Activities as Commissioner
During the period under review, following my election as Acting Chairperson of the African Commission, after the departure of the Former Chairperson, Justice Sanji Monageng; I continued to steer the work of the Commission.
1. My first task was to ensure that the 45th Ordinary Session finalises its work including the adoption of decisions to long standing Communications, such as Kevin Ngumne and Others versus the Republic of Cameroon, on the rights by the people of Southern Cameroon within the Republic of Cameroon, CEMIRIDE versus the Republic of Kenya, on the land rights of the Endorois, an indigenous community, in Kenya, COHRE versus the Republic of Sudan, on displacement and evictions in Darfur and Curtis Dobbler versus Sudan, on the rights of Ethiopian refugees in Sudan, and the effect of the UNHCR cessation clause.
2. At the beginning of June 2009, I participated in a conference convened by IRRI and other NGOs in Nairobi Kenya, to discuss strategy following allegations that Ministers for Justice representing States parties to the Rome Statute, convening in Addis Ababa, were considering withdrawing from the Rome Statute. The meeting adopted recommendations, inter alia,
calling upon the ICC Prosecutor and the international community to address the issue of selectivity of referrals, which is a mater of concern to African States. The meeting however underlined the fact that, except for the Darfur referral, all other ICC investigations in Africa were referred by African states themselves, namely Central Africa, Republic, DRC, Cote D’
Ivoire and Uganda.
3. Between 26 June to 4 July 2009, I participated in the meetings of the PRC, the Executive Council, and the African Union Assembly in Sirte, Libya. On the 29th June, I presented the 26th Activity Report of the African Commission, to the Executive Council. The Assembly subsequently endorsed the 26th Activity Report, and the election of Honourable Mohammed Fayek and Honourable Khaffala, as new members of the African Commission.
4. On or about 29 June 2009, I addressed an urgent appeal to H.E. President Joseph Kabila of the DRC. Following allegations that government had expelled thousands of Angolan immigrants. I urged the government of DRC and the Republic of Angola, to engage in mutual negotiations with a view of providing a mechanism to address the property rights of migrants instead of mutual expulsion, which is prohibited under Article 12 of the African Charter.
5. Between 14 and 17 July 2009, I participated in the Joint session of the African Court on Human and Peoples’ Rights and the African Commission, to deliberate the harmonisation of the Rules of Procedure of the two institutions. The joint session explored the common understanding of the principle of complementarity. The African Commission concluded that the question of enforcement mechanism of its decisions still requires strengthening, since the Court itself does not have the powers to enforce its own decisions, since this power is reserved to the Executive Council.
6. Between 31 August and 3 September 2009, I presented lectures to the Summer Human Rights School, organised by the Faculty of Law, of the University of Lueven, Belgium, on comparative analysis of the African Human Rights System, the Inter American, and European Human Rights systems.
7. On or about 9 September 2009, I sent an Urgent Appeal for provisional measures to Brother Leader Muammar Al-Gaddafi. the head of the Great Socialist Arab Libyan Jamahiriya, concerning allegations that a number of Nigerians held in various prisons were due to be executed, pending the determination of a Communication sent to the Commission by a Nigerian NGO, SERAP.
8. Between 9 and 11 September 2009, I participated in an International Conference organised by the MacArthur Foundation, The Hauser Centre of Harvard University, The International Centre for Transitional Justice, and the International Criminal Court on International Criminal Justice, in New York. I made a presentation, as one of the panellists, on the role of international and regional judicial and quasi judicial institutions, relative to the accountability for international crimes. While noting that the African Commission’s mandate is limited to human rights violations under the African Charter and other regional human rights instruments, I highlighted the dilemma posed by the position taken by the African Union to reconsider its cooperation with the ICC, in view of the indictment of President Bashir. I reiterated the view that the African Union must demonstrate the capacity to deal with perpetrators of grave crimes, for instance, by ensuring the prosecution of Hisne Habre, cooperating with the ICC, and empowering the African Court on Human and Peoples’ Rights through the ratifications, and submission of declaration under article 34(6) of the Protocol, if the expressed intention of extending the jurisdiction of the African Court is to become a reality.
9. Between 5 and 10 October 2009, I participated in the 7th Extra Ordinary Session of the African Commission to finalise the Interim Rules of Procedure of the African Commission, and to prepare for the 2nd Joint session between the African Commission and the African Court in Dakar, Senegal.
10. Between 12 and 16 October 2009, I participated in the 2nd Joint Session between the African Commission and the African Court on Human and Peoples’ Rights, in Dakar, Senegal to harmonise the their rules of procedure. The Joint Session finalised and adopted the Rules of the African Commission on complementarity. The African Court will continue to refine its rules in order to harmonise them with the rules adopted by the joint meetings in Arusha and Dakar.
11. On or about 20 October 2009, I sent an urgent appeal to H.E. President Jacob Zuma of the Republic of South Africa, concerning allegations that the government of South Africa was reviewing police powers regarding the use of force when executing powers of arrest, including the right to shoot to kill.
12. Between 7 and 9 November 2009, I participated in the Forum of NGOs prior to the 46th Session and the African Human Rights Book Fair, held at the Kairaba Hotel, Banjul, the Gambia.. I made speeches during the opening and closing ceremonies, in which I commended the NGOs for their work.
13. I condemned the resurgence of coups on the continent, and the abuse of coalition arrangements adopted to diffuse critical violations of human and peoples’ rights, by some parties to national unity governments. I cautioned against the emerging trend of institutionalising the eminence of first families in democratic transitions, as an abuse and reversal of the democratic gains which the continent has achieved in the last two decades. I called on the participants to continue urging states to ratify the African Charter on Democracy, Elections, and Good Governance.
14. I also called on the Steering Committee of the NGO Forum and the Commission to reconsider how best to disseminate the Resolutions of the NGO Forum, because many of them end up without much publicity. They indeed remain the intellectual property of the NGO Forum, except for those which are considered and adopted by the Commission.
15. Between 8 and 10 November 2009, I participated in the 3rd Conference of The Network of African Human Rights Institutions, organised jointly, with the Department for Political Affairs of the African Union, at the Senegambia Hotel, Banjul, the Gambia. I emphasised two main points, namely the need to strengthen the coordination and collaboration between the African Union Commission, the African Commission, the NHRIs and other organs which have a human rights mandate on the continent. Secondly, I made a suggestion that the Resolution for granting Affiliate Status to NHRI, which was adopted in 1998, needs review in order to take into accounts developments and concerns expressed by NHRIs.
16. On 11 November 2009, I formally opened the 46th Ordinary session. This day also coincided with the end of my tenure as a member of the African Commission.
Activities as Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons
REPORT OF ACTIVITIES BY COMMISSIONER BAHAME TOM NYANDUGA, SPECIAL RAPPORTEUR ON REFUGEES, ASYLUM SEEKERS, IDPS AND MIGRANTS IN AFRICA FOR THE INTERSESION PERIOD BETWEEN MAY AND NOVEMBER 2009
1. The period under review is characterised by events which continue to underline the importance of consolidating the advocacy role of the Special Rapporteur on Refugees, Asylum Seekers, IDPs and Migrants in Africa. The displacement situation on the continent has not improved in the previous six months. Africa continues to host more than half the total IDPs, estimated at about 25 million throughout the world.
2. The conflicts in Somalia and DRC continue to create displacement, and the violations of the rights of IDPs. The Displacement in the Darfur remains a humanitarian disaster. More the 2million people have continued to live in camps for the last six years, and they are likely to continue, as long as the peace agreement to the Darfur conflict is not achieved.
3. The situation in Eastern DRC is a matter of grave concern. The period under review witnessed reported cases of rape of women and young girls, and the insecurity of the civilian population in Eastern DRC, and Kivu province, due to the activities of rebel groups. The LRA continues its madness of causing havoc by kidnapping, terrorising and displacing
innocent civilians in Central Africa Republic.
4. The massive violations of human rights and international humanitarian law in Eastern DRC are a matter of grave concern to the Special Rapporteur, and to the African Commission. The Commission is of the strong opinion that the Government of the DRC has yet to take serious measures to apprehend the perpetrators of the war crimes and crime against humanity, against the people of Eastern DRC. I urge the DRC to cooperate with the ICC to hand over indicted war criminals still sheltering in the DRC.
5. The Somalia conflict has witnessed massive violations of the human rights of civilian population, as well as violations of international humanitarian law. The Al Shabaab Islamist Movement has indiscriminately continued to target the civilian population, journalists, and even the AMISOM peacekeepers. They continue to threaten the existence of the Transitional Federal Government, which is itself trying to establish institutions of governance under extremely severe conditions.
6. I urge the international community to continue its support to the Somali people, through increased humanitarian assistance to the civilian population, and assistance to the African Union, to strengthen AMISOM.
Once again, let me commend Burundi and Uganda for the sacrifices they are making on behalf of Somalia, Africa, and the international community. I call upon the Africa Union member states that pledged troops to AMISOM, to do so in order to assist Somalia to restore stability.
7. It is in the context of these conflicts, and the scourge of displacement on the continent, that I wish to situate the importance of the African Union Convention on the Protection an Assistance of Internally Displaced Persons in Africa, otherwise known as the Kampala Convention, which was adopted by a Special Summit of the African Union, held in Kampala,
Uganda, between 22 and 23 October 2009.
8. Between 19 and 23 October 2009, I participated in the meeting of the Executive Council of the African Union, and the Special Summit. The highlight of the Special Summit was the adoption of the Kampala Convention. I had the opportunity to address Ministers and Representatives attending the Special Summit on the role of the Special Rapporteur and the African Commission envisaged in the Kampala Convention, at a luncheon organised by the International Peace Institute based in New York, and the Internal Displacement Monitoring Centre (IDMC) of the Norwegian Refugees Council.
9. 17 AU member states signed the convention, which is the first international instrument of its kind to provide a binding legal framework for protecting and assisting IDPs. It prohibits all forms of arbitrary displacement. It recognises the right of internally displaced persons to humanitarian assistance, and the civilian character of humanitarian
assistance. It recognises the sovereignty of states and reiterates the responsibility of the state to provide protection. It provides also that where the state cannot provide protection or assistance, it should facilitate international humanitarian assistance. In other words, it incorporates the principle of the responsibility to protect.
10. The Kampala Convention incorporates the principles of individual criminal responsibility under domestic and international criminal law regimes. It imposes obligations on armed groups to respect the rights of civilian population.
11. It recognises the right of IDPs to a remedy, under municipal, regional and international mechanisms. In that regard, it has institutionalised the role of the Special Rapporeur on Refugees, Asylum Seekers, IDPs and Migrants, in ensuring that the mechanism and the African Commission play their rightful role to protect IDPs on the continent.
12. Being the Special Rapporteur, on Refugees, Asylum Seekers, IDPs and Migrants in Africa, I had the privilege of serving as one the AU Legal Experts who drafted the framework paper, the initial zero draft, and assisted the negotiation process of the Convention through its final adoption.
13. I strongly urge all AU member states to sign and ratify it expeditiously. I also urge all stakeholders of the African Commission, namely the NHRIs, NGOs, the Media and all well wishers, to ensure that the Kampala Convention is given maximum publicity, as an advocacy tool for the rights of IDPs, wherever they are on the Continent. IDPs remain vulnerable while there is this instrument and mechanism aimed at their protection and assistance.
14. I once again commend the Kampala Convention to you all. I wish my successor a wonderful term.
Thank you. God Bless Africa, Nkosi Sikeleli Afrika. Mungu Ibariki Afrika.