The Africa Governance Report Box 1: The African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights20 The African Commission on Human and Peoples’ Rights At continental level, the African Commission on Human and Peoples’ Rights is responsible for promoting human and peoples’ rights, ensuring the protection of these rights, and interpreting the provisions of the African Charter on Human and Peoples’ rights. Its promotion mandate involves advocacy, sensitization and norm development. It also includes promotional activities with Member States and institutions concerned with the promotion of human and peoples’ rights, such as promotion missions, sensitization seminars, development of soft-law instruments, and publication and dissemination of information materials. Additionally, the Commission adopts resolutions, including those that elaborate specific human rights themes in greater detail, and those that address pertinent human rights concerns in the Member States. Within its protection mandate, the Commission is tasked with receiving and examining ‘communications’ (complaints) submitted to it by Member States and individuals alleging human rights violations by any Member State to the African Charter on Human and Peoples’ Rights. The mandate regarding protection requires receiving and examination of periodic reports from Member States on the legislative or other measures taken to give effect to the rights and freedoms recognised and guaranteed by the Charter. These reports are presented to the Commission in its public sessions, where they are tabled and discussed. This public examination includes all the participating stakeholders. The Commission also receives “Shadow Reports” prepared by accredited NGOs and NHRIs. The Commission takes these reports into consideration when examining the state reports. The Commission also undertakes fact-finding missions whenever there is an allegation of a general nature or widespread reports of human rights violations against a State Party, usually at the request of the AU Policy Organs. The Commission is a mechanism of last resort, and only entertains communications if the applicant has exhausted local remedies, provided that such remedies are “available, effective and sufficient”. The Commission has contributed to the promotion and protection of human rights in the continent in various ways. For example, it has not only called upon respondent states to adopt and enforce appropriate measures, but also recommended that those states report to it on those measures and/or obstacles faced in implementing its recommendations. Secondly, some domestic courts have relied on the Commission’s case law to find violations of human rights. Civil society has also relied on the Commission’s findings to campaign for legal reform, culminating in the repeal of laws that violate rights protected in the African Charter. 21 However, state compliance or implementation of the recommendations of the Commission remains low, due to lack of political will and inadequate monitoring. In turn, insufficient funding of the Commission has impeded its capacity to monitor the implementation of its recommendations. Additionally, many states do not seem to take seriously their reporting responsibilities and obligations, so consequently the reports are delayed or not even submitted at all.22 This has hindered the ability of the Commission to monitor state compliance with their human rights obligations under the African Charter on Human and Peoples’ Rights. The African Court on Human and Peoples’ Rights The African Court on Human and Peoples’ Rights complements the protection mandate of the Commission. The Court has jurisdiction to determine “all cases and disputes” submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights, and “any other human rights instruments”, such as United Nations instruments, ratified by the states concerned. For individuals and non-governmental organizations to access the Court directly, the state concerned must make an “optional declaration” recognising the competence of the Court to receive such cases. And because this declaration is optional, a state can unilaterally withdraw it. Unfortunately, most states have not deposited the optional declaration, which has severely impeded access to the Court. The Commission may also submit cases to the Court in certain circumstances.23 Not all Member States party to the African Charter have ratified the Protocol establishing the Court. The remaining states need to ratify this Protocol. There also needs to be more allowance for individuals and NGOs to directly access the Court, as this will help to consolidate a pan-African judicial system for the protection of human rights. Alternatively, the AU Assembly of Heads of State and Government should amend Article 34(6) of the African Court Protocol to allow individuals and NGOs direct access to the Court. Further, given the limited resources of the Commission and the Court, subsidiarity needs to be strengthened, including integrating the Court with sub-regional courts. 20This section is a summary of a written contribution by the African Commission on Human and Peoples’ Rights Secretariat, Banjul, The Gambia. 21 Ssenyonjo, M. 2018. “Responding to Human Rights Violations in Africa: Assessing the Role of the African Commission and Court on Human and Peoples’ Rights (1987–2018)”, International Human Rights Law Review 1 (2018). 22 Ibid. 23 Rule 118 of the 2010 Commission’s Rules of Procedure allows the Commission to submit cases to the African Court under four circumstances: (i) where a State has not complied or is unwilling to comply with the Commission’s recommendations; (ii) where a State has not complied with the Commission’s request for provisional (interim/precautionary) measures; (iii) situations involving serious or massive violations of human rights; and (iv) if the Commission deems it necessary to refer a communication to the Court at any stage. 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