Top Court Talk: Twenty Years of Communication before the African Commission on Human and Peoples’ Rights: Article 19 v. Eritrea

Introduction

The African Commission on Human and Peoples’ Rights (Commission) was established in 1987, one year after the African Charter on Human and Peoples’ Rights (African Charter) came into force. It holds the mandate to promote and protect human rights in Africa pending the full functioning of the African Court on Human and Peoples’ Rights (“African Court”). The promotional mandate of the Commission is undertaken through activities such as data collection, undertaking studies on human rights problems in Africa, formulating and laying down principles and rules for solving human rights problems and cooperation with other human rights institutions, both African and international. The Commission conducts its protection mandate by interpreting provisions of the African Charter through state reporting and communication procedures – interstate and individual complaints. This article analyses the decision of the Commission in Article 19 v. Eritrea. By commenting on the admissibility and merit of the case, this article assesses the Commission’s communication procedure during its twenty years of existence.

Submitting Communications before the African Commission

‘Communications’ is the term used to refer to alleged violations of the African Charter brought before the Commission. These may be interstate or non-state communications. Whereas interstate communication procedure grants State Party the right to institute proceedings before the Commission if it considers that another State Party has violated the provisions of the African Charter, non-state (individual) complaint procedure empowers the Commission to consider complaints from individuals or groups who claim that their rights have been violated. The Commission as the treaty’s supervisory body assumes a quasi-judicial role by interpreting the provisions of the African Charter in light of a fact-specific situation and thereafter makes recommendations as to how similar situations could be approached in the future.

Consequently, an individual complaint may be brought before the Commission by a victim, in the name of an alleged victim, or by anyone alleging grave or massive violations of human rights. There is no requirement to name the victims of massive violation, rather, Article 56(1) of the African Charter requires the communication to include the names of those submitting the complaint.

Since its establishment, individual complaints have constituted the majority of the communications brought before the Commission. This is not surprising given the antecedent of non-interference in the internal affairs of member states prevalent during the Organisation of African Unity (now African Union) era. States do not wish to expose themselves to scrutiny by bringing complaints against other states. Ostensibly, political considerations determine the Commission’s reaction to interstate complaints considering its approach in Association pour la Sauvegarde de la Paix au Burundi (Association for the Preservation of Peace in Burundi) v. Kenya, a communication brought by a non-governmental organisation (NGO) based in Belgium. Although the Commission recognised the NGO to be representing the interests of the military regime of Burundi and acknowledged that the communication appropriately falls under inter-state communication, it nevertheless resolved to consider the communication under Article 55 of the African Charter “in the interest of the advancement of human rights.” Perhaps the fact that the Assembly of the African Union determines the scope of activities of the Commission informed this approach, nonetheless, the independence of the Commission from the African Union remains crucial to the development of human rights in Africa.

In addition, violations of civil and political rights constitute the bulk of the individual complaints addressed by the Commission. For instance, between 1988 and 2002, the Commission found thirty-two violations of the right to fair trial and twenty-four violations of personal freedom and security against State Parties to the African Charter. This can be compared with one violation each of the right to work and the right to a satisfactory environment found by the Commission in the same period. Even though other categories of rights are routinely violated by African states, the focus on civil and political rights reflects the general trends in human rights praxis internationally. This next section is a commentary on the most recent decision of the Commission.

Article 19 v. The State of Eritrea: A Commentary

The continuing precarious human rights situation in Eritrea is the subject of this communication. Article 19, an international human rights organisation based in the United Kingdom, submitted a communication against the State of Eritrea, on behalf of eighteen (18) journalists. The complainants alleged that in August 2001, several senior officials and other members of the ruling elite, known as the G15, signed a public letter criticising President Isaias Afewerki’s rule. The alleged letter generated a political crisis that resulted in dismissals of top officials, imprisonment of government critics and journalists, and the cancellation of elections planned for December 2001. Thereafter, the government imposed a ban on the entire private press, and arrested and detained 18 journalists incommunicado without trial since September 2001. Article 19 submitted that the arrest and detention of the journalists was in violation of Articles 1, 3, 5, 6, 7, 9, 13, 18, and 26 of the African Charter.

On Admissibility

To be rendered admissible, a communication must comply with the seven conditions set out in article 56 of the African Charter. The parties in Article 19 v. The State of Eritrea (Article 19 case) largely agreed to six of the conditions but disagreed on the requirement to exhaust domestic remedies according to article 56(5). The exhaustion of local remedies rule is both a principle of international law and a rule of customary law which permits States to redress any violation within its own legal order. Before a complainant can institute an international proceeding it must exhaust all available opportunities to obtain redress within the domestic legal order.

Therefore, in response to who is required to exhaust local remedies, the Commission restated its adoption of the action popularis approach, in which the author of a communication need not know or have a relationship with the victim. The rationale behind this approach is to enable “poor victims of human rights violation to receive assistance from NGOs and individuals far removed from their locality.” This approach allows those who otherwise cannot institute proceedings to do so. Hence, the complainant author of a communication is required to concrete steps to exhaust local remedies or demonstrate why it is impracticable to do so.

In the Article 19 case, the complainant argued that domestic remedies were not available despite the Constitutional safeguards against arbitrary arrest and detention of persons. They argued that the judiciary’s independence and effectiveness was suspect due to interference from the executive branch of government. The complainant cited the removal of the Chief Justice by the President of Eritrea as an example of such interference. They argued further that the human rights violations complained of are serious and massive and do not necessitate the exhaustion of local remedies. Conversely, the respondent state submitted that the complainant failed to exhaust local remedies either directly or through local legal representatives by submitting to the court in Eritrea and that the complainant did not substantiate its accusation of interference with the dispensation of justice. The representative of the respondent state justified the states failure to arraign the detainees before a court of law on the basis of the nature of the criminal justice system in Eritrea, that is, the lack of institutional capacity of the state to handle cases expeditiously resulting in backlog of cases.

The issues before the Commission were whether the removal of a Chief Justice rendered domestic remedies unavailable and insufficient; whether the continuous detention incommunicado of the victims rendered domestic remedies unavailable; whether the communication reveals serious and massive violations of human and peoples’ rights and whether the fact that a state failed to abide by its own laws rendered domestic remedies impracticable.

Considering the complainant’s arguments, the Commission asserted that the complainant had not demonstrated sufficiently how the removal of the Chief Justice prevented them from exhausting local remedies, or rendered such domestic remedies and the judiciary in a state unavailable or ineffective. It considered that a writ of habeas corpus addressed to the Minister of Justice rather than the court by the complainant fails to meet the requirement of Article 56(5). Likewise, the Commission reflected that the respondent state did not demonstrate that it could provide effective redress in this case by its general refutation and a mere listing in abstracto of the existence of remedies without relating them to the circumstances of the case. Given that the rationale for the exhaustion requirement is to give notice of the violation in order to allow the state an opportunity to remedy such violation before instituting international proceedings, the Commission decided that the respondent state had ample time to remedy the violation after holding the victims incommunicado for over three years and one year after the Commission was seized of the matter. Thus, the Commission declared the communication admissible.

Decision on the Merits

One of the main issues for consideration was whether the respondent state’s action was justified. Without denying the facts of the case the respondent state submitted that the acts alleged were justified as actions undertaken “against a backdrop of war” and threat to the nation. It claimed that the detention of the journalist was to avert the ousting of “Government through illegal and unconstitutional means.” The Commission reflecting on the obligation of States under the African Charter restated its earlier interpretation that the African Charter allows no derogation even in times of war. It expanded the principle laid down in Albert Mukong v. Cameroon by the Human Rights Committee that State parties to the ICCPR must observe minimum standards as regards the condition of detention to support an application of the same principle to the length of detention before trial even in a situation of war.

In considering Eritrea’s reference to Articles 6 and 9 of the African Charter to justify its actions as permissible under domestic law, the Commission interpreted “claw-back clauses” as constituting a reference to international law. The Commission decided that the lawfulness of Eritrea’s action must be considered against the African Charter and other norms of international law rather than reference to its own domestic laws alone. Similarly, on the question of whether the detainees’ rights to freedom of expression and dissemination of opinions were violated, the Commission interpreted “within the law” in Article 9 explaining that “permitting States Parties to construe the Charter provisions so that they could be limited or even negated by domestic laws would render the Charter meaningless.”

The Commission inferred that holding the detainees incommunicado without trial was arbitrary and therefore illegal by reason of its inappropriate, unjust or unpredictable nature. It considered that neither the inadequacies of its justice system nor the political situation could justify Eritrea’s actions. The detainees were held incommunicado, prevented access to their families, refused information to their families about where they were held and given no access to legal representation. The Commission found Eritrea in violation of Articles 5 and 18 of the African Charter that guarantees freedom torture and cruel, inhuman or degrading punishment or treatment and protection of family life respectively.

The State of Eritrea was thus found in violation of Articles 1, 5, 6, 7(1), 9 and 18 of the African Charter. The Commission urged the release or speedy and fair trial of the 18 journalists and lifting of the ban on the press. It recommended that the detainees be granted immediate access to their families and legal representative and that Eritrea takes appropriate measures to payment compensation to the detainees. In light of this decision, the next section briefly assesses the communication procedure of the Commission.

An Assessment of the Communication procedure

The Commission has developed significant jurisprudence relating to violation of civil and political rights in the period of its existence. This has been facilitated by the participation of human rights NGOs who not only submit communications to the Commission, they also present arguments in support of substantive rights guaranteed in the African Charter. This demonstrates the need for increase in knowledge and participation these groups in the activities of the Commission. Without the requisite knowledge of the African human rights system among African civil society groups potential participants who could submit communications to the Commission may remain excluded. Moreover, in view of the adverse effects that violation of economic, social and cultural rights has on majority of African populace, NGOs can take more communications on such violations before the Commission.

Evident from any assessment of the communication procedure of the Commission is the fact that individual complaints form the bulk of the communications brought before it. This trend may be viewed in light of the antecedent of African states that privileged non-interference in the internal affairs of member states apparent in the Organisation of African Unity era. No state wishes to expose itself to scrutiny by bringing a complaint against another state. The Commission, ostensibly, reflects a preference for individual complaint. In Association pour la Sauvegarde de la Paix au Burundi (Association for the Preservation of Peace in Burundi) v. Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia, the Commission resolved to consider the communication under Article 55 of the African Charter “in the interest of the advancement of human rights” even though it acknowledged that the communication appropriately falls under inter-state communication. It appears that the Commission’s decision in this case was motivated by political considerations especially given that the Assembly of the African Union determines the scope of activities of the Commission.

Beyond the issue of lack of interstate complaint, the value of the action popularis approach adopted by the Commission cannot be overemphasised. The approach enables indigent victims of human rights violation and individuals otherwise unable to bring communications before the Commission the opportunity of representation by “NGOs and individuals far removed from their locality.” Consequently, without such an approach, victims of human rights violations may face considerable obstacle to potentially engage the communication procedure without the provision for legal aid. In the Article 19 case, detainees held incommunicado had the opportunity to obtain redress as a result of the complainants standing based on the action popularis approach.

A key contribution of the Commission relates to its creative interpretation of ambiguous provisions in the Charter. The signature “claw-back clauses” regarded by scholars, especially at the early stages of the Commission’s activities, as an obstacle has been interpreted cautiously to give meaning to the provisions of the African Charter. In line with its previous decision in Media Rights Agenda v. Nigeria, the Commission interpreted Article 19 to reaffirmed that limitation of rights must not only be consistent with the African Charter but with international standards.

In addition to its own decisions, the Commission increasingly looks to other international treaties and mechanisms in its interpretation of the African Charter. In Article 19, attempts by the complainant to cast doubts on the effectiveness of local remedies available were refused by the Commission citing the Human Rights Committee’s decision in A v. Australia. The Commission extended the reasoning of the Human Rights Committee in Albert Mukong v. Cameroon to infer the illegality of the arbitrary arrest and detention of the 18 journalists by reason of its “inappropriate, unjust or unpredictable nature.” Similarly, reflecting on the failure of the respondent state to bring the 18 journalists to trial within reasonable time, the Commission considered the approach espoused by the European Court of Human Rights that reasonable time cannot be expressed in blanket time limit but must depend on the circumstances of each case. The Commission also applied an expansive interpretation of the decision of the Human Rights committee to hold that regardless of its level of development, a state party must meet certain minimum standards regarding fair trial or due process conditions.

Nevertheless, in cases where complainants succeed, ensuring compliance with the Commission’s recommendation remains a major constraint due to lack of an institutionalised follow-up system. Despite this inadequacy as a quasi-judicial mechanism, the Commission has not been hindered in its work. It declares communications admissible and decides matters on the merit while attempting all within its powers to ensure compliance. In Article 19 case, the Commission not only declared the case admissible, it held the State of Eritrea in violation of provisions of the African Charter and recommended that the State should pay compensation to the detainees.

Conclusion

From this review of the Article 19 case, it is evident that the Commission has made considerable progress in developing a human rights culture in Africa. In spite of its inadequacies and limitations, the Commission as a quasi- judicial regional body, provides an alternative venue for redressing human rights violations where domestic mechanisms are unavailable, insufficient, or where complainant alleges justice was not served. However, there is room for improvement. As noted earlier, NGOs should submit more communications on violations of economic, social and cultural rights before the Commission which should extend its creative interpretation to such cases. In addition, the advantage of the Court to complement the work of the Commission cannot be overemphasised given the incapacitating effect of the problem of State Parties’ failure to implement its decisions. In light of this, the operationalisation of the African Court with full judicial power to give binding judgement with requisite follow-up mechanisms would give “teeth” to the African human rights mechanisms building on the human rights culture so far developed by the Commission. Thus, a complementary relationship should be nurtured between the Commission and African Court especially in the African Courts’ formative years to allow for a more efficient development of human rights on the continent.