Brief on the gendered implications of threats to the mandate of the African Commission on Human and Peoples’ Rights (Banjul Commission)
The notion of African values is often introduced within the women’s rights discourse as a cover for patriarchal and misogynous ideas. African values are cited to further entrench the marginalization of African women and African women’s issues and silence their voices.
1. What is the African Commission?
The African Commission on Human and Peoples’ Rights (the African Commission) is a quasi-judicial treaty body, created under the African Charter on Human and Peoples’ Rights (the African Charter). The African Commission is headquartered in Banjul, The Gambia. Consisting of its two arms, which are the Commission (the body of Commissioners) and the Secretariat. The Commission has discharged the dual mandate of promoting and protecting human rights in Africa since it started its operation in 1987.
The Commission consists of 11 Commissioners elected by the Assembly of Heads of States and Governments (AHSG) of the African Union (AU) to serve a maximum of two six-year terms,. Amongst themselves, the Commissioners select a Bureau composed of a Chairperson and a Vice Chairperson (the Bureau) which serves for 2 years subject to re-election. Given that Commissioners work on a part-time basis, and that the Secretariat is not empowered to make certain decisions, the Bureau makes functional decisions during the period between sessions (intersession). Such decisions include whether the Commission should be seized of a matter intersession, whether to grant provisional measures intersession, or whether to grant an oral hearing in a matter. Members of the Commission, including the Bureau, are chosen amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights, particular consideration being given to persons having legal experience.
The Secretariat of the Commission is set up in terms of article 41 of the Charter. Currently the technical staff of the Secretariat is made up of the Secretary to the Commission, the Deputy Secretary, 5 Senior Legal Officers, 3 Legal Officers, Legal Assistants and Legal Experts, and interns. The Secretariat does the day to day work of the Commission, and accompanies Commissioners when going on missions.
2. What is the mandate of the Commission?
The mandate of the African Commission derives from the African Charter and is threefold; namely to protect human rights, promote human rights and interpret the Charter. The protection mandate of the Commission includes its work with respect to individual communications/human rights complaints, inter-state communications, friendly settlement of disputes, the state reporting procedure, urgent appeals and other activities related to its investigative missions.The Commission exercises its promotional mandate through creating awareness and understanding on human rights and its mandate, disseminating information to all interested parties and stakeholders, undertaking ‘promotional missions’ to Member States in order to meet with the Government, NGOs and human rights defenders at a national and local level, thereby assessing the human rights situation in the country, and holding seminars, conferences, symposia etc. The interpretative mandate of the Commission is exercised through the communications procedure, when the Commission receives and issues decisions on human rights complaints, as well as, through the issuance of advisory opinions on specific provisions of the Charter, and when states specifically request the Commission to interpret specific provisions.
In exercising its mandate, the Commission holds sessions where various stakeholders, including NGOs are able to participate. Each year, the Commission hosts two Ordinary Sessions (about 2 weeks long) and may have Extraordinary Sessions, subject to availability of funds and the urgency of the matters. Recent practices of the Commission place these sessions in April/May for the first one and & October/November for the second one. At its Ordinary Sessions the Commission considers NGO reports on the human rights situation in Africa, State reports including delivering its concluding observations, Resolutions on specific human rights issues, Guidelines interpreting specific provisions of the Charter, Studies on rights or principles of the Charter, applications for Observer Status of NGOs, Presentation of mission reports and reports of special mechanisms (Activity Reports) as well as communications. When it holds Extraordinary Sessions, the Commission prioritises Communications, Resolutions and Concluding observations under the state reporting procedure.
One of the key ways in which the Commission carries out its work is through partnerships and engagement with Non-Governmental Organisations (NGOs). The Commission formalised this engagement, under its Rules of Procedure, by creating a process through which NGOs can acquire “Observer Status.” Observer Status is a special status that enables accredited NGOs to carry out specific actions before and with the Commission, that non-accredited members cannot. It enables an NGO to make oral statements during the Commission’s sessions, to propose ideas for the session agenda, to gain access to some of the Commission’s documents, to attend opening and closing sessions, and submit reports on specific thematic issues of interest at the invitation of the Commission. It also enables NGOs to submit cases of human rights complaints or seek advisory opinions before the African Court, subject to the other requirements of the Court. 
3. Background to the threats posed to the mandate of the Commission
During its 56th Ordinary Session, held in Banjul, the Gambia, in April 2015, the Commission in exercising its mandate, granted observer status to the Coalition of African Lesbians (CAL). The passing of the decision itself was fraught with controversy;even though the vote of the Commissioners on the matter had been held in private, the matter took a turn with public declarations of the leanings of each of the Commissioners in the voting process. Following the decision, several CSO’s celebrated it as a milestone, an affirmation of the presence and representation of sexual minorities as rights holders within the Africa human rights discourse,  as well as a positive nod to women’s autonomy over their bodies and lives, sexuality and gender.
However, pursuant to Article 59 of the African Charter, the Commission, at the June 2015 AU Summit held in Johannesburg, South Africa, presented its Activity Report containing, among other things, proceedings related to the granting of observer status to CAL, to the Executive Council of the African Union. The Executive Council refused to adopt the Commission’s Report inclusive of the CAL observer status and made a number of demands, including asking the Commission to withdraw CAL’s observer status as a precondition for the adoption of the Report. The Commission refused to bow to the pressure and in its Activity Report presented in January 2018, underscored that it could not withdraw CAL’s observer status because it was properly granted and in keeping with the Commission’s mandate under the African Charter to promote and protect the rights of everyone without distinction.
In response, the Executive Council once again demanded that the Commission withdraw CAL’s observer status and subsequently hold a joint retreat with the Permanent Representatives Committee (the PRC) to “resolve various concerns about the relationship between the Commission and the policy organs and Member States.”This retreat was held in Nairobi Kenya, in June 2018.
In July 2018, at the AU Summit in Nouakchott, Mauritania, the Executive Council of the African Union adopted the recommendations of the PRC from its retreat with the Commission and articulated them as binding decisions of the AU. Among other things, the Executive Council requested the Commission to:
- take into account the fundamental African values, identity and good traditions.
- review its criteria for granting observer status to NGOs.
- withdraw the observer status granted to the organisation called CAL, in line with those African values.
- observe the due process of law in making decisions on complaints received.
- consider reviewing its rules of procedure, in particular, provisions in relation to provisional measures and letters of urgent appeals in consistence with the African Charter on Human and Peoples’ Rights and to align the procedure for granting observer status with that existing at the AU.
- take the appropriate measures to avoid interference by NGOs and other third parties in its activities.
Soon thereafter, in August 2018, the African Commission revoked CAL’s observer status citing the Executive Council’s decision.
It is this series of decisions that constitutes the critical part of this analysis.
4. What do these decisions mean for women’s rights work in Africa?
Analysis on the decisions of the Executive Council has focused on the impact these decisions have on the Commission’s independence. This assessment builds on these arguments but goes further to illustrate how they affect women’s rights work at the Commission.
Women’s rights organizations have been using mechanisms within the African human rights system to vindicate women’s rights. In the past, through the exercise of its mandate the Commission has made a number of fearless interventions that have addressed specific violations limiting women’s rights, for instance the Resolutions that the Commission has issued to address systemic violence against women in the DRC.  The Commission also set up the mandate of the Special Rapporteur on the Rights of Women in Africa, established in 1998, which has contributed significantly to the promotion and protection of women’s rights on the continent. The mandate of the Special Rapporteur includes assisting member States to the African Charter and the Maputo Protocol to develop and implement policies on the promotion and protection of women’s rights as well as undertaking promotional and fact finding missions to disseminate human rights information and conduct investigations on the situation of women’s rights in these countries. Additionally, the adoption of resolutions on the status of Women in Africa (2005); women and girl victims of sexual violence (2007); and maternal mortality in Africa (2008) were key steps in defining the scope of women’s rights and states’ obligations in fulfilling them.
The Commission has also, through the communications procedure, generated a body of work that interprets provisions of the Charter and how they relate to the rights of women in Africa. These communications have, among other things, touched on violence against women and how it impacts women’s participation in public life as in the Egyptian Initiative for Personal Rights v Egypt case;and the intersection of the right to equality and non-discrimination, integrity and security of the person and freedom from torture, inhuman and degrading treatment as was the case in the matter of Equality Now and Ethiopian Women Lawyers Association v the Federal Democratic Republic of Ethiopia;  In one of the very few interstate Communications, that is Democratic Republic of Congo v Burundi, Rwanda and Uganda, the Commission found the mass rape of women to be a violation of the African Charter.
5. Why is the decision of the Commission to revoke the CAL observer status problematic?
a) Threatens women’s participation and limits the avenues through which women can vindicate their rights
While still pursuing advocacy work to protect its observer status at the Commission, in November 2015, CAL partnered with the Centre for Human Rights (University of Pretoria) and requested an advisory opinion from the African Court on Human and Peoples’ Rights (the African Court) on the legality of the decision of the Executive Council. The opinion of the African Court, delivered in September 2017 avoided addressing the substance of the request for the advisory opinion and focused on the procedural aspect of legal standing, reaching the conclusion that it could not give an opinion on the matter because the Authors of the request did not have the right of appearance (locus standi) before it. Previously, the Court had decided in the SERAP case,  that it could only render advisory opinions requested by NGOs that were 1) duly registered according to the relevant laws in their jurisdiction 2) headquartered in an African country 3) operating within Africa 4) granted observer status by the AU. While disappointing in respect of the narrow premises upon which it established observer status could be granted, the Court, in this instance represented an alternative, and not the only route through which CAL and other women’s rights organisations could make efforts to redeem its rights.
Similarly, in January 2016, five NGOs with observer status before the Commission, sought an advisory opinion, from the African Court, on the scope of state obligations under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) with respect to registration/non registration of marriages and the impact on women’s rights.  The Court dismissed the said requests based on its precedent in SERAP. In the event that the African Court becomes the only body with an adjudicatory function as the above mentioned decision of the AU policy organs suggests, this will limit the avenues through which women can vindicate their rights. This will, in turn, constitute a clear violation of the rights to remedy and access to justice enshrined in Articles 1, 7, 18 and 26 of the Charter.
b) Sets a dangerous precedent that permits the political organs of the African Union to demand the Commission’s adherence to a set of hypothetical “African values.”
The notion of African values is often introduced within the women’s rights discourse as a cover for patriarchal and misogynous ideas. African values are cited to further entrench the marginalisation of African women and African women’s issues and silence their voices. Respectability politics, limiting women’s expression and independence, often enter the foray, when women behave in ways that are perceived as “unAfrican.” In revoking CAL’s observer status, the Commission has rendered itself superfluous, contradicting its own mandate by choosing to discriminate, through the differentiated application of the African Charter. In effect, the Commission has accepted and adopted as its own, the political leanings of African leaders to impose patriarchal and hetero-normative perceptions of gender and womanhood on lesbian women and other non-conforming gender identities.
The denial of rights on the basis of “African Values” poses the potential of this argument being stretched to include other women’s rights that may go against the Executive Council’s sensibilities. The vagueness of the concept, which in this context, is used against sexual minority rights advocacy, could be used for all other issues , in particular those that are already controversial in African human rights discourse such as access to abortion and contraceptives and the rights of female sex workers.
The decision of the Commission further marginalises minority rights groups and their representation in a space that should be inclusive and representative of all African identities. Without observer status, CAL will no longer be able to self-represent and carry forward some of the progressive work it had begun including its report spotlighting the dire state of women’s access to reproductive health and rights and framing the denial of abortion and post-abortion care as torture.
c) Reverses the progress previously made and dismantles accountability mechanisms
The presence of organisations dedicated to the specific mandate of defending sexual minority rights at the Commission had raised visibility on the issues concerned. The Commission was a strategic space for advocating rights that were denied at the national level. However, in the absence of these pressure groups which bring nuanced perspectives, African governments, who are already unaccountable at the national level because of legal regimes that they have put in places which criminalise certain behaviour by sexual minorities will now become unaccountable at the regional level. The exclusion of sexual minorities’ voices restores the state of impunity enjoyed by African governments for gross violations of the rights of sexual minorities.
d) Represents a departure from the Commission’s duty to guarantee equality.
As the primary human rights body in Africa, the Commission has a duty to ensure equal access of all Africans to it, as a human rights mechanism. In fact, accessing and receiving protection from the rights under the African Charter is inseparable with accessing and utilising the Commission as a forum. The Commission’s decision will have fatal consequences for the millions of sexual minorities who are at risk of criminalisation, arbitrary arrests and detention, assault and other forms of cruel, inhuman and degrading treatment and torture, whose ability to access the Commission has been curtailed. Without the Commission’s protection, as a space created for the protection of rights, rights-holders now have the double burden of claiming access to spaces to defend their rights as well as actually defending these rights.
e) Paints the Commission as lacking independence.
The Commission is supposed to be an independent body. However, following its decision to revoke CAL’s observer status, it would not be remiss to view the Commission as an avenue where governments can buttress their powers to repress unwelcome and unpopular views, movements and causes. It also raises ideological questions of whether the Commission is really the human rights monitoring body that it presents itself as, or whether it is just another political body under the control of repressive African governments.
The interference of the Executive Council in the affairs of the Commission violates the African Charter and the Maputo Protocol which grant the Commission the right of existence and the mandate that it exercised freely in the CAL case. It also violates Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Court Protocol), which gives citizens of ratifying states the right to access the Court via the Commission. Further, the Executive Council violated its own governing principles as provided for in the Constitutive Act of the African Union including with respect to principles, objectives and values guaranteeing the rule of law.
f) Opens room for the possibility of recurrence and fosters distrust with stakeholders
It is not remiss of NGOs, with observer status before the Commission, to fear that when confronted with difficult and controversial human rights issues, the Commission might allow itself to be bullied again and possibly withdraw the observer status of these organisations that are already enjoying observer status, simply because African governments say so. The lack of faith in the Commission’s ability to defend rights at all costs creates an atmosphere of mistrust and compromises the relationships that the Commission had fostered with NGOs over years of engagement.
There is no doubt that the Commission is a critical body for the realisation of women’s rights on the African continent. Its independence is thus a crucial aspect which influences its ability to deliver in this important role. In light of the arguments above, it is critical that the Commission goes back on the drawing board to re-evaluate its decisions; and, working in collaboration with civil society organisations, reassert its independence by re-engaging the political organs of the African Union. In turn, there is a body of work that needs to be addressed on defining and demarcating the nature of the relationship between the Executive Council of the African Union and the Union’s other political organs and the African Commission, the African Court and the African Children’s Rights Committee to avoid similar occurrences in the future.
3rd December 2018, FEMNET