866th meeting of the PSC on the consultative meeting between the PSC and the African Commission on Human and Peoples’ Rights (ACHPR)
8 August 2019
By Dr Solomon Ayele Dersso
ACHPR Commissioner and Focal Person of the ACHPR on Human Rights in Conflict Situations
Excellencies, ladies and gentlemen, colleagues and friends, all protocols duly observed, a very good morning to you all.
At the outset I would like to express the appreciation and commendation of the African
Commission on Human and Peoples’ Rights to you the Chairperson of the PSC for the
month of August and all of you excellencies members of the PSC for convening this
consultative meeting. As I express this appreciation on behalf of the Chairperson of the
Commission, Commissioner Soyata Maiga, my colleagues in the Commission and on my
own behalf, I am also happy to bring to you the greetings of all my colleagues and their
best wishes for the success of this session and indeed the work of the PSC.
Excellency Ambassador Albert, excellencies ladies and gentlemen,
I am sure you all agree that today’s session has been a long time coming. It has been 17
years since the adoption the PSC Protocol in 2002. This year 2019 also marks the 15 years
anniversary of the official launch of this distinguished body, the Peace and Security
Council. While, as I will highlight further below, the PSC and the ACHPR have engaged
in an ad hoc working relationship, it took them 17 years since the adoption of the PSC
protocol and 15 years since the launching of the official launching of the PSC for them to
engaged officially on the operationalization of Article 19 of the PSC Protocol which calls
for a close working relationship between the two bodies. May I also add that it has also
been over 12 years since the Dakar Retreat of the PSC on its working methods whose
conclusions provided for the convening of this annual consultative meeting between the
PSC and the ACHPR.
Notwithstanding the fact that this session has been a long time coming, it has also come
at an opportune time in the life of both the PSC and the ACHPR. As far as the PSC is
concerned, this has come at a time when the PSC has accumulated rich experience in the
implementation of its mandate and hence when it has clarity on how best to operationalize
its working relationship with the ACHPR as envisaged under Article 19 of the PSC
Protocol. For the ACHPR as well, this has come at a time when it has established a
dedicated thematic focus on human rights in conflict situations under its Resolution 332.
It is thus my hope and that of the ACHPR that both the PSC and the ACHPR are in good
standing to make excellent use of today’s session for establishing a framework for effective,
institutionalized and functioning working relationship that help in the implementation of
the human rights dimension of the mandate of the PSC and that of the African
Commission’s dedicated work on human rights in conflict situations.
Excellency Amb Albert, excellencies ladies and gentlemen members of the PSC,
For purposes of today’s session, my briefing will focus on two areas. The first of this
concerns the work of the ACHPR that converges with the mandate of the PSC. The
second area relates to the normative foundations for the working relationship between the
PSC and the ACHPR and the practice thus far in the relationship between the PSC and
the ACHPR.
In terms of the work of the ACHPR, an important point of departure is the rights
enshrined in the African Charter and the Maputo Protocol and the nature of the mandate
entrusted to the ACHPR under those two instruments. In this respect, it is worth noting
that the African Charter a unique catalogue of rights that gives equal legal status to all so
called three generation of rights. Accordingly, in providing for the protection of not only
the traditional civil and political rights but also socio-economic rights and the collective
rights of peoples, the African Charter is pioneer not only in affirming the interdependence
and indivisibility among these various categories of rights but also inseparability of human
rights, development and peace and security. Both the African Charter and the Maputo
Protocol are also unique in their recognition of the right to peace which constitutes the
core mandate of this house, which has established itself to be the pride of the continent
on matters of peace and security – the embodiment of the possibility for realizing what the
renowned Kenyan scholar the late Ali Mazrui called Pax Africana. Article 23 of the African
Charter provides not only for the right to peace at the international plane and hence in
inter-state relationship but also nationally at the intra-state level. Going even further, under
its Articles 10 and 11, the Maputo Protocol provides for both the right to peace and the
protection of women in armed conflicts.
In terms of the mandate of the ACHPR, it is important to note that the human and
peoples’ rights promotion and protection mandate of the ACHPR under Article 45 of the
African Charter and its monitoring role under the Maputo Protocol on the Rights of
Women apply not only in peace times but also in conflict times as well. This application
of the mandate of the ACHPR and the rights enshrined in the African Charter and the
Maputo Protocol has been established both in the jurisprudence of the ACHPR and in its
promotional and norm elaboration/clarification works as well. In terms of the
jurisprudence, there are a number of cases from various conflict or crisis situations such
as those from the 1990s in Rwanda, Nigeria, Chad and Sudan as well as from the interstate
communications involving Burundi against a number of east African countries and
DRC against a number of its neighboring countries.
The ACHPR is also empowered under Articles 45 (2) and 46 to undertake fact finding
missions (also known as investigation missions) as part of its mandate to protect human
rights using what the Charter calls ‘any appropriate means of investigation’. This mandate
covers among other things the investigation into human rights violations that arise in
conflict or crisis situations. For example, within this framework the ACHPR undertook an
investigation mission to Darfur in 2004.
As part of its promotional and interpretative mandate under Article 45(1) (a) & (b), the
ACHPR also elaborated relevant normative instruments through its various special
mechanisms. In this respect some of the relevant works of the Commission include the
elaboration of the Maputo Protocol (in terms of binding legal instruments), the Guidelines
on Human Rights Protection while countering terrorism, its General Comments on the
right to life under Article 4 and on Article 5 on freedom from torture, inhuman, degrading
punishment and treatment and its studies on sexual violence against women in conflict
situations, on transitional justice and on human rights in conflict situations.
The use of its special mechanisms has also been an important avenue for the engagement
of the ACHPR in addressing human rights issues in conflict situations. Indeed, it was in
response to the mass atrocities in Rwanda that culminated in the 1994 genocide against
the Tutsi that the ACHPR established its first special rapporteur on extra-judicial
executions in early 1994 at its 15th ordinary session.
The ACHPR also responds to human rights violations committed in conflict situations
through a variety of mechanisms, including the following: adoption of country-specific or
thematic resolutions. It adopted such statements and resolutions in respect to a wide range
of conflict or crisis situations including Sudan, Somalia, South Sudan, Nigeria, Rwanda,
Burundi, Niger, CAR, DRC, Libya, etc. The range of conflict or crisis-related issues that
the ACHPR has responded to through such resolutions include the following: attacks on
civilians; illegality of unconstitutional changes of government; implementation of peace
agreements; plight of refugees and internally displaced persons; prevalence of rape and
sexual violence during armed conflicts; and accountability for perpetrators of conflict or
crisis-related human rights violations and abuses.
Other methods that the ACHPR uses include referral of situations of serious or massive
violations of human rights to the AU Assembly pursuant to Article 58(3) of the African
Charter. Article 58 mandates the ACHPR to notify or draw the attention of the AU
Assembly to cases of “serious or massive” violations of human rights as well as to
emergency situations. Article 58(1) states that where there are ‘special cases which reveal
the existence of a series of serious or massive violations of human and peoples' rights, the
Commission shall draw the attention of the Assembly of Heads of State and Government
to these special cases’. Similarly, Article 58(3) stipulates that cases of emergency duly
noticed by the ACHPR shall be communicated to the AU Assembly. Upon receipt of
notification submitted to it pursuant to Article 58(1) or (3), the AU Assembly may request
an in- depth study to be conducted by the ACHPR. The 2010 Rules of Procedure of the
ACHPR stipulates under Rule 80 that the Commission shall “draw the attention” of both
the AU Assembly and the PSC of situations of emergency while the Executive Council
and the Chairperson of the AU Commission shall be “informed” of the notification,
although the active implementation of this procedure leaves so much to be desired.
Article 45 (1) (c) establishes the basis for the ACHPR to establish cooperation with African
and other institutions concerned with the promotion and protection of human rights. This
is one of the legal basis for establishing working relationship with AU institutions including
this august house, the PSC. Within the framework of resolution 332 on human rights in
conflict situations, the ACHPR through its focal person also activated its engagement on
human rights in conflict situations through providing technical expertise for helping
articulate the AU framework for compliance with human rights, international humanitarian
law and conduct and discipline. Of particular interest in this respect is also the work
undertaken in collaboration with the AU Peace Support Operations Division. As reported
in the activity report of the focal point in 2018 and 2019, the focal point helped in
undertaking assessment mission and preparing report on the experience of AU peace
support operations with compliance with human rights, IHL and conduct and discipline
and gave a briefing to PSOD on the relevance of the work of the ACHPR for AU peace
support operations.
As the foregoing brief overview of the mandate and work of the ACHPR shows, there is
a substantial body of work and resources that are of direct interest to the mandate and
work of the PSC. There is a great deal that the PSC could benefit by tapping into this
hugely rich and substantial amount of work of the ACHPR on human rights and peace
and security.
Excellency Chair of the PSC, excellencies ladies and gentlemen members of the PSC,
I would like now to address you on the second area of my intervention for this session. As
I hinted earlier, this concerns the normative foundation for the working relationship
between the PSC and the ACHPR and the practice thus far in the working relationship
between the two.
In terms of legal foundations apart from Article 45(1)(C) and Rule 80 of the Rules of
Procedure of the ACHPR, the working relationship between the PSC and the ACHPR
draws on the major AU legal instruments including notably the Constitutive Act and the
PSC Protocol. Of the 18 principles listed in the AU Constitutive Act, eight form the central
planks of the AU peace and security regime. These are the sovereign equality of states;
non-intervention and peaceful co-existence; peaceful resolution of conflicts and non-use
of force; uti positidetis juris; respect for human rights, sanctity of human life and democratic
principles, and good governance; rejection of impunity and unconstitutional changes of
governments; and the right of the AU to intervene in a member state in case of grave
circumstances.
Out of these the ones that directly implicate the mandate of the ACHPR include peaceful
resolution of conflicts and non-use of force (relating to Article 23 of the ACHPR and
Articles 10 and 11 of the Maputo Protocol) respect for human rights, sanctity of human
life and democratic principles and good governance; rejection of impunity and
unconstitutional changes of governments; and the right of the AU to intervene in a
member state in case of grave circumstances namley genocide, war crimes and crimes
against humanity.
Perhaps, the instrument of most direct importance is the PSC Protocol. In its preamble
the PSC Protocol affirms that the development of strong democratic institutions and
culture, observance of human rights and the rule of law, … are essential for the promotion
of collective security, durable peace and stability, as well as for the prevention of conflicts.’
The Protocol also envisages that the first objective of the PSC in promoting peace and
security is directed to ‘the protection and preservation of life and property, the well-being
of the African people and their environment, as well as the creation of conditions
conducive to sustainable environment’ The fact that this is the first objective of the PSC
could be indicative of the weight assigned to the importance of human rights in the
mandate of the PSC. Additionally, the PSC also have the additonal objective to ‘promote
and encourage democratic practices, good governance and the rule of law, protect human
rights and fundamental freedoms, respect the sanctity of human life and humanitarian law’.
Among the principles that underpin the PSC Protocol include respect for the rule of law,
fundamental human rights and freedoms, the sanctity of human life and international
humanitarian law.
In terms of the PSC’s mandate, the details of the power of PSC specified under Article 7
of the Protocol that are of interest include
• Anticipate and prevent disputes and conflicts;
• identify policies that may lead to genocide and crimes against humanity;
• undertakepeace-makingandpeacebuildingfunctionstoresolveconflictswheretheyhave
occurred;
• authorize the mounting and deployment of peace support operations;
• recommend to the AU Assembly when to intervene in a member state to stop war
crimes, genocide and crimes against humanity; and
• follow-up, within the framework of its conflict prevention responsibilities, the
progress towards the promotion of democratic practices, good governance, the
rule of law, protection of human rights and fundamental freedoms, respect for the
sanctity of human life and international humanitarian law by member states;
Given the expertise of the ACHPR on matters human rights, it is only logical that all these
substantive human rights components of the mandate of the PSC are best operationalized
through close working relationship of the PSC and the ACHPR. For example, in terms of
activating its mandate under Article 4(J) and 7 (e) of the PSC Protocol on genocide, war
crimes and crimes against humanity, the expertise of the ACHPR, with its substantial
amount of work highlighted above, can come handy in enabling the PSC take an informed
decision.
This mandate overlap and the effective implementation of the respective responsibilities
of the two institutions in these areas of common interest require that the two adopt an
institutionalized mechanism for close working relationship. Against the background of the
foregoing, the PSC Protocol provided for a logical framework for enabling the relationship
between the PSC and the ACHPR. Article 19 of the Protocol accordingly stipulates:
The Peace and Security Council shall seek close co-operation with the African
Commission on Human and Peoples’ Rights in all matters relevant to its objectives
and mandates. The Commission on Human and Peoples’ Rights shall bring to the
attention of the Peace and Security Council any information relevant to the
objectives and mandate of the Peace and Security Council.
Building on this provision and in order to start its operationalization, the Conclusions of
the Dakar Retreat of the PSC in 2007 provided for the establishment of an annual
consultative meeting as one avenue for activating Article 19. This provision of the Dakar
Conclusions have since been reiterated in the outcome documents of the various
subsequent retreats of the PSC.
In terms of the practice, there has been ad hoc interactions between the two bodies. This
has in particular been the in case with respect to investigation of human rights issues in
conflict or crisis situations. In a number of occasions since 2004 the PSC made requests
to the ACHPR to undertake investigation of issues of human rights in various situations
including in Cote d’Ivoire, Darfur, the Republic of Guinea, Mali, and Somalia. Most
recently, the PSC similarly tasked the African Commission to investigate the human rights
situation in Burundi. Acting on this request, the Commission undertook its investigations
on 7-13 December 2015 and presented its investigation report to the PSC on 28 April
2016.
While this has become an important area of engagement between the PSC and the ACHPR
as recent references to the ACHPR made in relation to PSC outcome documents on Sudan
and Libya, there is still huge room for the effective operationalization of this existing area
of engagement. There are at least two issues that need to be looked into in this respect.
The first is that beyond and above making a request for the ACHPR to undertake a mission
in pursuit of its mandate, the PSC has to facilitate access into the country where the
investigation mission takes place. In the most recent experience in Burundi, the
investigation mission became possible on account of the authorization for field visit that
the Government of Burundi granted the ACHPR. Without the willingness of the
authorities in Burundi, that investigation mission might not have happened. The PSC,
when tasking the ACHPR to undertake investigation mission, should make stipulations
urging the authorities concerned to allow access to the ACHPR and lend the ACHPR the
diplomatic support that would enable the ACHPR undertake the investigation in pursuit
of the PSC mandate. Second, there has also to be clarity in terms of putting in place a
procedure for following up on the implementation of the investigation and for processing
of the report of the ACHPR on its findings report in order to ensure that the PSC receives
the report of the ACHPR and acts on the recommendations in the report.
Beyond and above addressing the gaps in the current practice in the relationship between
the two bodies, there are further modalities for the operationalization of Article 19 of the
PSC Protocol outlined in ACHPR Study on human rights in conflict situations under
Resolution 332 to which by way of conclusion I will now turn my attention.
Modalities for the operationalization of the Article 19 of the PSC Protocol
1. Annual consultative meeting envisaged in the 2007 Dakar Conclusions of the PSC Retreat on PSC Working methods
The first modality for the operationalization of Article 19 is the implementation of the
conclusions of the Dakar Retreat. This entails the institutionalization of this consultative
meeting as a standing annual agenda that should be inscribed into the indicative annual
work plan of the PSC. This is best achieved through a binding decision of the PSC by a
communique of this session institutionalizing the annual meeting and calling for its annual
convening during a month when the ACHPR is not in session, such as like this one in
August.
2. Submission by the African Commission on the human rights dimensions of AU peace and security processes
The African Commission is best placed to highlight the human rights dimensions of
specific crisis situations and provide recommendations how those human rights issues can
be integrated and addressed in AU peace processes whether those be preventive
diplomacy, mediation, peacemaking, peace support operations or post-conflict
reconstruction support initiatives. This includes supporting the AU in integrating human
rights in the mandates, design and implementation of peace processes including peace
support operations.
Within the framework of Resolution 332 of the African Commission on Human Rights in
Conflict Situations, the Commission supported the AU Peace Support Operations
Division (PSOD), through its focal person on human rights in conflict situation
Commissioner Dersso, in undertaking a comprehensive assessment of experience of the
AU’s peace support operations with compliance with human rights, international
humanitarian law and conduct and discipline standards and submitting a report for helping
the AU developing a human rights, IHL and conduct and discipline compliance framework
for its peace support operations.
3. Informal consultations
The close working relationship between the PSC and the African Commission can also be
optimally implemented through informal consultations in which the African Commission
shares with the PSC about existing or emerging situations of concern with a view to enable
the PSC take a policy position on dealing with the situation appropriately with due regard
to the human rights issues involved.
4. Investigation missions
By virtue of its mandate of monitoring the human rights situation on the continent and of
initiating appropriate response, the African Commission is the only body with the requisite
mandate and experience for undertaking investigation into the human rights dimension of
emerging or existing conflict situations. There is already an established practice of the
African Commission undertaking investigation missions, including on the request of the
Peace and Security Council. In this respect, the African Commission undertook missions
to Darfur, Sudan, Mali, Central African Republic and Burundi. But the only investigation
report initiated on the request of the PSC whose report has been submitted and considered
by the PSC is that of the report of the investigation mission to Burundi. Although the AU
tasked the African Commission to undertake investigation mission into the reported acts
of violations meted out against migrants including slave trading that took place in Libya,
this could not be implemented for lack of authorization for undertaking this investigation
mission.
The Commission has also been a member of the AU Commission of Inquiry for South
Sudan that the PSC established for investigating the gross human rights violations that
took place in South Sudan following the eruption of the civil war in South Sudan in
December 2013.
5. Information sharing on major human rights violations for early warning
The African Commission by virtue of its mandate and the nature of its activities receives
and collects information on regular basis on the human rights situation of AU States
Parties to the African Charter, including those on the agenda of the PSC. Since patterns of
systematic or serious violations on which the African Commission receives and collects
information from various sources including through visits and reports of national human
rights institutions often serve as important signs of emerging or impending crisis, sharing
information on such situations to the PSC contributes to enhancing the early warning and
early response system of the AU. The PSC may thus benefit from the information of the
African Commission and have its attention drawn to emerging or impending situations of
concern including through submission by the Commission of its statements and reports as
appropriate and based on agreed modalities.
6. Briefing the PSC formally on the human rights dimension of the situation or theme on the agenda of the PSC
The African Commission has various mechanisms and has developed a number of
thematic guidelines and frameworks on various areas of human rights including those
relating to situations of counter terrorism, transitional justice and conflicts. It has recently
adopted a landmark study on human rights in conflict situations in Africa. Accordingly,
the African Commission can provide the PSC briefings on the human rights dimension of
the situation or theme on the agenda of the PSC, thereby helping the PSC discharge its
mandate relating to human rights as enunciated in the PSC Protocol.
7. The establishment of a standing thematic agenda of the PSC on human rights and peace and security
Finally, in the light of the fact that human and peoples’ rights forms part of the mandate
of the PSC, the African Commission submits that the PSC establishes human rights and
peace and security as a standing thematic agenda of the PSC on which the PSC holds biannual
sessions dedicated to the theme of human rights and peace and security in Africa.
This will be one avenue through which the PSC receives reports dedicated to the subject
of human rights and peace and security in Africa with a view to help it be fully informed
of the current and emerging human rights issues in crisis situations during the reporting
period and adjust its approaches and responses to those crisis situations accordingly as part
of its regular monitoring of those crisis situations.
8. Joint filed visits by the PSC and the ACHPR
The other and final modality for the operationalization of Article 19 is the invitation to by
the PSC for the ACHPR to join it when the PSC undertakes a field visit.
9. Regular exchanges between the ACHPR focal person on human rights in conflict and the monthly chair of the PSC
This will help in enabling free flow of information and in having human rights dimension
integrated into the situations in monthly programs.
Excellency the Chair of the PSC, excellencies ladies and gentlemen, having outlined the
modalities for a fully functioning and more institutionalized working relationship between
this August body and the body I represent today, all that is left for me to say is to thank
you all for your kind attention and wish us a productive deliberation for the rest of the
session.
Thank you!
