This brief paper explores the institutional advances in the african human rights system since the adoption of the African Charter on Human and Peoples' Rights (ACHPR).

1. Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 1
Institutional Advances in the African Human Rights System since the Adoption of the ACHPR
1 Importance of the ACHPR
There have been a number of efforts to come up with a regional human rights instrument for Africa. The first such attempt, which precedes the OAU is the Law of Lagos calling for the need for a regional human rights treaty. This was latter reiterated at the first Conference of Francophone African Jurists, Dakar, Senegal, in 1967. Subsequent to the adoption of the OAU Charter, the organization made practical efforts to address human rights issues in the context of decolonization, racial discrimination, environmental protection and refugee problems. Yet, the OAU failed to give human rights the status of a central issue mainly due to emphasis on socio- economic development, territorial integrity and state sovereignty and the principles of non- interference in the internal affairs of member states. Ultimately, the OAU took a very important step towards creating an institutional framework for human rights when it adopted the African Charter on Human and Peoples’ Rights on 28 June 1981 in Nairobi, Kenya. The Charter came into force on 21 October 1986 and was adopted by all member states by 1999.
2 Institutional Developments
The ACHPR provides for the establishment of the African Commission. Moreover, Article 66 of the Charter allows state parties to the Charter to make special protocols or agreements where necessary to supplement the provisions of the Charter.
2.1 The African Commission
The Charter established the African Commission on Human and Peoples’ Rights to promote, protect and interpret the rights enshrined under the Charter. (OAU 1981, Article 30) The Commission was established on 2 November 1987 and inaugurated its headquarters in Banjul, The Gambia on 12 June 1989. The mandates of the Commission encompass the promotion of human rights, the protection of human rights and interpretation of the African Charter. (OAU 1981, Article 45)
As part of its promotional mandate, the Charter requires the Commission to cooperate with other African and international institutions concerned with the promotion of and protection of human

2. Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 2
and peoples’ rights. (OAU 1981, Article 45/1) Accordingly, the Commission has started granting observer status to NGOs starting in 1998 and developed criteria for NGOs in 1999. The Commission has also started granting affiliate status to national human rights institutions (NHRIs) since 1998. (Center for Human Rights, University of Pretoria 2011)
As part of its protection mandate, the he Commission receives and examines state party reports on the implementation of the ACHPR. The Commission also has monitoring mandates under the Maputo Protocol
At its 29th Ordinary Session in 2001, the Commission started to adopt concluding observations after examination of state reports. The Commission also has two special mechanisms, namely special rapporteurs and working groups (articles 46 and 45 of the African Charter) and issues thematic, administrative and country specific resolutions (Article 45 of the Charter).
The decisions, recommendations and resolutions of the African Commission have influenced governments, NGOs and human rights advocates across the African continent. (Balogun and Durojaye 2011, 377) The successes of the Commission in this respect could be considered from various angles (Center for Human Rights, University of Pretoria 2011, 56-58). In terms of interpretation, the Commission interpreted both the CP and ESC rights enshrined in the ACHPR and expanded the rights regime through the use of the doctrine of implied rights. Through this doctrine, the Commission has interpreted the right to life and health to include the right to food and the right to housing from the right to property and protection of the family (SERAC v Nigeria, para 60). Successes have also been registered in terms of the promotion of the rights of women in Africa through the adoption of the Maputo Protocol, various resolutions on women’s rights issues1, and the appointment of a Special Rapporteur on the Rights of Women in Africa, in 1998. Other points of strength include: the robust relationship with NGOs and NHRIs; the promotion of the rights of indigenous people (Endorois case, para 148); generous standing rules allowing any NGO or individual to submit communications (Malawi African Association v Mauritania, para 78); and, progressive interpretation of the ‘claw back’ clauses of the ACHPR (Media Rights Agenda and Others v Nigeria, para 66).
2.2 African Children’s Rights Committee
The African Charter on the Rights and Welfare of the Child was adopted in Addis Ababa, Ethiopia, on 11 July 1990, and entered into force on 29 November 1999. The ACRWC developed distinctly from the ACHPR and has a separate institutional structure for its implementation. (Lloyd 2002, 11-12)
The African Children’s Charter established the African Committee of Experts on the Rights and Welfare of the Child to promote and protect the rights and welfare of the child. The Committee
1 These include the status of Women in Africa (2005); women and girl victims of sexual violence (2007); and, maternal mortality in Africa (2008)

3. Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 3
was formally established in July 2001 during the Assembly of Heads of State and Government of the OAU 74th Summit in Lusaka, Zambia.
The Committee comprises 11 members elected by the AU Assembly for a term of 5 years. The seat of its Secretariat is in Addis Ababa, Ethiopia.
The mandate of the Committee encompasses the promotion and protection of children’s rights recognized in the Charter, monitoring the implementation of the charter and interpreting its provisions. (OAU 1990, Article 42) The committee receives and examines state party reports on measures of implementation in line with the provision of the Charter requiring states to submit periodic reports every three years. (OAU 1990, Article 43) Based on the reports of state parties as well as other sources the Committee prepares Concluding Observations highlighting progress achieved, goals and difficulties, major issues of concern, suggestions and recommendations.
As part of its promotional mandate, the Committee has developed and adopted Guidelines for Granting Observer Status in the African Committee of Experts on the Rights and Welfare of the Child to NGOs and Associations and granted observer status to organizations since March 2010. (Assefa 2013, 60)
In its protection mandate, the Committee conducts investigations based on communications submitted to it. (OAU 1990, 45) The Committee has developed Guidelines for the Conduction of Investigations in 2006 and conducted various investigation missions since then. (Assefa 2013, 63)
Another important protection mandate of the Committee is receiving and entertaining communications or complaints. The Committee may receive communications or complaints from any person, group or non-governmental organization recognized by the Organization of African Unity, by a Member State, or the United Nations regarding any matter contained in the African Children’s Charter. (OAU 1990, Article 44) In 2011, the Committee issued its first finding regarding the failure of Kenya to register children of Nubian descent and found Kenya in violation.
The Committee’s successes mainly relate to efforts to make children’s rights visible in Africa and lobbying for the ratification of the African Children’s Charter. (Assefa 2013, 59) Though the matter deserves more detailed analysis, the impact of the ACRWC and the work of the Committee of Experts on the national frameworks for the protection of children’s rights across Africa could represent an important added value.
2.3 The African Court on Human and Peoples’ Rights
The OAU adopted a protocol to the African Charter on the 9th of June 1998 in Ouagadougou, Burkina Faso. The protocol creates an African Court on Human and Peoples' Rights when it enters into force. The protocol came into force on 25 January 2004. The Court has established its

4. Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 4
offices in Arusha, Tanzania and the first judges of the Court were sworn in on 1 July 2006. The African Court delivered its first judgment on 15 December 2009.
The establishment of the African Court of Human and Peoples’ Rights with powers to render legally binding decisions is a very critical development in terms of complements the protective mandate of the Commission. However, the Court’s jurisdiction applies only to states that have ratified the Court’s Protocol. That is, the decisions of the African Court are final and binding only on state parties to the protocol.
The Court has extensive mandate relating to the interpretation and application of the African Charter, the Court’s Protocol and any other human rights treaty ratified by the state concerned. The Court is also responsible for the interpretation of the provisions of the Maputo Protocol. The Court may provide advisory opinions on matters falling within its jurisdiction at the request of the AU, member states, AU organs and African organizations recognized by the AU. The Court also interprets its own judgments
The African Commission, state parties to the Court’s Protocol, African Inter-governmental Organisations, NGOs with observer status before the Commission and individuals may submit communications to the Court. However, individual and NGO communications are admissible only in respect of the states parties to the protocol having made a declaration under article 5(3) of the Court’s Protocol as per article 6 and 34/6 of the court’s protocol. The African Commission may refer any of its concluded or ongoing cases, including cases initiated through individual communications, to the court in as long as the concerned state is party to the Court’s Protocol.2
2.4 The African Union
The Assembly of Heads of State and Government of the OAU declared the establishment of the African Union (AU) during their extraordinary session held in Sirte, Libya in March 2001. The newly established body was designed as a successor organization to the OAU. The Constitutive Act (Act) of the Union entered into force on 26 May 2001 and the AU finally replaced the OAU in 2002 after a period of transition.
The Constitutive Act of the AU gives human rights a prominent place. This is evident from the preamble to the Act, its objectives and principles. The preamble to the Act refers to the determination of member states to promote and protect human and peoples’ rights in an explicit manner while the same is included in the objectives of the AU. (Article 3(h) of the Act) The promotion of gender equality and protection of human rights are also identified among the principles of the AU. (Articles 4(l) and (m) of the Act)
2 The relationship between the Court and the Commission is governed by the Protocol establishing the Court, Rule 29 of the Court’s Interim Rules of Procedure 2010 and Part IV of the Rules of Procedures of the Commission 2010

5. Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 5
The mandates of the AU in terms of setting human rights standards at the regional level and creation of institutions for the promotion and protection of human rights are also important. The AU has since taken over the surviving human rights framework under the OAU. New human rights institutions have been established under the AU.
2.5 The African Court of Justice and Human Rights
The decision to merge the ACHPR and the ACJ was initially made in 2004 at the Third Ordinary Session of the Assembly of the African Union and reiterated in its Fifth Ordinary Session in 2005. The adoption of the Statutes of the ACJHR came about three years later at the AU Summit in Sharm El-Sheikh, Egypt, on 1 July 2008. The protocol comes into force thirty days after deposit of ratifications by fifteen member states (article 9/1). Although the Protocol has been signed by thirty African states, only five have ratified the Protocol by February 2014.3 These are: Benin, Burkina Faso, Congo, Libya and Mali. Among these five, only Benin has yet to deposit the instrument of ratification.
3 Contemporary Challenges
The African human rights system faces a number of serious institutional challenges. Most obvious among these is the issue of resources. The institutions constituting the system have to make do with limited financial and human resources. This is particularly true for the African courts. (Yerima 2011, 125) In comparison with other regional systems and international tribunals like the ICC, the AU and the African courts have and are likely to have very limited resources in the foreseeable future. This put into question the possibility of the institutions becoming effective at the operational level. The number of judges, which is in all cases set at a limited number, is also too limited to handle the expansive jurisdiction of the courts. In the case of the African Commission, the Commissioners have to double as special rapporteurs to cope up with the limited human resources.
By far the most serious challenge for the operation of the African human rights system is the limited consent and political will of states. Special mechanisms of the African Commission require the consent of states which is often denied (Center for Human Rights, University of Pretoria 2011, 45) This has put a serious constraint on the utility of these mechanisms. The Committee of Experts similarly faced challenges associated with the willingness of states parties to assist the exercise of its mandate. For instance, the examination of the communication on the situation of Nubian children in Kenya, on which the Committee has issued a decision, has been hampered by failure on the part of the government of Kenya to provide the necessary access and assistance. (Assefa 2013, 66)
3 Coalition for an Effective African Court on Human and Peoples’ Rights, Ratification Status: Protocol on the Statute of the African Court of justice and Human Rights, available at: www.africancourtcoalition.org

6. Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 6
Similarly, although the protocol establishing the African Court has been signed by all but two African states, only twenty six have ratified it and only five states have made declarations accepting the standing of NGOs and individuals to submit complaints directly to the court. Delays in undertaking reporting obligations and failure to implement the recommendations of the African Commission are also common. The effectiveness of the African Committee of Experts on the Rights and Welfare of the Child is also hampered by significant delays in periodic reporting by states as well as the ineffectual character of concluding observations issued by the Committee. (Assefa 2013, 61)
The African Commission faces serious issues relating to its effectiveness. The fact that its decisions have to be made unanimously and the non binding nature of its decisions and recommendations have for the most part made it ineffective in addressing the protection of human rights in Africa. (Assefa 2013, 49) Delays in the procedures of the African Commission including decision on communications and adopting reports as well as antipathy to referring cases to the African Court (Center for Human Rights, University of Pretoria 2011, 58)
The relationship between the Committee and the OAU Assembly and Secretariat in terms of operation and state reporting is another aspect of the African system criticized as imposing upon the independence of the Committee. (Lloyd 2002, 25) The Committee also depends on the OAU Assembly for resources and communication of its recommendations to state parties. The Committee is established within the OAU (OAU 1990, Article 43/1) and state parties submit reports through the Secretary-General of the OAU
4 Bibliography
Assefa, Ayalew Getachew. "Advancing Children’s Rights in Africa: The Role of the African Children’s Charter and its Monitoring Body." Mekelle University Law Journal, Vol. 2 No. 1, 2013: 46-70.
Balogun, Victoria, and Ebenezer Durojaye. "The African Commission on Human and Peoples’ Rights and the promotion and protection of sexual and reproductive rights." African Human Rights Law Journal, Vol. 11 No. 2, 2011: 368-395.
Center for Human Rights, University of Pretoria. Celebrating the African Charter at 30: A guide to the African human rights system. Pretoria: Pretoria University Law Press (PULP), 2011.
Lloyd, Amanda. "A theoretical analysis of the reality of children.s rights in Africa: An introduction to the African Charter on the Rights and Welfare of the Child." African Human Rights Law Journal, Volume 2 number 1, 2002: 11-32.
OAU. "African Charter on Human and Peoples' Rights." Nirobi, June 28, 1981.
—. "African Charter on the Rights and Welfare of the Child." 1990.

7. Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 7
Yerima, Timothy Fwa. "Comparative Evaluation of the Challenges of African Reginoal Human Rights Courts." Journal of Politics and Law, Vol. 4, No. 2, 2011: 120-127.