402: Resolution on the interpretive and protective mandates of the African Commission on Human and Peoples’ Rights - ACHPR/Res. 402 (LXIII) 2018

    The African Commission on Human and Peoples’ Rights (‘the Commission’ or ‘African Commission’), meeting at its 63rd Ordinary Session, held in Banjul, The Gambia, from 24 October to 13 November 2018:

    Recalling the Commission’s functions under Article 45 of the African Charter on Human and Peoples’ Rights (‘African Charter’ or ‘Charter’), which provides for the protection, promotion and interpretive mandates of the Commission;

    Recalling the commitments of all State Parties to ensure the rights and freedoms guaranteed in the African Charter, and noting the central role that the Commission, established under Article 30 of the African Charter, plays in ensuring respect for and the full enjoyment and protection of human and peoples’ rights;

    Conscious that the Assembly of Heads of State and Government showed their commitments to human and peoples’ rights by declaring 2017-2027 as the African Human Rights Decade;

    Recalling that Article 2 of the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights (the Court Protocol) establishes the relationship between the African Commission and the African Court on Human and Peoples’ Rights (the Court) by providing that the Court shall complement the protective mandate of the Commission;

    Further recalling the harmonization of the 2010 Rules of Procedure of the Commission and Rules of Court to give effect to this complementarity;

    Confirming that Article 4 of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo Protocol) reiterates the complementarity of the Court to the protective mandate of the Commission;

    Additionally recalling that the promotion and protection mandates of the Commission involve interpretation of the provisions of the African Charter, including through the formulation of principles and rules for solving legal problems relating to human and peoples’ rights;

    Underscoring that the protection mandate of the Commission is contentious as well as non-contentious, and that it includes a Communications procedure as well as urgent intervention mechanisms for responding on an on-going basis to emerging human rights complaints and situations through Urgent Appeals, resolutions and fact-finding missions;

    Bearing in mind that the Commission’s contentious protective mandate, which involves the submission and consideration of Communications, provides access to justice for citizens of all the 54 State Parties to the Charter, and that no other African institution provides such continent-wide access to justice;

    Welcoming the ongoing internal reforms process of the African Union (Union) which aims to enhance the overall efficiency of the Union and its Organs;

    Remaining deeply concerned by Executive Council decision DOC.EX.CL/1089(XXXIII) on the Report on the Joint Retreat of the Permanent Representatives’ Committee and the African Commission, which requests State Parties to conduct an analytical review of the interpretative mandate of the Commission in the light of a similar mandate exercised by the African Court and the potential for conflicting jurisprudence;

    Convinced that the on-going reforms process of the Union and any decisions of the Union’s Policy Organs can strengthen the protective and interpretive functions of the Commission, as well as the overall human rights and governance framework on the continent;

    The Commission:

    1.     Reminds State Parties of their cardinal obligation under the African Charter to give effect to the rights, freedoms and duties enshrined in the African Charter;

    2.     Reiterates that its interpretive mandate is inherent in its promotion and protection mandates as set out by the Charter;

    3.     Further reiterates that the protective mandate of the Commission applies universally across the continent and that it is contentious as well as non-contentious;

    4.    Calls on State Parties and the Union’s Policy Organs to continue supporting the complimentary relationship between the African Commission and the African Court envisaged by the Court’s Protocol and the Malabo Protocol, to ensure full access to justice for Africans;

    5.    Calls on State Parties to respect the normative standards and institutional frameworks established by the Charter, including by supporting the Commission which was established to promote, protect and interpret the rights in the Charter;

    6.    Calls on State Parties and Policy Organs of the Union to ensure that the on-going reforms process of the Union preserves and enhances the independent, distinct and specialized mandates of each Organ, while creating frameworks for improving their collaboration and effectiveness, to strengthen the overall human rights and governance framework on the continent; and

    7.    Resolves to continue engagements with all State Parties and the Union’s Policy Organs in support of its protective and interpretive mandates.

    Done at the 63rd Ordinary Session of the African Commission on Human and Peoples’ Rights, held from 24 October to 13 November 2018 in Banjul, The Gambia

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