Desktop version

Home arrow Law arrow Tracing the roles of soft law in human rights

The Role of Soft Law within the African Commission on Human and Peoples’ Rights

The African Commission derives its mandate from Article 45 of the African Charter, which sets out the express functions of the Commission to promote, protect, and interpret the rights contained in the African Charter. From the outset soft law is given prominence within the functions and outputs of the African Commission; for example Article 45 states that the Commission is to:

  • 1. ... a) give its views or make recommendations to Governments.
  • b) to formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislation..

‘Law, Non-law and the Problem of Soft Law’, in Commitment and Compliance: The Role of Non-binding Norms in the International Legal System, ed. D. Shelton (Oxford: Oxford University Press, 2000): 10—13.

5 This research project was funded by the Arts and Humanities Research Council of the UK. The research project ran from Oct. 2008 to 2012. The research documents produced under the project are available at: .

3. Interpret all the provisions of the present Charter at the request of a State Party, an institution of the OAU or an African Organisation recognised by the OAU____6

The African Commission has therefore been established as a monitoring body with quasi-judicial, advisory, and investigative powers. It can be inferred from the references to ‘views’, ‘recommendations’, ‘principles’, and ‘rules’ in Article 45 that a fundamental aspect of the mandate of the African Commission is to develop soft law, and/or soft law instruments, in order to promote human and peoples’ rights and assist states to implement their obligations under the African Charter.

In interpreting its mandate the African Commission has established a range of procedures and functions such as the consideration of periodic state reports, missions to countries, the adoption of resolutions on country specific issues; the adoption of thematic resolutions; General Comments on thematic issues; and the consideration of individual and state communications, which generate a significant number of views, observations, recommendations, guidelines, and rules, which are arguably soft law or soft law instruments.7

These instruments of the African Commission can be regarded as ‘secondary soft law’ as described by Shelton,8 because they emanate from a treaty body and not states themselves. As will be explored in this chapter the institutional context within which these instruments have been developed has a significant impact on their role and use in practice.

Over the years the African Commission has adopted a number of thematic instruments, usually in the form of ‘principles’ and/or ‘guidelines’, such as the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africap Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights;10 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa;n and Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines). 12 In addition the African Commission has also adopted the Declaration of Principles on Freedom of Expression in AfricaTh which can be regarded as falling within this category of soft law instruments of the African Commission.

See also: R. Murray and D. Long, The Implementation of the Findings of the African Commission on Human and Peoples' Rights (Cambridge: Cambridge University Press, 2015).

  • 6 Art. 45 of the African Charter.
  • 7 The legal status of the African Commission’s decisions on individual communications is ambiguous. The African Commission sometimes seeks to argue that its decisions are legally binding on states. This is supported by some commentators who assert that the adoption of the report of the African Commission which includes its decisions on individual communications by the AU has a ‘hardening effect’, see e.g.: Viljoen (2012): 339; F. Viljoen and L. Louw, ‘The Status of the Findings of the African Commission’, Journal of African Law vol. 48 (2004): 18—19. However cf. Murray and Long (2015): 56—8.
  • 8 Shelton (2000): 451. See also: Chinkin in Shelton (2000): 29.
  • 9 Adopted on 9 Mar. 2015. .
  • 10 Adopted on 24 Oct. 2011. .
  • 11 Adopted on 29 May 2003. .
  • 12 Adopted on 23 Oct. 2002. .
  • 13 Adopted on 23 Oct. 2002. .

These instruments are all expressly categorized as soft law instruments by the African Commission itself,[1] [2] and have been described as playing ‘a role similar to that of General Comments adopted by UN human rights treaty bodies’.15 In a further development of its interpretative function in 2012 the African Commission adopted its first ‘General Comment’ on the Protocol to the African Charter on General Comments on Article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa/[3] which was followed in 2014 by a second General Comment on the same Protocol/[4] With these precedents there are indications that other General Comments in relation to other rights contained within the African Charter will be developed/[5]

Although the rights addressed by these thematic instruments vary they have a common primary purpose. These instruments have been adopted by the African Commission as a means to fulfil its mandate as set out in Article 45(1)(b) of the African Charter ‘to formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislation ...’.

Generally the intention is not to use these instruments to lead towards a ‘hardening’ of them in the form of a legally binding instrument, instead they are used to elaborate and strengthen the human rights framework within the region. In other words they are useful additions to the human rights ‘armoury’ which the African Commission, and others working in the field of human rights, can draw upon to encourage states to comply with their human rights obligations. Therefore these soft law instruments can be said to have a ‘norm-filling’ purpose as described in the Introduction to this book/[6] In addition some of these instruments also provide evidence of the existence of hard law obligations.'[7] [8] [9] As Shelton notes, some soft law can have normative content and the soft law instruments of the African Commission are evidence of this/1 for example numerous provisions of the Robben Island Guidelines reflect obligations contained in the UN Convention against Torture,'' as well as those in the International Covenant on Civil and Political Rights/3

Typically these thematic instruments have been developed at the instigation of civil society organizations (CSOs) in order to highlight and advance a particular area of focus at the regional level.24 The influence and role of CSOs in the work of the African Commission has been well documented by commentators over the years.25 The impact this reliance on CSOs has on the level of traction these thematic instruments gain at the regional and national levels is discussed further in section 4.

CSOs have instigated the development of these thematic instruments for a number of strategic reasons. They have been encouraged as a means to influence state behaviour by articulating measures required to implement their obligations in relation to particular rights.

The thematic instruments have been developed very deliberately and strategically in a ‘soft law’ form rather than a binding one. As Shelton notes, the soft law form may be used ‘when there are concerns about the possibility of non-compliance either because of domestic political opposition, lack of ability of capacity to comply, uncertainty about whether compliance can be measured, or disagreement with aspects of the proposed normT6 Soft law may also allow for more active participation of non-state actors and can be adopted or amended more rapidly because it is non-binding.27 Therefore developing a thematic instrument in a ‘soft law form’ can be an expedient and pragmatic means to enunciate what measures states must take to implement their obligations. Consequently, these thematic instruments can be a useful tool to support and encourage implementation at the national level.28

The development of thematic instruments has also been used by CSOs as a device to strengthen the strategic approach and procedures of the African Commission itself in relation to a particular thematic issue. The aim being that these instruments can be used by the African Commission through its various procedures, such as the state reporting system, missions to countries, and the communications procedure, to strengthen the quality of its dialogue with and advice to states on particular human rights issues.

The African Commission has also established thematic ‘Special Mechanisms’ consisting of rapporteurs, working groups, and committees, as a means to provide a particular focus and focal point within the Commission in relation to specific rights. [10] [11] [12] [13] [14]

Again the creation of these procedures has been at the instigation of CSOs, therefore not surprisingly the thematic instruments are often linked to particular themes that fall under the mandate of these Special Mechanisms. For example the Guidelines on the Conditions of Arrest, Police Custody, and Pre-Trial Detention in Africa were developed in cooperation with the Special Rapporteur on Prisons and Conditions of Detention in Africa; and the Declaration of Principles on Freedom of Expression in Africa and the Model Law for African States on Access to Information support the work of the Special Rapporteur on Freedom of Expression and Access to Information.

In this regard the Robben Island Guidelines are a particularly interesting example as they directly brought about the establishment of a Special Mechanism of the African Commission with a focus on the prevention of torture and, rather unusually for a soft law instrument, an express mandate to promote and monitor the implementation of the Guidelines themselves.'[15] In October 2002, the African Commission passed a resolution adopting the Robben Island Guidelines and which also called for the establishment of a Special Mechanism, the ‘Follow-up Committee on the Robben Island Guidelines’ (Follow-up Committee). The mandate of the Follow-up Committee was expressed as follows:

  • • to organise, with the support of interested partners, seminars to disseminate the Robben Island Guidelines to national and regional stakeholders;
  • • to develop and propose to the African Commission strategies to promote and implement the Robben Island Guidelines at the national and regional levels;
  • • to promote and facilitate the implementation of the Robben Island Guidelines within member states; and
  • • to make a progress report to the African Commission at each ordinary session.[16] [17]

The close nexus between the Robben Island Guidelines and the mandate of this Special Mechanism is evident in the wording of this resolution. In 2009 the name of the committee was changed to the ‘Committee for the Prevention of Torture in Africa’ (CPTA), in order to identify the Committee more clearly with the issue of torture, although its mandate and its express link to the Robben Island Guidelines remains the same.31

The creation of this Special Mechanism was a deliberate strategy of the main CSO behind the development of the Robben Island Guidelines, as means by which to try and ensure the Guidelines gained traction at the national and regional levels after their adoption by the African Commission.^ It was anticipated that creating a specific focal point within the Commission for the Guidelines would have a number of benefits. First it was hoped that having a Special Procedure as an ‘advocate’ for the Guidelines would raise their visibility within the Commission’s procedures and inform the approach of the Commission to issues relating to torture and other ill-treatment. It was also expected that the Committee could be a conduit for activities that would promote the implementation of the Guidelines at the national level.

This leads us on to consider briefly the drafting process for these thematic instruments. Until recently these instruments were typically drafted in workshops involving representatives from the African Commission, CSOs, and other experts on the issue. The Robben Island Guidelines for example were finalized in a three-day expert workshop held in South Africa. The workshop was co-chaired by the African Commission and the APT, and involved representatives from CSOs, the police, and other experts.33 Until recently therefore state representatives have not been involved in the drafting process for these thematic instruments.

However, there does appear to be a change in approach to the development of thematic instruments at the African Commission. The Guidelines on Conditions of Police Custody and Pre-trial Detention in Africa have emerged from a drafting process that have been more inclusive and engaged a wider range of stakeholders within the region.3[18] [19] For example drafts of this instrument were posted on the website of the African Commission with a call for comments, and regional meetings were held in order for input to be provided from more stakeholders, including state representatives. This change in approach may be attributed partly as a response to perceived limitations to the level of traction and influence that previous instruments such as the Robben Island Guidelines have at the regional and national levels, which was to some extent attributed to the lack of inclusivity and visibility generated from the outset of their development.

  • [1] See the list of legal instruments on the African Commission’s website at .
  • [2] Viljoen (2012): 378.
  • [3] General Comments on Article 14(1)(d) and (e) of the Protocol to the African Charter on Humanand Peoples’ Rights on the Rights of Women in Africa. .
  • [4] General Comment No. 2 on Article 14.1(a), (b), (c), and (f) and Article 14.2(a) and (c) of theProtocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa..
  • [5] African Commission’s Committee for the Prevention of Torture in Africa, ‘Concept Paper onthe Development of a General Comment on Article 5 of the African Charter on Human and Peoples’Rights’ (13 May 2015).
  • [6] See also: Murray and Long (2015): 58—61; Shelton (2000): 14; Chinkin in Shelton (2000): 30;Viljoen (2012): 379-80.
  • [7] Chinkin in Shelton (2000): 30-1. '1 Shelton (2000): 4.
  • [8] 22 See e.g.: Guidelines 4, 6, 7, 9, 11, 12, 15, 16, 18, 19, 29, and 50 of the Robben Island Guidelines.
  • [9] 23 See e.g.: Guidelines 4, 9, 10, 20, 25, 26, 27, 32, 35, 36, and 50 of the Robben Island Guidelines.
  • [10] E.g. the development of the Declaration on Freedom of Expression and Access to Informationwas led by Art. 19, the Robben Island Guidelines were developed at the instigation of the Associationfor the Prevention of Torture (APT), the drafting of the Model Law on Freedom of Information wasled by the Human Rights Centre of the University of Pretoria, and the were led by the African PolicingCivilian Oversight Forum (APCOF) and the Open Society Justice Initiative (OSJI).
  • [11] See e.g.: Viljoen (2012): 383—8; R. Murray, ‘Special Rapporteur in the African System’, in TheAfrican Charter on Human and Peoples’ Rights, ed. M. Evans and R. Murray (Cambridge: CambridgeUniversity Press, 2nd edn, 2008): 373—5; N. Mbelle, ‘The Role ofNon-governmental Organisations andNational Human Rights Institutions at the African Commission’, in Evans and Murray (2008): 289—310; J. Harrington, ‘Special Rapporteurs of the African Commission on Human and Peoples’ Rights’,African Law Journalvol. 1 (2001): 251; Murray (2000): 95—6.
  • [12] Shelton (2000): 12.
  • [13] Shelton (2000): 13.
  • [14] Murray and Long (2015): 77; Viljoen and Louw (2004): 13; O. C. Okafor, The African HumanRights System: Activist Forces and International Institutions (Cambridge: Cambridge University Press,2007): 80.
  • [15] African Commission Resolution 61: Resolution on Guidelines and Measures for the Prohibitionand Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, adoptedin Oct. 2002. For more information on the creation of the Follow-up Committee: D. Long andR. Murray, ‘Ten Years of the Robben Island Guidelines and Prevention of Torture in Africa: For WhatPurpose?’, African Human Rights Law Journal vol. 12 (2012): 311-47.
  • [16] Art. 3 of the Resolution on Guidelines and Measures for the Prohibition and Prevention ofTorture,Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines, 2002).
  • [17] African Commission’s Resolution on the Change of Name of the Robben Island GuidelinesFollow-Up Committee to the ‘Committee for the Prevention of Torture in Africa’ and theReappointment of the Chairperson and Members of the Committee, adopted on 25 Nov. 2009; Longand Murray (2012): 338-9.
  • [18] 2 Long and Murray (2012): 315—16, 333, and 339. See also: Murray and Long (2015): 73. 33 For a detailed examination of the text of the Robben Island Guidelines: Long and Murray (2012): 327—31.
  • [19] 34 Invitation to Experts Meeting on the Development of Guidelines on Pre-Trial Detention,. The drafting approach of these Guidelines were influenced by the development of other documents such the Model Law for African States on Access toInformation, which had a more inclusive and transparent drafting process.
 
Source
< Prev   CONTENTS   Source   Next >

Related topics