(Luanda, Angola) - The African Commission on Human and Peoples' Rights is holding its 55th session in Luanda, Angola, from 28 April to 12 May 2014. This article summarises some of the key developments from the first week:
Shrinking civil society space and violations on the basis of sexual orientation and gender identity have been the subject of some strong statements from NGOs at this session of the Commission. This prompted aggressive responses from several of the States criticised.
A significant number of NGOs took the floor to condemn discrimination and violence on the basis of sexual orientation and gender identity, reflecting the two harsh anti-homosexuality acts given presidential assent earlier this year in Nigeria and Uganda.
NGOs set out a range of violations that these laws have given rise to, including arbitrary arrest on the basis of perceived or actual sexual orientation or gender identity, closure and raids of NGOs providing services to LGBTI persons, forced evictions, hate speech in the media, physical attacks against trans people, reduced access to healthcare, and an increase in reported suicide attempts.
Uganda and Nigeria were quick to jump in and deny the comments from NGOs.
Uganda claimed that there was no proof that any such violations were taking place. It dismissed the NGOs as lacking credibility and claimed that the anti-homosexuality act is in line with international and regional human rights instruments and its own constitution.
Nigeria claimed that its same-sex marriage act simply accords with the will of its people, and that it is therefore an expression of democracy, which cannot be changed on the basis of an NGO statement.
As the premier human rights body in Africa, the Commission’s voice on this issue is crucial, in particular to counter arguments made by some States that calls for them to ensure non-discrimination on the basis of sexual orientation and gender identity are an imposition of ‘western’ standards. The response from Commissioners has, however, been weak to date. The Chairperson of the Commission gave a vague response following Uganda’s statement, stating that legislation should be adapted to protect the population and should not violate the physical integrity of anyone.
Many NGOs also raised the issue of shrinking civil society space across the continent (a trend reflected elsewhere in the world). Eritrea denied that the space for journalists to carry out their work was restricted, stating that freedom of expression and opinion was safeguarded in the country. It added however that there were subversive acts taking place under the guise of journalism, which it would not tolerate, particularly when national security was threatened.
Ethiopia responded specifically to the criticisms raised against its Charities and Societies Proclamation. In its attempted justification it stated that the purpose of the law is to enhance the ability of civil society organisations to contribute to and participate in the country’s development. The only limit placed is on foreign organisations, which cannot take part in political activities, a restriction the State representative noted, which is common to many countries.
The strong statements from both NGOs and States prompted the vice-Chair of the African Court to take to the floor to call for States not to react so defensively but to properly consider the issues being raised by NGOs. In the face of the weak response from the Chair of the Commission, this intervention, although general, was welcome.
ISHR together with other international and African NGOs again urged the Commission to adopt the resolution on sexual orientation and gender identity submitted to its 54th session. Furthermore NGOs called for the Commission to adopt a specific resolution condemning the legislation passed in Uganda.
ISHR also urged the Commission to adopt a resolution calling on States to implement the protections that exist for human rights defenders in international law at the domestic level.
In its work the African Commission frequently refers to international human rights standards and calls on States to ratify both international and regional human rights instruments. Reflecting the complementary nature of international and regional standards, the African Commission and the UN’s Office of the High Commissioner for Human Rights is exploring how the Commission can work more closely with the UN’s special procedures.
Increased cooperation between the UN and African Commission experts would enable the African Commission to benefit from the increased capacity of OHCHR to support and organise these visits, while the UN’s experts would benefit from the higher level of local expertise of the African Commissioners.
The Addis Ababa Roadmap was developed two years ago in January 2012. It sets out a plan for cooperation between the UN and African Commission special procedures. A consultation on the Roadmap took place just prior to the opening of the Commission’s session. It found relatively limited progress on implementation of the Roadmap. It was pointed out, for example, that in the last two years only one joint mission has been carried out between a UN special rapporteur and the African Commission. This took place when the African Commission’s special rapporteur on women visited the Central African Republic with the UN’s Special Rapporteur on that country.
The lack of joint visits and joint reporting was explained by the African Commission’s lack of resources for carrying out such missions. During the session itself the Chair drew attention to the fact that the need to get separate authorisations each time Commissioners wanted to visit a country is a great handicap to the Commission’s work. She called on States to issue open invitations for both UN and African rapporteurs to carry out visits. This would make it somewhat easier for joint visits to be planned.
During the review of Mozambique the same issue arose. The State responded that they received too many requests for visits from both African Commission and UN special procedures, and were forced to turn them down because they lacked the capacity and resources to ensure that the visit could be carried out to the satisfaction of both the State and the special procedure requesting the visit.
Despite the lack of progress on joint visits and reporting, Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions, pointed out during the opening of the Commission’s session that there have been other examples of cooperation. In particular, Commissioners have participated in conferences and panels at the Human Rights Council, for example, on peaceful protests, women and women human rights defenders, and business and human rights. This ensures that the expertise from the African regional system is fed through to the international level. One way in which this could be developed is to ensure that African Commissioners participate as a matter of course in Human Rights Council debates involving African countries.
One area where cooperation does seem to be moving in a positive direction is between the African Commission and the African Court. The Vice-President of the Court noted increasing cooperation between the two bodies, with the Commission filing cases and appearing before the Court. He also pointed out that the Court draws on and benefits from the rich jurisprudence of the Commission. Reflecting this cooperation, at the last ordinary summit of the African Union the President of the Court and the Chair of the African Commission held a joint press conference on human rights issues on the continent.
One weakness of the African Court is the low number of States that have ratified the relevant protocol (27) and the even lower number that have made the declaration to allow individuals and NGOs to access the Court (seven). As the Vice-President pointed out, this deprives the vast majority of victims access to the Court. He called on States to ratify the protocol and make the additional declaration.
It is promising to see the African Commission explore ways to strengthen its relationship with other bodies, both to increase its own capacity, and to give others the benefit of its expertise. The Roadmap is a promising start to this conversation in terms of the regional and international levels, but greater efforts need to be made to identify the obstacles to its implementation, along with more readily achievable steps that the African Commission and the UN can take to increase cooperation in fruitful ways.
Although the Maputo Protocol on women’s rights is acknowledged worldwide as a key women’s rights instrument, ratification and reporting under the Protocol remains low. This limits the ability of the Commission to hold States accountable for their implementation of women’s rights.
For those States that have ratified the Protocol, low reporting rates have in the past been attributed to a lack of awareness amongst States about the procedure for reporting under the Maputo Protocol.
At this session a side event was held on the guidelines on State reporting under the Protocol, which were adopted by the Commission in 2009. The key misunderstanding on the part of States was held to be a misperception that the Maputo Protocol required a report to be submitted separately from the periodic report of the State under the African Charter.
In fact reporting under the Maputo Protocol should be part of the report under the African Charter. As a result of this misunderstanding women’s rights were not being adequately reflected in reporting to the Commission. Nigeria stated that its recently submitted report conforms to this procedure, but to date no other State has correctly followed it.
Of the three States that were reviewed at this session, Liberia and Mozambique have ratified the Protocol (Sahrawi Arab Democratic Republic has signed it). Neither State included the annex on implementation of the Maputo Protocol.
To date only 36 African States have ratified the Protocol. Some States who took the floor reflected on obstacles to low ratification rates including its lack of translation into the official languages of the African Union.
Niger attempted to explain its own lack of ratification of the Maputo Protocol by saying that the matrimonial provisions’ prioritisation of monogamy was problematic. Commissioner Soyata Maiga, Special Rapporteur on women, was scathing of this attempt to justify lack of implementation of human rights standards by appeal to religion and tradition.
The State has a duty, she said, to sensitise and educate people on human rights, giving many examples of steps that the State could take in that direction, including having conversations with religious leaders; ensuring that girls have access to education; that women have employment, and so on.
She also pointed out that the Protocol does take into account the cultural context in Africa. It does not outlaw polygamy, realising that this would reduce the likelihood of States ratifying it, but rather calls for women’s rights in such relationships to be fully respected.
Given that Niger has ratified without reservations the UN’s Convention on Elimination of Discrimination Against Women, which takes no account of the African context, it should have no excuse not to ratify the Maputo Protocol. Commissioner Maiga noted that the next session of the Commission will be held in Niger and expressed her expectation that by then it will have begun to take some steps towards protecting women’s rights.
The event was a useful awareness raising exercise. Algeria, for example, noted that it had not heard of the guidelines before now. However it expressed concern that reporting under the Maputo Protocol would duplicate reporting under the African Charter, which includes reference to women’s rights.
As Commissioner Maigia pointed out, however, there are only two articles in the Charter relevant to women’s rights. Article 2 on non-discrimination, under which States tend to focus on groups other than women, such as ethnic minorities, religious minorities, and persons with disabilities, and article 18 on protection of the family and vulnerable groups, which includes a clause on the elimination of discrimination against women. This is not adequate to ensure full coverage of the implementation of women’s rights. Nigeria, which has recently submitted its report, agreed that the additional annex on women’s rights was helpful and ensured that women’s rights did not get compressed.
Ratification of and reporting under the Maputo Protocol is therefore an essential component of ensuring women’s rights receive attention by the Commission and that States can be held accountable. As the side event made clear, even those States that have ratified the Protocol remain unaware of their reporting obligations under it. The guidelines are an important initiative but more needs to be done to promote them.
Twelve NGOs have been granted observer status to the Commission at this session. Mme Reine Alapini-Gansou, the Special Rapporteur on human rights defenders, noted how important NGOs are to the work of the Commission. In particular, NGOs bridge the gap between the outcomes of the Commission and change on the ground, and assist victims by ensuring that their voices are heard at the Commission.