State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights
Recent years have seen the increased engagement of international human rights law practice and scholarship with issues of ‘implementation’ and ‘compliance’. These terms and others, such as impact, follow-up, realization, correspondence, convergence and enforcement, all verbalize in different ways an expectation that maturing human rights systems need to produce results and should be judged by the outcomes of their monitoring activities. Even if its adoption six decades ago marks the first building block of the present international system, it is not difficult to reconcile these apparently more recent concerns with the UDHR.1 One of the often-referred-to features of the UDHR is that it sets a ‘common standard’. Less focus has been given to the preambular phrase following those two words: ‘of achievement’. What needs to be achieved, the UDHR continues, is the ‘universal and effective recognition and observance of its provisions’ (emphasis added).2 In similar vein, the UDHR provides for a right to an ‘effective remedy’.3 By examining state compliance with the recommendations of the African Commission on Human and Peoples’ Rights (African Commission or Commission), a regional treaty body with a quasi-judicial status similar to that of the UN human rights treaty bodies, this chapter aims to shed some light on the progress made to achieve ‘effective recognition and observance’ of human rights standards.
This chapter deals as much with the concept of compliance as with assessing state compliance. After a brief exploration of the concept of compliance and an introduction to the Commission’s recommendatory mandate, four types of recommendations issued by the Commission are identified and discussed. The aim is not to provide new empirical research findings or data on compliance, but to place the literature and available data in an analytical framework, to point to avenues for further research and identify gaps that may need to be filled.
2. Implementation, Compliance and Assessing Compliance
Scholars engaged with international human rights law are increasingly interested in the question of whether treaty ratification ‘makes a difference’.4 In this contribution, ‘implementation’ is used as an umbrella term combining all elements constituting the domestic application and realization of a treaty and its provisions. Assessing implementation poses questions about the extent to which the main obligations of states under the relevant treaty have been adhered to. To make the most convincing claims about the impact (actual domestic effect or ‘implementation’) of a treaty, and to hold states accountable for non-observance of their treaty obligations, one should ideally be able to establish some evidence of a change in state practice, and of the positive benefit in peoples’ lives, traceable back to (or ‘resulting from’) the treaty itself. While changes in state practice would best be gauged by way of process indicators (such as the adoption of laws and setting up of institutions), the actual effect on people’s lives would depend more on outcome-based indicators (such as statistical data about the actual enjoyment of rights).
Assessing implementation may therefore be viewed as an effort to answer the following two main questions: (1) Do states comply with their formal treaty obligations? (2) Do individuals benefit from the ratification of treaties? Implementation can be de jure (related to the element of ‘recognition’ in the UDHR) or de facto (related to ‘observance’). While legal or other measures taken by states may be identified with relative ease, assessing the broader impact of a treaty on the lives of a population is obviously much more problematic. Quantitative studies that have endeavoured to do so at the macro-level, by drawing comparisons between states,5 have been criticized.6 Perhaps more reliable claims can be made if the focus falls on an in-depth analysis of a particular country,7 and if these studies use a combination of quantitative and qualitative techniques.
The main reason why the accent in this chapter falls on implementation by states is because the state is, as party to the relevant treaties, the first guarantor of international human rights. However, the mere fact that states have the primary obligation under a treaty does not mean that implementation is only dependent on state action. This emphasis should therefore not be understood as, in any way, negating the necessity to involve a broad array of national and international role players, including civil society organs and the international community, in the process of accomplishing or improving implementation.8 If implementation comes about primarily through the ‘mobilization of shame’, the role of civil society, the media and the international community in inducing and coaxing implementation cannot be underestimated.
‘Compliance’ is, for the purpose of this chapter, distinguished from ‘implementation’, and is accorded a more narrow and specific meaning. Although the verb ‘comply’ (and thus the term ‘compliance’) does not have a universally accepted meaning, it is here understood, in the ordinary understanding of the word, as obedience to a request or command.9 The inquiry is therefore directed at tangible steps these states are required to take in response to specific directives by a treaty-monitoring body, in this case, the African Commission. State compliance may take the form of action taken by any of the branches of government. The executive may, for example,release a detainee, pay compensation, or appoint a Commission of inquiry; the legislature may enact legislative changes; and the judiciary may reopen domestic proceedings.
The main obligation of a state party is, in the shorthand of Article 1 of the African Charter on Human and Peoples’ Rights (African Charter), to recognize the Charter rights and to give effect to them (and the rights provided for under the Protocol to the African Charter on the Rights of Women in Africa (African Women’s Protocol)) by adopting legislative and other measures. In essence, states are required to undertake a general process of domestication (which may precede ratification, and may be the outcome of a compatibility study), and to ensure the implementation (or observance) of these provisions in its practice. It is when domestic laws, policies and practices fail or allegedly fail to live up to this standard that the African Commission enters the fray.
The concept of compliance implies the evident possibility of non-compliance. One of the functions of the African Commission is therefore to draw a dividing line between these two situations. Through the performance of its monitoring function, the African Commission is mandated to hold states accountable to their treaty promises by pointing out instances where domestic law and practice do not live up to the ideal of fully giving effect to the Charter. To an extent, the Commission’s monitoring role is dependent on the opportunities provided by the submission of communications and state reports. Considering a communication or examining a state report provides an opportunity to establish instances (or examples) of non-implementation. Required state action will then be set out in the recommendations contained in the Commission’s finding or concluding observations. Adherence to these requirements constitutes compliance, as the term is used here. Moreover, the Commission may also take the initiative by adopting recommendations as part of on-site investigative or promotional missions (although these visits only take place with the consent of the state), or when it adopts country-specific resolutions containing recommendations.
The nature and formulation of the remedial ‘order’ contained in the recommendation is of great importance in the assessment exercise. To a large extent, one cannot discuss compliance with recommendations in the abstract, but rather as compliance with specific remedies. The expectations and modalities of compliance may, for example, be quite distinguishable in respect of an order for monetary compensation, compared to a recommendation to change a law or release a detainee. The extent to which the government perceives the required action to make inroads into its ‘sovereignty’ is further likely to be an important factor in its reaction to a recommendation, and the greater the precision of the remedial action required by the recommendation, the easier it becomes to assess state compliance with those recommendations.
It cannot be denied that numerous methodological difficulties beset the process of assessing compliance. A few of these concerns are now raised in relation to the endeavour to establish a reliable picture of state compliance with the African Commission’s recommendations.
An exhaustive picture of compliance is almost impossible to achieve. In the more than 22 years of its existence, since its establishment in 1987, the Commission has adopted numerous communications, resolutions and other statements containing recommendations. Considerable resources would be required to provide an exhaustive analysis of compliance by all states in all these instances. Owing to the specific conditions of each case, capturing a sample may also not be sufficiently representative of general trends.
A plethora of methodological difficulties is bound to detract from the accuracy and reliability of claims about state compliance. Although methodologies to assess compliance may differ, they would inevitably entail an empirical element, comprising the collection and analysis of information on steps taken by states in relation (or in response) to the relevant recommendations. In addition to interviewing government officials, such a study may also comprise interviews with individuals or lawyers involved in communications and NGOs operating in a particular country, and may analyse media reports on these issues. Practical obstacles such as the following are bound to hamper this form of research: communication difficulties, reluctance of governments to engage on the issue, insufficient and inaccessible records, inability to trace victims and authors of communications, lack of quality and continuity in state representatives attending the Commission’s sessions, divergent views about compliance by those involved in the process, and the lack of media coverage.10
Compliance can be described along a sliding scale, rather than in absolute terms. Even if the factual circumstances surrounding compliance could be established with some accuracy, the data still need to be analysed and categorized. The following question arises: to what extent did the state comply – fully, partially, or not at all?11 A major factor complicating attempts at such categorization is the lack of precision in the formulation of recommendations. If it is not clear what exactly the state was required to do, it would be difficult to know whether it did what was required (and thus ‘complied’). It comes as no surprise that the UN Human Rights Committee, after more than 10 years of following up on compliance with its views, remarked, ‘Attempts to categorize follow-up replies are necessarily imprecise.’
A further problem with the categorization process is the determination of a causal link between the Commission’s recommendation and subsequent state conduct. If one wants to make reliable claims about state compliance with the Commission’s recommendations, strict logic requires that one demonstrate that conduct subsequent to the adoption of the recommendation came about as a result of the recommendation rather than because of some other factor or factors. Reality is multi-faceted, and state conduct is complex, making it inevitable that numerous factors will simultaneously influence the course taken. Where a highly publicized case, for instance, caused significant international pressure to be exerted on a state party, the question may be posed: is state compliance the result of a recommendation by the Commission or did it come about as a result of international pressure? Only rarely would a state explicitly articulate the motivation for its actions. The approach taken here is therefore one that lowers the horizon of expectation, by considering the motivation for state action to be irrelevant. In objective circumstances, compliance is viewed as state action in line with and subsequent to the adoption of the recommendation. However, one should point out that the issue of causality is complicated considerably when state conduct occurs after a fundamental change in circumstances, as, for instance, when a civil war existed during the submission of the complaint or where a military dictator was in power at the time, but the situations had changed considerably at the time compliance (or non-compliance) became an issue.
As was stated, the African Commission oversees and monitors not only the implementation of the African Charter, but also the African Women’s Protocol.12 Four kinds of recommendations adopted by the Commission are identified here: (1) On the basis of communications (complaints) submitted to it, the Commission makes findings and issues recommendations. (2) The Commission further examines periodic reports submitted by state parties and adopts recommendations as part of its concluding observations on these reports. (3) In its resolutions, the Commission may also direct recommendations to state parties. (4) Other reports on the Commission’s activities, such as those emanating from protective on-site and promotional missions and visits or studies by special mechanisms, also routinely contain ‘recommendations’ to states.
Over the years, neither the Commission nor its Secretariat has conducted any systematic follow-up to find out whether these recommendations have actually been complied with. The reasons for the Commission’s long-standing inaction in respect of following up its findings, in particular, are related to its competence to adopt recommendations and undertake follow-up enquiries.
Although some states have questioned the Commission’s competence to consider individual communications (as opposed to cases revealing a series of serious or massive violations), the Commission has dismissed these arguments and established a widely accepted practice of considering complaints.13 Neither the African Charter nor the Commission’s rules of procedure explicitly requires follow-up. Questions may therefore be raised regarding the Commission’s institutional competence to undertake follow-up measures or actions. A narrow reading of the word ‘consider’ in Article 55 of the Charter would suggest that it does not have such competence. To ‘consider’ – such an argument would go – is to ‘examine the merits of’ or to ‘give attention to’, and not to ‘implement’ findings of communications.14 In other words, the argument would be that the Charter does not mandate follow-up measures in respect of communications. Such an argument is reinforced by the complementarity between the African Commission and the African Union (AU) Assembly. The Commission’s mandate is restricted to addressing reports that contain its conclusions and recommendations to the Assembly. It is for the Assembly to decide what needs to be done, in the sense of which action needs to be taken.
However, the preferable view is that the Charter implicitly allows for, and in fact, requires, follow-up. Implicit in the concept ‘consider’ must be ‘careful thoughts’ and ‘attention’ given to the implementation of a decision. If implementation is not regarded as intrinsically part of the consideration of a decision, the following question arises: why does the Commission consider communications in the first place, if it remains unconcerned about their implementation and effect? Adopting views is not a purposeless, formulaic exercise. Adopting a teleological approach, the aim of the communications procedure must be to grant relief (in the form of a remedy) to a complainant, or to change laws or practices. Follow-up is therefore integral to the process of individual communications, and making sense of the overarching duty of states to give effect to the rights in the Africa Charter.15 Because measures taken to follow up findings may be considered a form of investigation in the context of the communications procedure, the Commission’s extensive competence to ‘resort to any appropriate method of investigation’16 also applies here. Furthermore, according to Article 60, the Commission ‘shall draw inspiration’ from international human rights law, and in terms of this drawing of inspiration from the UN human rights treaty bodies that also deal with communications, and from the inter-American human rights system, one observes a trend to use institutionalized follow-up procedures.17
Although the Commission has made some efforts in respect of individual communications, these were few and far apart and have not developed into an established or consistent practice. On occasion, the Commission has, for example, made use of promotional visits or visits for protective reasons to follow up, with government representatives, the status of state compliance with recommendations adopted after the consideration of communications.18 On other occasions, the Commission has incorporated follow-up measures as part of its findings in deciding individual communications by calling on states parties to report back to it upon submitting their next periodic report, in terms of Article 62 of the African Charter, on the measures they had taken to comply with the Commission’s recommendations.19 In theory, at least, states submit reports at regular intervals. It follows that this provides an ideal opportunity for feedback about the implementation of findings on communications. When the state subsequently reports, the Commission reminds it of this obligation and asks for the required information. In this way a practice has evolved whereby Commissioners use the state reporting procedure to enquire about the implementation of decisions, even in the absence of a specific recommendation to the state to report on this issue.20 In at least one instance, the Commission detached the requirement to provide information about the implementation of the state reporting procedure, when it recommended that the Swazi government inform it ‘in writing within six months on the measures it has taken to implement’ the remedies indicated.21 Such an approach seems preferable, given the irregularity of state reporting.
At its 40th session, in November 2006, the Commission placed assessment of compliance on a much firmer footing, when it formalized its ad hoc approach by adopting the ‘Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights’ (Resolution on Implementation).22 In this resolution, the Commission calls on states to ‘respect without delay’ its ‘recommendations’, and to indicate – within 90 days of being notified of these recommendations – the measures taken and ‘obstacles’ experienced in implementing them. The Commission further decided that it would attach an annex to future activity reports to the AU Executive Council, setting out the state of compliance with ‘recommendations’ by state parties. Because the resolution uses the generic term ‘recommendation’, all four forms of recommendations identified above are included in its ambit. In other words, the requirements above apply to recommendations emanating from individual communications, state reporting, promotional visits, visits and reports of special procedures, and those contained in all other resolutions.
Unfortunately, there is no evidence that the Commission has so far translated the Resolution on Implementation into practice. One searches in vain in subsequent activity reports for any information about state compliance. Most likely, the problem is that states are not ‘indicating’ to the Commission what measures they have taken. Even so, one would expect the Commission to react to this disregard of its resolution by calling on states to do so, and to bring this to the attention of the AU organs. It may even appoint one of its members as a special rapporteur on follow-up to ensure that this issue receives consistent attention. Its Secretariat should also be more proactive in establishing a dedicated section devoted to the systematic collection of data and follow-up of recommendations.
It is encouraging that the Commission’s interim rules of procedure, which are in the process of being considered at the time of writing, speak to many of the concerns raised here, and seek to further institutionalize the procedure set out in the Resolution on Implementation. If finally adopted in its current form, the procedure on follow-up of recommendations would be as follows.23 Violator states have to inform the Commission, within six months of receipt of a finding,24 of measures taken ‘or being taken’ to ‘implement the decision’.25 The Commission may, within three months thereafter, request supplementary information. The Commissioner responsible for the communication, or another Commissioner ‘designated for this purpose’, must ‘ascertain the measures’ taken, may ‘make such contacts and take such action as may be appropriate’,26 and must make recommendations for the Commission’s further action. This information and recommendations will be tabled at the public sessions of the Commission. It will then draw the attention of the Sub-Committee of the Permanent Representatives Committee and the Executive Council on the Implementation of Decisions of the AU to instances of non-compliance.27 The interim rules of procedure further stipulate that information on follow-up activities must be included in the Commission’s activity reports.28 In the main, the interim rules of procedure confirm and build on the advances contained in the Resolution on Implementation. The sooner the Commission’s amended rules of procedure are finalized, the better will be the prospect for improved compliance.
3.1 Recommendations on Individual Communications
Addressing the need for empirical evidence on compliance with recommendations on individual communications, Lirette Louw, at the time a doctoral student at the Centre for Human Rights, University of Pretoria, conducted a survey of 44 communications in which the Commission found violations of the Charter between 1987 and mid-2003.29 The results of her study revealed that the assumption is only partly correct that states fail to implement the Commission’s recommendations.30 Non-implementation seems to be the rule when one juxtaposes instances of ‘full implementation’ (recorded in 6 cases, or 14% of all cases) against ‘non-implementation’ (recorded in 13 cases, or 30%). However, in a significant number of cases (14 cases, or 32%), ‘partial’ implementation was recorded. ‘Situational’ compliance, occasioned by a far-reaching change in circumstances, such as a change of government, occurred in 7 (or 16%) of the cases.
As Louw’s study shows, Nigeria is the setting of some of the most spectacular instances of both compliance and non-compliance. In Constitutional Rights Project v Nigeria,31 the five complainants were arrested in June 1995 and were detained without being charged or tried for more than two years before a complaint was lodged with the African Commission. This situation had not changed by the time the Commission finally decided the case in November 1999. The Commission found Nigeria in violation of the right to a fair trial and to be tried within a reasonable time. The Commission appealed to the government of Nigeria to charge the detainees or release them.32 The government of Nigeria complied and charged the detainees. In Centre for Free Speech v Nigeria,33 four journalists were tried in secret by a military tribunal and were not allowed access to counsel of their choice. Under military decrees, the jurisdiction of regular courts to hear appeals from military tribunals was ousted, leaving the journalists without any right to appeal their sentences. The Commission found that Nigeria had violated the right to a fair trial and the principle of the independence of the judiciary, and urged the government of Nigeria to release the four journalists. The journalists were eventually released.34
In contrast to these two cases, the Nigerian government ignored the Commission’s interim order, taken under the authority of Rule 111 of its rules of procedure, to stay the execution, and executed Ken Saro-Wiwa and the other Ogoni men.35 In its finding on this matter, the Commission held that the state’s non-compliance with its directive constituted a violation of Article 1 of the African Charter. However, in a subsequent finding,36 the Commission did not reach the same conclusion in an analogous case concerning the execution by Botswana of Mariette Sonjaleen Bosch pending the finalization of a communication submitted to the Commission. Instead, and without reference to the case involving Saro-Wiwa, the Commission found that Article 1 was not violated. Although the recommendations directing states to take precautionary measures are not binding,37 ignoring them displays bad faith and undermines the very act of ratifying the Charter. Even if the Commission’s final finding on the merits are not binding, the state should comply with the interim measures so that, at the very least, the Commission’s determination of the issues involved may be taken into account, albeit as recommendations. In other words, the state must allow the possibility of being persuaded by the non-binding finding on the merits of the case. By disregarding an interim order, especially when it irrevocably excludes even the possibility of ultimate compliance, the state undermines the very basis of the Charter system – even accepting that such an order is only recommendatory in nature.38
Which factors influence the prospect of compliance in these and other instances? Postulating a number of hypotheses, a study building on that of Louw investigated the statistically significant correlation between a number of factors (both legal and political), on the one hand, and the level of compliance by states, on the other hand.39 This study concluded that the most important variables responsible for state compliance are political, rather than legal. Legal factors, such as the nature of the right concerned and the comprehensiveness of legal reasoning in a finding, were not found to be good predictors of compliance. The only relevant indicators related to the treaty and the treaty body itself was the extent of involvement by the African Commission in following up a particular recommendation.
It is also arguably important that the findings of the Commission on communications are non-binding. Formally, the Commission’s recommendations are recommendatory, and are not legally binding. However, there is some debate about the binding nature of the Commission’s decisions.40