The African Commission on Human and Peoples’ Rights (the Commission), meeting at its 83rd Ordinary Session, held in Banjul, the Gambia 2 May to 22 May 2025:
RECALLING its mandate on promotion and protection of human and peoples’ rights in Africa under Article 45 of the African Charter on Human and Peoples’ Rights (African Charter);
RECALLING SPECIFICALLY, Articles 21, 22 and 24 of the African Charter, on the rights of all peoples to freely dispose of their wealth and natural resources; to economic, social and cultural development; and to a generally satisfactory environment favourable to their development;
Underscoring the strategic importance of Article 21(5) of the African Charter enjoining States Parties to the Charter to ensure the elimination all forms of foreign exploitation for establishing an equitable economic relationship for the social, economic, development and environmental wellbeing of the peoples of the continent;
Considering that effective implementation of the obligation States assumed under Article 1 of the Charter to give effect to the rights, freedoms and duties enshrined in the African Charter including the right to development requires the mobilization of the requisite resources from domestic and international sources;
Deeply concerned that the mobilization of such resources in Africa is hugely affected by the nature of Africa’s place in the global financial and economic system which in its current setup contributes to loss of enormous amount of funds from Africa through illicit financial flows and various loopholes that multinational companies particularly those in the extractive industry exploit for engaging in tax avoidance;
Deploring that the exclusion of the jurisdiction of national courts relating to foreign investments embedded in international investment treaties that attribute jurisdiction to investor-state dispute settlement or arbitration tribunals often leading to further loss of enormous amount of funds for payment of out of court settlements or arbitration awards partly owing to the structural inequities arising from the power asymmetries in the relations of African states with foreign investors;
Concerned about the serious human rights consequences of the extortionist cost of access to development finance with disproportionately high-level of interest rate imposed on African states leading to both recurrent debt distress and the diversion of significant portion of revenues away from essential social services such as education and health in order to servicing debt;
Convinced that the mobilization of resources for financing development requires tax justice and reform of the unjust global financial architecture and investment treaties constraining the fiscal policy space particularly of African and other developing countries with respect to the fiscal obligations that they can legally impose on foreign investment and businesses for advancing human and peoples’ rights including the right to development;
Further convinced that the efficient utilisation of public revenues towards advancing human rights and development requires transparent and human and peoples’ rights compliant fiscal policy-making that meets highest standards of fiscal accountability and accessible to public scrutiny;
Recognising the need for an effective regulatory regime at national, regional and international levels that ensures a just and transparent fiscal system for meeting the fundamental rights and socio-economic needs of peoples and prevents the various financial losses referred to above as underscored in the 2nd regional forum on extractive industries, environment and human rights under the theme ‘Extractive industries, tax justice and financing of development and climate action in Africa’ held during the 77th ordinary session and the lessons from the joint special mechanisms forum on the right to development held during the 83rd ordinary session;
The African Commission:
1. Calls on States Parties:
(a) to revise existing laws and regulations governing natural resources and the operation of foreign businesses including mining, petroleum and natural gas laws as well as taxation, company, banking and investment laws in accordance with the requirements of Article 21 and 24 of the African Charter as elaborated in the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter and Resolution 367 of the African Commission;
(b) to establish legally enforceable standards on transparency of licensing contracts, agreements on debt and access to development finance and on and compliance with high standards of fiscal regulations as necessary measures for fighting corruption and illicit financial flows in the extractive industries and other areas of investment;
2. Legally affirm the right to effective remedies of affected individuals and communities
a. for human and peoples’ rights infractions and environmental and labour standard breaches attributable to investors and businesses as well as those acting on their behalf and the obligation of such actors for compensating affected communities for all material and non-material losses they suffered and for the cleaning and rehabilitation of polluted environment and
b. for the adverse human rights consequences of non-transparent and unregulated government borrowing from domestic and international sources;
3. Expresses its full support for UN GA resolution ‘Promotion of inclusive and effective tax cooperation at the United Nations’ (A/78/235) and the subsequent resolution entitled Promotion of inclusive and effective international tax cooperation at the United Nations A/Res/78/230 spearheaded by the Africa Group for development of a legally-binding U.N. tax convention which would strengthen international tax cooperation and make it fairer and more inclusive and effective;
4. Calls on the African Union and its member states:
(a) To establish an independent continental investor-state dispute settlement or arbitration tribunal that would ensure both fairness and internationally acceptable standards of independence as effective alternative to the current international investor-state dispute settlement system under which states incur huge losses;
(b) To maintain and advance African common position on the establishment of a legally binding framework convention on tax cooperation within the framework of the UN that ensures that African states receive their fair share of taxes from the resources and activities undertaken on their territories within the framework of UN General Assembly resolution A/78/235 that the African Group in New York championed;
(c) To mobilize action for addressing the structural factors for the cyclic high debt indebtedness of African countries that leads to economic suffering and the diversion of the limited public revenues away from supporting the development needs of populations for servicing debt;
5. Tasks the WGEI to work on a study on the impact of investment treaties, debt and development and aid cooperation agreements on human and peoples’ rights in Africa with a view to develop guidelines on how States parties to the African Charter ensure that commitments that they enter into under such treaties and agreements are in alignment with the standards of the African Charter as provided for in Article 21 of the African Charter.
Done in Banjul, The Gambia May 2025
