African Human Rights System
The regional human rights system in Africa consists of an international commission and court, both of which are based on the African Charter of Human and Peoples’ Rights, adopted in 1981 by the African Union (then called the Organization for African Unity), and entered into force in October 1986. The Charter is the basic legal instrument protecting human rights in Africa, listing more than 26 fundamental rights as well as several duties owed by African member states, individuals, and peoples. The Charter has been ratified by all 53 member states of the African Union, and is a binding convention under international law.
Part Two of the African Charter provided for the establishment of the African Commission on Human and Peoples’ Rights, whose mandate is to interpret Charter provisions and ensure the promotion and protection of human rights throughout Africa. To fulfill its mandate, the Commission reviews member state reports on their compliance with the African Charter, investigates human rights situations throughout Africa, and addresses human rights complaints filed by individuals, organizations and member states, as established by the African Charter and the Commission’s Rules of Procedure. In addition, the Commission hosts six Special Rapporteurs focused on particular issues, and five Working Groups, the newest of which is the Working Group on Indigenous Populations/Communities. These special mechanisms undertake country missions and report on issues specific to their mandates.
The African Court on Human and Peoples’ Rights was established in 1998 by a protocol to the African Charter, which entered into force in 2004 after ratification by fifteen member states. It is intended to make binding decisions on human rights cases submitted to the Court by the African Commission, member states, or individuals and non-governmental organizations with observer status before the Commission. Unlike any other regional human rights body, the African Court may consider human rights violations not just of the African Charter, but of any other international human rights instrument the member state at issue is party to. This will provide binding enforcement measures for many international human rights conventions that until now have had none. At the current time, however, the African Court only has jurisdiction over the three member states that made declarations accepting the Court’s competence upon ratifying the Protocol, a requirement in order for the Court to consider a case against a member state. Therefore, the supervision of human rights is still primarily undertaken by the African Commission, which is unable to issue binding decisions. However, if a decision by the Commission has been adopted by the African Union, it becomes binding and compliance may be enforceable through sanctions against the member state.
African Commission Jurisprudence on Land Rights
The landmark Endorois decision of 2009 is the only indigenous land rights case to be decided on its merits by the African Commission, although several have been brought before the Commission but failed to meet admissibility requirements.The pastoral Endorois community of Kenya was forcibly evicted from their ancestral lands in 1973 to make room for a game reserve and tourism facilities. Forced to survive in arid conditions with restricted access to former water sources, pasturelands, and ceremonial sites, the Endorois and their legal representatives petitioned the African Commission in 2003, arguing that Kenya had violated five articles of the African Charter, including the rights to property and adequate compensation in case of dispossession.
Because of arguments used in successful indigenous rights cases from Inter-American jurisprudence, the African Commission determined that all five articles had been violated. Kenya is obligated to recognize the Endorois community’s ownership of their ancestral lands, and grant them unrestricted access, compensation for losses suffered, and royalties for any economic activities undertaken on their lands. This decision was endorsed by the African Union in February 2010.
The Endorois decision, compounded by the new Working Group on Indigenous Populations/Communities, suggests a favorable change in the direction of the Commission’s overall mindset towards indigenous peoples. Whereas several years ago most African states did not recognize the separate existence of indigenous peoples in Africa, the Working Group has now published several in-depth reports on the criteria identifying indigenous populations, and how they differ from other minorities, as well as the specific set of problems they face throughout the continent and how to address them. This is partly because the Working Group is made up of some of the most preeminent indigenous rights scholars and activists on the continent, and given the proper international forum, they have been able to affect positive change on the ideology of the regional African legal system.