ADDIS ABABA UNIVERSITY

COLLEGE OF LAW AND GOVERNANCE STUDIES

SCHOOL OF LAW

HUMAN RIGHTS LAW STREAM

TITLE: THE ROLE OF AU ORGANS IN THE PROTECTION OF

HUMAN RIGHTS

BY SINGITAN ADERE

SUBMITTED TO: Abdi Jibril Ali (PH.D. ASST. PROFESSOR)

April 7, 2020

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Contents
Question 1....................................................................................................................................................i
Question 2...................................................................................................................................................ii
The Assembly:..........................................................................................................................................ii
The permanent Representatives’ Committee.........................................................................................iii
The pan-African Parliament....................................................................................................................iii
The Executive Council.............................................................................................................................iv
Question 3...................................................................................................................................................v
The Committee of Experts on the Rights and Welfare of the Child.............................................................v
The African Court on Human and Peoples’ Rights......................................................................................vi
The African Commission on Human and Peoples’ Rights (the Commission).............................................viii

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 The African Union, established by its constitutive act in the year 2000, is composed of
organs discussed in brief below.

The Assembly; this is the supreme organ of the Union composed of heads of state or
government.1 It has such powers as to determine the common policies of the Union. It also
monitors the implementations and compliance of the policies and decisions of the Union by
members.2

It shall also adopt the budget of the union, give directives to the executive Council on the
management of conflicts and restoration of peace and take decisions on the reports from
other organs of the Union.3
1. The Pan-African Parliament; is the legislative arm of the Union tasked with deliberation
and oversight with the aim of becoming a full continental legislative chamber. 4 This
organ has a legal basis both in the AEC treaty and act, though it is fully based on the
protocol to the AEC treaty.
2. A court of justice; (the African court) envisaged under the act and established as per the
protocol to the ACHPR, has such powers as complimenting the protective mandate of
African Commission in human rights, power to interpret and apply human rights
instruments ratified by member states and provide advisory opinion on a legal matter
upon a request made to it from the Union, its organs and members.5
3. Permanent Representatives Committee; is composed of permanent representatives to the
Union and other delegates. It has the power to prepare the work for the executive council
and establish sub-committees and working groups which it may deem necessary for its
activities.6
4. The African ECOSOC; constituted from social and professional groups from members of
the Union, and its powers, functions and composition shall be determined by the
Assembly of the Union.7
1
The Constitutive Act of the African Union, (July, 2000) article 5
2
Id, article 9
3
Ibid.
4
Frans Viljoen, ‘international Human Rights Law in Africa’ Second Eds, (2012) [Oxford University Press]
5
Protocol to ACHPR on Establishment of the African Court, (1998) preamble, article 3 and article 4.
6
Frans Viljoen, above (n) 4.
7
Constitutive Act of the African Union, above (n) 1.

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 5. The Executive Council; composed of ministers or another personnel to be designated by
the members. It has extraordinary or ordinary sessions where the decisions are made by
consensus or two-third majority. It shall coordinate and decide on matters of common
interest such as, foreign trade, food and agricultural matters, utilization of water
resources, environmental protection, education, health, culture and human resource and
etc.8
6. The Specialized Technical Committees; is composed of ministers in the area concerned
and includes, the committee on rural economy, the committee on monetary matters, trade,
customs, immigration matters, communication and transport, on health, labor and social
affairs and etc.9 The functions of these committees, within their respective jurisdictions,
are; follow up the implementation of the decisions of the Union, prepare projects and
submit it to the Union, submit reports to the Union on the implementation of the
constitutive act.10 The Union also has such organs as the Commission which is composed
of the chairman, deputy(s) and commissioners and its structures and functions shall be
determined by the Assembly. The Union also has such financial institutions as the
African Central Bank, Investment Bank and African Monetary Fund.11

The Assembly:
The Assembly has multitude of roles in the promotion of human rights. It provides
normative guidance to members in the protection of human rights by adopting
binding and non-binding instruments such as the protocol on the African Charter on
rights of women and declarations on various infectious diseases in Africa.12
Moreover, the Assembly has the power to adopt various declarations to improve the
socioeconomic conditions of African people which will contribute to the realization
of equality among people and socioeconomic rights of the people in Africa.13
The Assembly, above and beyond its standard setting role, can take decisions with
respect to serious violations of human rights, which may facilitate mechanisms of

8
Id, article 10 and 13.
9
Id, article 14.
10
Id, article 15.
11
Id, article 19.
12
Frans Viljoen, above (n) 4.
13
Ibid.

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 holding accountable those who are involved in the violations of rights in member
states of the Union.14
Additionally, the Assembly receives reports on the activities of such organs as the
African Court and a committee of expert on rights of the child.

The permanent Representatives’ Committee

This organ has great role in the protection of human rights as it, for example, adopts
and prepares draft bills on the rights of vulnerable groups of the society. 15 This has
been observed in the preparation of the protocol on the merger of African Court of
Justice and African Court of human rights.
The sub-committees under the PRC also play a great role in the elaboration of laws
on protection of refugees and internally displaced persons in Africa. 16 Therefore, this
organ has the standard setting role and role of directing the implementation of
existing standards on the protection of human rights.

The pan-African Parliament

This organ, being a forum of deliberation of laws and continental legislature, has a
major role in adopting, both binding and non-binding, standards which will protect
and promote human rights in Africa.
The fact that the PAP membership is required to mirror the diversity, just as is the
case in parliaments at home, and the protocol of PAP reserves certain percentage
seats to female members indicates its motive to accommodate diverse interests.
Moreover, the establishing act of the PAP has the objective of enhancing good
governance , protect and promote human rights recognized in the Charter and other
instrument.
The function of the PAP to investigate, discuss and give opinion on various matters
including human rights also makes it the principal body in the protection and
promotion of human rights. The power of the organ to oversee various matters also
creates a good opportunity to supervise the implementation of human rights standards
in Africa.17

14
Ibid.
15
Ibid.
16
Ibid.
17
Ibid.

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 The parliament may adopt resolutions and make recommendations on the need for
ratification of certain human rights instruments, on the improvement of human rights
record in the members of the Union and introduce the public accountability for
violations of human rights in the continent. 18 The parliament may also send an
investigative squad and missions to oversee the human rights situation of countries
and make recommendations. It could even check to make sure the countries
ratification record of human rights instruments and its implementation.

The Executive Council

Considering that the Council coordinates and decides on policies in areas of common
interest of the Member States of the Union in general, it has functions indirectly
linked to the promotion and protection of human rights in Africa.
Consequently, as per article 13/1 (C) of the Constitutive act, the Council decides on
policies relating to food. This function of the Council contributes much in facilitating
the realization of the right to food in the Member States of the Union. Additionally,
on the basis of article 13 (1) (E), the Council may formulate policies on the
Environmental protection, which will help to ensure the respect for the right to
healthy environment.
Article 13 (1) (H) and (K) of the same act also empowers the Council to coordinate
policies on education and this tells us that the Council can work on policies that help
the implementation of standards on the right to education. The latter article adds that
the Council plays a major role in organizing policies on child care and persons with
disability to fully implement the human rights standards in the Continent.

The Committee of Experts on the Rights and Welfare of the Child

This committee of expert was established within the OAU, as per art. 32 of the
African Charter on the Rights and Welfare of the Child to promote and protect the
rights and welfare of the child. It was formed in 2001 at the 26 th ordinary session of
the assembly of heads of States of the Organization held in Addis Ababa Ethiopia.
The function of the Committee is to promote and protect the rights recognized in the
Charter in general and, in particular, to make assessment on problems of protection of

18
Ibid.

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 child rights and organize information and encourage institutions working on the rights
and welfare of the child.19
The Committee also frames principles aimed at the promotion and protection of the
rights and welfare of the child in Africa and work with other national or international
organizations aimed at promoting and protecting the rights and welfare of the child.20
It also monitors the implementation of the rights recognized in the Charter, interprets
the provision of the Charter upon the request to be made to it from any recognized
person or State and perform other functions entrusted to it by the Union, its organs or
the UN.21
The Committee also receives periodic reports from state parties and communications
on child rights situations to be submitted to it from any person, recognized
organizations, member states or the UN. The Committee can also investigate any
matter covered by the Charter relating to the information and measures taken to
implement it. It shall also make reports of its activities to the AU assembly and
publish those reports.22
The members of the Committee are elected by a secret ballot to be organized by the
union’s assembly from the lists nominated by state parties to the Charter. 23 the state
parties cannot nominate more than two candidates one of which should not be a
national of the nominating state24 and they need to have the nationality of one of the
state party to the Charter. in addition, the Secretary General of the Union shall notify,
Member States, six months before the election, to nominate candidates and submits
the lists of nominees to heads of States two months before the election.25
The term of office for the members of the Committee is five years and there is no re-
election. However, after the first election, four of the members term of office shall
expire after two years and the other six after four years, the implementation of which
shall be determined by the chairperson of the Assembly by lots.26

19
African Charter on the Rights and Welfare of the Child, (1990) article 42/1.
20
Ibid.
21
Ibid.
22
Id, article 43 and 44.
23
Id, article 34.
24
Id, article 35.
25
Id, article 36.
26
Id, article 37.

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 The Committee shall have Addis Ababa as its headquarter. The principal functions of
the Chairperson of the Committee is, as articulated under article 10 of the Rules of
Procedure of the Committee, to perform duties assigned to him by the Children’s
Charter, the Rules of Procedure and the decision of the Commission and Assembly
and shall include:

1. Direct the work of the Committee and follow its compliance with its plan
2. Preside over and convene the ordinary or extraordinary sessions of the Committee
3. Follow up the compliance with the decision and implementation of the
recommendations of the Committee
4. Maintain oversight function over the activities of the Secretariat

The African Court on Human and Peoples’ Rights

The African Court was established within the OAU, in accordance with article 1 of
the protocol to the ACHPR on the establishment of the Court in the year 1998. The
general jurisdiction of the Court is articulated under article 3 of the protocol and
encompasses cases and disputes requiring the interpretation and application of the
African Charter on Human and Peoples Rights, the protocol and other human rights
instruments ratified by the State party concerned.
Moreover, according to article 4 (1) of the Charter, the Court can provide opinion on
any legal matter relating to the Charter, or any other relevant human rights
instruments if requested by the AU, its member States, its organs or organizations
recognized by the Union in case the matter is not being considered by the
Commission.
After examining the cases submitted to it, the Court may consider or transfer it to the
Commission. In case it considers, it may facilitate the amicable settlement of the case
in accordance with the provisions of the Charter.27
As underscored in the preamble of the Protocol, the aim of the Court is to
complement and reinforce the functions of the African Commission on Human and
Peoples Rights and, therefore, works toward the realization of human and peoples
rights in Africa. If the Court discovers that there is violation of human and peoples
27
Protocol to the ACHPR on the Establishment of the African Court, above (5 article 6 and 9.)

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 rights, in its consideration of cases, may order the remedy to be made which shall
include compensation and if the violation is the irreparable one, it may give
provisional measures.28
As regards the appointment of the members, each State party shall propose three
persons at least two of whom should be the nationals of that state with due
consideration to gender equality.29 The Secretary General of the OAU requests the
member States to present their nominees for the office of the judge within ninety days
of such request and, the Secretary General then transmits the lists of the nominees to
the Member States thirty days before the next session of the Heads of States.30
The judges are elected by the secret ballot from the lists prepared by the Assembly 31
and, the Assembly shall ensure the gender representation, main regions of Africa and
major legal traditions,32 their term of office shall be six years and can only be
reelected once. However, after the first election, four of the judges’ term of office
shall expire after two years and that of four more judges after four years, the
implementation of which shall be determined by the Secretary General.33
The substitute judge to serve the vacant position shall only hold office for the
remaining term of office and all the judges shall perform their functions on a part-
time basis.34 However, this may be changed by the Assembly if appropriate.35
The headquarter of the Court is in Arusha, United Republic of Tanzania. The major
functions of the president of the Court includes; informing the Secretary General of
the OAU the death or resignation of the judges of the Court who shall declare the seat
vacant from the time such event took effect and, according to rule 11 of the rules of
procedure of the Court which entered in to force June 2010, his functions includes;
representing and presiding the sitting of the Court, direct and monitor the
administration of the Court, promote the Court’s activities, present reports on his and

28
Id, article 27.
29
Id, article 12.
30
Id, article 13.
31
Id, article 14,
32
Ibid,
33
Id, article 15.
34
Ibid.
35
Ibid.

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 the Court’s activities to the Court and pursuant to article 31 of the Protocol,
prepare and present an Annual Report to the Assembly.

The African Commission on Human and Peoples’ Rights (the

Commission)
The Commission was established in accordance with article 30 of the African Charter
on Human and Peoples’ Rights, adopted in 1981, and entered in to force five years
later (1986). The Commission is one of the human rights organ within the OAU and
has the aim of promoting and ensuring the protection of human and peoples rights in
Africa.
The Commission’s general function is to promote and protect human and peoples
rights and, as stated under article 45 of the Charter, it shall in particular include:
1. Undertake researches on the problems in the field of human rights in Africa, organize
conferences, encourage institutions concerned with human and peoples rights and
give its views and recommendations on governments
2. Adopt principles and rules on legal problems on human and peoples rights in the
continent which could be the basis for the legislations of member States.
3. Cooperate with other African and international institutions concerned with the
promotion and protection of human and peoples' rights.
4. Ensure the protection of human rights recognized in the Charter and interpret the
provisions of the Charter upon the request to be made to it by the Union, its organs,
members or recognized organization.
The appointment of members to the Commission shall be undertaken through secret
ballot by the Heads of States’ Assembly from the nominees presented from State
parties to the Charter.36 The State parties shall nominate two candidates one of whom
should be the national of the nominating State and both nominees should be from
Member States to the Charter.37
The Secretary General of the Union shall invite Member States, six months before the
election, to present their nominees and one month before the election, communicates
the lists presented to Member States. The term of office of the members is six years

36
The African Charter on Human and Peoples’ Rights, adopted 1981, article 33.
37
Id, article 34.

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 with the possibility of reelection. However, after the first election, the term of four
members shall expire after two years and that of three members more after four years,
the implementation of which shall be determined by the Secretary General of the
Union.38
The headquarter of the Commission is Banjul, the Gambia due to historical reasons
linked to the preparation of the document.39 The Charter is itself sometimes referred
to as the Banjul Charter.
The principal functions of the Chairperson of the Commission is, as articulated under
article 14 of the Rules of Procedure of the Commission, to perform duties assigned to
him by the Charter, the Rules of Procedure and the decision of the Commission and
Assembly and shall include:
I. to represent and direct the works of the Commission
II. To preside over the meetings of the Commission
III. Submit the assessment report to the concerned AU organ, supervise the
preparation and adoption of its budget.
IV. Present reports on its activities to the AU Assembly and the Commission and
delegate his functions if it deems necessary. The interaction between the Court
and the Commission is complementary as stated under article 8 of the
protocol. Both organs, as has been stated in the preamble of their
establishment act, have the protective mandate on human and peoples rights in
Africa. However, the Court renders binding decisions while the Commission
provides recommendations to remedy the violations of human and peoples
rights.

Finally, the interaction between the Court and the Commission is worth considering.
According to article 8 of the Protocol on the African Charter on Human and Peoples’
Rights on the Establishment of African Court, the Court and the Commission are
complementary. Both organs, as has been stated in the preamble of their
establishment act, have the protective mandate on human and peoples rights in Africa.

38
Id, article 35.
39
Frans Viljoen, above (n) [4]

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Moreover, article 2 of the Protocol on ACHPR on the establishment of the African
Court somehow indicates the relationship between the Court and the Commission. It
underscores that the Court shall complement the protective mandate of the
Commission toward full implementation of the Charter.

However, seen from their findings, the Court’s decision is different from that of the
Commission as it renders binding decisions while the Commission provides
recommendations to remedy the violations of human and peoples rights.

The Court when providing advisory opinion on any legal matter falling within its
jurisdiction as per the Charter, however, shall, as provided under article 4 of the
Protocol, decline to provide its views in case the subject-matter relates to the one
being considered by the Commission.

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