The African Charter on Human and Peoples’ Rights prescribes in Article 62 that: “(...)each State Party shall undertake to submit every two years, from the date the Charter comes into force (for that State), a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognised and guaranteed by the present Charter.” The Charter does not however indicate the organ to which these reports should be submitted.
The Commission then, in a broad reading of its powers, fully justified under Articles 45 and 46 of the Charter requested to be entrusted with the task. Consequently, in its 3rd Ordinary Session in April 1988, the Commission of the OAU decided to “specifically assign it with the mandate to consider the reports to indicate the general orientation as regards their form and substance”. This recommendation was adopted at the 24th Ordinary Session of the OAU Assembly of Heads of State and Government. Since then, therefore, the Commission has been receiving and examining States’ reports submitted pursuant to Article 62 of the Charter.
This Information Sheet is aimed at explaining the aims and objectives of State reporting and the procedures used by the Commission during examination of these reports. It also highlights some of the contributions Non-Governmental Organisations (NGOs) and the civil society can play in enhancing the process.
The document also tries to allay the fears expressed by some States that the exercise exposes them to embarrassment.
It is distributed free of charge throughout Africa. It can be reproduced in other languages other than its original language provided no changes are made to its contents and the Commission is mentioned as the source.
One of the most effective means by which the Commission can ensure the promotion and protection of human and peoples’ rights is through the State reporting procedure. Under article 1 of the Charter, State Parties thereto undertake to adopt legislative and other measures to give effect to the rights in the Charter.
Under article 62, they are required to submit reports to indicate how they have implemented article 1, that is, the legislative and other measures they have adopted to give effect to the Charter. Almost all human rights monitoring bodies use this process to evaluate the progress made by its members in the fulfilment of their obligations.
At its Fourth Ordinary Session held in October 1988, the Commission adopted the General Guidelines relating to the form and content of the periodic reports, detailing the type of information required by the Commission.
It should be noted that of the 51 States which have ratified the Charter only 30 have submitted reports to the Commission as at October 2001, and none has been regular.
Most States have the misconception that the state reporting system is a forum to embarrass them. However, those that have presented reports before the Commission have realised that it is the best way for States to building confidence in, and a strong partnership with, the Commission. The guidelines adopted in 1988 outline the aim of National State Reporting as “(…) the urgent desire (…) to create a channel for constructive dialogue”. This was reiterated by the Chairman of the Commission, Dr. I Badawi (at the 9th Ordinary Session of the commission when the report of Libya – the initial report submitted to the commission was being examined) that the discussion was “not going to take place as a confrontation (…) but as a dialogue in the framework of cooperation. The questions to be addressed to the representatives of the State (s) must not be understood as a challenge to the State (s) but as a positive criticism or a positive dialogue which aims at completion of the facts and the legislation in the State (s)".
II. Purpose of State Reporting
As mentioned, one of the primary objectives of the Commission's State Reporting system is to establish a framework for constructive dialogue between the Commission and the States. This dialogue however is not the final goal of the system, but a tool for achieving other goals.
When the channel for dialogue has been established, it can be used in the enhancement of the mechanisms for promoting and protecting human and peoples’ rights. As pointed out by the Commission, the States and itself are “both partners of one objective, which is the promotion and protection of the rights provided in the Charter”. When a State realises this common goal, it becomes very easy for it to work with the Commission.
III. Advantages and Benefits of State Reporting
- Monitoring implementation of the Charter
The reports give the Commission a better understanding of the types of problems encountered by States in seeking to transform into reality the provisions of the Charter. This gives it an opportunity to work out measures which can be taken to address the problems and promote effective realisation. Thus, if in following the consideration of a report, the Commission feels that a State has not fully discharged its obligation, it “may address all general observations to the State concerned as it may deem necessary”. It can “furnish suggestions, advice and assistance on satisfying the requirement of the Charter.”
The reporting system enables the States to constantly check the whole government machinery as it forces the relevant government institutions from all the departments and ministries to evaluate legal regulations, procedures and practices vis-à-vis the provisions guaranteed in the Charter.
- Identify difficulties
The commission has always recommended that a State report should not only indicate the measures taken to implement the provisions of the Charter, but also the factors and difficulties impeding the effective implementation of the Charter.
The Commission states that “it is important that the State concerned pays specific attention to highlight not only the positive aspects it has within its legislation (…) but it must also state difficulties and obstacles.” Such frankness will assist the Commission to understand the special circumstances of the State and will on the other hand assist the State to understand the Commission and the framework in which the provisions of the Charter are applied.
Consequently, the State and the Commission will together promote cooperation to diagnose problems and to find adequate remedies.
- Share information among States
The State reporting system also permits the Commission to collect information on common experiences, both good and bad, from member States, so that States can learn from one another.
IV. Procedures adopted when examining State Reports
The recommendation requesting the OAU Assembly of Heads of State and Government to mandate the Commission to examine State reports requires “ the General Secretariat of the OAU to receive the said reports and communicate them to the Commission without delay”. In practice however, most States send their reports directly to the Secretariat of the Commission. Those sent to the General Secretariat of the OAU are also communicated to the Secretariat of the Commission.
1. Procedure at the Secretariat
Upon receipt of a report, the Secretariat studies it and informs all the Commissioners. Copies of the report are sent to all the commissioners. Prominent human rights institutions, such as Amnesty International and the International Commission of Jurists, local NGOs from the State that has submitted the report, are either informed or sent copies of the report. This distribution of the State report is in conformity with Rule 78 of the Commission’s Rules of Procedure which provides that: “Periodical reports (…) submitted by State Parties to the Charter (…) shall be documents for general distribution (…)” These human rights institutions are requested to avail to the Commission, information and/or questions on the human rights institution of the State concerned. The Secretariat, with all the information at its disposal, prepares questions that would be asked to the representative of the State.
The questions are not necessarily limited to information in the report. The questions are transmitted to the State concerned and to all Commissioners at least six weeks before the date of the session at which the report is going to be examined. A letter, together with a list of the questions prepared at the Secretariat, is sent to the State requesting it to send a highly qualified official (s) to the session to present the report. It is very important that States send representatives who will be able to answer questions posed to them on the spot. The Secretariat also specifically contacts the Commissioner responsible for promotional activities in the country concerned, who, under normal circumstances is going to be the rapporteur to lead discussion on the report, and provides him with any further information on the report.
2. Procedure at the Session
The examination of State periodic reports is done in open sessions of the Commission, that is, before all the participants, including NGOs, National Human Rights Institutions, State representatives and other invitees. However, only the Commissioners can pose questions to the State representatives.
There is no fixed time limit for the state representatives to make the presentation. After the presentation, the rapporteur poses questions to the representatives. These are supplemented by additional questions from other Commissioners. The line of questioning is not limited to the questions prepared by the Secretariat.
In the past, after the question and answer session, the Commission went into a close meeting to discuss possible recommendations. Dr. Badawi described this practice as having the “advantage of creating a dialogue and at the same time giving the Commission some privacy in making some comments among the Commissioners.” The practice however has changed, and presently, after the question and answer process, the rapporteur sums up and the Chairman concludes the discussion.
3. Examination without State Representatives
When a report is submitted to the Secretariat, a letter is sent to the State informing it of the session at which the report will be examined and inviting it to send a high level representative to the session to present the report. The Rules of Procedure does not make it compulsory for State to send representatives before their reports could be considered. Rule 83 provides that “(…) Representatives of the States Parties to the Charter may participate in all the sessions of the Commission at which their reports shall be considered.” In the past, the Commission adopted a practice whereby it will not consider a report if there is nobody from the State to present it. However, at its 23rd Ordinary Session, the Commission decided that if after two notifications to a State to send a representative to present its report there is no response, it will go ahead with examination of the report and forward its comments to the State concerned.
After the examination of a State report, the Commission usually decides that a follow-up letter be sent to the state concerned, summing up the examination and putting in writing the questions that were not given satisfactory answers, if any. Rule 85 (3) required that “if, following the consideration of the report, and the information submitted by the State (…) the Commission decides that the State has not discharged its obligations under the Charter, it may address all general observations of the State concerned as it deems necessary.” The State is then requested to submit to the Secretariat of the Commission any additional information that it may require. The Commission may, where necessary, fix a time limit for the submission of the comments by the States”.
Rule 86 (2) states that “The Commission may also transmit to the Assembly, the observations (…) accompanied by copies of the reports it has received from the States (…) as well as the comments supplied by the latter if possible”. There is no precision as to how the State concerned should submit the additional information. For instance, in some cases, they were requested to include the information in the next report, while in other cases, they were asked to submit the additional information without delay in a separate letter.
V. Non-submission of Reports
Rule 84 states that “The Secretary shall, at each session, inform the Commission of all cases of non-submission of reports or of additional information --- In such a case, the commission may send through the Secretary, to the State Party (...) a report or reminder relating to the submission of the report or additional information.” If after the reminder, the State Party still does not submit the report or the information requested, the Commission shall indicate this in its annual report to the Assembly of Heads of State and Government of the OAU. Reminders are sent to State Parties every three months (in the past it was once every six months). The Commission usually attaches a list to the annual activity report which illustrates the status of submission of State periodic reports. This list contains the names of those States that have submitted their reports, the number of reports submitted, the reports due, and the names of those States which have not submitted any report.
The State reporting system of the African Commission is still in its infancy. Unlike the UN Human Rights Committee, the African Commission examines very few reports during each of its sessions. To develop this system further, the Commission would need the cooperation of States, NGOs and civil society.