NGO Law Monitor: African Union
Introduction | Key Facts | Members | At a Glance
Key Legal Texts | Overview | Reports | News and Additional Resources
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Last updated 25 April 2013
Introduction
The African Union (AU) came into existence in 2002 by replacing the Organization of African Unity (OAU) which was established in 1963. The main objectives of the OAU were to rid the continent of colonialism and apartheid; to promote unity and solidarity among African states; to protect their sovereignty and territorial integrity; and to coordinate and intensify international cooperation for development. The OAU was supplemented in 1994 by the African Economic Community (AEC) which had the general objective of promoting the socio-economic development and integration of Africa. The OAU’s success in upholding peoples’ rights through its pivotal role in addressing colonialism and apartheid is somewhat diminished by its lack of serious concern for human rights violation in African states and its undue emphasis on the principle of non-interference.
The AU formation process began in 1999. The goal of the Assembly of Heads of State and Government of the OAU was to transform the continental organization into one that could keep pace with new political and socio-economic developments in the world, in conformity with the ultimate objectives of the OAU Charter and AEC Treaty. Accordingly, the Constitutive Act of the African Union (Constitutive Act) was adopted in 2000 and entered into force in 2001. After a transitional period of one year, the AU formally replaced the OAU in 2002. In stark contrast to those of its predecessor, the objectives and guiding principles of the AU include the promotion of democratic principles and institutions, popular participation and good governance; promotion and protection of human and peoples' rights; and the ability of the organization to take action upon the decision of the Assembly (in cases of grave violations of human rights) or upon request of a member state.
The AU’s supreme organ is the Assembly of Heads of State and Government. Its other organs include the Executive Council; the Pan-African Parliament; the African Court of Justice; the Economic, Social and Cultural Council; and the Peace and Security Council. The AU is a relatively young organization and some of its institutions, including judicial bodies, are not fully operational.
Key Facts
| Headquarters | Addis Ababa, Ethiopia |
| Members | 54 |
| Established | 2002 |
| Founding Document | Constitutive Act of the African Union |
| Head | Current Chairperson of the AU, Hailemariam Desalegn (Prime Minister of the Federal Democratic Republic of Ethiopia); and Chairperson of the AU Commission (Secretariat of the Union), Nkosazana Dlamini Zuma |
| Governing Bodies | Assembly of Heads of State and Government: supreme decision-making body The Executive Council: coordinates and makes decisions on policies in areas of common interest to the Member States and considers issues referred to it and monitors the implementation of policies formulated by the Assembly |
| Key Human Rights Agreements | African Charter on Human and Peoples' Rights (African Charter); Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (to remain in force for not longer than one year after the entry into force of the Protocol on the Statute of the African Court of Justice and Human Rights) |
| Key Judicial Bodies | African Commission on Human and Peoples’ Rights (ACHPR); African Court on Human and Peoples’ Rights (to become the African Court of Justice and Human Rights after merger with the African Court of Justice) |
Members
| Algeria | Gabon | Rwanda |
| Angola | The Gambia | Saharawi Arab Republic |
| Benin | Ghana | São Tomé and Príncipe |
| Botswana | Guinea | Senegal |
| Burkina Faso | Guinea-Bissau | Seychelles |
| Burundi | Kenya | Sierra Leone |
| Cameroon | Lesotho | Somalia |
| Cape Verde | Liberia | South Africa |
| Central African Republic | Libya | South Sudan |
| Chad | Madagascar* | Sudan |
| Côte d'Ivoire | Malawi | Swaziland |
| Democratic Republic of the Congo | Mali | Tanzania |
| Republic of the Congo | Mauritius | Togo |
| Djibouti | Mauritania* | Tunisia |
| Egypt | Mozambique | Uganda |
| Equatorial Guinea | Namibia | Zambia |
| Eritrea | Niger | Zimbabwe |
| Ethiopia | Nigeria |
* Suspended member
At a Glance
| Freedom of Association | Legal Protection | African Charter on Human and Peoples’ Rights, Article 10 African Charter on the Rights and Welfare of the Child, Article 8 African Charter on Democracy, Elections and Governance, Articles 6, 7, and 12(3) |
| Legislature | The Pan-African Parliament |
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| Judicial and Quasi-Judicial Bodies | African Commission on Human and Peoples’ Rights African Court on Human and Peoples’ Rights (will become the African Court of Justice and Human Rights after being merged with the African Court of Justice, whose Protocol entered into force in February 2009). The African Committee of Experts on the Rights and Welfare of the Child |
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| Civil Society Participation | Ability to Participate in AU Activities | There are generally four formal avenues for CSOs to participate in the activities of the AU: 1. Participation in sessions and meetings of the AU and its organs with AU Observer Status; 2. As members of ECOSOCC, which is an AU organ designed specifically to give CSOs a voice in the AU; 3. Participation in pre-Summit meetings organized by the African Citizens’ Directorate (CIDO) of the AU Commission; and 4. Participation in the work and sessions of the ACHPR and the Committee on the Rights and Welfare of the Child with Observer Status at these bodies. CSOs may also participate in the work of the AU through consultative meetings and other ad hoc fora with the AU’s various organs and departments. |
| Registration Process | CSOs must go through the procedure and meet the criteria outlined by the Executive Council decision EX.CL/195(VII); or Statute of ECOSOCC, article 6; criteria set by CIDO; or the Criteria for Granting Observer Status of either of the human rights bodies. | |
| Registered CSOs | 150 ECOSSOC members and 435 NGOs with Observer Status at the African Commission on Human and Peoples’ Rights. | |
| Human Rights Defenders | Current Status | The African Commission on Human and Peoples’ Rights has established a Special Rapporteur on Human Rights Defenders in Africa |
Key Legal Texts
Freedom of Association
Civil Society
Overview
The AU remains a relatively young organization whose institutions are still being formed and developed.
A. Judicial Bodies
The African Commission on Human and Peoples’ Rights (Commission), a quasi-judicial body, is charged with protecting and promoting human rights under the African Charter on Human and Peoples’ Rights (African Charter) through interpretation of the African Charter at the request of a State Party or an organization recognized by the AU; consideration of inter-state and individual communications; and examination of State reports.
The African Committee of Experts on the Rights and Welfare of the Child (Committee of Experts), another quasi-judicial human rights body, was created by the African Charter on the Rights and Welfare of the Child (Children’s Charter), which was adopted in 1990 and entered into force in 1999. The Committee of Experts came into being in 2001 and is responsible for interpreting the provisions of the Children’s Charter at the request of a State Party or institutions recognized by the AU or a State Party. The Committee of Experts may examine a State Party’s reports; consider communications submitted by any person, group, NGO recognized by the AU or a Member State; and conduct onsite investigations. The Committee has been examining states’ reports and considering at least two communications. In March 2011, it passed its first decision, finding Kenya in violation of the rights of children of Nubian descent, and held admissible a case concerning children’s rights in Northern Uganda that has been pending for the last 7 years.
The African Court on Human and Peoples’ Rights (Human Rights Court) was established to complement the protective mandate of the Commission. The Human Rights Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter and any other relevant human rights instrument ratified by the State concerned. It may also provide advisory opinions on legal matters relating to these instruments upon the request of the AU, its organs and Member States as well as any African organization recognized by the AU. The Court has so far decided a number of individual applications on the basis of preliminary objections to its jurisdiction and it has referred a few cases to the African Commission. In an application submitted by the African Commission regarding violations of human rights committed at the beginning of the Libyan uprising, the Court ordered provisional measures against the then Libyan Government.
In July 2008, the Protocol on the Statute of the African Court of Justice and Human Rights (Merger Protocol) was adopted. The Merger Protocol created the African Court of Justice and Human Rights (Merged Court), a single court that encompasses the functions of both the Human Rights Court and the African Court of Justice. The Protocol establishing the Human Rights Court shall remain in force for a period not exceeding one year after it enters into force of the Merger Protocol. This is expected to take some time as only four states (Benin, Burkina Faso, Libya and Mali) have ratified the Protocol as at July 2012.
The African Court of Justice and Human Rights will be the main judicial organ of the AU. Once operational, it will have a General Affairs Section and a Human Rights Section. The Human Rights Section will have jurisdiction over cases and legal disputes that relate to, among other things, the interpretation and the application of the African Charter, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the African Child Rights Charter, and any other legal instruments relating to human rights ratified by the State Parties concerned. This will make it a Court with jurisdiction over all substantive human rights norms within the AU framework. Those entitled to submit cases to the African Court of Justice and Human Rights include State Parties to the Merger Protocol, the Commission, the Committee of Experts, African intergovernmental organizations accredited by the AU or its organs, and African national human rights institutions. Individuals and NGOs are only able to bring cases in their own right if the state against which they are complaining has at the time of ratification made a declaration accepting the competence of the Court to hear cases brought via this route. While the African Court of Justice and Human Rights appears to allow for greater access to the AU human rights judicial system by expanding the category of those with standing to bring cases before it, it also limits access by restricting standing to intergovernmental organizations accredited by the AU or its organs and changing the requirement for NGO access from those with Observer Status at the Commission to those accredited by the AU or its organs. Additionally, the “special declaration” requirement may make it difficult in practice for individuals and NGOs to be heard before the Court, as AU Member States have shown reluctance to grant such authority. As of March 2011, only Burkina Faso, Ghana, Mali, Malawi and Tanzania have given the Human Rights Court such authority under a similar requirement. As of January 2013, only Burkina Faso, Ghana, Mali, Malawi, Rwanda and Tanzania have given the Human Rights Court such authority under a similar requirement.
B. Freedom of Association
Article 10 of the African Charter on Human and Peoples’ Rights provides:
- Every individual shall have the right to free association provided that he abides by the law.
- Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.
Article 8 of the African Charter on the Rights and Welfare of the Child provides: Every child shall have the right to free association and freedom of peaceful assembly in conformity with the law.
Article 10 of the African Charter, contains a ‘claw-back’ provision (“provided that he abides by the law”) that may filter the freedom of association through the domestic law of Member States. The Commission, however, has repeatedly held that domestic laws regulating freedom of association should be in conformity with international human rights standards and should not unduly restrict the exercise of the right. (Resolution on Freedom of Association, Communications 101/93, 147/95 & 149/96, and 225/98). The Commission has further underlined the interrelationship among the freedom of association, the freedom of assembly and the freedom of expression, stating that actions violating the first two implicitly violate the third. (Communications 137/94 and others, 245/2002). It also has found that persecution or imprisonment for belonging to a political party, organization or group whose criminal nature is not established violates Article 10. (Communications 205/97, 54/91 and others, 137/94 and others, and 212/98). In addition, the Commission has interpreted the scope and meaning of Article 10 in several cases (see Key Legal Texts above).
The Commission established in 2004 a Special Rapporteur on Human Rights Defenders in Africa. The Special Rapporteur’s mandate includes seeking, receiving, examining, and acting upon information regarding human rights defenders in Africa; cooperating and engaging in dialogue with Member States, national, regional and international mechanisms of protection of human rights defenders, human rights defenders and other stake holders; developing and recommending effective strategies to better protect human rights defenders; and promoting the implementation of the UN Declaration on Human Rights Defenders in Africa. In order to fulfill its mandate, the Special Rapporteur often engages civil society organizations working on human rights in Member States.
C. Civil Society Participation
The AU has been criticized for the limited access it grants to civil society organizations. According to an audit report completed by an independent high level panel commissioned by the AU, “[D]espite stated commitment from all policy organs of the African Union; the Panel finds that the involvement of African citizens, civil society organizations, and private sector bodies is still at a nascent stage.” (Audit Report (2007), ¶194) This section considers the available avenues for civil society participation:
1) AU Observer Status
CSOs may secure Observer Status at the AU through the procedure established by the Criteria for Granting Observer Status and for a System of Accreditation within the AU. The Criteria establishes the requirements and procedure for granting AU Observer Status to NGOs and the accreditation procedure for Non-African States and International Organizations at the AU. An NGO granted Observer Status under the Criteria may participate in the meetings (including in closed meetings upon invitation and with a chance to take the floor with authorization) of the AU and its organs on matters of their interest and may have access to unrestricted AU documents.
To be eligible for Observer Status, NGOs must, among other criteria, derive at least two-thirds of their basic resources from membership contributions. In light of the difficulty in generating such resources, such eligibility requirements serve as a real barrier in attaining Observer Status. Tellingly, the only entities that have been granted Observer Status or accreditation by the AU since 2005 are foreign states and intergovernmental organizations including UN agencies and programs. No NGO that operates solely in a Member State has been granted Observer Status or accreditation. Consequently, the AU may be reconsidering the criteria for granting Observer Status. (See Decision on the Application by Lions Club International for Accreditation with the AU Doc. EX.CL/212 (VIII).
2) The ECOSOCC
Potentially the most promising avenue for CSOs to participate in the AU is through the Economic, Social and Cultural Council (ECOSOCC). ECOSOCC is an advisory organ of the AU established by Article 5 of the Constitutive Act and specifically designed to give CSOs a voice in AU decision-making processes. Its objectives include promoting dialogue and partnership between African governments and their peoples and among the African people themselves; promoting the participation of African CSOs in programs and activities of the AU and building their capacity; and promoting human rights, good governance, and the rule of law. Currently, the ECOSOCC is involved in restructuring the framework of the AU-EU partnership.
The ECOSOCC ultimately is to be comprised of 150 CSOs representing different sectors and professional organizations within member states which form its General Assembly, a 15-member standing committee, 10 sectoral cluster committees, and a 5-person credentials committee. The requirements for CSO membership are found in the STATUTES OF THE ECONOMIC, SOCIAL AND CULTURAL COUNCIL OF THE AFRICAN UNION. Membership in ECOSOCC requires an organization to receive at least 50% of its resources from member contributions. As in the case of Observer Status, such a criterion prevents most NGOs from obtaining membership in ECOSOCC. Some, including former interim ECOSOCC presiding officer Maathai Wangari, have criticized the funding requirements as unduly restrictive. However, current presiding officer Akere Muna has stated that he considers the requirement worthwhile “to avoid 'strings attached' conditions from external donors.” Others say that, despite stringent requirements, official acknowledgement of a role for civil society within the AU is a victory in itself. For additional information on requirements, see ECOSOCC Statutes and the draft CSO application form.
Although its Interim General Assembly was first convened in March 2005, ECOSOCC was not officially launched and its Credentials Committee was not elected until September 2008. In January 2010, the process of election of CSOs was completed in most member states and the Permanent General Assembly of the ECOSOCC was poised to fully assume its role. But the 20 seats allocated by the statutes of ECOSOCC to the Diaspora are yet to be filled. In December 2009, the Standing Committee discussed a framework for the operationalization of the cluster committees, the key operational mechanisms of the ECOSOCC to formulate opinions and provide input into the policies and programs of the AU. The constitution of membership and the development of activities of the different clusters and their rules of engagement with other organs and units of the AU were in the process of completion. In the meantime, the Peace and Security Cluster, the Political Affairs Cluster, Cross Cutting Cluster and the Youth Affairs Cluster, have jump-started the process of Cluster operationalization by collaborating with the AU Commission and other relevant bodies.
3) Pre-Summit Meetings and Summit Representation
The African Citizens’ Directorate (CIDO) was established in 2005 to liaise with CSOs on the continent, reach out to the African Diaspora, and function as an interim secretariat for ECOSOCC. CIDO is mandated to facilitate civil society contributions to the decision-making processes of the AU, including the Summits. It has also been instrumental in the establishment of the ECOSOCC.
CSOs must meet certain selection criteria in order to participate in CIDO’s pre-Summit meetings. CIDO’s selections are based on the theme of the Summit (the most important criterion), the availability of resources, regional balance, social diversity to reflect the various social and professional groups, the scope of representation of a CSO, the location of the Summit (to enhance the profile of CSOs in the area while reducing cost), and considerations of gender balance and representation of disadvantaged groups. This selection process has also been criticized for being unpredictable and unduly subjective. (Audit Report, para 205).
Summit Representation - ad hoc accreditation
Local as well as international NGOs may further be represented at a Summit of the AU through ad hoc observer status or accreditation that is processed through CIDO. CIDO receives applications from interested CSOs well before the dates of the Summit and decisions are made for the very limited slots based among others on relevance to the Summit theme, timing of application, role envisaged in Summit, and history of association with AU. This is in addition to 5 CSOs representing the ECOSOCC, as an organ of the AU, at the Summits and others that have special summit representation facilities by virtue of separate agreement with the AU.
4) Observer Status at Human Rights Bodies
CSOs may also participate in activities relating specifically to human rights by gaining Observer Status at the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child.
5) Observer Status at the Commission
The African Commission is the one organ within the AU where the participation of CSOs has been quite strong. In 1999, the Commission adopted Criteria for Granting and Enjoying Observer Status to establish the accreditation procedure, and rules governing organizations with Observer Status. NGOs with Observer Status are invited to public and sometimes closed sessions of the Commission; have access to Commission documents, provided the documents deal with issues of relevance to the organization, and are not of a confidential nature; and may request the inclusion of issues on the provisional agenda of the Commission.
There are 412 NGOs with Observer Status at the Commission. They have submitted complaints on behalf of African citizens to the Commission, provided information necessary for the examination of states’ reports, and participated in the work of special mechanisms. For example, an NGO Forum is held before Commission sessions where Commissioners take part. There are growing Networks of sub-regional Human Rights Defenders that work actively with the Commission.
6) Observer Status at African Committee of Experts on the Rights and Welfare of the Child
The Committee of Experts is at an early stage of operation. However, CSOs have been involved in its meetings since it began work in 2002. CSOs have been allowed to participate in its public sessions. Specifically, NGOs with information regarding State reports have been permitted to submit alternative reports. In order to formalize collaboration with CSOs, the Expert Committee adopted Criteria for Granting Observer Status to NGOs and Associations in 2007 (see annexure to (2007) 7 African Human Rights Law Journal at 559-562).
An NGO or Association with Observer Status may participate in the meetings of the Expert Committee (closed meetings may be attended upon invitation), have access to unrestricted documents, and may request the inclusion of an issue on the Expert Committee’s agenda. The Committee had difficulty granting many applications for observer status because of some stringent requirements in its Criteria, which it amended in November 2009. It has now granted observer status to a number of NGOs.
Reports
News and Additional Resources
Upcoming Events
53rd Ordinary Session of the African Commission on Human and Peoples' Rights, 9 - 23 April 2013, Banjul, The Gambia
21st Ordinary Session of the Summit of the African Union, 19 - 27 May 2013 (under the theme “Pan Africanism and African Renaissance”), Addis Ababa, Ethiopia
General News
Ethiopia’s Prime Minister Hailemariam Desalegn elected by African heads of state as chairman of the African Union (February 2013)
The 47-year-old Hailemariam, who became leader of Ethiopia after the death from illness of Prime Minister Meles Zenawi in August, will serve a one-year term as head of the African Union, or AU. The 54-member continental bloc’s assembly met in Ethiopia’s capital, Addis Ababa. The AU faces several security challenges on the continent, including rebellions in Mali, eastern Democratic Republic of Congo and the Central African Republic, and continuing tension between South Sudan and Sudan which have failed to implement agreements on borders.
African elections succeed when civil society is involved (October 2012)
While Africa is clearly becoming more democratic, elections there don't always lead to more democracy. For ballots to serve their intended purpose, politicians and political parties must compete equally for power and accept the results, elections must be peaceful and intimidation-free and the scores must be kept by independent bodies. But first and foremost, elections succeed when civil society is actively involved.
Joint NGO letter expresses concern about the candidacy of Sudan and Ethiopia to the UNHRC (July 2012)
In a Joint NGO letter on the endorsement by the African Union of candidates to the UN Human Rights Council, NGOs expressed concern by the "decision of the African Group in New York to endorse the candidacies of Sudan and Ethiopia in the upcoming UN General Assembly elections for membership in the Human Rights Council within a closed slate that does not allow for a competitive vote."
African civil society raft demands to AU (July 2012)
Prior to the 19th African Union (AU) Head of State and Governments Summit in Addis Ababa, Ethiopia, African CSOs have urged the Summit to adequately address issues of international criminal justice.
NGO forum preceding the 51st ordinary session report of the Working Group on Torture, Death Penalty and Prisons and Conditions of Detention in Africa (May 2012)
The Working Group on Torture, Death Penalty and Prisons and Conditions of Detention in Africa
issued its report and made recommendations on these issues to the African Commission on Human and Peoples' Rights.
Special Rapporteur on Women's Rights in Africa to the African Union Commission salutes NGO forum (April 2012)
The African Center for Democracy and Human Rights Studies (ACDHRS) officially opened its NGO forum bringing together human rights defenders and civil society organizations from across the world to brainstorm issues concerning human rights in Africa.
The Special Rapporteur on Women's Rights in africa at the Africa Union Commission, Soyata Maiga, saluted the existence of the NGO forum, describing it as a platform where representatives of governments, African Union organs, NGOs in the field of human rights and human rights commissioners exchange ideas and share experiences on the human rights situation of the continent and the world at large.
African Charter on Democracy, elections and governance enters into force (February 2012)
The African Charter on Democracy, Elections and Governance entered into force on 15 February 2012. The Charter emphasizes the importance of pre-election observation, electoral observation missions and special advisory missions as well as the need to create a conducive environment for independent and impartial national monitoring or observation mechanisms. It also underscores the obligation to ensure the independence of the judiciary, the promotion of best practices in the management of elections for purposes of political stability and good governance, and the obligation to hold transparent and free and fair elections.
Civil society organizations discuss developments affecting criminal justice in Africa (January 2012)
Before the 18th Ordinary Session of the Assembly of the African Union (AU), in Addis Ababa, Ethiopia, on January 29-30, 2012, 34 civil society organizations issued a letter to African state parties to the ICC. The CSOs noted that all situations currently under investigation at the JCC are in Africa and recommended that the AU and ICC strengthen dialogue, reconsider creating an ICC dialogue office in Addis Ababa, and that member states uphold their obligations under the ICC statute.
Press Release on ICC Decisions of the Pre-Trial Chamber I on Malawi and Chad (January 2012)
The African Union Commission has noted with grave concern the decisions of the Pre-Trial Chamber I of the International Criminal Court of 12 and 13 December 2011, respectively, on the alleged failure of the Republic of Malawi and the Republic of Chad to comply with the cooperation requests issued by the ICC with respect to the arrest and surrender of President Omar Al Bashir of the Republic of Sudan.
Human rights situation in the Democratic Republic of Congo (January 2012)
The African Commission strongly condemns the acts of intolerance, violence and assassinations which marred the electoral campaign leading up to the 28 November 2011 election and following the announcement of the Provisional Results by the National Independent Electoral Commission (NIEC) on 9 December 2011.
The African Court on Human and Peoples’ Rights held its first session out of Tanzania (January 2012)
The Court held its 23rd Ordinary Session, at the La Palm Royal Beach Hotel,in Accra, Ghana, from 5 - 16 December 2011, with the assistance and cooperation of the Government of the Republic of Ghana. It also organized a sensitization seminar in collaboration with the government of Ghana and the Ghana Bar Association in 12 December.
News Archive
Summary report of the NGOs forum (November 2011)
African leaders agree a common position on aid, development (October 2011)
Decision on children of Nubian descent in Kenya published (September 2011)
African Union summit struggles to raise funds to combat Horn of Africa crisis (August 2011)
The African Commission on Human and Peoples’ Rights meeting at its 49th Ordinary Session (May 2011)
A call for comments on the draft Access to Information Model Law in Africa (May 2011)
The African Court on Human and Peoples’ Rights orders for Provisional Measures against Libya (March 2011)
Resolution passed at the 16th Ordinary Session of the Assembly of the Union (February 2011)
Statement by the Chairperson of the African Union Commission on the Situation in Tunisia (January 2011)
Human rights activists critical of Obiang AU nomination (January 2011)
African Union summit agenda skips Egypt, Tunisia (January 2011)
AU’s relevance and prominence on the international stage is growing despite despotic leadership (January 2011)
The foregoing information was collected by the ICNL NGO Law Monitor partner organization.