
c) Focal Person on the Rights of Older Persons
Item 11: Consideration and Adoption of Draft Reports (Private Session)
Consideration and adoption of Mission Reports of the African Commission:
Draft Reports on the Promotional and Fact-Finding Missions to:
a) Mali and Mauritania; and
3
b) Egypt
Item 12: Consideration of: (Private Session):
a) Revised Rules of Procedure;
b) Mandate of Special Mechanisms;
c) Progress Report on the Strategic Plan for 2008 – 2012;
d) Progress Report on the “Know Your Rights” Project;
e) Reports of NGOs and NHRIs; and
f) The status and presentation of Expert Reports
Item 13: Protection Activities: (Private Session)
Consideration of Communications.
Item 14: Administrative and Financial Matters: (Private Session):
Report of the Secretary, including on the construction of the Headquarters of the
African Commission.
Item 15: Consideration and Adoption of: (Private Session):
a) Recommendations, Resolutions and Decisions; and
b) Concluding Observations on the Periodic Reports of Algeria, Rwanda and
Tunisia.
Item 16: Dates and Venue of the 43rd Ordinary Session of the African
Commission (Private Session):
Item 17: Any Other Business (Private Session)
Item 18: Adoption of: (Private Session)
a] The Report of the 42nd Ordinary Session;
b] The 23rd Activity Report; and
c] The Final Communiqué of the 42nd Ordinary Session
Item 19: Reading of the Final Communiqué and Closing Ceremony (Public
Session)
Item 20: Press Conference (Public Session)
4
Annex II
SUPPORT FROM PARTNERS
5
The assistance received from donors can be summarized as follows:
No.
Organisation/State
Amount in
US$
29,632.96
Duration
of contract
2005
2007
1.
Rights
Democracy
2.
DANIDA/IWGIA
330,926.90
–
3.
Danish Institute for
Human Rights
51,995.55
06/05
05/07
05/06
07/07
4.
OSIWA
125,000.00
–
5.
Republic of South
Africa
285,714.20
04/07
03/09
04/07
03/09
and
6
–
–
Remark
Balance
as at 27
January
2007
Possibility
of renewal
Possibility
of renewal
Annex III
Decision On Communication
Brought Before The African Commission
7
Communication 307/2005- Mr. Obert Chinhamo/Zimbabwe
Summary of the Facts:
1. The African Commission on Human and Peoples’ Rights, (the African Commission)
received a Complaint/Communication on 26 September 2005, from Mr. Obert
Chinhamo, (also referred herein as the complainant) an employee of Amnesty
International – Zimbabwe Section and an active human rights defender. The
Complaint is submitted in accordance with the provisions of Article 55 of the African
Charter on Human and Peoples’ Rights (the African Charter).
2. The Complaint is submitted against the Republic of Zimbabwe, (also referred herein
as the respondent state), a State Party to the African Charter.5 The complainant
alleges among others that, through the acts of the agents of the respondent State his
rights protected under the African Charter have been violated. Mr. Chinhamo lists a
number of separate incidents to justify his allegations.
3. The Complainant alleges that on 28 August 2004, while investigating and
documenting human rights abuses at Porta Farm, he was allegedly surrounded by
more than 10 uniformed police officers that assaulted him, poked his face with
batons, shouted abusive language and accused him of working for a foreign
organisation which works against the respondent State. The complainant was then
arrested, forcibly removed from the premises, detained at Norton Police Station,
threatened and banned from returning to Porta Farm and other farms. Upon his
release several hours later, the complainant declares that he was neither charged
nor furnished with reasons for his arrest.
4. The Complainant alleges further that he and two others were again arrested on 2
September 2004 while visiting Porta Farm and believe that this arrest was
perpetrated in order to prevent them from documenting the human rights abuses
occurring there. They were given no explanation for the arrest by the arresting officer
but the complainant was later charged with incitement of public violence and
released on One Hundred Thousand (100,000) Zimbabwean Dollars bail. On 21
February 2005, the case was withdrawn for lack of evidence.
5. The Complainant also alleges that provisions of the Public Order and Security Act
were used, in contravention of the African Charter, to deny him access to Porta
Farm, prevent the documentation of human rights abuses there and of holding
meetings with residents, and to justify his arrest, detention and the threaten him
against publishing reports and press releases about the human rights abuses
discovered.
6. The Complainant informs the Commission that in September 2004, all files were
deleted from his laptop, while a number of Amnesty International – Zimbabwe
Section Reports disappeared from his office. The Complainant believes that there is
5
Zimbabwe ratified the African Charter on 30 May 1986.
8
a reasonable probability the Respondent State, through its agents, invaded his right
to privacy.
7. Prior to the withdrawal of the case against him, the Complainant alleges that Court
remands were abused in order to deny him the right to be tried within a reasonable
time limit, psychologically torture him and deplete his resources. He argues that
members of the Central Intelligence Organisation (CIO) took pictures of him on
several occasions, thereby intimidating him.
8. In addition, the Complainant notes that the conditions in which he was detained
caused him to suffer torture. These conditions, according to the complainant, include
being locked up in an extremely small, unhygienic cell, infested with parasites where
he was denied blankets, denied permission to visit the toilet or to bath. According to
him, all of these caused him to develop a cold, breathing problems and a cough
which lasted for about six months.
9. The Complainant further alleges that after his release on bail, he was tracked by
security agents and received several threats, including death threats against himself
and his brother, which caused him to fear for his life and the safety of his family. Due
to this fear, he fled the country in January 2005 – forcing him to abandon his studies
and his job – and is currently residing in the Republic of South Africa as an asylum
seeker. He added that the Respondent State continues to refuse to issue passports
to his family members so that they can join him in South Africa.
The Complaint
10. The Complainant alleges that Articles 5, 6, 7, 8, 9, 11, 12, 16, 17 and 18 of the
African Charter on Human and Peoples’ Rights have been violated.
The Procedure
11. By letter ACHPR/LPROT/COMM/ZIM/307/2005/ARM of 4 October 2005, the
Secretariat of the African Commission acknowledged receipt of the Communication
and informed the complainant that the matter would be considered for seizure at the
38th Ordinary Session of the African Commission, scheduled from 21 November - 5
December 2005, in Banjul, The Gambia.
12. During the 38th Ordinary Session held from 21 November - 5 December 2005, the
African Commission considered the Communication and decided to be seized
thereof.
13. On 15 December 2005, the Secretariat of the African Commission informed the
parties accordingly, and requested the Respondent State to submit its arguments on
the admissibility of the Communication. The Secretariat of the African Commission
forwarded a copy of the Complaint to the Respondent State.
14. On 13 March 2006, a reminder was sent to the Respondent State requesting it to
submit its arguments on the admissibility of the Communication.
9
15. On 10 April 2006, the Secretariat received the complainants’ submissions on
admissibility.
16. During the 39th Ordinary Session held from 11 - 25 May 2006, the African
Commission decided to defer consideration of the Communication on admissibility to
its 40th Ordinary Session scheduled to take place from 15 - 29 November 2006,
pending the Respondent State’s submission on admissibility.
17. By letter of 14 July 2006, the Secretariat of the African Commission informed the
parties of the Commission’s decision.
18. During the 40th Ordinary Session held from 15 - 29 November 2006, the African
Commission decided to defer consideration of the Communication on admissibility to
the 41st Ordinary Session.
19. On 24 November 2006, the Secretariat received the Respondent State’s submission
on admissibility.
20. By letter dated 11 December 2006, both parties were informed of the Commission’s
intention to consider the Communication on admissibility during its 41st Ordinary
Session.
21. On 3 May 2007, the Secretariat received additional submissions on admissibility from
the complainant in response to the Respondent State’s submission on admissibility.
22. During the 41st Ordinary Session of the African Commission held from 16 – 30 May
2007, the African Commission decided to further deferred to its 42nd Ordinary
Session a decision on admissibility to enable the Secretariat prepare a draft decision.
Summary of Parties’ Submissions on admissibility
Summary of Complainant’s submission on Admissibility
23. The Complainant submits that he has locus standi before the Commission as the
Communication is brought by himself, a citizen of Zimbabwe. Regarding
compatibility, the complainant submits that the Communication raises prima facie
violations of the Charter, committed by the Respondent State.
24. He submits further that in accordance with Article 56(4), the evidence he has
submitted reveal that the Communication is not based exclusively on news
disseminated by the mass media, adding that it is based on first hand evidence from
him, including reports by reputable human rights organizations.
25. On the requirement of exhaustion of local remedies in accordance with Article 56(5),
the complainant states that the remedy in his particular circumstance is not available
because he cannot make use of local remedies, that he was forced to flee Zimbabwe
for fear of his life after surviving torturous experiences in the hands of the
Respondent State due to his activities as a human rights defender. The complainant
submits that the onus is on the Respondent State to demonstrate that remedies are
10
available, citing the Commission’s decisions on Communications 71/926 and
146/967.
26. The Complainant draws the African Commission’s attention to its decision on Rights
International v Nigeria8 where the Commission held that a complainant’s inability to
pursue local remedies following his flight for fear of his life to Benin, and was
subsequently granted asylum was sufficient to establish a standard for constructive
exhaustion of local remedies. He concludes by noting that considering the fact that
he was no longer in the Respondent State’s territory where remedies could be
sought, and the fact that he fled the country against his will due to threat to his life,
remedies could not be pursued without impediments.
27. The Complainant also challenges the effectiveness of the remedies, noting that
remedies are effective only where they offer a prospect of success. He claims the
Respondent State treats court rulings that go against it with indifference and
disfavour, and says he does not expect that in his case, any decision of the court
would be adhered to. He says there was a tendency in the Respondent State to
ignore court rulings that went against it and adds that the Zimbabwe Lawyers for
Human Rights has documented at least 12 instances where the state has ignored
court rulings since 2000. He cites the ruling of the High court in the Commercial
Farmers Union case and the Mark Chavunduka and Ray Choto case where the duo
were allegedly abducted and tortured by the army. He concludes that given the
prevailing circumstances in the Respondent State, the nature of his complaint, and
the Respondent State’s well publicized practice of non-enforcement of court
decisions, his case has no prospect of success if local remedies were pursued, and
according to him, not worth pursuing.
28. The Complainant submits further that the Communication has been submitted within
a reasonable time as required by article 56 (6) and concludes that the
Communication has not been settled by any other international body.
Summary of Respondent State’s submission on Admissibility
29. The Respondent State briefly restates the facts of the Communication and indicates
that the facts as submitted by the complainant ‘have a number of gaps’. The State
submits that the complainant makes general allegations without substantiating, citing
for example, the complainant’s allegation that he was assaulted, abused and was
denied access to the toilet when remanded. The state wonders why the complainant
did not bring all these alleged degrading treatment to the attention of the Magistrate
when he was brought before the latter. The State also questions why the complainant
or his lawyer did not raise the alleged threats to the complainant’s life before the
Magistrate when he made four appearances before the latter. The State concluded
that the complainant has failed to substantiate his alleged fear and threats to his life
6
Rencontre Africaine pour la Défense des Droits de l’Homme v Zambia.
7
Sir Dawda Kairaba Jawara v The Gambia.
8
Communication 215/1998.
11
and is of the opinion that the complainant left the country on his own volition and not
as a result of any fear occasioned by any of its agents.
30. On the question of admissibility, the State submits that the Communication should be
declared inadmissible because, according to the State, it is not in conformity with
Article 56 (2), (5) and (6) of the Charter.
31. The State submits further that the Communication is incompatible because it makes
a general allegation of human rights violations and does not substantiate the
violations, adding that the facts do not show a prima facie violation of the provisions
of the Charter, noting that ‘basically the facts and issues in dispute do not fall within
the rationae materae and rationae personae of the jurisdiction of the Commission.
32. On the exhaustion of local remedies under Article 56 (5), the State submits that local
remedies are available to the complainant, citing section 24 of its Constitution which
provides the course of action to be taken where there are allegations human rights
violations. The State adds that there is no evidence to prove that the complainant
pursued local remedies. The State further indicates that in terms of Zimbabwe law,
where one is engaged in acts that violate the rights of another person, that other
person can obtain an interdict from the court restraining the violator from such act.
33. On the effectiveness of local remedies, the State submits that the Constitution
provides for the independence of the judiciary in the exercise of its mandate in
conformity with both the UN Principles on an independent Judiciary, and the African
Commission’s Guidelines on the right to a fair trial.
34. The State dismisses the complainant’s argument that his case is similar to those
brought by Sir Dawda Jawara against the Republic of The Gambia, and Rights
International (on behalf of Charles Baridorn Wiza) against the Federal Republic of
Nigeria, adding that in the latter cases, there was proof of real threat to life. The State
goes further to indicate instances where the government has implemented court
decisions that went against it, adding that even in the present case involving the
complainant, the government respected the Court’s decision.
35. The State further indicates that in terms of Zimbabwe law, it is not a legal
requirement for a complainant to be physically present in the country in order to
access local remedies, adding that, both the High Court Act (Chapter 7:06) and the
Supreme Court Act (Chapter 7:05) permit any person to make an application to either
court through his/her lawyer. The State adds that in the Ray Choto and Mark
Chavhunduka case, the victims were tortured by state agents and they applied for
compensation while they were both in the United Kingdom, and succeeded in their
claim. The state concludes that the complainant is not barred from pursuing remedies
in a similar manner.
36. The State also argues that the Communication does not comply with Article 56 (6) of
the Charter which provides that a Communication should be lodged within a
reasonable time after exhaustion of local remedies, but where complainant realizes
that local remedies shall be unduly prolonged he/she must submit the complaint to
the Commission immediately. According to the State, although the Charter does not
12
specify what constitutes a reasonable time, the Commission should get inspiration
from the other jurisdictions, including the Inter-American Commission which has fixed
six months as reasonable time, adding that even the draft protocol merging the
African Court of Justice and the African Court on Human and Peoples’ Rights
provides for a six months period.
37. The State concludes its submissions by noting that ‘no cogent reasons have been
given for the failure to pursue local remedies or remedies before the Commission
within a reasonable time’ and as such the Communication should be declared
inadmissible.
The Law on Admissibility
Competence of the African Commission.
38. In the present Communication, the Respondent State raises a preliminary question
regarding the competence of the African Commission to deal with this
Communication. The state avers that: “basically the facts and issues in dispute do
not fall within the rationae materae and rationae personae of the jurisdiction of the
Commission”. This statement questions the competence of the African Commission
to deal with this Communication. The Commission will thus first deal with the
preliminary issue of its competence raised by the Respondent State.
39. Black’s law dictionary defines rationae materae as “by reason of the matter
involved; in consequence of, or from the nature of, the subject-matter.” While
rationae personae is defined as “By reason of the person concerned; from the
character of the person.”
40. Given the nature of the allegations contained in the Communication, notably,
allegations of violation of personal integrity or security, intimidation and torture, the
Commission is of the view that the Communication raises material elements which
may constitute human rights violation, and as such it has competence rationae
materae to entertain the matter, because the Communication alleges violations to
human rights guaranteed and protected in the Charter. With regards to the
Commission’s competence rationae personae, the Communication indicates the
name of the author, an individual, whose rights under the African Charter, the
Respondent State is committed to respecting and protecting. With regards to the
State, the Commission notes that Zimbabwe, the Respondent State in this case, has
been a State Party to the African Charter since 1986. Therefore, both the
complainant and the Respondent State have locus standi before the Commission,
and the Commission thus has competence rationae personae to examine the
Communication before it.
41. Having decided that it has competence rationae materae and rationae personae, the
Commission will now proceed to pronounce on the admissibility requirements and the
contentious areas between the parties.
The African Commission’s decision on admissibility
13
42. The admissibility of Communications before the African Commission is governed by
the requirements of Article 56 of the African Charter. This Article provides seven
requirements which must all be met before the African Commission can declare a
Communication admissible. If one of these conditions/requirements is not met, the
African Commission will declare the Communication inadmissible, unless the
complainant provides justifications why any of the requirements could not be met.
43. In the present Communication, the Complainant avers that his complaint meets the
requirements under Article 56 sub-sections 1-4, 6 and 7. He indicates that he did not
attempt to comply with the requirement under Article 56 (5) dealing with the
exhaustion lf local remedies, because of the nature of his case and the
circumstances under which he left the respondent State, and since he is presently
living in South Africa, the exception rule should be invoked. He states that his inability
to exhaust local remedies was due to the fact that he had to flee to South Africa for
fear for his life.
44. The State on the other hand argues that the Complainant has not complied with the
provisions of Article 56 sub-sections 2, 5 and 6 of the Charter, and urges the
Commission to declare the Communication inadmissible based on the non-fulfillment
of these requirements.
45. The admissibility requirements under Article 56 of the Charter are meant to ensure
that a Communication is properly brought before the Commission, and seek to sieve
frivolous and vexatious communications before they reach the merits stage. As
indicated earlier, for a communication to be declared admissible, it must meet all the
requirements under Article 56. Therefore, if a party contends that another party has
not complied with any of the requirements, the Commission must pronounce itself on
the contentious issues between the parties. This however does not mean that other
requirements of Article 56 which are not contested by the parties will not be
examined by the Commission.
46. Article 56(1) of the African Charter provides that Communications will be admitted if
they indicate their authors, even if they request anonymity. In the present case the
author of this Communication is identified as Mr. Obert Chinhamo, he has also not
requested that his identity be hidden. The Respondent State has also been clearly
identified as the Republic of Zimbabwe. Therefore the provision of Article 56(1) has
been adequately complied with.
47. Article 56(2) of the African Charter provides that a Communication must be
compatible with the Charter of the OAU or with the African Charter on Human and
Peoples’ Rights. In the present Communication, the Respondent State argues that
the Communication does not comply with this requirement, that is, the
Communication is not compatible with the provisions of the Constitutive Act of the
African Union or the African Charter itself. The State asserts in this regard that, for a
complaint to be compatible with the Charter or the Constitutive Act, it must prove a
prima facie violation of the Charter.
14
48. Compatibility according to the Black’s Law Dictionary denotes ‘in compliance with‘
and ‘in conformity with’ or ‘not contrary to’ or ‘against’. In this Communication, the
complainant alleges among others, violations of his right to personal integrity and
being subjected to intimidation, harassment and psychological torture, arbitrary
detention, violation of freedom of movement and loss of resources occasioned by the
actions of the respondent state. These allegations do raise a prima facie violation of
human rights, in particular, the right to the security of the person or personal integrity
and freedom from torture guaranteed in the Charter. Complainants submitting
communications to the Commission need not specify which articles of the Charter
have been violated, or even which right is being invoked, so long as they have raised
the substance of the issue in question. Based on the above, the African Commission
is satisfied that in the present Communication, the requirement of Article 56(2) of the
African Charter has been sufficiently complied with.
49. Article 56(3) of the Charter provides that a Communication will be admitted if they
are not written in disparaging or insulting language directed against the State
concerned and its institutions or to the Organisation of African Unity (African Union).
In the present case, the Communication sent by the complainant does not, in the
view of this Commission, contain any disparaging or insulting language, and as a
result of this, the requirement of Article 56(3) has been fulfilled.
50. Article 56(4) of the Charter provides that the Communication must not be based
exclusively on news disseminated through the mass media. This Communication was
submitted by the complainant himself and is his account of his personal experience
with the law enforcement agents of the Respondent State. For this reason he has
fulfilled the provision of this sub- article of Article 56.
51. Article 56(5) provides that communications to be considered by the African
Commission must be sent after local remedies have been exhausted. The
Respondent State contends that the complainant has not complied with this
requirement. The State argues that there are sufficient and effective local remedies
available to the complainant in the State, and the complainant has not sought these
remedies before bringing the present Communication before the Commission. On the
other hand, the complainant argues that since he had to flee the country due to fear
for his life, he could not come back to the country to pursue these local remedies.
52. The rationale for the exhaustion of local remedies is to ensure that before
proceedings are brought before an international body, the State concerned must
have the opportunity to remedy the matter through its own local system. This
prevents the international tribunal from acting as a court of first instance rather than
as a body of last resort.9
53. Three major criteria could be deduced from the practice of the Commission in
determining compliance with this requirement, that is: the remedy must be available,
effective and sufficient.
5.
See Communications 25/84, 74/92 and 83/92.
15
54. In Jawara v The Gambia,10 the Commission stated that “a remedy is considered
available if the petitioner can pursue it without impediment; it is deemed effective if it
offers a prospect of success and it is found sufficient if it is capable of redressing the
complaint”. In the Jawara Communication, which both parties have cited, the
Commission held that “the existence of a remedy must be sufficiently certain, not
only in theory but also in practice, failing which, it will lack the requisite accessibility
and effectiveness. …Therefore, if the applicant cannot turn to the judiciary of his
country because of fear for his life (or even those of his relatives), local remedies
would be considered to be unavailable to him”.
55. The Complainant in the present Communication claims that he left his country out of
fear for his life due to intimidation, harassment and torture. He said due to the nature
of his work, the agents of the Respondent State started tracking him with a view to
harming and/or killing him. He has also described how he was treated while in
detention, noting that he was denied food, he wasn’t attended to when he
complained of headache, he was refused visit to the toilet, that the conditions in the
holding cells were bad – smelling, small, toilets could not flush, toilets were
overflowing with urine and other human waste, the cells were infested with parasites
such as mosquitoes which sucked complainant’s blood for the duration of his stay
and made sleep impossible for the complainant, the cell had a bad stench and was
very cold, resulting in the complainant contracting breathing problems and a cough
which lasted for six months, complainant was refused a blanket during the night and
further refused permission to take his bath. According to the complainant, all these
constituted torture and inhuman and degrading treatment.
56. The Complainant alleged further that the Respondent State used court remands to
deny him of a trial within a reasonable time, thus psychologically torturing him and
depleting his resources. According to the complainant, the matter was remanded at
least five times – from 20 September 2004 – 21 February 2005 (within a period of six
months), and he noted that these remands were calculated to harass and
psychologically torture him. He said most of the time, the Central Intelligence
Organization would come and take pictures of him thus, intimidating him.
57. Complainant added that when he continued publishing the respondent’s human
rights abuses in Porta Farm, the Respondent State sent its security agents to trail
him and on various occasions, attempts were made to harm him. According to the
complainant, on 12 September 2004, ‘a man suspected to be a CIO official driving a
white Mercedes went to the complainant’s family and left threatening messages of
death to complainant’s brother’. The message from the CIO official, according to the
complainant was that the complainant was an enemy of the state and will be killed.
Complainant was forced to call his brother to stay with him for security reasons. In
another incident, the same man, this time accompanied by three others, paid a
second visit and issued similar threats to the complainant.
58. He indicated that on 30 September 2004, he was stopped by men driving a blue
Mercedes Benz who again threatened him. He said because this later incident took
place near his house, it was enough reason for him to be afraid for his life. He added
that in August 2004, on several occasions he received numerous telephone calls
10
Communication 149/96.
16
where some of the callers threatened him with death and one caller said “we are
monitoring you. We will get you. You are dead already”. He said he informed the
Board of Amnesty International – Zimbabwe, the Zimbabwe Lawyers for Human
Rights and his Lawyer about the threatening calls. He added that vehicles with
people acting strangely were observed parking around his residence and work place
during what he termed odd hours, until he decided to go into hiding and subsequently
fled to South Africa. He says he suspects the Respondent State wanted to abduct
and kill him, adding that there are many cases in which people have been abducted
and never seen again.
59. Other incidences which, according to Complainant, gave him reason to believe his
life was threatened, include the fact that in January 2005 the Respondent State
refused to issue passports to his family, even though he applied since November
2004. Because of this he was forced to leave his family behind who still reside in
Zimbabwe. As at the time of submission of this Communication, they had not been
given the passports. He also indicated that he was forced to abandon his studies with
the Institute of Personnel Management of Zimbabwe (IPMZ) and at the Zimbabwe
Open University. He said in October 2004, his daughter had to abandon school when
the whole family went into hiding. He said at the end of September 2004, he received
a great shock when he found all files in his laptop deleted, and suspected the
disappearance of the files was linked to respondent’s agents.
60. He concluded that “by reason of the arbitrary arrests and detentions, torture,
inhuman and degrading treatment, delays in charging and trying him, surveillance by
the respondent’s agents and others cited in the afore-mentioned incidents, the
complainant submits that the respondent flagrantly violated his rights and freedoms
and those of his family…”
61. From the above submissions of the Complainant, the latter seeks to demonstrate that
through the actions of the Respondent State and its agents, a situation was created
which made him to believe that the respondent was out to harm and/or kill him. He
thus became concerned about his safety and that of his family. Due to the fear for his
life, he claims, he went into hiding and eventually fled into a neighbouring country,
South Africa, from where he submitted this Communication.
62. In a complaint of this nature, the burden of proving torture and the reasons why local
remedies could not be exhausted rests with the Complainant. The Complainant has
the responsibility of proving that he was tortured and describing the nature of the
torture or the treatment he underwent, and the extent to which each act of torture,
intimidation or harassment alleged, instilled fear in the complainant to cause him to
be concerned for his life and those of his dependants, to the extent that he could not
attempt local remedies but preferred to flee the country. It is not enough for the
Complainant to claim he was tortured or harassed without relating each particular act
to the element of fear. If the Complainant discharges this burden, the burden will then
shift to the Respondent State to show the remedies available, and how in the
particular circumstance of the Complainant’s case, the remedies are effective and
sufficient.
17
63. To support his case, the Complainant cited the African Commission’s decisions in the
Jawara Case and the cases of Alhassan Abubakar v Ghana11 and Rights
International v Nigeria12 in which he said the Commission found that the
Complainants in these cases could not be expected to pursue domestic remedies in
their country due to the fact that they had fled their country for fear of their lives.
64. Having studied the Complainant’s submissions, and comparing it with the above
cases cited in support of his claim, the Commission is of the opinion that the facts of
the above cases are not similar to his case. In the Jawara Case for example, the
Complainant was a former Head of State who had been overthrown in a Military
coup. The complainant in this case alleged that after the coup, there was “blatant
abuse of power by … the military junta”. The military government was alleged to have
initiated a reign of terror, intimidation and arbitrary detention. The Complainant
further alleged the abolition of the Bill of Rights as contained in the 1970 Gambia
Constitution by Military Decree No. 30/31, ousting the competence of the courts to
examine or question the validity of any such Decree. The Communication alleged
the banning of political parties and of Ministers of the former civilian government from
taking part in any political activity. The Communication further alleged restrictions on
freedom of expression, movement and religion. These restrictions were manifested,
according to the complainant, by the arrest and detention of people without charge,
kidnappings, torture and the burning of a mosque.
65. In the Jawara case, the Commission concluded that “the Complainant in this case
had been overthrown by the military, he was tried in absentia, former Ministers and
Members of Parliament of his government have been detained and there was terror
and fear for lives in the country. There is no doubt that there was a generalised fear
perpetrated by the regime as alleged by the Complainant. This created an
atmosphere not only in the mind of the author but also in the minds of right thinking
people that returning to his country at that material moment, for whatever reason,
would be risky to his life. Under such circumstances, domestic remedies cannot be
said to have been available to the Complainant”. The Commission finally noted that,
“it would be an affront to common sense and logic to require the complainant to
return to his country to exhaust local remedies”.
66. In the Alhassan Abubakar Case, it should be recalled that Mr. Alhassan Abubakar
was a Ghanaian citizen who was arrested by the Ghanaian authorities in the 1980s
for allegedly cooperating with political dissidents. He was detained without charge or
trial for over seven (7) years until his escape from a prison hospital on 19 February
1992 to Cote d’Ivoire. After his escape, his sister and wife, who had been visiting him
in Cote d’Ivoire, were arrested and held for two weeks in an attempt to get
information on the Complainant’s whereabouts. The Complainant’s brother informed
him that the police have been given false information about his return, and have on
several occasions surrounded his house, searched it, and subsequently searched for
him in his mother’s village.
11
Communication 103/1993.
12
Communications 215/1998.
18
67. In the early part of 1993 the United Nations High Commissioner for Refugees
(UNHCR) in Côte d’Ivoire informed the Complainant that they had received a report
on him from Ghana assuring that he was free to return without risk of being
prosecuted for fleeing from prison. The report further stated that all those detained for
political reasons had been released. Complainant on the other hand maintained that
there is a law in Ghana which subjects escapees to penalties from 6 months to 2
years imprisonment, regardless of whether the detention from which they escaped
was lawful or not. On the basis of the above, the Commission held that “considering
the nature of the complaint it would not be logical to ask the complainant to go back
to Ghana in order to seek a remedy from national legal authorities. Accordingly, the
Commission does not consider that local remedies are available for the complainant”.
68. In Rights International v. Nigeria, the victim, a certain Mr. Charles Baridorn Wiwa,
a Nigerian student in Chicago was arrested and tortured at a Nigerian Military
Detention Camp in Gokana. It was alleged that Mr. Wiwa was arrested on 3 January
1996 by unknown armed soldiers in the presence of his mother and other members
of his family, and remained in the said Military detention camp from 3-9 January
1996. While in detention, Mr. Wiwa was horsewhipped and placed in a cell with fortyfive other detainees. When he was identified as a relative of Mr. Ken Saro - Wiwa he
was subjected to various forms of torture. Enclosed in the Communication was
medical evidence of Mr. Wiwa'
s physical torture. After 5 days in the detention camp
in Gokana, Mr. Wiwa was transferred to the State Intelligence Bureau (SIB) in Port
Harcourt. Mr. Wiwa was held from 9 -11 January 1996, without access to a legal
counsel or relatives, except for a five minutes discussion with his grandfather. On 11
January 1996, Mr. Wiwa and 21 other Ogonis were brought before the Magistrate
Court 2 in Port-Harcourt, charged with unlawful assembly in violation of Section 70 of
the Criminal Code Laws of Eastern Nigeria 1963. Mr. Wiwa was granted bail, but
while out on bail some un-known people believed to be government agents abducted
him and threatened his life by forcing him into a car in Port-Harcourt. On the advice
of human rights lawyers, Mr. Wiwa fled Nigeria on 18 March 1996 to Cotonou,
Republic of Benin where the UN High Commissioner for Refugees declared him a
refugee. On September 17 1996, the US government granted him refugee status and
he has been residing in the United States since then.
69. In this case, the African Commission declared the Communication admissible on
grounds that there was lack of available and effective domestic remedies for human
rights violations in Nigeria under the military regime. It went further to assert that “the
standard for constructive exhaustion of domestic remedies is satisfied where there is
no adequate or effective remedy available to the individual. In this particular case,
Mr. Wiwa was unable to pursue any domestic remedy following his flight for fear of
his life to the Republic of Benin and the subsequent granting of refugee status to him
by the United States of America”.
70. The Communication under consideration must also be distinguished from Gabriel
Shumba v Republic of Zimbabwe13. In the Shumba Case, the Complainant, Mr.
Gabriel Shumba, alleged that, he, in the presence of 3 others, namely Bishop
Shumba, Taurai Magayi and Charles Mutama was taking instructions from one of his
clients, a Mr. John Sikhala in a matter involving alleged political harassment by
13
Communication 288/2004.
19
members of the Zimbabwe Republic Police (ZRP). Mr. John Sikhala is a Member of
Parliament for the Movement for Democratic Change (MDC), which is the opposition
party in Zimbabwe. At about 11:00 pm riot police accompanied by plain-clothes
policemen and personnel identified to be from the Central Intelligence Organization
stormed the room and arrested everyone present. During the arrest, the
complainant’s law practicing certificate, diary, files, documents and cell phone were
confiscated and he was slapped and kicked several times by, among others, the
Officer in Charge of Saint Mary’s Police Station.
71. Mr. Shumba and the others were taken to Saint Mary’s Police Station where he was
detained without charge and denied access to legal representation. He was also
denied food and water. The Complainant claims that on the next day following his
arrest, he was removed from the cell, a hood was placed over his head and he was
driven to an unknown location where he was led down what seemed like a tunnel, to
a room underground. The hood was removed, he was stripped naked and his hands
and feet were bound in a foetal position and a plank was thrust between his legs and
arms. While in this position, the complainant was questioned and threatened with
death by about 15 interrogators. The Complainant further alleged that he was also
electrocuted intermittently for 8 hours and a chemical substance was applied to his
body. He lost control of his bodily functions, vomited blood and he was forced to drink
his vomit. The complainant submitted a certified copy of a medical report describing
the injuries found on his body. Following his interrogation at around 7pm of the same
day, the complainant was unbound and forced to write several statements implicating
him and several senior MDC members in subversive activities. At around 7.30pm he
was taken to Harare Police Station and booked into a cell. On the third day of his
arrest, his lawyers who had obtained a High Court injunction ordering his release to
court were allowed to access him. The complainant was subsequently charged under
Section 5 of the Public Order and Security Act that relates to organizing, planning or
conspiring to overthrow the government through unconstitutional means. He then fled
Zimbabwe for fear of his life.
72. In the four cases cited above, there is one thing in common – the clear establishment
of the element of fear perpetrated by identified state institutions, fear which in the
Jawara Case, the Commission observed that “it would be reversing the clock of
justice to request the complainant to attempt local remedies”. In the Abubakhar
Case, the Complainant’s sister and wife were arrested to force the complainant to
return, his house was regularly surrounded and searched, and his mother’s village
was visited by state agents looking for him. In the Shumba Case, the State never
refuted the allegations of torture or the authenticity of the medical reports, but simply
argued that complainant could have seized the local courts for redress.
73. In the case under consideration, the Complainant, Mr. Obert Chinhamo has
presented a picture of the conditions of detention, which without prejudice to the
merits of the Communication, can be termed inhuman and degrading. He also
pointed out instances of alleged intimidation and harassment by State agents.
74. Every reasonable person would be concerned and afraid for their life if they had
State Security agents prying into their everyday activities. Complainant had every
reason to be concerned for his safety and that of his family. However, it should be
20
noted that complainant did not identify any of the men tracking him to be State
agents. According to his submissions, the people harassing him were anonymous,
unknown or suspected CIO officials, and in some cases, he simply observed some
strange men around his home and his place of work. In none of the instances of
alleged harassment or intimidation mentioned by the complainant did he identify his
alleged persecutors as agents of the Respondent State. He based his fear on
suspicion, which was not corroborated.
75. Of particular importance here is to note that in spite all the threats, harassment,
intimidations, threatening phone calls and alleged tracking by Respondent States’
agents, complainant chooses not to report the matter to the police. From his
submissions, he was harassed and intimidated for over six months, that is, from
August 2004 when he claims he was first arrested, to January 2005, when he left the
country. In his submissions, he did not indicate why he could not submit the matter to
the police for investigation but preferred reporting to his employers and his lawyers.
In the opinion of the Commission, the complainant has not substantiated his
allegations with facts. Even if, for example, the detention of the complainant
amounted to psychological torture, it could not have been life-threatening to cause
the complainant flee for his life. Apart from the alleged inhumane conditions under
which he was held, there is no indication of physical abuse like in the Shumba and
Wiwa cases. Torture could not have been the cause for the complainants fleeing the
country because the alleged inhumane and degrading or torturous treatment
occurred in August/September 2004, and the complainant remained in the country
until January 2005, and even made court appearances on at least four occasions to
answer charges brought against him. The alleged intimidation and threat to the
complainant’s life occurred between August and October 2004. This means that by
the time the complainant left for South Africa in January 2005, the alleged threats
and intimidation had ceased. There is therefore no evidence to prove that his leaving
the Respondent State was as a result of fear for his life occasioned by threats and
intimidation, or that even if he was threatened and intimidated, this could be
attributed to the Respondent State.
76. The Complainant has simply made general allegations and has not corroborated his
allegations with documentary evidence or testimonies of others. He has not shown,
like in the other cases mentioned above, the danger he found himself in that
necessitated his fleeing the country. Without concrete evidence to support the
allegations made by the complainant, the Commission cannot hold the Respondent
State responsible for whatever harassment, intimidation and threats that the
complainant alleges he suffered, that made him flee the country for his life. This is
even so because complainant never bothered to report these incidences to the police
or raise them with the magistrate when he appeared four times in the respondent
court. If the intimidation and threats were not brought to the attention of the State for
investigation, and if the State was not in a position to know about them, it would be
inappropriate to hold the State responsible.
77. Having said that, the question is, could the complainant still have exhausted local
remedies or better still, is he required to exhaust local remedies, even outside the
Respondent State?.
21
78. The first test that a local remedy must pass is that it must be available to be
exhausted. The word “available” means “readily obtainable; accessible”;14 or
“attainable, reachable; on call, on hand, ready, present; . . . convenient, at one’s
service, at one’s command, at one’s disposal, at one’s beck and call.”15
79. According to this Commission, a remedy is considered to be available if the petitioner
can pursue it without impediments or if he can make use of it in the circumstances of
his case.16 Were there remedies available to the complainant even from outside the
respondent state?
80. The state indicates that in terms of its laws, a Complainant need not be physically
present in the country in order to access local remedies, adding that both the High
Court Act and the Supreme Court Act permit any person to make an application to
either court through his/her lawyer. In support of this, the State cites the Ray Choto
and Mark Chavhunduka Case where the victims were tortured by State agents, and
they applied for compensation while they were both in the United Kingdom and
succeeded in their claim. The state concluded that the complainant is not barred from
pursuing remedies in a similar manner.
81. The Complainant does not dispute the availability of local remedies in the
Respondent State, but argues that in his particular case, having fled the country for
fear of his life, and now out of the country, local remedies are not available to him.
82. This Commission holds the view that having failed to establish that he left the country
involuntarily due to the acts of the Respondent State, and in view of the fact that
under Zimbabwe law, one need not be physically in the country to access local
remedies; the complainant cannot claim that local remedies are not available to him.
83. The Complainant argues that even if local remedies were available, they were not
effective because the State has the tendency of ignoring court rulings taken against
it, citing among others the High Court decision in the Commercial Farmers Union
Case and the Ray Choto and Mark Chavhunduka case, and added that the
Zimbabwe Lawyers for Human Rights has documented at least 12 instances where
the State has ignored court rulings since 2000.
84. It is not enough for a Complainant to simply conclude that because the State failed to
comply with a court decision in one instance, it will do the same in their own case.
Each case must be treated on its own merits. Generally, this Commission requires
complainants to set out in their submissions the steps taken to exhaust domestic
remedies. They must provide some prima facie evidence of an attempt to exhaust
local remedies. This position is supported by other human rights bodies around the
globe. The UN Human Rights Committee, for example, has stated that the mere fact
that a domestic remedy is inconvenient or unattractive, or does not produce a result
14
WEBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 102
(1989).
15
LONGMAN SYNONYM DICTIONARY 82 (1986).
16
Jawara v. The Gambia, supra.
22
favourable to the petitioner does not, in itself, demonstrate the lack or exhaustion of
all effective remedies.17 In the Committee’s decision in A v Australia,18 it was held
that “mere doubts about the effectiveness of local remedies or prospect of financial
costs involved did not absolve the author from pursuing such remedies.”19
85. The European Court of Human Rights on its part has held that even if the applicants
have reason to believe that available domestic remedies and possible appeals will be
ineffective, they should seek those remedies since “it is generally incumbent on an
aggrieved individual to allow the domestic courts the opportunity to develop existing
rights by way of interpretation.”20 In Article 19 v Eritrea,21 the Commission held that
“it is incumbent on the complainant to take all necessary steps to exhaust, or at least
attempt the exhaustion of local remedies. It is not enough for the complainant to cast
aspersion on the ability of the domestic remedies of the State due to isolated
incidences”.
86. From the above analysis, this Commission is of the view that the complainant ignored
to utilize the domestic remedies available to him in the Respondent State, which had
he attempted, might have yielded some satisfactory resolution of the complaint.
87. The third issue of contention between the complainant and the Respondent State is
the requirement under Article 56(6) of the Charter which provides that
“Communications received by the Commission will be considered if they are
submitted within a reasonable period from the time local remedies are exhausted, or
from the date the Commission is seized with the matter…”
88. The present Communication was received at the Secretariat of the Commission on
26 September 2005. It was considered on seizure by the Commission in November
2005, that is, ten months after the complainant allegedly fled from the country. The
complainant left the country on 12 January 2005.
89. The Commission notes that the complainant is not residing in the Respondent State
and needed time to settle in the new destination, before bringing his complaint to the
Commission. Even if the Commission were to adopt the practice of other regional
bodies to consider six months as the reasonable period to submit complaints, given
the circumstance in which the complainant finds himself, that is, in another country, it
would be prudent, for the sake of fairness and justice, to consider a ten months
17
Nos. 220/1987, T. K. v. France; 222/1987, M. K. v. France; 306/1988, J. G. v. The Netherlands, in 2
Report of the Human Rights Committee 188, 122; 127, 130; 180, 182–83, UN Doc. A/45/40 (1990)
[hereinafter HRC 1990 Report].
18
Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
19
See also L Emil Kaaber v Iceland, Communication No. 674/1995. UN Doc. CCPR/C/58/D/674/1995
(1996). See also Ati Antoine Randolph v. Togo, Communication No. 910/2000, UN Doc.
CCPR/C/79/D/910/2000 (2003).
20
PHILIP LEACH, TAKING A CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS 79 (2001) (quoting Earl Spencer and Countess Spencer v. United
Kingdom, App. Nos. 28851/95, 28852/95 (Eur. Comm’n on H.R. 1998)).
21
Communication 275/2003.
23
period as reasonable. The Commission thus does not consider the Communication to
have been submitted contrary to sub-section 6 of Article 56 of the Charter.
90. Lastly, Article 56(7) provides that the Communication must not deal with cases
which have been settled by the states, in accordance with the principles of the United
Nations, or the Charter of the OAU or the African Charter. In the present case, this
case has not been settled by any of these international bodies and as a result of this,
the requirement of Article 56(7) has been fulfilled by the complainant.
The African Commission finds that the Complainant in this Communication, that is,
Communication 307/05- Obert Chinhamo/the Republic of Zimbabwe, has not fulfilled
the requirement under Article 56(5) of the African Charter, and therefore declares the
Communication inadmissible.
Done in Brazzaville, Republic of Congo, at its 42nd Ordinary Session held from 14 –
28 November, 2007.
24