The written Communications procedure is the complaints' mechanism of the African Commission—part of its protective mandate and its quasi-judicial functions. It is set out in articles in 47 to 59 of the African Charter.
There are two types of Communications: Inter-state Communications and Other Communications.
Inter-state Communications are written complaints submitted to the African Commission by one State against another State for alleged violations of the African Charter. This is almost never used (see case of DRC/Burundi, Rwanda, Uganda, 2003 for an example) and does not concern civil society.
Other Communications are written complaints from individuals and organisations submitted regarding alleged violations of the African Charter by a State and they are covered under article 55. It allows for civil society engagement, as NGOs can send written Communications themselves or on behalf of an alleged victim. You don’t need consultative status to do this.
Finally, the African Commission can refer a Communication to the African Court on Human and People’s Rights in certain cases, which is a judicial body that issues legally binding decisions.
‘The Communication procedure has saved lives’. Oludayo Fagbemi, from the Institute for Human Rights and Development in Africa (IHRDA) explains how the African Commission’s work has clarified and supplemented the contents of the African Charter, creating some jurisprudence.
Oludayo Fagbemi on the Communications Procedure (ACHPR)
Reflection Questions
Q1 – How could resorting to the Communications procedure be useful / advantageous to you?
A Communication offers the opportunity to:
Get your case documented by the African Commission and increase the visibility;
Get your State to respond to allegations of human rights violations in an international forum; also, note that even if your State does not respond to the Communication, a decision will still be adopted, so the efforts won’t be made in vain;
Seek redress and reparations for victims by way of recommendations in the Commission’s final observations;
Have the Commission make a recommendation, include provisional measures, address an issue and put additional pressure on the State concerned;
Drive or boost the creation of new laws to support domestic litigation; and
Provide a channel for individuals, groups and NGOs to access the African Court.
Additionally, it can take several years for a Communication to be addressed (on average 4 to 8 years);
Moreover, before even submitting a Communication, you must exhaust all domestic legal remedies available, unless it is manifest that proceedings are being unduly impeded;
The African Commission does not have the power to compel States to comply with its findings.
Q3 – Consider how a Communication supports/complements your existing advocacy strategies
Remember:
A major issue is the backlog of cases that are still pending before the Commission. The commissioners work part-time and have a small secretariat with very limited resources, including very limited staff to consider cases.
An individual Communication on its own is unlikely to entirely remedy a situation. You will have to follow up to ensure a decision has an impact in your home country, and this needs to be part of a broader advocacy strategy.
The Commission does not provide legal assistance or aid of any kind, except in certain cases (lack of resources for instance, see rule 126 of the Rule of Procedures).
Consider other Commission or UN mechanisms and whether they might be better suited for your particular case.
A Communication is not the best option in urgent situations where it is necessary to act quickly (cases take several years until a decision).
Despite this, Communications have proven to be a powerful avenue for human rights defenders to seek remedies and accountability.
Defender Story
DRC - Landmark decision for corporate accountability
Through the Communications procedure, the African Commission has issued critical decisions, including the 2016 ruling on the Democratic Republic of Congo (DRC), that has expanded standards and understanding of human rights in Africa and the rest of the world, including on the right to development, Indigenous peoples’ rights, women’s rights, children’s rights, media freedoms, and rights-focused government responses to the Covid-19 pandemic. The Commission stated that the Congolese government violated numerous human rights in its brutal repression of peaceful protests against the harmful operations of a foreign mining company. It had a significant impact on jurisprudence as it included a breach of the rights to housing, while highlighting the need and legal imperative for entities engaged in extractive industries to undertake their operations with due regard for the rights of the host communities.
