A Conscientious Objector's Guide to the International Human Rights System by http://co-guide.org is licensed under http://creativecommons.org/licenses/by-nc/2.0/uk/deed.en_US.
A Conscientious Objector's Guide to the International Human Rights System
Africa: Overview
In Africa there are two regional human rights systems potentially of interest to conscientious objectors to military service: the African Union and especially its African Commission on Human and Peoples' Rights and the African Committee of Experts on the Rights and Welfare of the Child as bodies covering the entire African continent, and the Economic Community Of West African States (ECOWAS) and its Community Court of Justice as a sub-regional mechanism.
The African Union grew out of the Organisation for African Unity (OAU), and was founded in 1999. One of its objectives is to “promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments”. While one of the organs of the African Union is the African Court on Human and Peoples' Rights, individuals can only bring cases if a State party has made a declaration that this is the case. As of April 2012, only five states had made such a Declaration. Those countries are Burkina Faso, Ghana, Malawi, Mali, and Tanzania. Therefore, the African Court is presently not included in this guide. More information on the African Court on Human and Peoples' Rights is available at http://www.african-court.org.
A list of member states of the African Union is available at http://www.au.int/en/member_states/countryprofiles.
While the Economic Community Of West African States (ECOWAS) is mainly a organisation for economic cooperation, its Community Court of Justice has jurisdiction to determine cases of violations of human rights that occur in any Member State of ECOWAS.
A list of member states of ECOWAS is available at http://www.courtecowas.org/site/index.php?option=com_content&view=articl....
Other sub-regional institutions are less relevant to human rights, and especially to conscientious objection to military service.
At the time of writing, the East African Court of Justice (EACJ) of the East African Community has no jurisdiction over human rights. The Council of the East African Community, however, might extend the Court's jurisdiction at a later date. More information on the East African Court of Justice can be found at http://www.eacj.org. Information on the East African Community and a list of member states can be found at http://www.eac.int/.
The Court of Justice of the Common Market for Eastern and Southern Africa (COMESA) does not have jurisdiction over human rights issues, as the treaty establishing COMESA does not include human rights. Information on COMESA is available at http://about.comesa.int.
The Southern African Development Community Tribunal (SADC Tribunal) has some jurisdiction over human rights, although it is not a human rights court per se. The Tribunal has ruled that it does have jurisdiction to entertain human rights matters as one of the principles of the Southern African Development Community is the observance of human rights, democracy and rule of law. More information on the SADC Tribunal is available at http://www.sadc-tribunal.org.
To our knowledge none of the African human rights systems has so far been used to advance the right to conscientious objection to military service in an African country. There is no established standard relating to conscientious objection under any of the African system, so they should be used with caution. If you want to engage in standard setting in one of the African human systems, we recommend that you get in touch with one of the organisations listed below:
A Conscientious Objector's Guide to the International Human Rights System
The African Commission on Human and Peoples' Rights: overview
The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument, and established the African Commission on Human and Peoples' Rights.
Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR.
Other potentially relevant provisions of the ACHPR are article 2 (non-discrimination), article 5 (freedom from torture), article 7 (right to fair trial), article 10 (right of association), and article 16 (right to education), among others. The full text of the ACHPR is available at http://www.achpr.org/instruments/achpr/.
The African Commission is officially charged with three major functions:
- the protection of human and peoples' rights
- the promotion of human and peoples' rights
- the interpretation of the African Charter on Human and Peoples' Rights
It consists of 11 members elected by the AU Assembly from experts nominated by the state parties to the Charter.
Similar to the Treaty bodies of the United Nations and the Human Rights Council, the African Commission has established several procedures to monitor and protect human rights, such as:
- a State reporting procedure
- a Communication procedure
- Special Mechanisms
The Special Mechanisms also undertake country visits to explore and discuss the human rights situation in a specific country.
Relevant Special Mechanisms might be:
- The Special Rapporteur on Freedom of Expression and Access to Information (http://www.achpr.org/mechanisms/freedom-of-expression/);
- The Special Rapporteur on Human Rights Defenders (http://www.achpr.org/mechanisms/human-rights-defenders/); and
- The Committee for the Prevention of Torture in Africa (http://www.achpr.org/mechanisms/cpta/).
An overview of the Special Mechanisms is available at http://www.achpr.org/mechanisms/.
The present Commissioner is Catherine Dupe Atoki (since 2007).
Contact Details:
African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District
Western Region
P.O. Box 673 Banjul
The Gambia
Tel: +220-441 05 05, 441 05 06
Fax: +220-441 05 04
E-mail: au-banjul@africa-union.org
Website: http://www.achpr.org/
Legal Bases
| Title | Entered info force | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| African Charter on Human and Peoples' Rights | 21/10/1986 | ||||||||||||||||
|
The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument. Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR. Other potentially relevant provisions of the ACHPR are article 2 (non-discrimination), article 5 (freedom from torture), article 7 (right to fair trial), article 10 (right of association), article 16 (right to education), among others. |
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None
A Conscientious Objector's Guide to the International Human Rights System
African Commission on Human and Peoples' Rights: State Reporting Procedure
Summary
Under the ACHPR, states are required to submit reports to the African Commission on measures taken to ensure that the rights enshrined in the African Charter are being implemented. The state reporting procedure is considered as a dialogue, in which the state concerned and the African Commission exchange their views. The state report is published by the African Commission prior to the session, to give civil society the opportunity to comment on the report of the state.
The state report is reviewed in public, and following the dialogue the African Commission will issue "Concluding Remarks/Observations" to the state concerned. The state's report and the Concluding Remarks/Observations are transmitted to the AU Assembly of Heads of State and Government, and are only later published by the African Commission.
So far, conscientious objection to military service has not been addressed by the African Commission.
1. Likely results from the use of this mechanism
During the examination of State reports, the African Commission also draws on information provided by NGOs, and can raise issues based on information from NGOs. It might then include the issue in its Concluding Observations and make recommendations to the State concerned. The Concluding Observations will be transmitted to the State concerned and form part of the African Commission's Activity Report.
2. To which States does this mechanism apply?
The mechanism applies to those States who have ratified the African Charter on Human and Peoples' Rights.
3. Who can submit information?
According to rule 74 of the Rules of Procedure of the African Commission, “any interested party wishing to contribute to the examination of the Report and the human rights situation in the country concerned” can send in a contribution. This is not limited to NGOs with observer status with the African Commission.
4. When to submit information?
Information has to be submitted to the African Commission at least 60 days before the examination of a State's report. However, as the Secretariat of the African Commission has to transmit a list of questions to the State concerned at least six weeks before the session, it is advisable to submit information at least 3-4 months before examination of a State report.
Information on upcoming sessions of the African Commission is available at http://www.achpr.org/sessions/. Information on specific States, including State reports, Concluding Observations by the African Commission, and NGO reports, is available at http://www.achpr.org/states/. However, on the website it often says “Concluding Observations: available”, without giving a link.
5. Any special advice for making a submission to this mechanism?
Although there is no set format for NGO reports, it is useful to organise the structure of the report around the rights enumerated in the African Charter on Human and Peoples ́ Rights. It is important to make reference to the State report, or to the lack of a state report, and to comment on the information provided by the State.
Although the framework of reference for the African Commission is the African Charter on Human and Peoples' Rights, it might be useful to refer to the standards and jurisprudence developed by other human rights systems in relation to conscientious objection to military service, as this issue has so far not been dealt with by the African Commission.
It can be useful to draft suggested questions to be posed by commissioners, organised by theme and relevant charter provisions and include these in the NGO report.
Lobbying before and during the session
It is advisable to not only submit a report, but to engage with the African Commission prior, during, and after the consideration of a State's report. It can be useful to identify the commissioner responsible for your country and to seek to forge a collaborative relationship and engagement throughout the process. Under normal circumstances, the commissioner responsible for promotional activities in the State concerned will also be the rapporteur to lead the discussion on the report.
NGOs may also take advantage of the ability of organisations with observer status to make comments on other agenda items to address the content of a particular State party’s report. Many issues raised by the reports can be addressed either through the agenda item on the general situation of human rights in Africa or in one of the thematic agenda items.
Formal and informal NGO briefings
NGOs may also want to consider the organisation of side events or private briefings for commissioners as alternative fora for engaging in discussion on the content of State reports.
6. Special rules of procedure or advice for making a submission?
No
7. What happens to the submission (how long will it take)?
The African Commission examines 3-4 State reports during each of its regular sessions. The Secretariat of the Commission prepares a list of questions, based on information received by the State and from other sources, including NGOs. This list of questions will be transmitted to the State concerned at least six weeks before the session, together with a request to send a “highly qualified official” to the session.
The consideration of the State's report happens during a public meeting of the African Commission, in the form of a dialogue with the representative(s) of the State concerned. Following the dialogue, the Commission meets in a closed session to discuss its comments and recommendations.
The state's report and the Concluding Remarks/Observations are transmitted to the AU Assembly of Heads of State and Government, and are only later published by the African Commission.
8. History of the use of this mechanism
This mechanism has so far not been used for conscientious objection to military service.
Contact Details:
African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District
Western Region P.O. Box 673 Banjul
The Gambia
Tel: +220-441 05 05, 441 05 06
Fax: +220-441 05 04
E-mail: : au-banjul@africa-union.org
Website: http://www.achpr.org/
Further Reading:
- African Commission on Human and Peoples' Rights: Rules of Procedure of the African Commission on Human and Peoples' Rights, 2010, http://www.achpr.org/files/instruments/rules-of-procedure-2010/rules_of_..., accessed 30 August 2012
- African Commission on Human and Peoples' Rights: Information Sheet No 4: State Reporting Procedure, 2002, http://old.achpr.org/english/information_sheets/ACHPR%20inf.%20sheet%20N..., accessed 30 August 2012
- Institute for Human Rights and Development in Africa/International Service for Human Rights: A Human Rights Defenders' Guide to the African Commission, 2012, http://www.ishr.ch/document-stuff/browse-documents/doc_download/1432-a-h..., accessed 30 August 2012
- Conectas Human Rights: Road map for civil society engagement: State reporting procedure of the African Commission on Human and Peoples’ Rights, September 2011, http://www.conectas.org/arquivos/Conectas_Roadmap_AfricanCommission_ENG.pdf
Legal Bases
| Title | Entered info force | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| African Charter on Human and Peoples' Rights | 21/10/1986 | ||||||||||||||||
|
The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument. Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR. Other potentially relevant provisions of the ACHPR are article 2 (non-discrimination), article 5 (freedom from torture), article 7 (right to fair trial), article 10 (right of association), article 16 (right to education), among others. |
|
Concluding Remarks/Observations
None
Partner Organisations
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A Conscientious Objector's Guide to the International Human Rights System
African Commission on Human and Peoples' Rights: Communication Procedure
Summary
Under Articles 55 and 56 of the African Charter on Human and Peoples' Rights, everyone can submit information or communications to the African Commission. By submitting a communication to the African Commission, victims of human rights abuses who for one reason or another could not obtain justice in their countries after exhausting all the available legal remedies may obtain help. A case that has been submitted to the African Commission should not at the same time be submitted to another international human rights system.
Before a decision on the merits of the complaint, the African Commission may request from the State concerned to take provisional measures to prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands.
After investigating a complaint, the African Commission makes a recommendation to the State(s) concerned, to ensure that the occurrences of human rights violations are investigated, that the victim(s) is compensated (if necessary) and that measures are taken to prevent the recurrence of human rights violations. The African Commission also offers its “Good Office” to achieve a friendly settlement of the case.
The African Commission's recommendations are submitted to the Assembly of Heads of State and Government of the African Union for adoption.
All measures taken by the African Commission remain confidential, unless the Assembly decides otherwise. However, a report will be published following the adoption by the Assembly.
1. Likely results from use of mechanism
Following the submission of a communication, the African Commission will first take a decisions on admissibility. If a complaint is found admissible, the African Commission will investigate the complaint and take a decision on the merits of the case, and make recommendations to the State concerned. This may include compensation to the victim(s) of human rights violations and measures to prevent a recurrence.
To prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands, the African Commission may request from the State concerned to take provisional measures before a decision on the merits of the complaint.
Besides a decision on the merits, the African Commission is also available to achieve of friendly settlement of the case.
The African Commission's recommendations are submitted to the Assembly of Heads of State and Government of the African Union for adoption.
All measures taken by the African Commission remain confidential, unless the Assembly decides otherwise. However, a report will be published following the adoption by the Assembly.
2. To which States does this mechanism apply?
This mechanism applies to all States parties to the African Charter on Human and Peoples' Rights (ACHPR). An overview of the status of ratification of the African Charter is available at http://www.achpr.org/instruments/achpr/ratification/.
A complaint can be brought against any State which had jurisdiction over the victim at the time of the violation, and which has at the same time ratified the African Charter.
3. Who can submit information?
Under article 55 of the African Charter, the African Commission can receive communications from anyone, including individuals or NGOs.
While the complainant can request to remain anonymous, a complaint cannot be submitted anonymously. It needs to include name and address of the complainant and needs to be signed.
4. When to submit information?
A complaint should be submitted to the African Commission within a reasonable period from the time local remedies are exhausted. After the exhaustion of local remedies, or where the complainant realises that such remedies shall be unduly prolonged, he or she can submit the complaint to the African Commission immediately. The African Charter does not give a time limit but talks of reasonable time. It is therefore always advisable to submit a complaint as early as possible.
5. Special rules of procedure or advice for making a submission?
How to write a complaint:
The communication procedure of the African Commission is straightforward, and does not require legal representation. A complaint can be brought by the victim of alleged human rights violations, or by another person acting on his or her behalf, or any group of people, including NGOs.
For a complaint to be admissible, it needs to meet the following requirements:
- The name, nationality, and signature of the person or persons filing it, or in the case of NGOs the name(s) and signature(s) of the legal representatives;
- whether the complainant wishes his or her identity to be withheld from the State concerned;
- an address for correspondence, possibly including fax and/or email;
- a detailed description of the alleged human rights violations, specifying date, place, and nature of the alleged violations;
- the name(s) of the State(s) alleged to have violated the African Charter;
- any steps taken to exhaust domestic remedies, or an explanation why an exhaustion of domestic remedies would be unduly prolonged or ineffective;
- an indication that the complaint has not been submitted to another international settlement proceeding.
It is advisable to refer to the provisions of the African Charter that are alleged to have been violated, although this is not strictly necessary. Infosheet No 2 of the African Commission includes guidelines for the submission of communications (see http://www.achpr.org/files/pages/communications/guidelines/achpr_infosheet_communications_eng.pdf).
Emergency procedures:
A communication should indicate if the victim's life, personal integrity or health is in imminent danger. In such an emergency, the African Commission has the power to adopt provisional measures, urging the State concerned not to take any action that will cause irreparable damage to the victim until the case has been heard by the African Commission. The African Commission can also adopt other urgent measures as it sees fit.
6. What happens to the submission (how long will it take)?
Once a communication has been submitted to the Secretariat of the African Commission, it will be registered and the Secretariat will acknowledge receipt of the communication.
As a first step, the African Commission has to be “seized” by the communication, which means it decides to deal with it, at the latest during the first session following receipt of the communication. After the African Commission has been seized by a communication, the complainant and the State party are informed, and have three months to comment on the communication, and on its admissibility. At the next session of the African Commission, a decision will be taken as to the admissibility of the complaint.
After a complaint has been declared admissible, the African Commission will either seek to obtain a friendly settlement, or decide on the merits of the case. If a friendly settlement is reached, a report containing the terms of the settlement is presented to the African Commission at its session. This will automatically bring consideration of the case to an end.
If there is no friendly settlement, the Secretariat of the African Commission prepares a draft decision on the merits taking into account all the facts at its disposal. This is meant to guide the Commissioners in their deliberations. During the session of the African Commission, the parties are liberty to make written or oral presentations. Some States send representatives to the African Commission's sessions to refute allegations made against them. NGOs and individuals are also granted audience to make oral presentations. However, there is no requirement to make oral presentations, or to be present at the session – written submissions are sufficient.
Finally, the African Commission will decide whether their has been a violation of the African Charter or not. If it finds on a violation of the Charter, it will make recommendations to the State concerned.
If a violation is found, the recommendations of the African Commission will include the required action to be taken by the State party to remedy the violation.
The mandate of the African Commission is quasi-judicial and as such, its final recommendations are not in themselves legally binding on the States concerned.
These recommendations are included in the Commissioner's Annual Activity Reports which are submitted to the AU Assembly of Heads of State and Government in conformity with article 54 of the Charter. If they are adopted, they become binding on the States parties and are published.
7. History of the use of this mechanism
To the knowledge of the authors of this guide, this mechanism has so far not been used in a case of conscientious objection to military service.
It is therefore highly recommended that you get in touch with the authors if you want to engage in standard setting with the African Commission.
Contact Details:
African Commission on Human and Peoples' Rights
PO Box 673
Banjul
The Gambia
Tel: +220-441 05 05, 441 05 06
Fax: +220-441 05 04
E-mail: : au-banjul@africa-union.org
Website: http://www.achpr.org/
Further Reading:
- African Commission on Human and Peoples' Rights: Rules of Procedure of the African Commission on Human and Peoples' Rights, 2010, http://www.achpr.org/files/instruments/rules-of-procedure-2010/rules_of_..., accessed 30 August 2012
- African Commission on Human and Peoples' Rights: Guidelines for submission of communications, http://www.achpr.org/files/pages/communications/guidelines/achpr_infoshe..., accessed 30 August 2012
- African Commission on Human and Peoples' Rights, Information Sheet No. 3: Communication Procedure, http://www1.umn.edu/humanrts/africa/achpr-infosheet3.html, accessed 3 October 2012
Institute for Human Rights and Development in Africa/International Service for Human Rights: A Human Rights Defenders' Guide to the African Commission, 2012, http://www.ishr.ch/document-stuff/browse-documents/doc_download/1432-a-h..., accessed 30 August 2012 - Conectas Human Rights: Road map for civil society engagement: State reporting procedure of the African Commission on Human and Peoples’ Rights, September 2011, http://www.conectas.org/arquivos/Conectas_Roadmap_AfricanCommission_ENG.pdf
Legal Bases
| Title | Entered info force | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| African Charter on Human and Peoples' Rights | 21/10/1986 | ||||||||||||||||
|
The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument. Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR. Other potentially relevant provisions of the ACHPR are article 2 (non-discrimination), article 5 (freedom from torture), article 7 (right to fair trial), article 10 (right of association), article 16 (right to education), among others. |
|
Recommendations adopted
None
Partner Organisations
A Conscientious Objector's Guide to the International Human Rights System by http://co-guide.org is licensed under http://creativecommons.org/licenses/by-nc/2.0/uk/deed.en_US.
Built by
Partner Organisations
A Conscientious Objector's Guide to the International Human Rights System by http://co-guide.org is licensed under http://creativecommons.org/licenses/by-nc/2.0/uk/deed.en_US.
Built by
A Conscientious Objector's Guide to the International Human Rights System
African Committee of Experts on the Rights and Welfare of the Child: State Reporting Procedure
Web Link:
Summary
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) draws its mandate from articles 32-46 of the African Charter on the Rights and Welfare of the Child (ACRWC). It was established in July 2001. Part of the mandate of the ACERWC is the monitoring the implementation of the ACRWC. To do so, the ACERWC receives and examines the reports submitted by State parties on the measures they have adopted to give effect to the provisions of the Charter as well as the progress achieved in the exercise of the rights recognised (article 43). Initial State reports were supposed to be submitted within two years of entry into force of the ACRWC, and periodic reports every three years thereafter. An overview of the status of state reports in available on the website of the ACERWC at http://acerwc.org/state-reports/. The due dates of initial reports are available at http://www.africa-union.org/child/Due%20date%20of%20Submission%20of%20Re....
The ACERWC examines a State report in a public plenary session, based on information included in the report of the State, and other information received by NGOs. Following the examination of the State report, the Committee of Experts produces Concluding Observations and Recommendations, which should be implemented by the State party. The Concluding Observations and Recommendations are also included in the report of the ACERWC to the AU Assembly of Heads of State and Government.
So far, conscientious objection to military service has not been addressed by the African Committee of Experts on the Rights and Welfare of the Child. The issue of recruitment of minors has only briefly been addressed during the examination of the report of Uganda.
1. Likely results from the use of this mechanism
During the examination of State reports, the African Committee of Experts on the Rights and Welfare of the Child also draws on information provided by other AU agencies and by NGOs, and can raise issues based on information received from NGOs. The ACERWC might then include the issue in its Concluding Observations and make recommendations to the State concerned. The Concluding Observations and Recommendation will be transmitted to the State concerned and form part of the Committee of Experts' report to the AU Assembly of Heads of State and Government.
2. To which States does this mechanism apply?
The mechanism applies to those States that have ratified the African Charter on the Rights and Welfare of the Child. A table of ratifications of the ACRWC is available at http://acerwc.org/ratifications/.
3. Who can submit information?
According to rule 69 of the Rules of Procedure of the ACERWC, “the Committee may invite the …. NGOs and CSOs, in conformity with Article 42 of the Children's Charter, to submit to it reports on the implementation of the Children's Charter and to provide it with expert advice in areas falling within their scope of activity”
4. When to submit information?
Once a State party has submitted its State report to the ACERWC, the report is a public document and will be made available on the website of the ACERWC at http://acerwc.org/state-reports/. It is important to submit an NGO report – either a joint NGO report, or an individual NGO report highlighting specific issues – not too long after the publication of the State report, but certainly before the Pre-Session Working Group that will consider the State report.
5. Any special advice for making a submission to this mechanism?
The ACERWC has so far not issued guidelines for NGO reports. However, the Committee of Experts has elaborated guidelines and main themes for State reports, and it is useful to structure an NGO report around the same themes (or some of them). The themes are:
- General measures of implementation of the ACRWC
- Definition of the child
- General principles
- Civil rights and freedoms
- Family environment and alternative care
- Health and welfare
- Education, leisure and cultural activities
- Special protection measures
- Responsibilities of the child.
Issues of conscientious objection to military service and related discrimination, and of recruitment, can be raised under the ACRWC, especially in relation to article 9 (Freedom of Thought, Conscience, and Religion), Article 11 (Education), and Article 22 (Armed Conflicts) of the Charter. Article 22 of the ACRWC states that States “shall … refrain in particular from recruiting any child”.
It can be useful to draft suggested questions to be posed by the Committee of Experts, organised by theme and relevant charter provision and include these in the NGO report.
Participation in the pre-session Working Group
Although the pre-session Working Group meets in private, the Committee of Experts can invite representatives of NGOs with Observer Status at the ACERWC to participate in it. It is therefore important to state in the cover letter when submitting the NGO report that you wish to participate in the pre-session Working Group. However, this is not a guarantee that you will be able to do so. It is also possible to lobby members of the Committee of Experts informally outside of the formal sessions of the pre-session Working Group.
Lobbying before and during the session
It is advisable to not only submit a report, but to engage with the African Committee of Experts on the Rights and Welfare of the Child prior, during, and after the consideration of the State's report. Following receipt of the State's report, the Committee of Experts appoints a Rapporteur from among its members, and it can be useful to engage with the Rapporteur responsible for your State's report, who will examine the State's report and information submitted by NGOs, and prepare a list of issues.
NGOs with Observer Status are allowed to attend the public meeting of the Committee of Experts, but are not allowed to speak.
6. What happens to the submission (how long will it take)?
After the ACERWC receives a State's report, it will be published on its website at http://acerwc.org/state-reports/. The Committee of Experts will also assign a Rapporteur from among its members, who is responsible for the examination of the State's report and other information received, including information submitted by NGOs. The Rapporteur will draft a list of issues for discussion at the pre-session Working Group, which will decide on the list of issues.
The examination of the State's report happens during a public session of the Committee of Experts in the form of a dialogue with the representative(s) of the State concerned. NGOs with Observer Status can attend the session, but are not allowed to speak. Following the dialogue, the Committee of Experts meets in a closed session to discuss its Concluding Observations and Recommendations.
The Concluding Observations and Recommendations are transmitted to the State concerned, and are included in the report of the Committee of Experts to the AU Assembly of Heads of State and Government. They are also published on the website of the ACERWC.
7. History of the use of this mechanism
This mechanism has so far not been used for conscientious objection to military service. Issues of recruitment of minors have so far not been raised systematically by the ACERWC, although they were raised during the examination of the report of Uganda, and in the Concluding Observations and Recommendations on Uganda.
Contact Details:
The African Committee of Experts on the Rights and Welfare of the Child
Commission of the African Union
African Union Headquarters
Social Affairs Department
P.O. Box 3243
W21 K19 Addis Ababa
Ethiopia
Tel. +251-1-551 35 22
Fax +251-1-553 57 16
Email cissem@africa-union.org
Website: http://acerwc.org/
Further Reading:
- African Committee of Experts on the Rights and Welfare of the Child: Rules of procedure, 2004, http://acerwc.org/wp-content/uploads/2011/03/ACERWC-Rules-of-procedure-E..., accessed 10 October 2012
- African Committee of Experts on the Rights and Welfare of the Child: Procedure for the Consideration of State Party reports, 2008, http://www.acerwc.org/wp-content/uploads/2012/02/ACERWC-Procedure-for-St..., accessed 10 October 2012
- African Committee of Experts on the Rights and Welfare of the Child: Criteria for granting observer status in the African Committee of Experts on the Rights and Welfare of the Child to Non-Governmental Organisations (NGOs) and Associations, 2011, http://acerwc.org/wp-content/uploads/2011/03/ACERWC-Criteria-for-Oberser..., accessed 10 October 2012
- Save the Children Sweden/Plan: Advancing Children’s Rights. A Guide for Civil Society Organisations on how to engage with the African Committee of Experts on the Rights and Welfare of the Child, 2009, http://www.crin.org/docs/Advancing%20Children%27s%20Rights%20-%20CSO%20G..., accessed 10 October 2012
Legal Bases
| Title | Entered info force | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| African Charter on the Rights and Welfare of the Child | 29/11/1999 | ||||||||||||||
|
The African Charter on the Rights and Welfare of the Child guarantees the rights of children in those African countries that have ratified it. Especially relevant are: Article 9 (1) (Freedom of Thought, Conscience, and Religion)"Every child shall have the right to freedom of thought conscience and religion." Article 11 (Education)Article 22 (2) (Armed Conflicts)“States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.” |
|
Concluding Observations and Recommendations
| Title | Date |
|---|---|
| Recommendations and Observations sent to the Government of the Republic of Uganda | 28/03/2011 |
|
“Article 22 : ARMED CONFLICTS: |
|
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African Committee of Experts on the Rights and Welfare of the Child: Communication Procedure
Web Link:
Summary
Under Article 44 of the African Charter of the Rights and Welfare of the Child, any correspondence or any complaint from a State, individual or NGO denouncing acts that are prejudicial to the right or rights of the child shall be considered as communication. However, by 2011 the ACERWC had only received two communications, and had made a decision on one of these two.
A communication can be presented by individuals, including the child which has been a victim of a human rights violation or his/her parents of legal representatives, by witnesses, a group of individuals or by an NGO recognised by the African Union, a member State of the African Union, or by any institution of the United Nations system. A communication has to be in writing and cannot be submitted anonymously.
A communication can only be submitted after domestic remedies have been exhausted, and if the same issue has not been considered according to another investigation, procedure, or international regulation.
As an urgent measure, the Committee of Experts can make a request to the State party concerned to take provisional measures necessary to prevent any other harm to the child or children who would be victims of violations of the Charter.
After investigating a complaint, the Committee of Experts makes a recommendation to the State(s) concerned to ensure that measures are taken to prevent the recurrence of violations of the Charter.
1. Likely results from the use of this mechanism
Following the submission of a communication, the Committee of Experts will first take a decision on admissibility. If a complaint is found admissible, the Committee of Experts will investigate the complaint and take a decision on the merits of the case, and make recommendations to the State concerned. This may include compensation to the victim(s) of violations of the African Charter of the Rights and Welfare of the Child and measures to prevent a recurrence.
To prevent irreparable harm to the victim or victims of alleged violations of the ACRWC as urgently as the situation demands, the Committee of Experts may request from the State concerned to take provisional measures before a decision on the merits of the case, but after the complaint has been found admissible.
2. To which States does this mechanism apply?
The mechanism applies to those States that have ratified the African Charter on the Rights and Welfare of the Child, and have not entered a reservation to article 44. At the time of writing, Egypt is the only State party to the ACRWC that does not consider itself bound by article 44. A table of ratifications of the ACRWC is available at http://acerwc.org/ratifications/.
3. Who can submit information?
A communication can be presented by individuals, including the child which has been a victim of a human rights violation or his/her parents of legal representatives, by witnesses, a group of individuals or by an NGO recognised by the African Union, a member State of the African Union, or by any institution of the United Nations system.
A communication can also be presented by a State party to the ACRWC, and also by a State that is not party to the ACRWC, if it is in the best interest of the child.
The guidelines for the consideration of communications do not mention anonymity of the complainant, but it is likely that similar rules apply as for communications to the African Commission on Human and Peoples' Rights.
4. When to submit information?
A communication should be submitted to the African Committee of Experts on the Rights and Welfare of the Child within a reasonable period from the time local remedies have been exhausted. After exhaustion of local remedies, or where the complainant realises that such remedies shall be unduly prolonged, he or she can submit the complaint to the Committee of Experts immediately.
The ACRWC does not give a time limit but talks of reasonable time. It is therefore advisable to submit a complaint as early as possible.
5. Special rules of procedure or advice for making a submission?
How to write a complaint:
The communication procedure of the Committee of Experts is straightforward, and does not require legal representation. A complaint can be brought by the victim(s) of alleged violations of the ACRWC or their parents, or by another person acting on their behalf, or a group of individuals, including an NGO recognised by the African Union, a member State of the African Union, or by any institution of the United Nations system. If your NGO does not fulfil the last criteria, it is advisable to submit a complaint as a group of individuals.
For a complaint to be admissible, it needs to meet the following requirements:
- it needs to include the name(s), nationality, and signature(s) of the person or persons filing it, or in case of an NGO filing the complaint the name(s) and signature(s) of the legal representatives, and evidence of the status of the NGO;
- whether or not the complainant wishes his or her identity to be withheld from the State concerned, and why;
- an address for correspondence, possibly including fax and/or email;
- a detailed description of the alleged violations of the ACRWC, specifying date, place, and nature of the alleged violations;
- the name(s) of the State(s) alleged to have violated the African Charter of the Rights and Welfare of the Child;
- any steps taken to exhaust domestic remedies, or an explanation why an exhaustion of domestic remedies would be unduly prolonged or ineffective;
- an indication that the complaint has not been submitted to another international settlement proceeding.
It is advisable to refer to the provisions of the African Charter of the Rights and Welfare of the Child that are alleged to have been violated, although this is not strictly necessary. The (http://acerwc.org/wp-content/uploads/2011/03/ACERWC-Guidelines-on-Commun...) include some helpful information.
Emergency procedures:
According to Article 2 IV of the Guidelines, the Committee of Experts “may forward to the State party concerned, a request to take provisional measures that the Committee shall consider necessary in order to prevent any other harm to the child or children who would be victims of violations”.
6. What happens to the submission (how long will it take)?
Once a complaint has been received by the Secretariat of the African Committee of Experts on the Rights and Welfare of the Child, the Secretary will register it and make a summary, which will be circulated to all members of the Committee of Experts.
Before each session, a Working Group of the Committee of Experts will consider the admissibility of a complaint. The Committee of Experts will then decide on the admissibility during a regular session.
After a complaint has been declared admissible, the Secretariat will communicate this to the complainant(s). A communication will then also be sent to the State(s) concerned, with a request to comment on the communication in writing within three months.
Following this, the Committee of Experts or the Working Group may request additional information from the State(s) concerned or the complainant(s).
The Committee of Experts may requests the presence of representatives of the State(s) concerned and/or the complainant(s) in order to give additional clarifications relating to the communication. If one party is invited, the other party shall also be invited to be present and to make its observations, if it so wishes. The meeting of the Committee of Experts during which the complaint is considered is held in private.
According to article 3 of the Guidelines, the Committee of Experts “should take measures to ensure the effective and meaningful participation of the child or children concerned by the consideration of the validity of the communications and its author”. It is unclear what that means in practice.
Following the consideration of the complaint, the Committee of Experts will make a decision on the merits, either finding that the ACRWC has not been violated, or finding on a violation of the Charter, and making recommendations to the State(s) concerned. This may include compensation to the victim(s) of violations of the African Charter of the Rights and Welfare of the Child and measures to prevent a recurrence.
One of the members of the Committee of Experts will also be designated to monitor the decision, and will regularly report to the Committee of Experts.
The decisions of the Committee of Experts will then be submitted to Assembly of the Heads of State and Government of the African Union, and will be published after consideration by the Assembly.
7. History of the use of this mechanism
This mechanism has so far not been used for conscientious objection to military service, nor for issues of military recruitment of minors.
Contact Details:
The African Committee of Experts on the Rights and Welfare of the Child
Commission of the African Union
African Union Headquarters
Social Affairs Department
P.O. Box 3243
W21 K19 Addis Ababa
Ethiopia
Tel. +251-1-551 35 22
Fax +251-1-553 57 16
Email cissem@africa-union.org
Website: http://acerwc.org/
Further Reading:
- African Committee of Experts on the Rights and Welfare of the Child: Rules of procedure, 2004, http://acerwc.org/wp-content/uploads/2011/03/ACERWC-Rules-of-procedure-E..., accessed 10 October 2012
- African Committee of Experts on the Rights and Welfare of the Child: Guidelines for the Consideration of Communications provided for in Article 44 of the African Charter on the Rights and Welfare of the Child, 2011, http://acerwc.org/wp-content/uploads/2011/03/ACERWC-Guidelines-on-Commun..., accessed 10 October 2012
- African Committee of Experts on the Rights and Welfare of the Child: Criteria for granting observer status in the African Committee of Experts on the Rights and Welfare of the Child to Non-Governmental Organisations (NGOs) and Associations, 2011, http://acerwc.org/wp-content/uploads/2011/03/ACERWC-Criteria-for-Oberser..., accessed 10 October 2012
- Save the Children Sweden/Plan: Advancing Children’s Rights. A Guide for Civil Society Organisations on how to engage with the African Committee of Experts on the Rights and Welfare of the Child, 2009, http://www.crin.org/docs/Advancing%20Children%27s%20Rights%20-%20CSO%20G..., accessed 10 October 2012
Legal Bases
| Title | Entered info force | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| African Charter on the Rights and Welfare of the Child | 29/11/1999 | ||||||||||||||
|
The African Charter on the Rights and Welfare of the Child guarantees the rights of children in those African countries that have ratified it. Especially relevant are: Article 9 (1) (Freedom of Thought, Conscience, and Religion)"Every child shall have the right to freedom of thought conscience and religion." Article 11 (Education)Article 22 (2) (Armed Conflicts)“States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.” |
|
Decisions
None
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A Conscientious Objector's Guide to the International Human Rights System
ECOWAS Community Court of Justice
Web Link:
Summary
According to the Supplementary Protocol from 19 January 2005, “the Court has jurisdiction to determine cases of violations of human rights that occur in any Member State.” There is no requirement to exhaust domestic remedies, meaning individuals do not need to pursue national judicial remedies before bringing a claim to the ECOWAS Court of Justice. Rather, the principal requirements are that the application not be anonymous and that the matter is not pending before another international court.
A case can be brought by anyone under the jurisdiction of a member state of the Economic Community of West African States (ECOWAS). However, according to article 12 of the Protocol establishing the Court of Justice, representation by an agent or lawyer is required.
The reference framework of the Community Court of Justice are the African Charter on Human and Peoples' Rights (ACHPR), as well as other universal instruments for the protection of human rights adopted by the United Nations.
Proceedings before the court consist of written and oral proceedings, after which the Court will hand down its judgment in open Court. Judgements of the Court are binding on each Member State, institutions of ECOWAS and on individuals.
More information is available at the website of the Community Court of Justice at http://www.courtecowas.org/.
1. Likely result from the use of this mechanism
Following the filing of a case with the Community Court of Justice, the Court will appoint a Judge-Rapporteur, who will prepare the case for the Court, and make recommendations regarding what inquiries might be needed, which might include further documents, oral testimony, expert reports, or site visits. Following the completion of the preparatory inquiry, a date for the oral procedure will be set by the Court, which might involve the hearing of witnesses. This session will be public.
After the conclusion of the oral procedure, the Court will deliberate on the judgment in closed session, and deliver its judgment in open Court.
Urgent action:
According to article 20 of Protocol A/P.l/7/91 on the Community Court of Justice, “the Court, each time a case is brought before it, may order any provisional measures or issue any provisional instructions which it may consider necessary or desirable.”
When filing a case with the Community Court of Justice, it is possible – in a separate document – to also file an application for interim measures. Such an application should be referred to the Court by the President within 48 hours after it has been lodged.
Articles 79-86 of the Rules of Procedure deal in more detail with interim measures.
2. To which States does this mechanism apply?
The mechanism applies to those States that are members of the Economic Community of West African States (ECOWAS). A list of member States is available at http://ecowas.int/.
3. Who can submit information?
According to article 10 of Protocol A/SP.1/01/05, individuals who are subject to the jurisdiction of a member State of ECOWAS can apply to the Community Court of Justice for relief for violation of their human rights.
However, according to article 12 of the Protocol establishing the Court of Justice, representation by an agent or lawyer is required.
4. When to submit information?
A case should be filed with the Community Court of Justice as soon as possible, even though neither the Protocol establishing the Court, nor the Rules of Procedures give any time limits in cases of human rights violations. There is no need for the exhaustion of domestic remedies – in fact, the Community Court of Justice stated that it is not an appeal court, so a case should be filed directly with the Community Court of Justice.
5. Special rules of procedure or advice for making a submission?
The Community Court of Justice is a proper court, and according to article 12 of the Protocol establishing the Court of Justice, representation by an agent or lawyer is required. Any lawyer representing a victim of human rights violations needs to be authorised to practice before a court of a member State of ECOWAS.
How to file a case with the Community Court of Justice:
As representation by a lawyer or agent is obligatory when filing a case before the Community Court of Justice, the following is only a brief summary, which should aid a decision on whether to file a case.
While the official languages of the Community Court of Justice are English, French, and Portuguese, a case against a member State needs to be filed in one of the official languages of that State. Articles 32 to 40 of the Rules of Procedure relate to the written procedure before the Community Court of Justice.
An application to the Community Court of Justice needs to include:
- the name and address of the applicant;
- the party against which the application is made (the “defendants”), which – in the case of human rights violations – might be the State;
- the subject matter, which means a clear description of the alleged human rights violations, and which provisions of the ACHPR are alleged to have been violated;
- what kind of order the applicant wants the court to make;
- where appropriate, the nature of any evidence offered in support.
An application to the Community Court of Justice needs to be in writing and signed by the agent or lawyer of the applicant, with five certified copies for the Court plus one copy each for each party to the case.
Emergency procedures:
Article 20 of Protocol A/P.l/7/91 on the Community Court of Justice establishes that the Court may “order any provisional measures or issue any provisional instructions which it may consider necessary or desirable”, thus establishing an emergency procedure. Articles 79-86 of the Rules of Procedure deal in more detail with interim measures.
An application for interim measures or provisional instructions should be made in a separate document at the same time as the main application, and should explains why interim measures or provisional instructions are needed as a matter of urgency. The application should also include what measures or instructions the Court should order.
After lodging of the application, the President shall refer it to the Court within 48 hours. The defendant will also be given a brief period of time to respond to the application.
The Community Court of Justice will then decide on any interim measures or provisional instructions, and make the appropriate order.
6. What happens to the submission (how long will it take)?
The Community Court of Justice deals with cases in the order in which they are registered. Following the lodging of a case, the applications will be served on the defendant, who then has one month to reply. However, this time limit can be extended on application.
Following this, the applicant is given one month time to respond to the defence, which then is again given one month to respond to the reply of the applicant.
A Judge-Rapporteur will be in charge of the application, and will produce a preliminary report, which includes recommendation whether a preparatory inquiry or other preparatory steps are needed. This can also include the commissioning of an expert's report.
Based on the report of the Judge-Rapporteur, the Community Court of Justice will decide on the measures of inquiry, which can include:
- the personal appearance of the parties;
- a request for information and for further documents;
- oral testimony;
- the commissioning of an expert's report;
- an inspection of the place or of evidence.
Following the completion of the preparatory inquiry, the Community Court of Justice will fix the date for the opening of the oral procedure, which can then include oral evidence by witnesses in open session of the Court.
After hearing all evidence and the presentations of the parties, the Court will deliberate on its judgment in closed session. The judgment itself will then be delivered in open Court, and it will be binding from the date of its delivery.
It is likely that the process takes more than two years in total.
7. History of the use of this mechanism
This mechanism has so far not been used for conscientious objection to military service.
Contact Details:
Community Court of Justice – ECOWAS
10 Dar Es Salaam Crescent,
Off Aminu Kano Crescent, Wuse II,
Abuja,
Nigeria.
Tel: +234-9-5240781
Fax: +234-9-6708210
Email : information@courtecowas.org or info@courtecowas.org or president@courtecowas.org
Website: http://courtecowas.org
Further Reading:
- Community Court of Justice: Protocol A/P.l/7/91 on the Community Court of Justice, 6 July 1991, http://www.courtecowas.org/site2012/pdf_files/protocol.pdf, accessed 22 December 2012
- Community Court of Justice: Supplementary Protocol A/SP.1/01/05 amending the Preamble and Articles 1, 2, 9 and 30 of Protocol A/P.1/7/91 Relating to the Community Court of Justice and Article 4 paragraph 1 of the English version of the said Protocol, 19 January 2005, http://www.courtecowas.org/site2012/pdf_files/supplementary_protocol.pdf, accessed 22 December 2012
- Community Court of Justice: Rules of Procedure, August 2003, http://www.courtecowas.org/site2012/pdf_files/rules_of_procedure.pdf, accessed 22 December 2012
- Justice H.N. Donli – Past President/Judge: The Law, Practice, and Procedure of the Community Court of Justice – Meaning and Implication. Paper presented by the President of the Community Court of Justice, ECOWAS Hon. Justice H.N. Donli at the Workshop on the Law, Practice and Procedure of the Community Court of Justice – ECOWAS, organised by the West African Human Rights Forum, 7-9 December 2006, Bamako, Mali, http://www.crin.org/docs/ECOWASmeaning.doc, accessed 11 October 2012
- Justice H.N. Donli – Past President/Judge: Human Rights: Court of Justice of the Economic Community of West African States. Paper presented at the conference of the International Society for the Reform of Criminal Law on “20 Years of Criminal Justice Reform: Past Achievements and Future Challenges”, Vancouver, 22-27 June 2007, http://www.isrcl.org/Papers/2007/Donli.pdf, accessed 11 October 2012
- Andrew W. Maki: ECOWAS Court and the Promise of the Local Remedies Rule, in: The Human Rights Brief, November 2009, http://hrbrief.org/2009/11/ecowas-court-and-the-promise-of-the-local-rem..., accessed 11 October 2012
- Jeneba Kamara: The Law and Practice of the ECOWAS Community Court of Justice, in: Centre for Accountability and Rule of Law, 26 May 2006, http://www.carl-sl.org/home/articles/132-the-law-and-practice-of-the-eco..., accessed 11 October 2012
- Adewale Banjo: The ECOWAS Court and the Politics of Access to Justice in West Africa, in: Africa Development, Vol. XXXII, No. 1, 2007, pp.69–87, http://www.ajol.info/index.php/ad/article/viewFile/57155/45547, accessed 11 October 2012
- M.T. Ladan: Access to justice as a Human Rights under the ECOWAS Community Law, A Paper presented at: The Commonwealth Regional Conference on the Theme: - The 21st Century Lawyer: Present Challenges and Future Skills, Abuja, Nigeria, 8–11 April 2010, http://www.abu.edu.ng/publications/2009-07-12-135031_3901.docx, accessed 11 October 2012
- Solomon T. Ebrobah: A critical analysis of the human rights mandate of the ECOWAS Community Court of Justice, Danish Institute for Human Rights, Research Partnership 1/2008, http://www.escr-net.org/usr_doc/S_Ebobrah.pdf, accessed 11 October 2012
Legal Bases
| Title | Entered info force | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| ECOWAS Treaty | 24/07/1993 | ||||||||||||||||
|
Article 4 “Fundamental Principles” of the ECOWAS Treaty includes as principles of ECOWAS: “g) recognition promotion and protection of human and peoples' rights in accordance with the provisions of the African Charter on Human and Peoples' Rights”. |
|
||||||||||||||||
| Protocol A/P.l/7/91 on the Community Court of Justice, revised by Supplementary Protocol A/SP.I/01/05 | 06/07/1991 | ||||||||||||||||
|
The Protocol establishes the Community Court of Justice with “any powers conferred upon it, specifically by the provisions of this Protocol”. Articles 9, as amended by the Supplementary Protocol A/SP.I/01/05 includes: “The Court has jurisdiction to determine case of violation of human rights that occur in any Member State.” |
|
Jurisprudence
None
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