42nd Ordinary Session of the
African Commission on Human and Peoples’ Rights

Brazzaville, 14 - 28 November 2007

“The surest safeguards of human rights, and indeed, of development,
are political institutions which allow the people of each country the
decisive role in freely choosing their own leaders”.
Kofi Annan

1. Thematic Issues
   
   
• Economic, Social and Cultural Rights

The preamble of the African Charter of Human and Peoples’ Rights states that “the satisfaction of economic, social and cultural rights guarantees the enjoyment of civil and political rights”.  This is a strong affirmation of the necessity of devoting equal attention to both categories of rights.  However, the agenda of the commission does not seem to reflect this imperative. Franciscans International recommends once more that the Commission rapidly complete the work of the Working Group in charge of the issue, and enroll in the 43rd session of economic, social and cultural rights. 

• Right to health and the challenge posed by HIV and AIDS

The World Health Organisation 2006 World Health Report(1) notes that “the states having the most difficulty in achieving the Millennium Development Goals are in Sub-Saharan Africa.  The principal areas in which these states are lacking are:  the implementation of programs to fight the most urgent diseases, the provision of primary health care, the adequate deployment of health care professionals to ensure universal access to treatment for HIV/AIDS, the delegation of tasks to community health professionals and the development of public health strategies to prevent diseases.” 

Furthermore, malaria, tuberculosis, and several other serious, yet relatively unknown illnesses, and above all, HIV and AIDS are gangrene for development in Africa.  Not only does the pandemic of HIV/AIDS severely undermine efforts towards development, but it also dangerously compromises the stability of future generations.  

Despite the present and future threat, states do not always respect their commitments to implement strategies to counter these perils.  Neither the measures adopted in the Abuja Declaration(2), nor those in the UNGASS Declaration(3), nor the Millennium Development Goals (particularly Goal 6)(4) are respected.   

Within the continent, a strategic framework with a number of engaged actors is not yet in effect.  Hence, efforts are poorly coordinated; the management of funds non-transparent and access to information is difficult.  At the same time, the needs for prevention (especially of transmission from mother to child), the need for efforts to change the attitude of society towards the disease, and the needs for treatment and taking medical/financial responsibility for the sick grow with every new infection.  Millions of sick people are still unable to claim their right to health, while the number of children orphaned by AIDS continues to grow.  The provision of access to treatment for all is a challenge that must be met. 

Franciscans International, whose members are engaged in the fight against the pandemic, recommends a more active involvement of states, more effective access to information, wider access to medication, and more transparency in the management of resources affected to fight HIV and AIDS. 

• Rights of Women and Children

Despite the existence of legal mechanisms and obligations in the African system of the promotion and protection of human rights, especially the rights of children(5) and women, the actual enjoyment of these rights is still a dream.  In fact, children are the most affected by HIV/AIDS (both in terms of infection and effect on private lives(6).  More and more children live on the streets, sometimes with their families, without access to a quality education, especially in rural regions.  These children do the worst kinds of work, they are victims of child trafficking, of domestic violence, and suffer abuse and attacks of all kinds, including sexual abuse.  Some children are also forced to become child soldiers.  Furthermore, legal provisions for minors are inadequate on the continent.   

As for women, they remain, despite everything, poor architects of economic, legal, social and cultural reforms in Africa.  Their capacity to contribute to development is under-estimated and their skills are under-utilised because of traditional pressures and legal barriers such as:  the inability to own property, discrimination, priority of boys over girls in matters of education, a paternalistic family structure, domestic violence, trafficking of women, female genital mutilation, and the feminisation of poverty. 

Franciscans International, from its experience at the grassroots, believes that effective education of children and the provision of special assistance to them will depend on two factors:  the dynamic of development of African states, and the optimization of living and working conditions for women.  Both these factors can be engines for development in Africa.  Franciscans International thus asks the Commission to: 

• Give more visibility to the work of the African Committee of Experts on the Rights and Welfare of the Child
  
• Urge states to pay heed to contractual obligations from the human rights mechanisms related to children and women in their national legislation.

4.         The Rights of Disabled Persons

At the 41st session, the African Commission reiterated its determination in promoting and protecting the rights of persons living with a handicap.  In December 2006, the UN General Assembly adopted the Convention on the Rights of Disabled People and its additional protocol to assure the implementation of these rights. 

Franciscans International urges the Commission to follow up its support of the rights of the disabled persons by ratifying the international Convention and by preventing disability through – vaccination, hygiene, early testing for disability-causing diseases, and by adopting health programs adapted for rural areas. 

B.  Country Situations

1. Benin

Benin is one of the most advanced African countries in implementing democratic principles.  However, this democratic success contrasts the social framework, which still remains a matter of concern(7).  In fact, in the North, almost 70% of the women give birth at home, without pre-natal consultations.  Many die due to labour complications.  Unfortunately, the new-born babies are considered to be inauspicious as they caused their mothers’ deaths.  The babies are abandoned, killed, or worse.  The modest advances in the areas of the right to health, women’s rights, and the rights of children are not adequate to respond to the needs.  Franciscans International urges the African Commission to pay due attention to the issue while examining the periodic report of Benin and urge the authorities to establish a health program that will respect the rights of children and provide effective access to health-care.  The Special Rapporteur on the rights of women should request a visit to the country. 

2.  Congo

The rights of women deserve particular attention in the Congo.  Widows are subjected to various kinds of inhuman and degrading treatment during and after their widowhood.  Women suffer from sexual abuse and aggression, particularly in the region Pointe Noire.  Franciscans International urges the Commission, especially the Special Rapporteur on the Rights of Women in Africa to solicit a visit to the Congo. 

3.  Madagascar

Madagascar Action Plan (MAP) (2007 – 2012) should be oriented towards the daily concerns of a population that is being preyed upon by growing poverty: individuals and families are homeless, the educational system has not invested sufficient resources and proactive measures for education, especially in the rural areas, economic and social misery makes families force their daughters, usually minors, into prostitution, poverty and extreme poverty must be addressed, the legal system needs much improvement, corruption is rampant, and there exists an over-all prison like climate in Madagascar which does not respect the obligations of the State outlined in national legislation or ratified international human rights conventions.  Franciscans International urges the Commission to urge the Malagasy government to provide, in its next periodic report, detailed information on the implementation of the MAP and its effects on the actual enjoyment of rights by the Malagasy people.        

4.  Democratic Republic of the Congo (DRC)

Women are by far the greatest victims of the wars in the DRC.  Raped, physically and sexually abused, killed, poorly treated, infected with AIDS for reasons out of their control; these women’s suffering is often forgotten.  We urge the Special Rapporteur on the Rights of women to solicit a visit to the DRC as soon as possible to inquire about and evaluate the situation and make appropriate recommendations to the government. 

Furthermore, the system of education in the DRC is deteriorating at a dangerous rate due to various reasons, including:  lack of resources, lack of motivation of teachers, lowering of educational quality, corruption, and absence of incentives.  Franciscans International considers the access to education to be a door of exit from, and a guarantee against, a life of poverty.   The Commission should establish a mechanism to monitor the right to education in Africa. 

Peacebuilding in the DRC is a fundamental priority, both for the country, and for the region of the Great Lakes. So many refugees, internally displaced people, so much destruction and carnage have upturned the social system in the affected regions and bordering countries, bringing about a climate of fear and mistrust, and a tendency towards self-defense – all of which are sources of insecurity and lead to grave violations of human rights.  The Commission should invest itself in the construction of peace in the DRC, ensuring to integrate the dimension of human rights in that process. 

5.  Zambia

Zambia is carrying out a process of constitutional review.  Civil Society Organisations CSO) are advocating that the Bill of Rights of the Constitution should be reinforced and certain be strengthen, especially, the rights of women, the right to a healthy environment, the rights of the disabled, fundamental liberties, and the implementation of a legal human rights system that takes into consideration the aspirations and needs of the population in terms of social justice and human rights. 
CSO are calling for a right to information and that their needs be taken into consideration when drafting the future Constitution.  Franciscans International asks the Commission to urge the Zambian government to maintain and strengthen the participation of civil society in the process of Constitutional review, and to integrate in the Constitution the legal, regional and international norms to which Zambia has expressed its consent to be bound.

C.   The African Commission Human Rights Mechanisms Improvement

1.  Areas in the performance of the African Commission where improvement is necessary

* Visibility of the Commission’s efforts on the website

The website of the Commission is its window.  It reflects the activities, the campaigns, the mechanisms and the efforts of the Commission in terms of promoting and protecting human rights in Africa.  It is a fundamental tool to promote the Commission and its activities.  Unfortunately, despite recent efforts to improve the website, it still does not efficiently support or promote the Commission.  Many missions reports, other resolutions and observations made after examination of state reports are not available on the site.  Not only is the site unattractive, it also does not contain all the documents and reports produced by the Commission.  This is counter productive for the Commission and detrimental to its image. In addition, a through website could help overcome the financial problem of distributing the documents of the Commission.  Franciscans International recommends a restructuring of the website to make it more attractive and complete in terms of documents. 

* Follow-up to the decisions of the Commission

1. The Commission invests plenty of effort in missions of promotion.  Franciscans International recommends that these missions of promotion integrate more concrete follow-up measures for the examination of periodic reports and the decisions reached after studying the resolutions or communications adopted. 
2. To ensure that the decisions of the Commission are fully implemented and for the Commission’s credibility, the performance of a specific follow-up mechanism is necessary.  Franciscans International recommends the nomination of a Special Rapporteur to supervise the implementation of the Commission’s decision, recommendations and resolutions. 

*  Interpretation of Article 59 of the African Charter (8)

We welcome with appreciation the growing interest of the Conference of Heads of State and the Government in the activities of the Commission.  However, there is also a lack of political will on the part of certain States to stop the Commission from duly achieve its mandate.  It thus seems necessary to assign an official interpretation to this article, which, Franciscans International believes, should be interpreted in a positive dynamic.  

* Examination of States Party Periodic Reports

Periodic reports examination is a fundamental aspect of the mandate of the Commission.  Hence, all measures should be taken to assure that the Commission is efficient in planning and submitting alternative reports, with an aim to creating constructive dialogue with governments.  To this end, it is necessary to set up an annual agenda for the States to submit their periodic reports in other to allow civil society organisations to fully collaborate with the Commission in its efforts to provide, in due time, alternative information on the human rights situation in a given country. This annual agenda would suit the best interests of the Commission itself and would make the examining of reports exercise more effective.    

* Visits to countries
The Commissioners’ visits to States in order to engage in promotion, or other missions, depend upon invitations given by the States to be visited.  We must note that states have been extremely unwilling to authorise visits, or to accept the Commission’s requests for visits.  Thus, the Commissioners have only the conferences and seminars to fulfill their assigned duties (as outlined in the African Charter).  To help ameliorate this situation, as well as implement activities of promotion and follow-ups, Franciscans International recommends that the Commission:

1. Urge states to extend it an open invitation for visits.  To this end, the Commission can call upon the service of the Commission of the African Union;
2. Encourage all African states that are members of the United Nations Human Rights Council to formulate an open invitation to the African Commission in order to facilitate the human rights mechanisms.

2. Relationship between the African Commission and the Court of Human and People’s Rights

As stated in article 45 of the Charter, the Commission is invested in a mandate of protecting human rights.  With the creation of the African Court of Human Rights, whose mandate is also essentially focused on the protection of human rights, there is a need to adjust the functions of the Commission.  Indeed, the Court will not replace the Commission, but rather, it will complete it, as per article 54 of the Protocol that created the Court.  Should the Commission share its protection mandate with the Court?  In the interests of practicality and efficiency, Franciscans International proposes that the Commission can:

• Enhance its promotion activities in terms of already-existing legal instruments, especially, a deeper examination(9) of the periodic reports;
• Devote itself to the standard setting activities as a think-thank body;
• Develop appropriate mechanisms for the promotion and implementation of norms, and help to better integrate and harmonize instruments ratified by national legislation;
• Develop follow-up tools and mechanisms for its activities to give root to a culture of human rights amidst the African population and, more importantly, the African governments, most of whom continue to ignore the existence of various instruments and the mechanisms for the protection and promotion of human rights in the African system;
• Involve the National Institutions of Human Rights that respect the Paris Principles in developing activities at state level to promote and safeguard human rights;
• Mobilise civil society and reinforce its collaboration with human rights defense organisations so that they may engage in a concentrated effort;
• Assume, due to its experience, the role of an advisory body to the Court, as stated in Protocol creating the Court;
• Contribute to the development of procedural rules for the Court, as per the terms of article 8 of the Protocol;
• Involve itself actively in the Africa Peer Review Mechanism by supervising it’s human rights component;
• Deepen and clarify the African human rights system legal problems by interpreting(10), through general comment and advisory opinion, the provisions of the African Charter and other relevant human rights instruments.

Contact: Yao Agbetse, yao@fiop.org, Tel. 0041 22 919 40 10.