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Panellists in an African Commission’s panel reiterated the clarion call for a progressive interpretation of the principle of confidentiality under Article 59(1) of the African Charter to ensure broader participation of individuals and non-governmental organisations to proceedings before the African Commission, and speed up the implementation of the Commission's decisions.
On 23 October 2024, the African Commission on Human and Peoples’ Rights (the African Commission, the Commission, or ACHPR) held a panel on the impact of Article 59(1) of the African Charter on Human and Peoples’ Rights (African Charter) on its communications procedure. The panel aimed to discuss the human rights challenges the African Commission’s interpretation and application of Article 59(1) of the Charter pose to the participation of individuals and civil society organisations in ongoing proceedings and better ways for reading that provision. The panel also reviewed the practice of other human rights bodies with similar functions to the African Commission to demonstrate the absence of a rigid approach to the publicity of relevant documents including decisions, measures and party submissions. This panel’s theme is an offspring of the broader Article 59(1) Campaign of the Litigants Group of which ISHR is a member.
Transparency and participation
Article 59(1) of the African Charter reads as follows: ‘All measures taken within the provisions of the present Chapter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide’. The African Commission has extended the principle of confidentiality to ‘documents’ not covered by this provision such as the list of cases pending before it, the submissions of parties and its decisions on seizure.
This approach limits public scrutiny and the ability of civil society organisations to engage actively with the Commission. It undermines their ability to hold governments accountable. The Commission should align its practice with other human rights bodies which tend to make public documents related to pending cases.Mai Aman, Institute for Strategic Litigation in Africa
The African Commission’s reading of Article 59(1) has other adverse implications.
‘It prevents documents such as pleadings which put together facts that are in the public domain from being accessed, it undermines the participation of third parties including amicus curiae and prevents parties to proceedings from obtaining in time the decision in a case they initiated,’ clarified Michael Nyarko, deputy director of the Institute for Human Rights and Democracy in Africa.
Broader consultations
Some of the Commissioners who took the floor highlighted that problems arising from Article 59(1) were not created by the African Commission but by States who drafted the Charter and wanted proceedings to remain confidential. They recognised at the same time the possibility that the provision could be a hindrance to the exercise of litigants’ rights. The Chairperson recalled for example that the African Commission’s Final Communiqués do not indicate the name of parties of communications that were examined during private sessions. Commissioner Hatem Essaiem also added that the issue could be part of broader African Union reforms while Commissioner Janeth Sallah-Njia reiterated the limitations of the African Commission to change what is provided for by the treaty. States, however, found it relevant to discuss the matter. Representatives of South Africa and the Democratic Republic of Congo indicated the discussion should be broadened and enhanced for States to understand problems that arise and possible solutions. The African Commission’s Secretariat promised to conduct broader consultations with States on the issue.
Calling on all African states, including Burkina Faso, Mauritius, and the Democratic Republic of the Congo, to do more to ensure that human rights defenders are safe, protected, and supported in their vital work.
At a side event co-organised by ISHR on the sidelines of the 81st Ordinary Session of the African Commission on Human and Peoples’ Rights, panellists reflected on developments and regress regarding the protection of defenders’ rights 25 years after the adoption of the UN Declaration on human rights defenders. They also commented on the role of the Declaration +25.
An event held on 18 October 2024 on the sidelines of the African Commission's 81st session shed light on restrictions on the work of human rights defenders in Côte d’Ivoire - specifically with respect to freedom of association and assembly, the shrinking of civic space, and the particular threats faced by those who defend the rights of LGBTIQ+ people.
