where the alleged victims are too poor or too frightened.205 The IAC also has the most extensive
practice of admitting amicus curiae.206
c. African Charter on Human and Peoples’ Rights
In 1981, the Assembly of Heads of State and Government of the Organization of African Unity
(OAU) adopted the African Charter on Human and Peoples’ Rights (African Charter or ”Banjul
Charter“).207 The Charter contains provisions for civil and political rights (Arts. 3-14) and eco-
nomic, social and cultural rights (Arts. 15-18). It however blazes new ground by including rights
of peoples as collective rights (Arts. 19-24) and duties (Arts. 25-29).208
The only mechanism created under the Charter to supervise States Parties’ compliance was the
African Commission on Human and Peoples’ Rights (African Commission).209 Its four areas of
mandate are: promotional activities, protective activities (including individual complaints), the
examination of State Party reports, and the interpretation of the African Charter (Art. 45). It has
the capacity to receive inter-state complaints (Art. 47 et seq.) and complaints by other parties
(Art. 55 et seq.). It may also invite any organization or persons capable of enlightening it, e.g.
NGOs, to participate in its deliberations without voting rights.210 While the African Commission
has an elaborate promotional mandate under the African Charter, it does not possess sufficient
protective powers. Despite some positive development in the African Commission’s individual
complaint mechanism, the decisions it renders are non-binding, and attract little, if any, attention
from governments of Member States.211 The reports become final only once they are contained
in the African Commissions Annual reports and are approved by the AU Assembly, a political
body. Furthermore, the findings are not published before that,212 which diminishes greatly the
collective good character of precedents. There is no instituted system of follow-up concerning
the implementation and compliance of the findings.213
205 I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies. Advisory Opinion OC-11/90 of August
10, 1990 (Series A, No. 11), at para. 3. The Court also makes an exception where an individual is unable to
obtain the necessary legal representation due to a general fear in the legal community of a given country. The
Commission explains that, according to what some complainants have alleged, this situation has occurred
where an atmosphere of fear prevails and lawyers do not accept cases which they believe could place their
own lives and those of their families in jeopardy (at para. 32 and 35).
206 Thomas Buergenthal, “The Advisory Practice of the Inter-American Human Rights Court”, American Journal
of International Law 79 (1985), 1-27, at 15.
207 Of June 21, 1986, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (entered into force Oct. 21, 1986).
208 Unlike other international or regional human rights treaties, the Charter does not allow states to derogate
from their treaty obligations even during states of emergency. See e.g. Communication 74/92, Commission
Nationale de Droits de l’ Homme et des Libertes v. Chad.
209 Art. 30 of the African Charter provides for the establishment of the Commission.
210 Rule 72 and 73 of the Rules of Procedure of the African Commission on Human and Peoples' Rights, OAU
Doc. ACHPR/RP/XIX (1988) (amended June 10, 1995) (hereinafter Rules of Procedure), available at
<http://www.hrni.org/files/instruments/HRNi_EN_926.html>. NGOs may be granted observer status by the
Commission and may appoint authorized observers to participate in the public sessions of the Commission
and of its subsidiary bodies.
211 See Nsongurua J. Udombana, “An African Human Rights Court and An African Union Court: A Needful
Duality or a Needless Duplication?”, Brooklyn Journal of International Law 28 (2003), 811-870, 821.
212 Art. 59 (1) African Charter.
213 See for more details Viljoen, supra note 138.
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