The Rise and Rise of Political Backlash: African Union Executive Council’s
Posted: Tue Feb 18, 2025 4:02 am
The latest African Union (AU) Summit, held in Nouakchott, Mauritania, from 25 June to 2 July 2018, has left the African Commission on Human and Peoples’ Rights (ACHPR) severely undermined. The Executive Council adopted Decision EX.CL/Dec.1015(XXIII), which endorses some worrying recommendations that emanated from the joint retreat, held in June, by the ACHPR and the Permanent Representatives’ Committee (PRC). The adoption of the Decision has turned the recommendations into binding AU decisions or directives (see Executive Council Rules of Procedure, Rule 34 and Art. 23(2) of the Constitutive Act of the AU). This post reflects on the political motivations for, the legality of, and potential implications of three of these decisions or directives, namely:
The decision to review the interpretative mandate of the ACHPR “in light of a similar mandate exercised by the African Court [on Human and Peoples’ Rights] and the potential for conflicting jurisprudence”;
The directive to the ACHPR to align its guidelines for granting observer status to NGOs with “the already existing criteria on the accreditation of NGOs to the AU”; and
The directive to the ACHPR formulate a code of conduct, in consultation office 365 database with the AU Legal Counsel.
These decisions are seemingly noble or harmless. However, their underlying motive and impact dovetail into the broader backlash against human rights bodies in Africa (Alter et al 2016). Indeed, the decisions are based on a misconception about the nature of ACHPR’s independence. According to the Executive Council, ACHPR’s independence is merely “functional in nature and not independence from the same organs that created the body” (Decision EX.CL/Dec.1015(XXVIII) para 5). Yet, ACHPR’s independence is more than functional; it enjoys absolute institutional independence from external actors in the discharge of its mandate. It is guided only by its foundational treaty, the African Charter, and other relevant human rights treaties. This understanding of ACHPR’s independence is in keeping with the object and purpose of the African Charter as well as best practice on independence of international judicial or quasi-judicial bodies (Shelton 2003 and Mahoney 2008).
The Burgh House Principles offer a useful guide here, although they relate to international courts. Principle 1.2 provides that “[w]here a court is established as an organ or under the auspices of an international organisation, the court and judges shall exercise their judicial functions free from interference from other organs or authorities of that organisation”. The AU tacitly acknowledged this principle when it located the ACHPR in Banjul, the Gambia, away from its own seat in Addis Ababa, Ethiopia (See relevant decisions here and here). This move was meant to serve as a symbol of the independence that the ACHPR ought to enjoy from.
The decision to review the interpretative mandate of the ACHPR “in light of a similar mandate exercised by the African Court [on Human and Peoples’ Rights] and the potential for conflicting jurisprudence”;
The directive to the ACHPR to align its guidelines for granting observer status to NGOs with “the already existing criteria on the accreditation of NGOs to the AU”; and
The directive to the ACHPR formulate a code of conduct, in consultation office 365 database with the AU Legal Counsel.
These decisions are seemingly noble or harmless. However, their underlying motive and impact dovetail into the broader backlash against human rights bodies in Africa (Alter et al 2016). Indeed, the decisions are based on a misconception about the nature of ACHPR’s independence. According to the Executive Council, ACHPR’s independence is merely “functional in nature and not independence from the same organs that created the body” (Decision EX.CL/Dec.1015(XXVIII) para 5). Yet, ACHPR’s independence is more than functional; it enjoys absolute institutional independence from external actors in the discharge of its mandate. It is guided only by its foundational treaty, the African Charter, and other relevant human rights treaties. This understanding of ACHPR’s independence is in keeping with the object and purpose of the African Charter as well as best practice on independence of international judicial or quasi-judicial bodies (Shelton 2003 and Mahoney 2008).
The Burgh House Principles offer a useful guide here, although they relate to international courts. Principle 1.2 provides that “[w]here a court is established as an organ or under the auspices of an international organisation, the court and judges shall exercise their judicial functions free from interference from other organs or authorities of that organisation”. The AU tacitly acknowledged this principle when it located the ACHPR in Banjul, the Gambia, away from its own seat in Addis Ababa, Ethiopia (See relevant decisions here and here). This move was meant to serve as a symbol of the independence that the ACHPR ought to enjoy from.