Kumulika A Spotlight on Human Rights in Africa

Transcription

1 Kumulika A Spotlight on Human Rights in Africa Developments at the NGO Forum and the 50 th session of the African Commission on Human and Peoples Rights Celebration of the 30 th anniversary of the African Charter for Human and Peoples Rights

2 Introduction 2011 was marked by historical events on the African continent, with South Sudan s accession to independence on 9 July 2011 bringing the number of African countries to 54. It was also marked by the fall of North African dictators, Muammar Gaddafi from Libya, Ben Ali from Tunisia and Hosni Mubarak from Egypt, who had taken the countries hostage for decades. The uprisings brought about grave human rights violations with brutal repression necessitating the intervention of the international community and testing the ability of the African Institutions, such as the African Union and the African Commission, to address the situation. At the same time, Africa celebrated the 30 th anniversary of the African Charter for Human and Peoples Rights (the African Charter), an instrument universally ratified by all African countries. This situation brought participants to the following three events surrounding the 50 th session to reflect on the African human rights system s ability to respond to serious human rights challenges. The 30 th anniversary celebrations of the Charter coincided with the 50 th ordinary session of the African Commission for Human and People s Rights (the African Commission or Commission), the monitoring body set up to interpret and promote the rights contained within the Charter. The African Commission session was hosted in Gambia from 24 October to 5 November 2011, and provided an opportunity for various actors to reflect on the gaps, strengths and challenges of human rights protection within the African human rights system. Both the African Commission session and the NGO Forum preceding it focused on assessing the fulfilment of the Charter s mandate to protect and promote human rights on the continent. A two-day colloquium dedicated to in-depth reflections of the status of the Charter was held by the African Commission from 22 to 23 October. It attracted prominent African human rights lawyers and practitioners who analysed the Charter for its ability or inability to respond to human rights violations. The International Service for Human Rights thanks Irish Aid for making this publication possible. The contents are the sole responsibility of the authors and cannot be regarded as reflecting the views of Irish Aid. The NGO Forum The NGO Forum took place from 19 to 21 October in Banjul, the Gambia, at Kairaba Beach Hotel. The Forum was attended by 215 human rights defenders coming from more than 35 African countries, Europe and North America including 30 defenders (from 18 different countries) who had just completed a training course on the international and regional human rights ACHPR Analytical Report Final, page 2 of 22

3 systems. The training took place from 14 to 18 October and was organised jointly by Conectas Direitos, OHCHR, ISHR and ACDHRS. 1 The main issues discussed during the 3 day meeting included: Reflections on the African Charter 30 years after its adoption; Communications procedures before the African Commission; Economic, social and cultural rights emphasising housing rights. Where are we at 30 years after the adoption of the African Charter for Human and Peoples Rights? Human rights actors gathered at the NGO Forum reflected on the impact of the Charter in terms of the protection and promotion of human rights on the African continent. Where do we stand? Are the rights of Africans more protected than they were 30 years before the adoption of the Charter? Shall we celebrate or reflect? The African continent has witnessed the worst human rights violations during the last three decades including genocide, crimes against humanity, war crimes and violation of fundamental rights. There have been over 9 million refugees and internally displaced people from conflicts in Africa. Hundreds and thousands of people have been slaughtered from a number of conflicts and civil wars. If this scale of destruction and fighting was in Europe, then people would be calling it World War III with the entire world rushing to report, provide aid, mediate and otherwise try to diffuse the situation. 2 No less than 28 Sub-Saharan African States have been at war since Were victims protected from the violations under the Charter? And were there responses to the violation of the Charter by those responsible for implementing it? Such questions animated the debates. The assessment is uncertain; the African human rights system is the last born of the international human rights system and is somewhat ill-equipped to tackle the insurmountable human rights challenges on its soil. Besides, the African human rights system suffers from the immense challenge of lack of political will from African States, which in some cases are rights-abusers themselves. The Charter, like other international instruments, faces the challenges related to the implementation of its provisions, recommendations and decisions by States. There is no enforcement mechanism in place. However, it was recognized that the situation has improved through the innovative way of interpreting the Charter. Protocols have been adopted in order to better implement the Charter: the protocol on the rights of women is a unique instrument which guarantees comprehensive rights to women including the right to take part in the political process, to social and political equality with men, to control their reproductive health. It also puts an end to female genital mutilation. Among other achievements, it is worth mentioning the creation 1 Office of the High Commissioner for Human Rights, International Service for Human Rights, the African Center for Democracy and Human Rights Studies ACHPR Analytical Report Final, page 3 of 22

4 of the African Court on Human and Peoples' Rights, which complements the protective mandate of the African Commission on Human and Peoples' Rights. The active participation of civil society in the work of the Commission through the NGO Forum is a unique model that allows for a harmonious relationship between NGOs and Commissioners. That was not the case several years ago, when human rights defenders were not allowed to sit face to face with State representatives and Commissioners. Participants recognised that civil society has come a long way and should celebrate and at the same time reflect. Economic, Social and Cultural Rights (ESCR) PRINCIPLES AND GUIDELINES ON ESCR AND REPORTING GUIDELINES This session marked a turning point in the area of economic, social and cultural rights. Two important documents were launched at the NGO Forum and adopted by the African Commission. The two documents are the Principles and Guidelines on the implementation of Economic, Social and Cultural Rights in the African Charter (known as the Nairobi Guidelines) and The State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter (known as the Tunis Reporting Guidelines). These documents came about after the African Commission established a Working Group on Economic and Social Rights in its 36 th Ordinary Session, held from 23 November to 7 December 2004 in Dakar, Senegal. The guidelines for reporting are very simple to use, the general content is a framework and strategy. They contain measures and mechanisms to monitor the implementation and propose remedies. Commissioner Atoki, member of the working group, welcomed the guidelines that in her own words make the African Charter more complete. HOUSING RIGHTS: CHALLENGES OF FORCED EVICTIONS IN AFRICA. VICTIMS OF FORCED EVICTIONS DEMAND THEIR RIGHTS To give a voice to the newly adopted Nairobi guidelines, Amnesty International brought victims of forced eviction to give live testimonies of this violation of ESCR and to demand their rights. Victims came from Zimbabwe, Nigeria, Egypt, Kenya, Chad and Ghana. With the growing urbanisation of cities, the problem affects a huge number of people living in Sub-Saharan Africa where three out of every four people residing in a city or town live in a slum. 4 People find themselves homeless overnight without compensations and in violation of international and African human rights standards. Force evictions are in contradiction to the Covenant on ESCR and the African Charter, which most African States are part of. This has enormous consequences on other basic economic, social and cultural rights such as education and access to water and sanitation, and it drives people into deep poverty. Mr Nyangaya on behalf of Amnesty International called on African governments to listen to their people crying out for dignity by immediately ending such evictions and to adopt legislation setting out safeguards that must be based on international and regional human rights standards. Governments should consult their people who are the most concerned. They are not even given notice when they have to leave. Adequate compensation should be made available to those who have to leave. 4 Amnesty International live wire, ACHPR Analytical Report Final, page 4 of 22

5 The NGO Forum adopted a recommendation to call on African States to end forced evictions and to adopt legislations and policies protecting people from forced evictions and guarantying equitable remedies. Informal discussion with the Special Rapporteur on Human Rights Defenders ISHR facilitated an informal discussion with Lucy Asuagbor, the Special Rapporteur on human rights defenders, to allow defenders present at the Forum to share their concerns and get a hands-on update on her work. After informing participants of her recent official and non-official visits in Cameroun and Burundi respectively, participants shared their concerns about their own countries. Defenders from Burundi shared their fear of reprisals after the President made an aggressive speech against the media and human rights defenders, arguing that human rights defenders are not elected by the population and should therefore not speak for them. In Chad, human rights defenders continue to be victims of harassment on a daily basis and a defender from Chad mentioned he was harassed from a distance by the authorities even while attending the Forum. In Zimbabwe, there is an open policy restricting and nullifying the work of human rights defenders, which increases their vulnerability. Defenders also mentioned that in many countries (Gambia, Djibouti, Ethiopia,...) activists work in an unfriendly legal framework environment where laws are either too old or draconian, and limit their engagement. They suggested to the Commission to draft guidelines on the protection of human rights defenders that could be incorporated in national laws. With regard to the growing threats against human rights defenders, they called upon the Commission to set up an effective mechanism to respond to their needs as quickly as possible. Other interventions requested for the improvement of country visits, for example by making the report public, to which the Special Rapporteur replied that unfortunately the mission report had to be adopted first by the Commissioners in a public session. Discussions with the Special Rapporteur were carried on during interest groups. 5 The Special Rapporteur regretted that she does not get enough cases from defenders and encouraged them not to wait six months between each session before exposing their difficulties. She stressed that she can only act upon information received. The following draft resolutions related to the situation of human rights defenders were suggested: A draft resolution on reprisals (put forward during the 49 th session); 5 There were 12 interest groups, where participants were divided into small groups to discuss a thematic issue and come up with conclusions, which could be a draft resolution to be put forward to the Commission for adoption. The interest groups were: Prisons and Conditions of Detention in Africa, Economic, Social and Cultural Rights in Africa, Human Rights defenders in Africa, Extractive industries, Environment and Human Rights Violations in Africa, Refugees, Asylum Seekers, IDPs and Migrants in Africa, Death Penalty in Africa, Indigenous Populations and Communities in Africa, Women s Rights in Africa, Freedom of Expression and Protection of Journalists, Children s Rights in Africa, Sexual Orientation and Gender Identity, and African Court on Human and Peoples Rights. ACHPR Analytical Report Final, page 5 of 22

6 A draft resolution on freedom of association; A draft resolution on the situation of human rights defenders in specific countries (Angola, Burundi, Malawi, Namibia, Swaziland, Zimbabwe); A recommendation to grant observer status to the Coalition of African Lesbians. Panel discussion on freedom of association in Africa During its 49 th ordinary session, the Commission adopted a resolution creating a group composed of networks and NGOs 6 to conduct a study on laws governing the freedom of association in Africa, to be finalised before May 2012.The group is chaired by the Special Rapporteur on human rights defenders. As a follow-up on that resolution, a panel discussion on the freedom of association in Africa was organised to assess the situation of that right in Africa. The panellists noted that even if there has been a historic normative progress within the international law, African governments continue to undermine its enjoyment. The right of association is at the core of other rights. Its violation affects other rights including the freedom of movement and the freedom of expression. The violations of these rights are mostly observed during elections period. This situation justifies the adoption in 2010 of Resolution ACHPR/Res.174(XLVIII)2010 on elections in Africa. The resolution calls States to ensure freedom of movement and physical integrity of human rights defenders, journalists and other media practitioners in the run-up to and during, and after elections or referenda. Trade unionists face specific restrictions. For example, in Zimbabwe, they are not allowed to open accounts and have to locate them in neighbouring countries. They are not allowed to organise protests; they must have a government authorisation, which they never obtain. Governments use a divide and rule tactic by creating their own trade unions to control independent trade unions. A lot is expected from the study. The plan is to come up with a model applicable in Africa and to assure that the Commission is conscious of problems faced by civil society actors in the area of freedom of association The NGO forum ended on Friday 21 October 2011 with eight thematic resolutions and six country resolutions to put forward to the Commission. Official celebration of the 30 th anniversary of the Charter COLLOQUIUM (22 TO 23 OCTOBER): CURRENT CHALLENGES AND FUTURE OPPORTUNITIES IN THE PROMOTION AND PROTECTION OF HUMAN RIGHTS IN AFRICA In 1981, members of the Organisation of African Unity (the OAU) came together to compose a decisive document aimed at securing the progressive realisation of basic human rights standards on the African continent. Thirty years later, the Charter remains a vital instrument. 6 International Service for Human Rights, Institute for Human Rights and Development in Africa, West Africa Human Rights Defenders Network, East and Horn of Africa Human Rights Defenders Project, African Centre for Democracy and Human Rights Studies, Cairo Institute for Human Rights studies, Central Africa Human Rights Defenders Network, HURISA. ACHPR Analytical Report Final, page 6 of 22

7 Written with a sensitivity towards African history and culture, the document compiles civil and political rights and economic, social and cultural rights in a single treaty. The Charter was adopted with apparent gaps, partly addressed later through the creation and adoption of a number of mechanisms and protocols such as the Protocol to the African Charter, which established the African Court on Human and Peoples Rights, the Protocol to the African Charter on the Rights of Women, and the African Charter on the Rights and Welfare of the Child. The Charter also allows for its interpretation, addition and adaptation in light of international human rights law. 7 With regard to its effectiveness, the main challenges are, on the one hand, the lack of political will demonstrated by the African Union, which is the organ responsible for allocating funds to the African Commission and which approves the Commission s activity report, including resolutions and recommendations. As a result, the Commission suffers from a lack of adequate resources. On the other hand, States fail to domesticate the Charter through the adaptation of national laws and implementation of the decisions issued by the African Commission. Ongoing political crises in Africa have strongly tested the African Commission s ability to fulfil its protection mandate. The Commission was almost completely absent during mass human rights violations in Soudan, Somalia, Rwanda, Burundi, and Sierra Leone. Adding to the limits imposed by the African Union s lack of political will, the African Commission has no budget to hold extraordinary sessions or to carry out fact-finding missions, and failed to do so in the cases of Guinea, Côte d Ivoire and Libya. The Commission issued press releases, which have so far been disregarded by the concerned States. However, it was successful in referring a case on Libya s human rights situation to the African Court. In her opening remarks, Mrs Reine Alapini Gansou, the outgoing Chair of the African Commission, deplored the reduction of the Commission s budget by the African Union at a time when the body needed more funds than ever to address human rights violations in Africa. COMMUNICATION PROCEDURES BEFORE THE AFRICAN COMMISSION One of the main functions of the African Commission is to examine communications on alleged violations of human rights. The African Commission may receive complaints from a State against another State (inter-state complaints) or by individuals and NGOs against one or more States (individual complaints) in accordance with its mandate under articles 48, 49 and 55 of the Charter. During each ordinary session, the African Commission considers and makes decisions on a number of communications. Until October 2011, the African Commission had received some 400 communications. Of these, 196 were examined by the Commission on merits 8 and only ten countries 9 implemented, either in full or in part, the Commission s decisions or recommendations. 7 Article 60 of the African Charter: The Commission shall draw inspiration from international law on human and peoples rights, particularly from the provisions of various African instruments on Human and Peoples Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the Parties to the present Charter are members. 8 For more information on the case law, please visit 9 Two countries in Southern Africa, two in Central Africa, one in East Africa, four in West Africa and one in North Africa. ACHPR Analytical Report Final, page 7 of 22

8 An individual or group of individuals whose rights enshrined in the Charter have been allegedly violated may submit a communication (case) to the African Commission if they cannot find justice in their countries after exhausting all the available legal remedies. 10 The mechanism offers opportunities to human rights defenders who are not able to find adequate remedies in their respective countries. For example, Zimbabwean human rights defenders considered that justice was not working in their country, and since the Southern African Community (SADC) tribunal has been suspended, the African Commission provided their only hope of legal remedy. 11 Filing communications with the African Commission is easier than filing communications with United Nations bodies. The communication does not have to be in writing, and the Commission can conduct oral hearings and use live testimonies. The victim can be represented by an organisation or any person, regardless of nationality. NGOs do not have to have observer status to submit a complaint, and individuals need not be African citizens. 12 EXAMINATION OF STATE REPORTS The African Commission monitors the implementation of the Charter through States initial or periodic reports, which are examined during ordinary sessions. Article 62 of the Charter requires States to submit reports to show policy and legislative measures taken to implement the rights mentioned in the Charter. 13 However, 30 years after the Charter s establishment, only 12 States have regularly submitted their periodic reports, while 29 have submitted one report with more overdue, and 12 have never submitted any report. 14 After each State report is examined, the African Commission issues concluding observations. However, it can happen that the Commission does not issue concluding observations when it deems that crucial information is missing from a report and from State replies during the interactive dialogue. Thus, out of 41 countries examined, 37 received concluding observations. Unfortunately, few States explicitly provide responses to concluding observations in their subsequent periodic reports. To date, only four States have referred to their concluding observations in their reports: Cameroon, the Democratic Republic of Congo, Rwanda and Uganda. The African Commission has adopted new rules of procedures in 2010, which established follow-up mechanisms to concluding observations. Under the new rules, the Commission can 10 articles 48, 49 and Ex: 1. Communication submitted by the Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa on behalf of Mr Andrew Barclay Meldrum. The communication alleged that Mr Meldrum s rights of freedom of expression and freedom to disseminate information were violated by the Republic of Zimbabwe. See 2. Communication submitted by the Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa dealing with the Zimbabwean Government s failure to expedite administration of justice, the functioning of the judiciary and alleged violations of the right to participate in government. See 12 For more information see p. 63. See also guidelines for submission of communications at 13 Article 62 of the Charter: Each State Party shall undertake to submit every two years, from the date the present Charter comes into force, a report on the legislative or other measures taken, with a view to giving effect to the rights and freedoms recognised and guaranteed by the present Charter ACHPR Analytical Report Final, page 8 of 22

9 specify issues that require urgent attention on the part of the State Party, and can stipulate a date for the next report. Commissioners are called to follow up on the implementation of concluding observations during their human rights promotion activities. 15 The absence of submission of State reports undermines one of the essential mandates of the Commission as stated in the Charter. It s important for civil society organisations to put pressure on their States to regularly submit reports to the Commission to abide by their commitments to the Charter. THE SPECIAL PROCEDURES MECHANISMS Over the years, the African Commission has established a number of special mechanisms on specific human rights issues. Currently, there are 14 special procedures, working groups and study groups. 16 Commissioners assume the role of special rapporteurs. They investigate human rights violations in line with their mandate, research human rights issues and undertake country visits upon invitations by States. They can also attend NGO events and thus use the opportunity to learn about the situation of human rights in a given country. Special rapporteurs may issue urgent appeals and/or press releases in case of human rights concerns. Unfortunately, special mechanisms also suffer from a lack of resources and absence of State compliance with the conclusions and recommendations issued. Moreover, Special Rapporteurs rarely receive responses from States to their urgent appeals. THE AFRICAN COURT ON HUMAN AND PEOPLES RIGHTS A major development of the African Charter was the establishment of the African Court, created through the Protocol on the African Charter (the Protocol). The Protocol was adopted in Ouagadougou, Burkina Faso, on 9 June 1998 and entered into force on 25 January The African Court consists of 11 judges, elected by the AU Assembly from a list of candidates nominated by AU member States. The African Court was created to reinforce the protection mandate of the African Commission; its decisions are final and binding to States that have ratified the Protocol. The Court deals with matters related to the interpretation and application of the Charter and any other human rights instrument ratified by the State. As the first judicial body with responsibilities to ensure respect and effectiveness of the Charter and other human rights standards, the Court has the potential to play an essential role in the development of the African human rights system. The African Commission, State Parties to the Court s Protocol, African inter-governmental organisations, NGOs with observer status at the Commission, and individuals are permitted to submit communications to the Court. However, for NGOs and individuals to be able to submit communications to the Court, the State against which the complaint is brought must have made a declaration 17 accepting the competence of the African Court to receive such Under Article 5(3) of the Protocol ACHPR Analytical Report Final, page 9 of 22

10 complaints. 18 Today, 26 States have ratified the Protocol, but only five States have made the declaration. 19 The relationship between the African Court and the African Commission is defined under rule 29 of the Interim Rules of the Court 20 and part IV of the Interim Rules of Procedure of the Commission. 21 Through these provisions, the Court may transfer a matter that it is unable to successfully address to the Commission. The African Commission may submit a communication to the Court in case of massive human rights violation. For example, on 3 March 2011, the Commission brought a case against Libya before the Court, 22 and the Court ordered for provisional measures. 23 The African Court has the obligation to transmit its decisions to the Commission and the latter can seize the Court at any stage of examination of a communication. The two bodies are called to collaborate in a constructive manner and mutually reinforce each other. CHALLENGES The African Charter is still unknown to a great number of African citizens and the African Commission is a remote entity for the majority of human rights defenders. The greatest challenge to the Charter and Commission s effectiveness is the absence of enforcement of decisions made by the Commission, since it has not set up any procedure to supervise the implementation of its recommendations. As such, States do not feel compelled to abide by the Commission s decisions, which they consider to be only recommendations. The African Commission has a responsibility to establish standards and working methods to ensure the implementation of its recommendations. Civil society should put in place a follow-up strategy that utilises the media, publicises the Commission s decisions, translates decisions into local languages, uses these decisions in court, monitors their implementation by governments, and reports back to the Commission. The Commission is ill-equipped, with its current status, composition and mandate, to respond to the multitude of human rights challenges on the African continent. The 11 commissioners are unrealistically tasked multiple mandates at once: the promotion and protection of human rights, to act as special rapporteurs, to examine communications, and to examine State reports. Maybe it s time for the Commission to think about the appointment of independent external experts to deal with specific areas of concern to the Commission However, Article 60 of the African Charter does provide the necessary latitude to the African Commission to establish workable operating systems and standards in line with best practice in international law. Commissioners need to remove problems contained in the Charter and think strategically about ways of guaranteeing and protecting human rights by making a conscious effort to effectively interpret and apply the Charter Ghana, Tanzania, Mali, Malawi and Burkina Faso ACHPR Analytical Report Final, page 10 of 22

11 To be more effective, the African Commission should establish a separate system of special procedures, like that of the UN. The African Union should also allocate sufficient budget to the Commission to allow it to address the crucial issues in the area of human rights in the region. To tackle the lack of will from African States, democratic and human rights-friendly States like South Africa, Ghana, Benin and Senegal should carry their weight at the African Union and NGOs should increase their advocacy to support this tendency. The African Court is little-known by most African citizens, and more than half of African States have not yet ratified the Protocol establishing the Court and its jurisdiction. The Court also suffers from structural inadequacies; it lacks a sufficient number of legal officers and the administration of the Court is weak, since several key positions, such as court reporters, transcribers, recorders and revisers have not yet been filled. Despite all these challenges and inadequacies in implementation, the African Charter on Human and Peoples Rights is an evolving tool open to adaptation and a unique treaty, which reconciles international human rights standards with African specificities. 50 th ordinary session of the ACHPR The African Commission held its golden jubilee session in Banjul, the Gambia from 24 October to 5 November at Sheraton Hotel and Resort. 373 delegates participated in the Ordinary Session. There were 88 delegates representing 22 State Parties, nine from organs of the African Union (AU), 10 from national human rights institutions, six from International and Intergovernmental Organizations and 204 from African and International NGOs. Other observers 24 also attended the public session. Ten Commissioners were present; only one, Commissioner Mohammed Bechir Khalfallah was absent. Three new Commissioners: Commissioner Maya Sahli Fadel (Algeria), Commissioner Med S. K. Kaggwa (Uganda), and Commissioner Pacifique Manirakiza (Burundi) were appointed and took their oaths of office during the session s opening ceremony. The outgoing Chair of the Commission, Reine Alapini Gansou, in her opening remarks evoked the worrying human rights situation that the continent has witnessed since 2010, the year she was elected as Chair. She regretted the culture of impunity prevailing in Guinea, the grave situation in Libya, the massive human rights violations committed in Côte d Ivoire in 2011 taking away the lives of at least 3000 people, the persistent conflict in the DRC which has already cost the lives of 5 million citizens, the grave human rights and humanitarian crisis in Somalia and the hunger which is affecting thousands of people, as well as the critical situation in Sudan and South Sudan. Commissioner Gansou deplored the fact that the Commission was not able to respond to the cry of African citizens yearning for peace and justice. She expressed her disappointment about the fact that the Commission is the least-funded organ among all African Union institutions 25 years after its creation and that, to make matters worse, its budget was cut in Furthermore, various partners stopped providing their financial and technical support, which made things more difficult for the Commission and special procedures in particular ACHPR Analytical Report Final, page 11 of 22

12 Gansou pointed out the controversial issues haunting the Commission including sexual orientation and gender identity, the right to citizenship, and corruption. She expressed concern about the performance of special procedures, the lack of institutional memory, and budgetary questions. Other speakers included a representative of the AU, a representative of the African Court, a representative of NHRIs Network, government officials, and the Minister of Home affairs in Burundi speaking on behalf of AU member States. They highlighted the achievements of the Charter over 30 years and recalled its numerous challenges. The NHRI representative (South Africa), however, deplored the fact that pacific Egyptian demonstrators were attacked on the actual physical premises of the Egyptian Human Rights Commission, to show the vulnerability of NHRIs in Africa. She further expressed concerns about the weak legal, institutional and funding operational frameworks under which NHRIs operate. Honourable Minister Edouard Nduwimana, Minister of Home Affairs in Burundi speaking on behalf of AU States, reaffirmed that Burundi reiterates its will to cooperate with the mechanism and extended open invitations to any member of the Commission wishing to visit the country. Other State representatives included South Africa, Uganda, Rwanda, Egypt and Ethiopia who all recognised the great achievements of the Charter 30 years later and the challenges that the continent is facing in terms of human rights. They expressed their governments support for the African human rights mechanisms. Hannah Foster, the executive director of the Centre for Human Rights and Democracy Studies spoke on behalf of NGOs and summarised the outcome of the NGO Forum, which came up with 14 thematic resolutions and seven country resolutions. She noted the focus of the NGO Forum on the right to housing and the fact that evictions are a violation, and appealed to the Commission to strengthen its mechanisms through the implementation of recommendations. HUMAN RIGHTS SITUATION IN AFRICA After the opening ceremony, NGOs with observer status delivered statements on the human rights situation in Africa under item 9. Most issues raised pertained to: Restrictions and harassments of human rights defenders in their work including the infringement of the rights of expression, assembly and association in Angola, Burundi, Eritrea, Ethiopia, Gambia, Malawi and Zimbabwe; The hunger strike in Somalia affecting one third of the population; Persistent human rights violations in Guinea; The constitutional coup d état in Niger; The continuous harassment of sexual orientation and gender identity defenders; Police brutality in Nigeria; Torture and terrible detention conditions in many countries. ACHPR Analytical Report Final, page 12 of 22

13 Examination of States periodic reports Nigeria, Burundi and Togo presented their periodic reports. Periodic report of Nigeria Nigeria presented its fourth periodic report covering the period of 2008 to The Commission appreciated the representation of the country by a high level delegation who understands their issues very well. The delegation confirmed civil society organisations were part of the process of drafting the report through a stakeholders forum organised by the government. It said that Nigeria was planning to translate the African Charter into three local main languages, and pledged to comply with the Charter. It was commended by the Commission for giving supremacy to the Charter over its national laws. Nigeria passed an act on freedom of information, established a public interest institution to assist victims of human rights violations, and took measures to promote and protect women and children s rights. However, the Commission remains concerned about the following aspects: The alarming overcrowding of prisons; The lack of protection of human rights defenders and the absence of implementation of the UN Declaration on human rights defenders; The lack of measures to implement the act on freedom of information; Discrimination on account of sexual orientation; Police brutality; The existence of the death penalty in penal law. Other issues raised by the Commission related to access to justice, universal education and housing rights. The Commission inquired about the terrorist attack of the UN headquarters and the measures taken to prevent a future occurrence of such events. The Commission deplored Nigeria s delay to ratify the convention on democracy and good governance and the absence of the declaration under Article 34.6 of the protocol creating the African Court allowing individuals to submit cases to the Court, as was recommended during the 44 th session in Periodic report of Burundi Burundi presented its periodic report, combining four overdue reports (2002, 2004, 2006 and 2008) with the current one and covering the period of 2000 to The Government was represented by only one delegate, the Minister of Home Affairs, who was joined later in the day by an official from the Ministry of Human Rights, towards the end of the examination ACHPR Analytical Report Final, page 13 of 22

14 The main human rights issues of concern in Burundi as underlined by the Commission are related to: Extrajudicial killings and crackdown of political opposition; Lack of independence of the judiciary and separation of the three powers; Overcrowding of prisons and the appalling prison conditions, filthy hygiene, lack of access to healthcare and food; Long pre-trial detention with the number of people awaiting trial in jail surpassing the number of those convicted; Discrimination against women, particularly the denial of inheritance rights to women; The criminalisation of homosexuality under the penal code; The marginalisation and discrimination of Batwa (indigenous population), particularly the lack of access to land; The harassment of HRDs and media representatives including judicial harassments and arbitrary arrests; The derailed trial of Ernest Manirumva murderers. Commissioners regretted that a lot of information was missing, particularly statistics and data broken down for each sex in terms of prison conditions and political representation. The Minister promised to send the missing information in writing. The Commission encouraged Burundi to ratify the protocol on the rights of women, the convention on democracy and good governance and to make the declaration under article 34.6 of the protocol creating the African Court allowing individuals to submit cases to the Court. Periodic report of Togo The government of Togo presented its 3 rd, 4 th and 5 th combined reports on the implementation of the Charter. 27 The delegation was composed of three cabinet directors from different ministries. The Commission deplored the fact that Togo did not send a high level delegation, thus making it difficult to engage in high level discussions. The main issues of concern in Togo are: Restrictions on freedom of expression and association; The lack of transparency regarding the extractive industries and the protection of the environment; Torture and bad detention conditions; The absence of torture criminalisation in the penal code; Cross-border trafficking of children; 27 ACHPR Analytical Report Final, page 14 of 22

15 Gender discrimination, particularly the insufficient political participation of women. The government delegation informed the Commission that the penal code will be soon amended allowing torture to be established as a criminal offence and that the country is discussing the problem of cross-border trafficking of children with its neighbours The delegation did not provide a clear answer on the question of gender discrimination and other issues, promising to send written replies. Like for the previous countries examined, the Commission encouraged Togo to ratify the protocol on the rights of women, the convention on democracy and good governance and to make the declaration under article 34.6 of the protocol creating the African Court allowing individuals to submit cases to the Court. SPECIAL PROCEDURES ACTIVITY REPORTS The Special Rapporteur on the rights of women in Africa Commissioner Soyata Maiga, the Special Rapporteur on the rights of women, presented an overview of the activities she undertook in her capacity as a commissioner responsible for promotional activities, as a member of the Working Group on Indigenous Populations, as a member of the Committee on the protection of Persons Living with HIV/AIDs and Persons at Risk and as Special Rapporteur on the rights of women in Africa. She carried out an official visit in Niger and met with State actors, NGOs, women s associations, traditional chiefs and parliamentarians. The mission objective was to identify challenges obstructing the implementation of the Charter and good practices. A mission report comprising the outcome of the visit and her recommendations is under preparation. Under her mandate of Special Rapporteur on womens rights, she attended 3 activities organised by UN and AU institutions and/or NGOs. The most important was the 18 th Pre- Summit on Gender Mainstreaming in the African Union (GIMAC), which is a forum for Civil Society Organisations to evaluate the implementation of the African Union s Gender Declaration on Equality and the Maputo protocol. Recommendations were made to AU states in general and specific recommendations were made to countries facing conflict and those preparing for elections. She recognised the famine affecting women and girls in the Horn of Africa and urged the international community to mobilise funds for an emergency assistance. She further encouraged countries to ratify and implement the Maputo protocol and to accelerate the implementation of the Solemn Declaration on Gender Equality in Africa. The Special Rapporteur on freedom of expression and access to information in Africa Commissioner Pansy Tlakula is the Special Rapporteur on freedom of expression and access to information in Africa since Her report consisted of three main parts: activities undertaken since the 49 th session, an update of the status of the adoption of Access to Information legislation in Africa 28 and conclusions and recommendations. Following the aforementioned resolution, the Special Rapporteur drafted a model law for AU member States on access to information in partnership with the Centre for Human Rights of 28 During the 48th session of the ACHPR, the Special Rapporteur was authorised to initiate the process of developing a model Access to Information Law in Africa, and report its progress at its next Ordinary Session under resolution 167 (XLVIII] on Securing the Effective Realization of Access to Information in Africa, ACHPR Analytical Report Final, page 15 of 22

16 Pretoria University. 29 The model law serves as a guide to African States to adopt legislation protecting the right to access information. This initiative is an effort to strengthen the AU Convention on Preventing and Combating Corruption and the Charter on Democracy, Governance and Elections. The Charter requests States to adopt legislation and measures to give effect to the right to access to any information that is required to assist in the fight against corruption and related offences. It demands that States establish the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs. The Special Rapporteur was requested under resolution 167 (XLVIII] to Submit reports at each Ordinary Session of the African Commission on the status of the enjoyment of the right to freedom of expression and access to Information in Africa. She reported that nine countries have adopted laws on access to information, Nigeria being the latest on the list. 14 countries 30 have started the process; some already have draft laws waiting to be adopted by the parliament, while others are still in the drafting process. It should be noted, however, that such laws are not always in favour of civil society. For example, the Access to Information and Protection of Privacy Act (AIPPA) in Zimbabwe is more a tool for suppressing the right to information than protecting that right. AIPPA requires all journalists to be registered with the Media and Information Commission (governmental body) and prohibits them from practicing without accreditation. 31 The Special Rapporteur should issue warnings to countries whose legislations impede the full enjoyment of the freedom of expression and access to information. The Special Rapporteur called upon States to accelerate their processes of adoption of national policies on freedom of expression and access to information and to amend their constitutions in order for them to reflect regional and international standards. Lastly, she reminded States to ratify the Charter on Democracy, Governance and Elections, particularly needed during this time of political unrests in Africa. The Charter entered into force on 15 February 2012, 30 days after the deposit of the 15th instrument of ratification by Cameroon. 32 The Special Rapporteur expressed her concerns about violations of freedom of speech in the Gambia and Ethiopia and called upon countries not to imprison journalists if they commit wrongs but to go through a civil action in compliance with international standards. In their statements, NGO representatives denounced the continuing narrowing space of expression and information in many African countries where journalists, media workers and human rights defenders are being harassed for carrying out their legitimate work. In their statements, EHARDNP and Amnesty International expressed deep concerns about the restriction of freedom of press in Ethiopia where independent journalists face criminal charges and judicial harassment under the pretext of anti-terrorism law 33. Other countries where freedom of expression and information is stifled under the pretext of national security are Burundi, Ethiopia, Eritrea, Zimbabwe, Egypt, Sudan, and the Gambia where journalists suffer continuing harassment. 29 The draft model law can be found at 30 Botswana, Burundi, Egypt, Ghana, Kenya, Malawi, Mozambique, Rwanda, Senegal, Sierra Leone, South- Soudan, Tanzania, Tunisia and Zambia For more information on freedom of expression crackdown in Ethiopia, please see Amnesty International report: ACHPR Analytical Report Final, page 16 of 22

17 Side event on access to information The working group on African Platform on Access to Information (APAI) and article 19 organised a side event whereby they presented the APAI declaration 34 adopted in Cape Town on 19 September 2011 and moved by Pansy Tlakula, the Special Rapporteur on freedom of expression and access to information. The declaration was endorsed by the NGO Forum which preceded the 50 th session. APAI seeks to raise awareness in Africa on the importance of adoption of ATI (access to information) laws and to call on African States to enact such laws. APAI deplored the fact that only 10 African countries 35 out of 90 in other parts of the world have adopted ATIs. Through its campaign, APAI seeks to convince African States to adopt ATIs enabling African citizens to enjoy their right to access to information in a continent where governments are the most secretive, depriving the public of access to information. APAI expressed a number of requests 36 to the Commission, including the establishment of 28 September by the AU as the International Right to Information Day. The Special Rapporteur on human rights defenders in Africa Commissioner Lucy Asuagbor carried out one promotional mission in the Central African Republic where she met government officials, civil society actors and other institutional representatives. She attended a number of events organised by partners including a capacity-building workshop organised in Sierra Leone by ISHR in collaboration with West African Human Rights Defenders Network (WAHRDN) and Forum of Conscience. She used the opportunity to engage with Sierra Leonean authorities on the situation of human rights defenders in the country in a meeting with the Minister of Justice. She was part of a panel discussion with human rights defenders in order to raise awareness of her mandate. She also met the members of NHRIs. Commissioner Asuagbor was invited by ISHR to meet with human rights defenders, media workers and journalists in Burundi and to participate in a panel discussion on the protection of human rights defenders in Burundi with the aim of creating a dialogue between civil society and the government. She was received by the Minister of Interior, who promised to cooperate with the African Commission by officially inviting the Special Rapporteur to visit the country. Commissioner Asuagbor was invited to attend panel discussions in Brussels on the criminalisation of the work of human rights defenders in Africa and used that venue to discuss protection strategies with Amnesty International, Frontline and the Observatory for the Protection of Human Rights Defenders South-Africa, Liberia, Uganda, Nigeria, Ethiopia, Tunisia, Guinea-Conakry, Niger, Angola and Zimbabwe Pass a resolution authorising the ACHPR Special Rapporteur on Freedom of Expression and Access to Information in Africa to expand Part IV of the Declaration of Freedom of Expression in Africa to include principles of APAI Declaration 2. Pass a resolution requesting the AU Heads of State Summit of January 2012 to adopt September 28 as an International Right to Information Day 3. Urge AU member states to adopt and implement national Access to Information laws that comply with the APAI Declaration and the model law on ATI developed by the Special Rapporteur on Freedom of Expression and Information in Africa.4. Pass a resolution requesting the African Union Summit of January 2012 to initiate an Experts meeting to develop a continental wide instrument on the right of Access to Information. ACHPR Analytical Report Final, page 17 of 22