The process for the adoption of the 2020 Rules of Procedure
The African Commission on Human and Peoples’ Rights (the Commission) wishes to notify the general public of its new Rules of Procedure, 2020 (2020 RoPs). The Rules were adopted at the Commission’s 27th Extra-Ordinary Session, held from 19 February to 04 March 2020, pursuant to Article 42(2) of the African Charter on Human and Peoples’ Rights, and came into force on 02 June, 2020, in terms of Rule 145 thereof.
The 2020 RoPs were adopted following the Commission’s Revision of its previous Rules of Procedure, which were adopted during the 47th Ordinary Session, in May 2010 (2010 RoPs).
The revision was initiated by ACHPR/Res.328 (EXT.OS/XIX) 2016: Resolution on the Modification of the Mandate of the Working Group on Specific Issues Relevant to the Work of the Commission, which mandated the Commission’s Working Group on Specific Issues Relevant to the Work of the Commission (WGSI)to review the 2010 RoPs in consultation with the Working Group on Communications (WGC), and propose amendments thereof to the Commission.
After the preparation of the draft RoPs within the framework of Resolution 328, the Commission invited all stakeholders, including States Parties to the African Charter, relevant African Union bodies, National Human Rights Institutions and Civil Society Organisations, to provide further inputs on the draft revised Rules of Procedure endorsed by its 25th Extra-Ordinary Session held in Banjul, The Gambia, from 19 February to 05 March 2019. The Commission also sent similar invitations via note verbales to all States Parties. Diverse submissions were received, including from a State Party, and these have enriched the review.
Additionally, regard was had to the contributions of multiple stakeholders in different forums the Commission convened on the African Continent such as the Commission’s public sessions and the Dakar and Zanzibar regional seminars that brought together representatives of States Parties to the African Charter, NHRIs and CSOs at which inputs of participants were sought and received.
The final revised Rules of Procedure were subsequently adopted by the Commission at its 27th Extra-Ordinary Session, held from 19 February to 04 March 2020, in Banjul, The Gambia.
Overview of changes introduced:
Mandate and status of the Commission
The 2020 RoPs in Rule 3 provide clarity on the status and mandate of the Commission in order to give full effect to Article 45 of the African Charter. This rule reiterates the autonomous nature of the Commission and its various competencies to interpret the African Charter and its own decisions and to ensure the operation of its Secretariat.
Code of Conduct
Rule 11 binds Members of the Commission to observe the principles and codes of conduct stipulated in the Rules, including, for example, as it relates to recusal and confidentiality.
Sessions of the Commission
In relation to its Sessions, the new RoPs are made to reflect the practice of the Commission. In the first place, Rule 28 provides for the Commission to hold four (4) Ordinary Sessions a year, thereby bringing the Rules in line with the current practice. This amendment does not preclude the Commission from also convening Extraordinary Sessions. Given the developments in technology, new Rule 27 further provides for making Sessions available to the public through live transmission.
Adding as annex to the Activity Report observations of States Parties
To enhance the relationship between the Commission and States Parties, there is a new provision in Rule 63, in relation to the presentation of its Activity Report to the African Union Assembly, requiring that the content of the Activity Report should be determined by the Commission, but that any written concerns raised by State Parties would be annexed to the Activity Report when the latter is published. This brings the Rules in line with the current practice and addresses challenges raised in the past in relation to States disagreeing with the content of the Report.
Focal Pointof States parties
Following on the recommendations from the Regional Seminars referenced above, the Rules were amended to indicate in Rule 69 that the Commission would interact with States Parties through the designated Government Focal Point. Such a Focal Point department/official would be assigned by States to process correspondences from the Commission.
On the role of NHRIs
Rule 79, in order to enhance the role of National Human Rights Institutions (NHRIs) in follow up on recommendations of the Commission, provides that the Concluding Observations on State Reports would be transmitted to the NHRI(s) in addition to the government.
On the communications procedure of the Commission
Rule 101 provides for investigating measures which may be adopted in the consideration of Communications in order to clarify the facts. In addition to extensively providing for the hearing of experts or witnesses and a provision on undertaking field visits, this Rule now provide for the Commission to request that relevant documentation be made available to it by the person or institution in whose possession it is. These investigative powers may also be delegated.
The 2020 RoPs in Rules 104 and 105 contain new provisions relating to interventions by amicus curiae in the Communications procedures. It provides that the Commission can either approach amicus or an amicus may submit an application to intervene. It provides the timeframes and procedures for such interventions, including that the amicus would be provided with the pleadings of the Parties, after being admitted. The new Rule 106 also provides for interventions by third parties with a direct interest in Communications before the Commission.
For Individual Communications, Rule 115 provides for a reduced list of required information in the submission of a Complaint for Seizure, removing the criteria which previously overlapped with the Admissibility submissions. Another amendment to the Seizure procedure is that Seizure is determined at the level of the Secretariat, and only cases in which doubt arise will be referred to the Commission.
Another notable change on the Communications procedure is that, according to Rule 116, Complainants would be required to submit their Admissibility and Merits submissions together, within sixty (60) days from receipt of the Seizure decision. The State would similarly be provided with sixty (60) days to respond on Admissibility and Merits, where after the Complainant would have the opportunity to submit a rejoinder.
Rule 121 provides for the possibility of the Commission deferring consideration on reparations and costs to a separate review following adoption of its decision on Merits. The 2020 RoPs also make provision for withdrawal, strike-out and relisting of Communications in Rule 124, thereby bringing the Rules in line with the Commission’s practice.
In relation to the follow up on the specific measures requested in Merits Communications, Rule 125 now provides a role for NHRIs in following up on implementation. A new Rule 126 further provides for the possibility of free legal representation for the Complainant or victim, including from the Legal Aid Fund of the Human Rights Organs of the African Union.
Relationship with the African Court and African Committee of Experts
In relation to the relationship between the Commission and the Court, the rules have been amended in particular in relation to instances when the Commission would seize the Court. Rule 130 sets out a simpler approach on seizure by the Commission of the Court focusing on instances when the Commission has not yet made a determination on the Admissibility of the Communication. Rule 132 provides for representation of the Commission before the Court and provides for the possibility of experts to assist the Commissioner Rapporteur in litigating the case. The new Rule 137 provides for the relationship between the Commission and the African Committee of Experts on the Rights and Welfare of the Child.
The African Commission wishes to express its appreciation to States Parties to the African Charter, the AU institutions, NHRIs and CSOs as well as the PANAF program of the EU for their support and significantly their input into the new rules of procedure.
I also wish to invite all stakeholders to rely on the RoPs along with the African Charter in engaging with the African Commission for a more efficient and effective execution by the Commission of its mandate under the African Charter.
Honorable Commissioner Solomon Dersso, PhD
Chairperson of the African Commission on Human and Peoples’ Rights
The new 2020 RoPs can now be accessed/downloaded via the web link below: