The African Commission is the only organ specially created in 1981 for the purpose of verifying the implementation of the African Charter. Article 30 of the African Charter established the African Commission as an organ of the Organization of African Unity (OAU). Although very much geared to promoting human and peoples’ rights, the Commission’s activities also entail protection; however, in this area, its role is in theory offset by the role played by the supreme body of the OAU, the Assembly of Heads of State and Government, now the Assembly of the Union. in this section we will examine the organization, operation and function of the Commission as well as the procedural aspects relating to its activity for the protection of human and peoples’ rights.

The concepts of minorities and indigenous peoples are controversial under international law and politics.  The very difficulty arises from identifying with precision those people falling under the two categories and the extent of the rights and level of protection to be claimed. Owing to the difficulties surrounding the two notions, the purpose of this section will be limited to elaborating any existing legal norms relating to the two groups.

Refugees and internally displaced persons (IDPs) are other vulnerable groups deserving some protective regimes. This is because in the first case being outside the territory of their country, they are unable or unwilling to receive the protection from their national states, while in the second, even if within territorial limit of their states, they are placed in especially difficult situation due to dislocation from their normal or habitual residences.

Africa is the first continent which established regional arrangement for the protection of refugees. The international community had managed to have Refugee Convention in 1951 and its additional Protocol in 1967. However, backgrounds and scope of protection of these UN instruments were not found to be appropriate to refugee problems out of Europe.

Some of the consequences of the solidification of African Colonial borders in line with the principle of uti possidetis were internal strife, large scale dislocation, and the movement of people across these borders. Although the national war of liberation accounted for a substantial number of refugees in the 1960s, many more fled ‘explosive internal, social and political situations’ which predated independence. By 1964, the influx of refugees from Rwanda into Burundi, the DRC, and Uganda had spurred the OAU into action, first to the establishment of a ten member Refugee Commission to investigate the refugee ‘problem’ in Africa, and later setting in motion the drafting of a regional treaty. The reasons for having such regional regime was justified on the ground that the 1951 UN Convention on Refugees was European in focus and not suitable for the African situation, particularly as many refugees were seen at that stage as being the result of the fight for independence. A regional High Commissioner for Refugees was also contemplated although it was resisted by the UNHCR and abandoned later on.

This process culminated in the adoption by the OAU Assembly on 10 September 1969 of the OAU Convention Governing the Specific Aspects of Refugees in Africa (OAU Refugee Convention). It was entered into force on 20 July 1974.

• Definition of Refugee in the OAU Convention and Major Departures

It has been argued that the concept of refugee as defined in the statute of the UNHCR and UN Convention of 1951 is not universal and creates problems when it comes to its application to new refugees from new areas and notably in the Third World. The following are refugee definitions as provided under the UNHCR statute, UN Convention of 1951 and the 1969 OAU Refugee Convention respectively.

Statute of UNHCR, Article 6, Para, B,: the UNHCR can deal with any:

Person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had a well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of his nationality, or if he has no nationality to return to the country of his former habitual residence.

UN Convention of 1951 (which entered into force in 1954) Article 1(a):

As a result of events occurring before 1^st January 1951 and owing to well-found fear of being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return to it.

Article 1 the OAU Convention provides that:

The term ‘refugee’ shall mean every person who, owing to will-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and… (except the beginning clause, all are similar to UN Refugee definition….).

The term ’refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave place outside his country of origin and nationality.

Three of the most important limitations of the UN Refugee Convention may be traced to the Socio-political context of its adoption, which was dominated by the effects of the aftermath of WWII and the beginning of cold war. First, the basis of qualification for refugees was limited to a ‘well-founded fear of being persecuted for reasons of ….’ ‘Fear’ is a subjective requirement, which needs to be assessed individually for its ‘well-foundness’. Apart from the individualistic focus, the list of grounds on which one could earn the status of a ‘refugee’ is very restrictive and also does not take into account other factors (such as natural disasters or internal wars).

Secondly, a time-limit was included in the UN Refugee Convention. The ‘fear’ had to be ‘as a result of events occurring before 1 January 1951’, underling the close link between the Convention and the war that preceded it. A third limitation, geographical in nature, was included as an option to be adopted at ratification (or accession).

In light of the above, it is not surprising that African states saw the convention as a ‘European instrument’ The perception of exclusion was exacerbated in the 1960s, when it became clear that, in Africa, refugee problems continued and, most often started well after 1951. Due in the main to Africa’s criticism and its efforts to adopt a separate convention, the UN in 1966 adopted a brief protocol to the 1951 Convention which entered into force in 1967. The protocol dispensed with the temporal and geographical limitations of the 1951 Convention. From 1967 on, then, the Convention applied equally to all who qualified for refugee status. However, the restrictive definition of ‘refugee’ was left in tact.

Therefore, after the adoption of the 1967 protocol, African efforts to elaborate a separate UN instrument dealing with refugees were channeled into the adoption of a complementary regional instrument (OAU Refugee Convention recognizes the two UN instruments in its preamble). Thus, to understand the added value of OAU Convention, one should differentiate between the global and regional systems of refugee protection.

The OAU Refugee Convention mirrors exactly the wording of the UN Convention, but expands the definition of the term ‘refugee’. The global instrument requires a ‘well-founded fear of being persecuted’ as a fundamental precondition for refugee status. In contrast, the OAU Refugee Convention extends the term to include anyone who is compelled to flee a country of residence ‘owing’ to external aggression, occupation, foreign domination or events seriously disturbing public order….. It is no longer the subjective fear of the individual alone, but also objectively  ascertainable circumstantial compulsion that may give rise to ‘refugee’ status. ‘Fear of persecution’ places the emphasis on person’s beliefs, and not on the socio-political context.

The UN Refugee Convention’s definition presupposes that refugees will be screened individually in order to establish whether they have a ‘well-founded fear of persecution’. Such a system is obviously only manageable when persons flee on their own or in small groups. However, in the case of mass migrations, the application of such an individualized test becomes impossible. Mass migrations necessitate an approach which uses cumulative and objective factors to determine refugee status. Such factors are events ‘seriously disrupting’ public order and ‘foreign domination’ (Art. 1(2)) of OAU Refugee Convention).

The grounds in the OAU Convention on which refugees lose their status (‘cessation of status’) or on which they are barred from qualifying as refugees (‘exclusion from status’) are once more derived from the UN document. What are the three additional categories of exclusion or cessation under the OAU Refugee Convention.(See OAU Refugee Convention Arts. I (4) & I (5)).

The OAU Refugee convention is explicit about the obligation of states to grant asylum (Art. II (2)), in contrast to the UN Convention which is silent on the issue. However, the way this right is framed and the requirement of compliance with internal laws renders asylum provision more of recommendatory to states. Further, the non-refoulement principle (the right not be sent back or expelled) appears to be absolute (Art. II (2)). The OAU Refugee Convention also expressly includes reference to voluntary repatriation in Article 5.

Its adoption being resulted from the inter-state ramifications of refugee moments than from a concern for the ‘rights’ of refugees, the OAU Convention reinforces notions of state security and sovereignty. It determines that a refugee has to conform to the law in the state of refugee, and that he/she has a duty to ‘abstain from any subversive activities against any member state of the OAU (Art. III (1)).

Another innovation is the duty placed by the OAU Refugee Convention on the country of origin in relation to returning refugees: state must grant full rights and privileges to returning nationals, and must refrain from any sanctions or punishment against them (Art. III (3) & III (4)).

Though the OAU Refugee Convention has addressed regional specificities and nature of refugee problems in Africa, it is said to be not adequate document. It is argued that it is ‘entirely silent’ on issues of mass influx and the procedure for determining who is a refugee is largely left to states discretion. In addition there is a suggestion that the principle of non-refoulement can be limited if the individual acts contrary to the principles of the convention.

It is also said that the Convention does not take a strong human rights approach. There is no real mention of rights of refugee beyond those discussed above (asylum and non-refoulment), it does not deal with women and restricts freedom of movement and rights of expression and association. It does not have provisions relating to the quality of life of refugees (food, health, housing, etc). It does not have its own enforcement mechanism and depends on external organs (UNHCR). Therefore, with a view to filling some of the gaps in the convention it is suggested that the convention should be considered together with the guarantees under ACHPR, ACRWC and APRW.

• Position of Internally Displaced Persons (IDPs)

Internally displaced persons (IDPs) are distinguished from refugees and have a challenge of their own, even more than the former. According to the 1998 UN Guiding Principles on Internal Displacement, IDPs are defined as:

‘Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effect of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized state border’.

IDPs are persons who are forced or compelled to leave their homes or normal residence as a result of one or more of the causes listed above. They are people within the territorial limit of their national state (no border crossed).

The number of IDPs has been increasing tremendously in Africa compared to refugees. However, there is no any international or regional instrument addressing the special situation of IDPs though they are facing no less difficulty (even more) than refugees in their home countries. In this regard, human rights law is particularly important but also suffers often from limitations where states can derogate from certain rights during times of war or other public emergency situations. Yet the responsibility for their protection lies with home state /national government as they are people within the territorial limits of concerned state.

The 1998 UN Guiding Principle on Internal Displacement is the collection and restatement of principles embodied in human rights law, humanitarian law and refugee law. It recommended the prevention of internal displacement, and the protection of those who found themselves internally displaced, noting that states bear the primary responsibility in both regards.

Thus, IDPs are persons in difficult situation due to dislocation from their homes or habitual residence as a result of one or more natural or man-caused factors but within the territory of their country. However, internationally, no legal (binding) instrument and institution/ organ exist to address their needs, except any existing machineries under the national system. In some counties such as Burma they are denied access to international humanitarian relief. So sovereignty of states will continue to pose more sufferings to IDPs.

African Union has been in the process of drafting a regional IDP convention taking the gravity of the problem in the continent. If successfully adopted, it will be the first ever seen document and is hoped to address and minimize the protracted sufferings of Africans displaced from their homes due to natural disasters or other man-made causes principally internal conflict, generalized violence, violations of human rights or developmental activities.

Sexual (gender) inequality is a global reality. Women as part of human being are entitled to benefits and protections under the general human rights instruments (both UN and regional) such as the equality and non-discrimination clauses, and other fundamental guarantees. However, the reality has been otherwise. Women have been subjected for long time to discrimination, denial of access to basic rights (education, health, property, employment etc), and victim of a wide range of discriminatory and harmful practices (domestic violence, early marriage, FGM, etc).

Women in the African context are even more exposed to differential treatment and a lot of disadvantages. It is stated that African public and private life have been and are dominated by men. Women’s participation in most walks of life has been undermined.

These are among the limited reasons which lead to the separated treatment of women’s rights and eventual adoption of separate documents. The two basic documents of paramount importance to women’s rights are the UN Convention on the Elimination of All forms of Discrimination against women (CEDAW) and the recently adopted African Protocol to the African Charter on Human and Peoples Rights on the Rights on the Rights of women in Africa (APRW). Thus, the purpose of this subsection is to highlight the importance and innovations of APRW in light of the global and preexisting African instruments (CEDAW).

Women’s Right under the OAU/AU Framework

There has been a repeated criticism that the OAU Charter and the ACHPR gave inadequate attention to women in Africa. The first does not contain any mention of gender, while the later raised women’s rights specifically under a single provision (Article 18). However, OAU Charter’s silence was later remedied by a series of resolutions and decisions addressing the promotion and protection of women’s rights in Africa. The most underlying factors behind such initiatives were said to be: the participation of the OAU in international conferences, the role and contribution of women in the African liberation struggle and to react to conflicts and economic development of the continent.

The central them of the decisions and resolutions of OAU on women’s matters throughout 1990s were on promotion, enhancement and empowerment of women’s participation at all levels of decision-making (international, regional, national and local). It was believed that it is only through the participation of women in every aspect of national and international affairs (Political, economic, social, etc) that a meaningful change can be brought. Of course, this position of the OAU was reflected in the recently adopted women’s Protocol. Moreover, the OAU Charter’s omission has been now remedied under the AU Constitutive Act by providing ‘promotion of gender equality’ as one of its guiding principles (CA, Art. 4(1)). In addition to this, the AU has adopted a ‘Solemn Declaration on Gender Equality in Africa’ on July 2004 which calls for the expansion of the gender parity principle to all AU organs, NEPAD, the RECs, and national parliaments.

African Protocol on the Rights of Women

The need to adopt women’s treaty law was called upon by NGOs working on women’s right which was based on concern about the pervasive abuse of women’s rights. The work was begun by appointing commissioners to coordinate and prepare women’s protocol. The role of African Commission on Human and Peoples Rights and the Gender Unit within the OAU was significant. The later prepared a draft OAU Convention on Harmful Traditional Practices (HTPs). However, the African Commission’s draft protocol and the HTPs draft conventions were later merged and adopted as the Draft Protocol to the African Charter on the Rights of Women in Africa (the Addis Ababa draft).

On “July” 2003, the AU Assembly adopted the protocol to the African Charter on the Rights of women in Africa which entered into force on 25 November 2005.

Women’s protocol, like that of African Children’s Charter, has introduced innovative norms and addressed the realities and problems of African women. Of course, it has also similarity with that of CEDAW provisions.

To assess the normative expansion brought about by the protocol, the pre-existing normative framework (‘the existing law’) has to be reviewed and contrasted with the protocol.

Though Article 18 of the ACHPR characterizes women as one of the groups deserving of protection, the special measures to be directed in protecting women and ensuring the elimination of discrimination against them are not delineated. Even if CEDAW was passed two years prior to the adoption of the African Charter, the fact is that the later was only minimally influenced by CEDAW’s provisions by incorporating only a single provision dealing with women’s rights.

Dear students, read article 18(3) of African Charter. Does it imply that all state parties to the African Charter have become bound to implement all the provisions of CEDAW?

The African Children’s Charter has also some link to women’s protocol as it provides for important rights of girl child, in particular the prohibition in children marrying under the age of 18.

Given the scope of protection under the above treaties, what then is the ‘added normative value’ of the protocol? Compared to CEDAW, the protocol speaks in a clear voice about issues of particular to African women and locates CEDAW in African reality.

The women’s protocol is the first treaty to place domestic violence, polygamy, HIV/AIDS, and medical abortion, in a binding human rights framework (Articles 4(2), 6(c), 14(1) (e), 14(2) k) respectively). It also provides in detail for the protection of women in armed conflict (Art. 11), and reiterates the need to accord women refugees protection under international law (Art. 4(2) (k)). The women’s protocol incorporates clear and expansive definitions of ‘discrimination against women’ (Art. 1(j), e.g. it includes economic harm), ‘harmful practices’ and ‘violence against women’. ‘Harmful practices’ such as female genital mutilation are specifically prohibited (Art.5).

The protocol provides specificity where vagueness prevailed, for example when it clarifies that ‘Positive African Values’ are those based on the principles of equality, peace, freedom, dignity, justice, solidarity and democracy (preamble). It also spells out the scope of socio-economic rights in greater detail than CEDAW, which limited some socio-economic rights to rural women (EDDAW, Art. 14), and goes beyond the scope of the rights provided for under the African Charter by spelling out the content of rights and by including the right to food security and adequate housing (Arts. 12,13,14,15 & 16).

A necessary implication of targeting violence against women and ‘unwanted or forced sex’ in the private sphere is that the protocol requires domestic violence legislation and the criminalization of ‘rape in marriage’. The precarious position of groups of women that have been rendered particularly vulnerable due to loss of a spouse, overlap with old age, disability, and poverty which also receive the protocol’s attention. (Arts. 20-24). The protocol once again reiterates the general stipulation of 18 years as the minimum age of marriage (Art. 6(b)).

Adopting a distinctly transformative stance, the protocol emphasizes ‘corrective’ and ‘specific positive’ (or ‘affirmative’) action. While CEDAW contains a generic provision allowing for ‘temporary special measures aimed at accelerating de facto equality between men and women’ (CEDAW, Art. 4(1)), the protocol reiterates the need for ‘positive’ measures by locating them in different contexts.

The protocol requires states to adopt measures that may favor women above men ‘such as electoral quotas for women in order to ensure substantive’ (‘in fact’) equality (Art. 9(11)). Positive action is also specifically required with regard to ‘discrimination in low’ (Art. 2(1) (d)), illiteracy, and education (Art. 12(2)).

Although the women’s protocol significantly advances standard-setting, it suffers from inelegant and unfortunate drafting deficiencies. The disproportionate effect of HIV and AIDS on women in Africa is not adequately reflected in the text. In any event, the right to be informed of one’s own and one’s partner’s HIV status is ambiguous and should not form the basis for the erosion of rights. The feminization of poverty, especially in rural Africa, is also not adequately reflected. As for its drafting, there is some inconsistency in the ‘rights-bearers’  in the protocol, with men sometimes specifically included in the scope of rights, and sometimes not. Similar to the instrument that it supplements, the African Charter, the women’s protocol does not have a provision on reservations. At the beginning of 2007, three states (Namibia, South Africa, and the Gambia) entered reservations upon ratification of the protocol. Thus, the benefits of these treaty provisions may be lost if reservations exclude the application of some of its important provisions. However, there are some hopes that even countries that entered reservations to CEDAW (e.g. Libya and Lesotho) did not enter similar reservations when ratifying the protocol. For lack of clarity, this area is expected to be elaborated by the enforcing organs on the basis of Vienna Convention on the Law of Treaties (1969).