Fifteen Eighty Four

In recent years there has been heightened interest in how to ensure implementation of human rights standards. In Africa, the African Commission on Human and People’s Rights is the primary body mandated to monitor and promote the implementation of States’ obligations under the African Charter on Human and Peoples’ Rights. However, the African Commission is often criticised or compared unfavourably with other human rights bodies on the grounds that there is a lack of implementation of its findings, for example decisions on individual communications.

Is it fair to criticise the African Human Rights Commission on Human and Peoples’ Rights for a lack of implementation of its findings and what are the factors that may influence implementation? These are two of the key questions we explore in our book.

The idea for our research originally came out of discussions about a lack of implementation of the African Commission’s Robben Island Guidelines for the Prevention of Torture in Africa. The Robben Island Guidelines set out a range of measures to be taken by States in order to prohibit and prevent torture and other ill-treatment and support victims of such abuses. One of us had been closely involved with the drafting process for the Guidelines and therefore had a particular insight into the reasons for their development and hopes for what they would achieve once adopted. We were therefore interested in knowing why it appeared that these Guidelines had not had the impact and influence expected when they were adopted by the African Commission in 2002. Was it a problem with the text? Was it because they are not legally binding on States? Was it a problem of publicity and knowledge or was it a problem with the African Commission itself?

We therefore decided to look at this more closely not only as a way to try and assist the African Commission and other actors with an interest in the Robben Island Guidelines but more broadly to better understand factors that can help or hinder the implementation of instruments and decisions of human rights bodies. Among the human rights community it is acknowledged that there is an implementation crisis but this is not limited to the African human rights system, the other regional human rights systems and the UN face similar problems with implementation of their findings. Therefore we hoped that through our research we could contribute to wider discussions on implementation.

Therefore, although the Robben Island Guidelines were the starting point for our research, we expanded this to look at all ‘findings’ of the African Commission such as decisions on individual communications; concluding observations on State reports; country and thematic resolutions; and recommendations made in relation to missions to countries. We analysed how the findings of the African Commission were used, in what context and by whom. We also looked at how implementation was monitored and who should be involved in that process.

States bear the ultimate responsibility for the implementation of findings of human rights bodies. They retain the legal responsibility and political control over whether its international human rights obligations are implemented or not. Therefore we argue in our book that some of the criticism directed at the African Commission for a lack of implementation of its findings is misplaced, and arises out of unrealistic expectations. We also argue for greater engagement by relevant organs of the African Union in monitoring and encouraging implementation by States of the findings of the African Commission. However, this does not absolve the African Commission from responsibility entirely; it does and should have a role in following up on its findings and we identified that its own behaviour and approach to its findings can have an impact on the extent to which they are used and implemented.