African Commission Seeks Comments on Revised Rules of Procedure
The African Commission on Human and Peoples’ Rights (ACHPR) is calling on State and non-State actors, including civil society, to provide input on the most recent draft of its revised Rules of Procedure. [ACHPR Press Release] The Revised Clean Draft for Public Consultation (Draft Rules), currently available in English, French, Portuguese, and Arabic, was adopted by the ACHPR at its 25th Extraordinary Session, which was held from February 19 to March 5, 2019, and will replace the standing Rules of Procedure that have been in effect since May 2010. [ACHPR Press Release] The Draft Rules modify some of the formal deadlines and other requirements that govern the ACHPR’s work, including its processing of complaints and internal procedures; outline expectations for its interaction with other stakeholders; and help define the scope of the ACHPR’s authority.
All inputs and contributions are due by September 27, 2019, and should be sent via email to the ACHPR Secretariat at firstname.lastname@example.org. [ACHPR Press Release] In an effort to facilitate civil society participation in the revision process, this post highlights some of the most notable changes to the 2010 Rules of Procedure.
Interpretation of the Charter
At the outset, the Draft Rules underscore the ACHPR’s independence in the fulfillment of its mandate, adding new language asserting the ACHPR’s authority to interpret the African Charter for Human and Peoples’ Rights (the Charter), to issue advisory opinions, and to interpret its own decisions. See ACommHPR, Revised Clean Draft for Public Consultation (2019), rules 3(1-4), 124.
With respect to the interpretation of the Charter, the Draft Rules clarify that the ACHPR is required to distribute requests for interpretation that it receives pursuant to Article 45(3) of the Charter to States parties, the African Court on Human and Peoples’ Rights (AfCHPR), and any other interested parties, and to also notify them of its decisions or advisory opinions resulting from those requests. See id. at rule 124(1-2). Further, the Draft Rules highlight the ACHPR’s authority to undertake “any other tasks which the Assembly may entrust to it pursuant to Article 45(4) of the Charter.” See id. at rule 3(3).
Notice & Transparency
In several new or modified provisions, the Draft Rules give the ACHPR more time to finalize arrangements for its sessions, and give less advance notice to the public and other stakeholders. For example, under the current Rules of Procedure, the ACHPR Secretary is required to notify ACHPR members of the opening date and venue of a session at least 60 days before the start of the session, and submissions with respect to items to be included in the provisional agenda must also be submitted to the ACHPR Secretary at least 60 days prior to the start of a session. See ACommHPR, Rules of Procedure of the African Commission on Human and Peoples’ Rights (2010), rules 29, 31. However, under the Draft Rules, the 60-day notification requirement is reduced to 45 days with respect to both the notification of the opening date of a session and the submissions for the provisional agenda. See ACommHPR, Revised Clean Draft for Public Consultation, rules 29, 31.
Importantly, the notification requirements for the transmission and distribution of the provisional agenda for Ordinary Sessions have also been reduced. See id. at rule 32. The ACHPR Secretary will now distribute the provisional agenda to ACHPR members 14 days before the start of a session, rather than 60 days before, as required under the current Rules of Procedure; the provisional agenda will now be transmitted to interested parties seven days prior to the session, rather than 45 days before the session start date; and, the provisional agenda will now be posted online seven days prior to a session, rather than 15 days before the start of a session. Compare ACommHPR, Revised Clean Draft for Public Consultation, rule 32 with ACommHPR, Rules of Procedure of the African Commission on Human and Peoples’ Rights, rule 33.
Under the Draft Rules, the ACHPR would no longer be permitted to hold votes on the same issue more than once unless there are “compelling reasons to do so.” See ACommHPR, Revised Clean Draft for Public Consultation, rule 60.
The Draft Rules include requirements that appear to make the ACHPR’s inner-workings more transparent. For example, the Draft Rules now require public access to sessions through “live transmission,” as well as the adoption of a public “communique” at the close of each session – something the ACHPR has long done in practice. See id. at rule 25(3-4).
ACHPR’s Relationship with the AfCHPR
The Draft Rules outline some changes related to the ACHPR’s relationship with the African Court. For example, the Draft Rules now prohibit the ACHPR from deciding cases in matters the AfCHPR has “already decided.” See id. at rule 127(4). Importantly, the ACHPR is now required to obtain the victim’s or complainant’s consent prior to referring a communication to the Court. See id. at rule 127(2). With respect to any consultations with the Court, the ACHPR is now required to include “any meetings and other activities” in its Activity Report, rather than just including conclusions of meetings adopted by the ACHPR. See id. at rule 126(3).
Individual Complaints Process
The Draft Rules’ changes to the ACHPR’s procedure with respect to complaints submitted under Article 55 of the Charter may impact civil society and victim engagement with the ACHPR. The Draft Rules clarify that for any complaint in which the victims are not the named complainant, the complaint must contain “sufficient proof that the victim consents to being represented by the complainant or justification why proof of representation cannot be obtained.” See id. at rule 112(2)(e). Additionally, the complainant is no longer expressly required to provide details regarding the exhaustion of domestic remedies or to indicate that the complaint has not been submitted before another international body. Compare ACommHPR, Rules of Procedure of the African Commission on Human and Peoples’ Rights, rule 93(2)(i-j). The new rules, however, explicitly prohibit the use of “disparaging or insulting” language. See ACommHPR, Revised Clean Draft for Public Consultation, rule 112(2)(h). This change is accompanied by the requirement that the ACHPR Secretary invite complainants to correct their submission before disposing of it if the complaint would otherwise be dismissed for lacking information or for distasteful language. See id. at rule 112(5)(2).
State Representatives & Reprisals
The Draft Rules highlight new expectations for State interaction with the ACHPR. Under the Draft Rules, all interactions with the ACHPR will be conducted by a designated “Government Focal Point and Agent(s)” who, except in exceptional circumstances, would be responsible for all correspondence with the ACHPR and for responses on behalf of the State. See id. at rule 67(3).
States will also have increased obligations with respect to protection against reprisals. Whereas the current rules require that a State not commit reprisals against persons or entities, the new rules obligate States to protect victims, complainants and their family members, and members of the Commission from reprisals “of any kind.” See id. at rules 72, 104; ACommHPR, Rules of Procedure of the African Commission on Human and Peoples’ Rights, rules 82(a), 99(15), 100(4).
Civil Society, NHRIs, and Other Stakeholder Participation
The Draft Rules update the rules governing the participation of various non-State stakeholders. For example, the Draft Rules invite “specialized” human rights institutions to participate in the agenda development and work of the ACHPR, as opposed to just national human rights institutions (NHRIs). See ACommHPR, Revised Clean Draft for Public Consultation, rules 66(1), 68. The new rules do away with the current requirement allowing the ACHPR to grant affiliate status to only one NHRI for each State party, opening the door to more potential participants. ACHPR, Rules of Procedure of the African Commission on Human and Peoples’ Rights, rule 67(3).
With respect to non-governmental organizations, the draft expands the ACHPR’s discretion in denying organizations the ability to participate, stating “[t]he Commission may decide to take measures against an Observer that no longer fulfills the criteria or defaults on its obligations, as set out in the aforementioned Resolution [on the Granting of Affiliate Status]. The Observer shall be notified and, whenever deemed necessary, invited to express its views before any such decision is taken.” See ACommHPR, Revised Clean Draft for Public Consultation, rule 70(3).
Finally, the Draft Rules add an entirely new section regarding “funding partners,” which outlines the relationship between presumably any individual or entity offering to finance some portion of the work of the ACHPR. See id. at rule 71. This rule notes that “partners may be invited to attend sessions,” although no further guidelines are given on the permissible scope of their participation. See id. There does not appear to be any requirement that the funding agreements between the ACHPR and its funding partners be made public. See id.
The African Commission on Human and Peoples’ Rights promotes and protects human rights in the Member States of the African Union that have ratified the African Charter on Human and Peoples’ Rights. See IJRC, African Commission on Human and Peoples’ Rights. The Commission accepts complaints concerning alleged violations of the African Charter on Human and Peoples’ Rights, and considers the reports of States, Special Mechanisms, and Special Missions. See id. The African Charter and the Commission’s Rules of Procedure establish its composition and procedures. See id.