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State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights, 1994-2004

Published online by Cambridge University Press:  27 February 2017

Frans Viljoen  and
Lirette Louw
Frans Viljoen
Affiliation:
University of Pretoria, South Africa
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Extract

Current discourse on international human rights leaves little room for self-satisfaction about near-universal acceptance of wide-ranging normative frameworks with a global and regional scope. Recent times have witnessed growing academic concern with the “impact” or “effect” of international human rights treaties on the de jure and de facto legal position in state parties. These concerns are embedded in bigger and more enduring questions about the nature of state obligations under international law (including those derived from “nonbinding norms”) and compliance with them. However, general questions about obedience to international law have been replaced by attempts to answer the question whether human rights treaties in fact “make a difference.”

Type
Research Article
Information
American Journal of International Law , Volume 101 , Issue 1 , January 2007 , pp. 1 - 34
Copyright
Copyright © American Society of International Law 2007

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References

1 See, e.g., L’application Nationale de la Charte Africaine Des Droits de l’homme et des peuples (Jean–Francois Flauss & Elisabeth Lambert–Abdelgawad eds., 2004); Christof, Heyns & Frans, Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level, 23 Hum. Rts. Q. 483 (2001)Google Scholar.

2 See, e.g., Abram, Chayes & Antonia, Handler Chayes, The New Sovereignty: Compliance With International Regulatory Agreements (1995)Google Scholar; Commitment And Compliance: The Role Of Non–Binding Norms In The International Legal System (Dinah Shelton ed., 2000); Laurence R., Heifer & Anne–Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273 (1997)Google Scholar; Harold, Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997)Google Scholar; Colter, Paulson, Compliance with Final Judgments of the International Court of Justice Since 1987, 98 AJIL 434 (2004)Google Scholar.

3 See, e.g., Douglass, Cassel, International Human Rights Law in Practice: Does International Human Rights Law Make a Difference? 2 Chi. J. Int’l L. 121 (2001)Google Scholar; Oona A., Hathaway, Do Human Rights Treaties Make a Difference? 111 Yale L.J. 1935 (2002)Google Scholar; Linda, Camp Keith, The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behaviour? 36 J. Peace Res. 95 (1999)Google Scholar.

4 African Charter on Human and Peoples’ Rights, June 27, 1981, 21 ILM 58 (1982)Google Scholar [hereinafter African Charter] . The Universal Declaration of Human Rights was adopted in 1948 but was actually preceded by the establishment in the same year of the inter–American system with the adoption of the American Declaration of the Rights and Duties of Man. The European system followed shortly thereafter, with the entry into force of the European Convention on Human Rights and Fundamental Freedoms in 1953. All fifty–three member states of the Organization of African Unity (OAU) (now the African Union (AU)), have ratified the African Charter. See the list of parties to the Charter at the AU Web site, <http://www.africa–union.org>.

5 The mandate of the African Commission on Human and Peoples’ Rights (ACHPR) is to promote and protect the rights guaranteed in the African Charter. African Charter, supra note 4, Art. 30. The African Commission held its first session in Addis Ababa, Ethiopia, in November 1987. With the transformation of the OAU into the AU in July 2002, the African Commission was retained and the AU Assembly took over the tasks previously performed by the OAU Assembly.

6 See the introductory comments to the M’Baye draft, which formed the basis of the African Charter’s travaux préparatoires, highlighting this omission of a judicial institution but explaining that it was “thought premature to [establish one] at this stage.” Introduction to M’Baye draft, 4th para., OAU Doc. CAB/LEG/67/1 (1979), reprinted in Human Rights Law In Africa 1999, at 65, 65 (Christof Heyns ed., 2002).

7 See, e.g., The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Malcolm D. Evans & Rachel Murray eds., 2002) [hereinafter Evans & Murray]; Evelyn A., Ankumah, The African Commission on Human and Peoples’ Rights—Practice and Procedures (1996)Google Scholar; Rachel, Murray, The African Commission on Human and Peoples’ Rights and International Law (2000)Google Scholar; Inger, Österdahl, Implementing Human Rights In Africa—The African Commission on Human and Peoples’ Rights and Individual Communications (2002)Google Scholar; Nasila S., Rembe, The System of Protection of Human Rights Under The African Charter on Human and Peoples’ Rights: Problems and Prospects (1991)Google Scholar; Oji Umozurike, U., The African Charter on Human and Peoples’ Rights (1997)Google Scholar.

8 Frans, Viljoen, Introduction to the African Commission and the Regional Human Rights System, in 1 Human Rights Law In Africa 385, 438–39 (Christof, Heyns ed., 2004)Google Scholar; Fifteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 2001–2002; Sixteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 2002–2003. These reports will be referred to hereinafter as Activity Report, with the corresponding number. The 10th through 16th reports are available at the Commission’s Web site, <http://www.achpr.org>.

9 This is not a phenomenon peculiar to the African system. Paulson, in analyzing compliance with the final judgments of the International Court of Justice (ICJ), quoted Judge Robert Y. Jennings of the ICJ, who stated that “[i]t is ironic that the Court’s business up to the delivery of judgment is published in lavish detail, but it is not at all easy to find out what happened afterwards.” Paulson, supra note 2, at 434.

10 According to Robert Eno:

Unlike other regional and global human rights bodies, the Commission has not developed any follow–up mechanism to ensure implementation of its recommendations. . . . This has been very frustrating especially for the victims who have to pursue the execution of the decisions on their own. Because there is no pressure from the Commission, states have tended to turn a blind eye to the recommendations and a deaf ear to the victims’ pleas for compliance.

Robert, Eno, The Place of the African Commission in the New African Dispensation, 11 Afr. Security Rev. 63, 67 (2002)Google Scholar; see also Murray, supra note 7, at 21; Dankwa, E. V. O., The African System for the Protection of Human Rights: The Tasks Ahead 4 (Oct. 1998)Google Scholar (prepared for the National Human Rights Commission of Nigeria, African Human Rights Day Celebration, Nigeria Institute of International Affairs, Lagos, Nigeria) (on file with authors).

11 See infra text at notes 65–68.

12 See, e.g., Claude E., Welch, Protecting Human Rights in Africa—Roles and Strategies of Non–Governmental Organizations 151–53 (1995)Google Scholar.

13 See the discussion document entitled Non–Compliance of State Parties to Adopted Recommendations of the African Commission: A Legal Approach, DOC/OS/50b (XXIV), para. 2 (1998) [hereinafter Non–Compliance: A Legal Approach], reprinted in Documents of the African Commission on Human and Peoples’ Rights 758, 758 (Rachel Murray & Malcolm Evans eds., 2001) [hereinafter Achpr Documents]. In this discussion document, the secretariat highlighted the absence of compliance, save for one case, Pagnoulle (on Behalf of Mazou) v. Cameroon, Communication [Comm.] No. 39/90, 2000 Afr. Hum. Rts. L. Rep. [ahrlr] 55 (ACHPR 1995). The first time the Commission noted that state parties were not complying with its recommendations had been at its twenty–second ordinary session in November 1997, where the secretariat also raised the issue. In the Eleventh Annual Activity Report, covering the November 1997 session, the Commission observed not only that noncompliance affected its credibility, but also that it could probably be to blame for the reduction in the number of communications submitted to it. See Section VIII, Protective Activities, 11th Activity Report, 1997–1998, supra note 8. Later, in September 2003, during a retreat organized by the Office of the UN High Commissioner for Human Rights in Addis Ababa to evaluate the functioning of the African Commission, problems of noncompliance by state parties were highlighted once more. The retreat also identified the lack of a follow–up system to ensure that decisions and recommendations of the Commission are complied with as one of the challenges facing the Commission. Report of the Retreat of Members of the African Commission on Human and Peoples’ Rights (ACHPR) at 4 (Sept. 24–26, 2003), available at <http://www.nhri.net/>. Volumes of the African Human Rights Law Reports cited herein are available online at <http://www.chr.up.ac.za>.

14 During the twenty–second session of the Commission, the chairman stated “that none of the decisions on individual communications taken by the Commission and adopted by the Assembly had ever been implemented.” Rachel Murray, Report on the 1997 Sessions of the African Commission on Human and Peoples’ Rights—21st and 22nd Sessions: 15—25 April and 2–11 November 1997, 19 Hum. Rts. L.J. 169, 170 (1998). On another occasion, the Commission stated that “the attitude of State Parties . . . with the exception of Cameroon has been to generally ignore its recommendations.” Non– Compliance: A Legal Approach, supra note 13, at 758, para. 5 (footnote omitted).

15 Information about implementation was gathered over a three–year period from January 2002 to December 2004, using a series of interviews with the relevant players such as the commissioners, members of the secretariat, and representatives of state parties, national human rights institutions, and nongovernmental organizations (NGOs). Information on state compliance was also gathered from the records of the African Commission in the few instances where it did attempt to establish follow–up or where state parties offered information about follow–up. The main sources of such information were the reports of the Commission on its missions for promotional or protective reasons and state reports submitted in accordance with Article 62 of the African Charter. Where scholarly works on the African Commission’s jurisprudence contained information on state compliance, it was also noted. Finally, information on follow–up was gathered from or verified by media reports.

16 Cases that the Commission ruled inadmissible were not included, nor were those in which the Commission reported that an amicable settlement had been reached. An attempt was initially made to determine the particulars of these amicable settlements and their implementation, but it was abandoned for lack of access to the relevant files of the Commission and the inability of commissioners to provide pertinent details. Another limitation of this study is that it does not cover the implementation of “interim” or “precautionary” measures, as such, because the African Commission does not adopt separate decisions dealing with these measures. However, insofar as compliance with interim measures can be derived from the implementation efforts of state parties, this aspect was included in the study. In one of the cases categorized as “situational compliance” below, the Commission held that the failure of Nigeria to suspend the execution of Ken Saro–Wiwa and other members of the Movement for the Survival of the Ogoni People amounted to a violation of Article 1 of the Charter. Int’l PEN (on Behalf of Saro–Wiwa) v. Nigeria, Comm. Nos. 137/94, 139/94, 154/96, 161/97 (joined), 2000 ahrlr 212, paras. 113, 114, 116, 122 (ACHPR 1998). Compare the later decision in Interights (on Behalf of Bosch) v. Botswana, Comm. No. 240/2001, 2003 ahrlr 55, para. 51 (achpr 2003).

17 Although the African Commission held its first ordinary session in 1987, it was only in 1994, when it issued its Seventh Annual Activity Report, that the Commission first published its findings on communications decided under the individual complaints procedure. An overly strict interpretation of Article 59 of the African Charter, the confidentiality clause, initially kept the Commission from publishing those findings. Since the Seventh Annual Activity Report, all subsequent activity reports have included a separate annex dealing with communications.

18 The following state parties have been found to have violated the African Charter: Angola, Botswana, Burkina Faso, Burundi, Cameroon, Chad, The Gambia, Ghana, Kenya, Malawi, Mauritania, Nigeria, Rwanda, Sierra Leone, Sudan, Zaire (now Democratic Republic of the Congo), and Zambia.

19 Compliance is not a static process. By its very nature, this study provides a snapshot of implementation at a particular time. As indicated above, the category into which a particular communication falls may (and is bound to) change. In that sense, the study (and any similar study) remains a work in progress.

20 See infra part III.

21 See infra part II.

22 These cases are Lawyers Comm. for Hum. Rts. v. Zaire, Comm. No. 47/90, 2000 AHRLR 71 (ACHPR 1994) [Zairian Torture case]; Free Legal Assistance Group v. Zaire, Comm. Nos. 25/89, 47/90, 56/91, 100/93 (joined), 2000 AHRLR 74 (ACHPR 1995) [Zairian Mass Violations case]; Mekongo v. Cameroon, Comm. No. 59/91, 2000 AHRLR 56 (ACHPR 1995); Union interafricaine des droits de l’homme v. Angola, Comm. No. 159/96, 2000 AHRLR 18 (ACHPR 1997) [Angolan Expulsion cast]; Malawi Afr. Ass’n v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97–196/97, 210/98 (joined), 2000 AHRLR 149 (ACHPR 2000) [Mauritanian Widows case]; Rights Int’l v. Nigeria, Comm. No. 215/98, 2000 AHRLR 254 (ACHPR 1999) [Nigerian Torture case]; Avocats sans frontières (on Behalf of Bwampamye) v. Burundi, Comm. No. 231/99, 2000 AHRLR 48 (ACHPR 2000) [Bwampamye case]; Ouko v. Kenya, Comm. No. 232/99, 2000 AHRLR 135 (ACHPR 2000); Civil Liberties Org. v. Nigeria, Comm. No. 218/98, 2001 AHRLR 75 (ACHPR 2001) [Nigerian Military Tribunals case]; Law Offices of Suleiman (I) v. Sudan, Comm. Nos. 222/98, 229/99 (joined), 2003 AHRLR 134 (ACHPR 2003) [Sudanese Military Court case]; Law Offices of Suleiman (II) v. Sudan, Comm. No. 228/99, 2003 AHRLR 144 (ACHPR 2003) [Suleiman case]; Doebblerv. Sudan, Comm. No. 236/2000, 2003 AHRLR 153 (ACHPR2003) [Sudanese Picnic case]; Purohit v. Gambia, Comm. No. 241/2001, 2003 AHRLR 96 (ACHPR 2003) [Gambian Mental Health case].

23 Curtis, Doebbler, the author of Communication No. 236/2000, distributed an information sheet entitled “Information Relevant to the Consideration of Sudan’s State Report to the African Commission on Human and Peoples’ Rights” (May 22, 2004)Google Scholar (on file with authors). This document not only pointed out that Sudan had not implemented any of the recommendations forwarded in the three Sudanese cases, supra note 22, but also requested that the Commission “keep the item of the implementation of these decisions on its agenda and . . . request the government of Sudan to report to the Commission about the action it has taken to implement these decisions until they have been fully implemented in accordance with the African Commission’s decision.”

24 These cases are Org. mondiale contre la torture v. Rwanda, Comm. Nos. 27/89, 46/91, 49/91, 99/93 (joined), 2000 AHRLR 282 (ACHPR 1996) [Rwandan Mass Violations case]; Civil Liberties Org. (re Nigerian Bar Ass’n) v. Nigeria, Comm. No. 101/93, 2000 AHRLR 186 (ACHPR 1995) [Body of Benchers case]; Constitutional Rights Project v. Nigeria, Comm. No. 102/93, 2000 AHRLR 191 (ACHPR 1998) [Nigerian Election Annulment cast]; Media Rights Agenda v. Nigeria, Comm. Nos. 105/93, 128/94, 130/94, 152/96 (joined), 2000 AHRLR 200 (ACHPR 1998) [Nigerian Media case]; Saro–Wiwa case, supra note 16; Constitutional Rights Project v. Nigeria, Comm. Nos. 143/95, 150/96 (joined), 2000 AHRLR 235 (ACHPR 1999); Huri–Laws v. Nigeria, Comm. No. 225/ 98, 2000 AHRLR 273 (ACHPR 2000).

25 This does not mean that the new government immediately implemented the Commission’s recommendations. For example, the Nigerian Election Annulment cast, supra note 24, which was initiated in 1993, was only decided on the merits in October 1998, after the Commission, at the twenty–fourth ordinary session that month, was furnished by the complainants with “a ‘supplementary submission on pending communications on Nigeria’, basically urging the Commission to continue consideration of communications against Nigeria including the instant one because the violations had not abated, and the change in government following the death of General Sani Abacha has not changed any state responsibility of Nigeria.” Id., para. 38.

26 These cases are Achutan (on Behalf of Banda et al.) v. Malawi, Comm. Nos. 64/92, 68/92, 78/92 (joined), 2000 AHRLR 144 (ACHPR 1995); Aminu v. Nigeria, Comm. No. 205/97, 2000 AHRLR 248 (ACHPR 2000); Civil Liberties Org. v. Nigeria, Comm. No. 129/94, 2000 AHRLR 188 (ACHPR 1995); Comm’n nationale des droits de l’homme et des liberiés v. Chad, Comm. No. 74/92, 2000 AHRLR 66 (ACHPR 1995).

27 It was difficult to establish facts when the state party representatives and NGOs held opposite views. In such circumstances, the varying responses were considered carefully, and the benefit of the doubt given to the NGOs’ version in instances where doubt persisted.

28 Report of the Human Rights Committee, UN GAOR, 54th Sess., Supp. No. 40, vol. 1 at 90, para. 459, UN Doc. A/54/40 (1999). In July 1990, during the Committee’s thirty–ninth session, it had established a follow–up procedure to its views under Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights and created the mandate of special rapporteur on follow–up. Report of the Human Rights Committee, UN GAOR, 45th Sess., Supp. No. 40, Annex XI, vol. 2 at 205, UN Doc. A/45/40 (1990). With reference to the difficulties in categorizing follow–up replies, see the Committee’s 1999 Report, supra, para. 459.

29 Pagnoulle (on Behalf of Mazou) v. Cameroon, Comm. No. 39/90, 2000 AHRLR 57 (ACHPR 1997) [hereinafter Mazou case]; see also id., supra note 13.

30 Article 6 of the African Charter, supra note 4, prohibits arbitrary arrest or detention. According to Article 7(1)(b), every individual has the right to be presumed innocent until proven guilty by a competent court or tribunal, and under paragraph (1)(d), such a trial should take place within a reasonable time. Article 15 of the Charter deals with the rights of every individual to work under equitable and satisfactory conditions and to receive equal pay for equal work.

31 Mazou, supra note 29, at 61, para. [31].

32 Personal notes taken during the Commission’s thirty–first ordinary session, Pretoria, South Africa (May 6, 2002) [hereinafter 31st Session Notes] (on file with authors).

33 The earlier proceeding concerning Mazou is the only case that the secretariat of the Commission had previously cited as an instance of a state’s full compliance with the Commission’s recommendations. See supra note 13.

34 Amnesty Int’l (on Behalf of Banda & Chinula) v. Zambia, Coram. No. 212/98, 2000 AHRLR 325 (ACHPR 1999) [Zambian Deportation case].

35 They were leading members of the United National Independence Party (UNIP), which was defeated by the Movement for Multiparty Democracy (MMD) in the first multiparty elections in 1991.

36 Article 2 of the African Charter, supra note 4, grants every individual enjoyment of the rights and freedoms recognized in the Charter irrespective of his or her political opinion. Article 7(1)(a) deals with the right of every individual to have his or her cause heard, which includes the right to an appeal to competent national organs. Article 8 guarantees an individual’s right to freedom of conscience. Article 9 (2) reads as follows: “Every individual shall have the right to express and disseminate his opinions within the law.” Article 10 guarantees the right to free association, and paragraphs (1) and (2) of Article 18 deal with the state’s duties toward the family as the natural unit and basis of society.

37 Zambian Deportation case, supra note 34, paras. 39, 40.

38 From September 9 tol3, 2002, the African Commission undertook a promotional visit to Zambia. Commissioner Chigovera, who led the visit, engaged the Ministry of Justice in a discussion of the implementation of the findings of the Commission in the case of Banda and Chinula. The ministry confirmed that the president had revoked the deportation order and that the government had authorized the repatriation to Zambia for reburial of the remains of Chinula, who had died in exile. See ACHPR, Rapport de la Mission de Promotion en Ripublique de Zambie, 9–13 septembre 2002, at 10 (2002).

39 Id.

40 Constitutional Rights Project v. Nigeria, Coram. No. 153/96, 2000 AHRLR 248 (ACHPR 1999) [Nigerian Detention case].

41 Article 6 of the African Charter, supra note 4, guarantees the right not to be arbitrarily arrested or detained. For Article 7(1)(a), see note 36 supra. Article 7(1)(d) guarantees the right to be tried within a reasonable time.

42 Nigerian Detention case, supra note 40, final para.

43 Interview with Agnes Olowu, legal officer at Constitutional Rights Project, in Lagos, Nigeria (Oct. 28, 2002).

44 Centre for Free Speech v. Nigeria, Comm. No. 206/97, 2000 AHRLR 250 (ACHPR 1999) [Nigerian Journalists case].

45 The jurisdiction of the courts was revoked by the Treason and Other Offences (Special Military Tribunal) Act, which the Commission found to violate Article 26 of the African Charter. Article 26 reads as follows: “State Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.”

46 Interview with Kolawole Olaniyan, then a legal officer at Constitutional Rights Project, during the thirty–third ordinary session of the African Commission in Niamey, Niger (May 20, 2005).

47 Modise v. Botswana, Comm. No. 97/93, 2000 AHRLR 30 (ACHPR 2000); see also id., 2000 AHRLR 25 (ACHPR 1994), 2000 AHRLR 25 (ACHPR 1997).

48 Article 3 (2) guarantees the right of every individual to equal protection of the law. Article 5 guarantees the right to dignity. Article 12(1) and (2) deals with the rights of freedom of movement and the right of an individual to return to his country. Article 13(1) and (2) deals with the rights of citizens to participate freely in the government of his country. Article 14 guarantees the right to property, which may only be encroached upon in the interest of public need or the general interest of the community. Finally, Article 18(1) provides that the family is the natural unit and basis of society and that it “shall be protected by the State which shall take care of its physical health and moral.”

49 31st Session Notes, supra note 32 (May 2–16, 2002).

50 This agreement by Botswana is the result of follow–up efforts by Interights, a London–based NGO that represented Modise. These follow–up efforts are summarized here to explain why the government has agreed only on the issue of citizenship and not on compensation. While appearing as respondent in the hearings before the Commission, Botswana conceded that the African Charter formed part of its constitutional dispensation and undertook during the public session of the thirty–first ordinary session to implement the Commission’s findings. Chidi Odinkalu, a legal officer for Interights, therefore approached the attorney–general of Botswana during that session to discuss implementation, resulting in a formal invitation to Interights to meet in Gaborone with the attorney–general and the permanent secretary for political affairs in the Office of the President. It was agreed there that Interights would draft a memorandum of agreement providing for (1) granting Modise citizenship by birth, and (2) compensating him for all damages suffered in the different phases of the communication, which was first lodged in 1993. But before the memorandum of agreement could be submitted to the attorney–general, the latter left his position for a career in politics. During the same period, however, Modise’s children decided to take the matter into their own hands and approached the media to force the government to address compensation, as well as citizenship. The government responded by indicating that it had never agreed in writing to compensate Modise. In a meeting in December 2003 between Interights and the permanent secretary for political affairs in the Office of the President, it was resolved that if Modise sent the Office of the President a formal request, the president would “find a way” to implement the Commission’s recommendations. Yet after the media intervention by Modise’s children, the government was reluctant to pay compensation to a person they described as a “political opponent.” Nevertheless, Modise does have a passport and it is only a matter of administration to accord him citizenship by birth as agreed to in principle by the government, which would then grant his children an equal status. Interviews with Ibrahima Kane and Chidi Odinkalu, senior legal officers of Interights, held during the thirty–second, thirty–third, thirtyfourth, and thirty–fifth ordinary sessions of the African Commission (Oct. 2002–June 2004). Commissioner Dankwa reported that on a promotional visit to Botswana, the “assurance given to me that the President of Botswana had granted citizenship to Modise turned out to be true.” He noted, however, that the communication had “lingered before the Commission thereafter for years because the complainant was not satisfied with the type of citizenship granted to him. Counsel for Modise persuasively argued later that he was entitled to citizenship by birth, which placed no limitation on his civil and political rights.” E. V. O. Dankwa, The Promotional Role of the African Commission on Human and Peoples’ Rights, in Evans & Murray, supra note 7, at 335, 345. Commissioner Dankwa’s follow– up efforts concerned the Modise case as adopted in 1997, see note 47 supra, before Modise returned to the Commission to ask for recognition of his right to citizenship by birth.

51 Forum of Conscience v. Sierra Leone, Comm. No. 223/98, 2000 AHRLR 293 (ACHPR 2000) [Sierra Leone Coup case].

52 Id., para. 19.

53 Id., para. 10 (setting out the procedure followed by the Commission).

54 The Commission “noted with satisfaction that the law has been amended, subsequent to the mission to Sierra Leone, to bring it into conformity with the Charter.” Id., para. 20. According to Thomas MacLean, member of the NGO Forum of Conscience, the Commission helped significantly in speeding up the passing of the new law by sensitizing and pressuring the government. He commented that Sierra Leone responds to outside pressure. He also attributed the government’s compliance to the mobilization of civil society within Sierra Leone. Thomas MacLean, Comments, Workshop on Human Rights Litigation in Africa, held in Pretoria under the auspices of the Institute for Human Rights and Development in Africa and the Kenyan and Swedish Sections of the International Commission of Jurists (Apr. 29–May 1, 2002) (authors’ notes, on file with authors).

55 Owing to the small number of total cases (19), the Chi–square Test proved to be unreliable and was not used. See, e.g., Mark Sirkin, R., Statistics For The Social Sciences 364 (1995)Google Scholar. The small number of cases available for analysis (n = 19) also necessitates that these results be interpreted with caution; assessment of the cumulative impact of some factors and the cross–correlation between factors are problematic. It is considered statistically significant if the relationship between (non)compliance and a particular factor is on the 5 percent level of significance (that is, where p ≤ 0.05), although a relationship on the 10 percent level of significance (that is, where p ≤ 0.1) may also be statistically appreciable. The probability (in terms of p) for the factors in the tables below that permitted measurement are table 1: period, p = 0.2554; state involvement, p > 0.9999; reasoning, p > 0.9999; formulation of remedy, p = 0.7892; Commission follow-up, p = 0.3498; table 2: nature of state obligation, p = 0.5439; scale of violation, p = 0.2776; table 3: type of government, p = 0.0029; change of government, p = 0.5573; level of stability, p = 0.0880; table 4: NGO involvement in case, p = 0.1093; NGO involvement in follow-up, p = 0.0116. (Where more than one variable featured simultaneously, as with “nature of right,” and when data were missing or unclear, as in table 5, the test was not applied.) We acknowledge with appreciation the assistance of Rina Owen, Department of Statistics, University of Pretoria, who applied Fisher’s Exact Test.

56 “A preoccupation with outcomes places factors enhancing persuasion in the foreground.” Frans, Viljoen & Lirette, Louw, The Status of the Findings of the African Commission: From Moral Persuasion to Legal Obligation, J. Afr. L., Apr. 2004, at 1, 19 Google Scholar.

57 Zairian Mass Violations case, supra note 22, para. 40.

58 According to Fisher’s Exact Test (with up value of >0.999), supra note 55, there is no correlation between this factor and (non)compliance.

59 The decisions of the African Commission that were published in its Seventh Annual Activity Report were very short and merely indicated the facts of the complaint and the Commission’s findings, without necessarily indicating any remedial actions for implementation by the state party. This practice has changed significantly and the Commission now issues detailed decisions several pages long stating the facts, the procedures adopted, admissibility grounds, the reasoning on the merits, and a finding on the violation of specific articles of the African Charter followed by (sometimes detailed) recommendations.

60 Heifer and Slaughter refer to the “quality of legal reasoning” as a factor affecting state compliance and state that “the giving–reasons requirement is the prerequisite for the exercise of persuasive rather than coercive authority, the assurance that,” quoting Ost, “‘the authority of a judgment derives from its intrinsic rationality rather than from an “argument” of authority.’” Heifer & Slaughter, supra note 2, at 320–21 (quoting Francois Ost, The Original Canons of Interpretation of the European Court of Human Rights, in The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions 283, 283–84 (Mireille Delmas–Marty & Christine Chodkiewicz eds., 1992)). Byrnes, listing factors that influence states to give effect to a decision of the UN Human Rights Committee, includes “whether the decision . . . is persuasively reasoned.” Andrew, Byrnes, An Effective Complaints Procedure in the Context of International Human Rights Law, in The Un Human Rights Treaty System In The 21st Century 139, 151 (Anne F., Bayefsky ed., 2000)Google Scholar. Another aspect of delivering a well–reasoned decision that would contribute to the authority of a treaty body’s decision and thus exert a greater compliance pull on state parties is judicial cross–referencing to and reliance on the findings of other treaty bodies. The African Commission, in its more recent decisions, has referred to the treaty body output (decisions as well as general comments) of the Human Rights Committee, the Inter–American Commission on Human Rights, and the European Court on Human Rights. See, e.g., Legal Res. Found, v. Zambia, Comm. No. 211/98, 2001 AHRLR 84 (ACHPR 2001); Suleiman case, supra note 22.

61 See, e.g., Mauritanian Widows case, supra note 22.

62 This impression is borne out by Fisher’s Exact Test, supra note 55, where the predictability of this factor was measured as >0.9999.

63 The Commission has not been consistent in its approach to the formulation of remedies. It has sometimes awarded no remedies to the victims of human rights abuses (for a recent example, see Huri–Laws case, supra note 24). On occasion it has formulated vague recommendations stating merely that “a state party should bring its laws into conformity with the African Charter.” See, e.g., Nigerian Media case, supra note 24. Vague recommendations not only leave the victims without any recourse, but also make it difficult to determine whether a state party actually complied with the Commission’s recommendations.

64 There is no statistical correlation between this factor and (non)compliance (with p = 0.7892).

65 African Commission [ACHPR], Communication Procedure, Information Sheet No. 3, at 17 (n.d.), available at <http://www.achpr.org/english/information_sheets/ACHPR%20inf.%20sheet%20no.3.doc>.

66 See Report of the African Commission’s Promotional Mission to Burkina Faso, Objectives, Sept. 22–Oct. 2, 2001, DOC/OS/(XXXIII)/324b/i (available on request from the Secretariat of the African Commission, [email protected]).

67 See Legal Res. Found, v. Zambia, supra note 60. Although decided outside the temporal scope of this study, see also Lawyers for Hum. Rts. v. Swaziland, Comm. No. 251/2002, 18th Activity Report, AU Doc. EX.CL/ 199(VII) at 12, 22, last (unnumbered) para. (2005), where the Commission recommended that “the Kingdom of Swaziland should inform the African Commission in writing within six months on the measures it has taken to implement the above recommendations.”

68 Questions about compliance with decisions were posed, for example, to the government delegates of Cameroon and Mauritania during the examination of their initial reports, at the Commission’s thirty–first session in May 2001. 31st Session Notes, supra note 32.

69 In the communications decided against Botswana, Sierra Leone, Cameroon, and Zambia, the Commission did make some attempts at follow–up. In the Botswana case, the Commission inquired about the status of implementation during the public session at its thirty–first ordinary session. It sent a delegation to Sierra Leone on a promotional mission during which it made such an inquiry. In the cases decided against Cameroon and Zambia, implementation was already completed, so that the follow–up efforts should be seen as intended to establish the status of compliance, rather than as encouraging compliance through follow–up, as in the other two cases cited above. In one of the cases where partial compliance was recorded by Burkina Faso, follow–up also played a role. The Commission sent a promotional mission to Burkina Faso, which made inquiries about implementation, and in its state report under Charter Article 62 Burkina Faso indicated the relevant steps taken. Mouvement burkinabé des droits de l’homme et des peuples v. Burkina Faso, Comm. No. 204/97, 2001 AHRLR 51 (ACHPR 2001).

70 For a detailed discussion on the categorization of human rights, see Allan, Rosas & Martin, Scheinin, Categories and Beneficiaries of Human Rights, in An Introduction to the International Protection of Human Rights: a Textbook 49, 54–55 (Raija, Hanski & Markku, Suksi eds., 2d rev. ed. 1999)Google Scholar.

71 The right to a fair trial (Article 7 of the Charter) was actually the subject of violations in five of the six cases (Cameroon, Zambia, Nigeria (two cases), and Sierra Leone).

72 These are the Zairian Mass Violations case, supra note 22, the Mauritanian Widows case, supra note 22, and the Gambian Mental Health case, supra note 22.

73 Henry Shue, Basic Rights/Subsistence, Affluence, and U.S. Foreign Policy (1980). The tripartite division of governmental obligations has since been echoed by many authors and also by the UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C. 12/2000/4, para. 33.

74 Soc. & Econ. Rts. Action Centre (SERAC) v. Nigeria, Comm. No. 155/96, 2001 AHRLR 60 (ACHPR 2001). Partial compliance was recorded in this case.

75 Id., para. [71].

76 Id.

77 Id.

78 Even in cases of only partial compliance, it is usually where the state was prepared to meet its obligations to respect by, for example, releasing victims from prison. See Constitutional Rights Project v. Nigeria, Comm. No. 148/96, 2000 AHRLR 241 (ACHPR 1999) (the state was prepared to release the prisoners to stop the violation of their rights, but not to compensate them).

79 In the Sierra Leone Coup case, discussed in text at notes 51–54 supra, the state amended its legislation to guarantee fair–trial rights in future for cases appearing in front of the Court Martial in Sierra Leone. This is an example of a state’s fulfilling its obligation to protect, which is clearly linked to civil and political rights.

80 The obligation to fulfill is linked to socioeconomic rights.

81 Put differently, states find it easier to implement obligations arising from a violation of civil and political rights than of socioeconomic rights.

82 See, in this regard, the distinction between freedom in a negative and in a positive sense, where the former relates to “the area within which the subject. . . should be left to do . . . what he is able to do . . . , without interference by other persons”; and the latter to the “source of control” that “can determine someone to do . . . this rather than that.” Isaiah, Berlin, Two Concepts of Liberty, in Four Essays ON Liberty 118, 121–22 (1969)Google Scholar.

83 This case is the Gambian Mental Health case, supra note 22.

84 After a finding of serious and massive violations that was never complied with, the following communications were referred to the OAU Assembly of Heads of State and Government (AHSG), but it took no action: (1) Achutan v. Malawi, supra note 26; (2) Zairian Torture case, supra note 22; (3) Zairian Mass Violations case, supra note 22.

85 Commissioner E. V. O. Dankwa, Comments, during a lecture at the University of Pretoria (May 14, 2002) (authors’ notes, on file with authors). According to Commissioner Dankwa, the AHSG never conducted in–depth studies under Article 59 of the African Charter.

86 The following communications also revealed serious and massive violations, but the Commission had stopped referring such cases to the AHSG: Comm’n nationale des droits de l’homme et des libertés v. Chad, supra note 26; Rwandan Mass Violations case, supra note 24.

87 See, e.g., Body of Benchers case, supra note 24. The Commission recommended that the decree that violated the provisions of the Charter should be annulled. Nigeria did not comply, and the decree remained in force until the military dictatorship came to an end.

88 For example, it was reported in the follow–up to the Nigerian Election Annulment case, supra note 24, that persons detained for protesting against the annulment of the elections of June 12, 1993, and whom the Commission had ordered to be released, were released only after the death of General Abacha.

89 Amnesty Int’l v. Sudan, Comm. Nos. 48/90, 50/91, 52/91, 89/93 (joined), 2000 AHRLR 297, para. 83 (ACHPR 1999).

90 Legal Res. Found, v. Zambia, supra note 60, para. [75].

91 In listing factors that could affect state compliance with international agreements, Gutto referred to a “[l]ack of capacity in the political, legal/technical or economic sense on the part of a State, thus leading to impossibility to comply.” Shadrack, B. O. Gutto, The Rule of Law, Human and Peoples’ Rights and Compliance/Non–compliance with Regional and International Agreements and Standards by African States 5, a paper prepared for presentation at the African Forum for Envisioning Africa, Nairobi, Kenya (Apr. 26–29, 2002)Google Scholar, available at <http://www.worldsummit2002.org/texts/ShadrackGutto2.pdf>. David Padilla has also referred to states’ inability to comply with the findings of treaty bodies due to a lack of resources. David Padilla, Comments during address to NGOs at the thirty–second ordinary session of the African Commission in Banjul, The Gambia (Oct. 17–23, 2002) (authors’ notes, on file with authors).

92 With the entry into force of the 1997 version of the Rules of Procedure of the Inter–American Court of Human Rights, provision was made for the first time in Article 23 for the representatives of the victims or their next of kin independently to submit their own arguments and evidence during the reparations stage of the Court’s proceedings. The Court therefore holds separate hearings to determine the quantum of damages.

93 Dankwa, supra note 10, at 5.

94 Mekongo case, supra note 22, para. [2],

95 Comments by the state party in presenting its state report at the ACHPR’s thirty-first ordinary session, in 31st Session Notes, supra note 32.

96 “‘Come and do what before the Commission for a second time?,’ is not an unreasonable question for Louis Emgba Mekongo to ask.” Dankwa, supra note 10, at 5.

97 (1) Mauritanian Widows case, supra note 22; (2) Modise v. Botswana, supra note 47; (3) Nigerian Military Tribunals case, supra note 22; (4) SERAC v. Nigeria, supra note 74; (5) Sudanese Military Court case, supra note 22; (6) Sudanese Picnic case, supra note 22.

98 See supra note 50.

99 Interights, a London–based NGO, negotiated with the government on behalf of the victim. See id.

100 Follow–up could not be established with any of the victims of human rights violations, except where communications were filed by NGOs on behalf of other NGOs. Moreover, it could not be established through any other sources that victims have played a significant role in influencing states to comply with the Commission’s findings. Victims such as the widows in the communication decided against Mauritania did work closely with the NGOs, such as the Institute for Human Rights and Development in Africa (IHRDA), that filed the communications on their behalf in support of their efforts to ensure state compliance. Mauritanian Widows case, supra note 22. One of the authors was present at meetings held in Banjul, The Gambia, in November 2002, between some of the victims in this case and IHRDA and other Mauritanian NGOs to strategize on lobbying the government to implement the Commission’s recommendations. To date, they have not been implemented.

101 A survey of the forty–four communications indicates that communications never took less than two years to complete, and averaged much longer, even as long as eight years (the Modise case).

102 See, for example, the follow–up established in the Mekongo case, supra note 22, where the government reported that it could not locate the victim to compensate him. See note 95 supra and corresponding text.

103 Many other aspects of governance could be included here, such as the ideology of the government, size of the population, and the influence of various colonial traditions in Africa. See, for example, the inclusion of these factors in Keith’s study, note 3 supra. However, these factors were deemed less relevant on an impressionistic analysis of the data.

104 These factors also fall within the ambit of the discussions on factors influencing state compliance in relation to state parties. Factors relating to the system of governance and political stability of a state are discussed here in reference to the role of the OAU. Of the nineteen communications decided against Nigeria, noncompliance was recorded in thirteen. These cases were almost all filed with the Commission during the military dictatorship of General Sani Abacha. Another example of lack of implementation due to the political order of the day is the cases against Malawi. Noncompliance with the Commission’s recommendations against Chad and Rwanda could be explained in terms of the civil conflict within these countries at the time the communications were filed and decided.

105 Gutto identifies “[t]he lack of existence and/or efficacy of external enforcement mechanisms and effective sanctions” as a factor that has affected state compliance with international agreements, and he further characterizes the “deliberate breach” of such agreements as often being “informed by a calculated risk of not being ‘caught’ or ‘punished.’” Gutto, supra note 91, at 5–6.

106 This mechanism was later replaced with the AU Peace and Security Council. For the purpose of the period covered in this study, the mechanism is the relevant institution.

107 Hathaway, for example, found that “ratification of human rights treaties by fully democratic nations is associated with better human rights practices.” Hathaway, supra note 3, at 1940.

108 Byrnes, supra note 60, at 151–52.

109 In analyzing state compliance with the final judgments of the International Court of Justice, Paulson came to a different conclusion. He found that “[a]utocratic states were no more likely to disregard a judgment than democracies.” Paulson, supra note 2, at 460.

110 Freedom House has rated each of these countries on a scale according to which they are listed as “free,” “partly free,” or “not free.” The lower the rating accorded to a state, the higher the freedoms in that state. “Free” is between 1 and 2.5; “partly free” between 3 and 5.5; and “not free” between 5.5 and 7. A score is given for political rights and one for civil liberties. Freedom House, Freedom in the World, Country Ratings 1972–2004 (Aug. 19, 2005). In this article, we use the average of these two ratings. The time frame used to calculate the state of “freedom” in a country is the period between the publication of the particular decision (in the Annual Activity Report) and the cut–off mark of the study, 2004.

111 Between 1998 and 2004, Angola scored 6 through 2003, and 5.5 in 2004. Burundi scored 6 in 2001, 5.5 in 2002, and 5 over the next two years. The Gambia was awarded a 4 in 2003 and 2004. Mauritania’s rating fluctuated between 5 and 6.5; Sudan was consistently given the worst possible rating (7); and Zaire (DRC) scored between 6.5 and 6 over the period 1994 to 2004.

112 From 2001 to 2004, Botswana was awarded 2 every year; Sierra Leone was awarded average scores of 4.5, 4, 3.5, and 3.5; and Zambia scored between 4 and 4.5. See Freedom House, supra note 110.

113 See supra note 104. From the high rate of noncompliance, the conclusion can be drawn that in the presence of a military dictatorship there will be no or limited state compliance with regional human rights treaty obligations. Further examples can be found in reference to Zaire; in the Zairian Torture and Mass Violations cases, the Commission’s findings were never implemented. In Jawara v. The Gambia, joint Communication Nos. 147/95, 149/96, which related to the coup d’état of 1994, the Commission observed that “the military coup d’ état was therefore a grave violation of the right of Gambian people to freely choose their government.” 2000 AHRLR 107, para. 73 (ACHPR 2000).

114 Examples where the Commission found that the communications revealed the existence of serious or massive violations as a result of political instability were those decided against Chad, Zaire, and Malawi. The Commission did not formulate any recommendations apart from making its finding, as it probably presumed that only regime changes would bring an end to the violations.

115 Noncompliance with the recommendations of the African Commission was recorded in the cases decided against Angola, Burundi, and Rwanda. A factor that most probably influenced state compliance with respect to these state parties is the ongoing civil wars, which were closely related to the subject matter of the complaints filed with the Commission. Even though the situation has now changed in both Angola and Rwanda, the Commission’s recommendations have not been implemented.

116 It is not only the African Commission that is “powerless” in cases of serious or massive human rights violations. Heifer and Slaughter reported that” [b]oth the [European Commission of Human Rights] and the [European Court of Human Rights], for example, were relatively powerless in the face of systematic human rights violations in Greece during the military dictatorship in the early 1970s; indeed, Greece ultimately withdrew from the Convention.” Heifer & Slaughter, supra note 2, at 330.

117 The p value for this factor was 0.0029, indicating a high degree of correlation between compliance and type of government.

118 Hathaway has summarized it as follows: “Major shocks to the system—such as a change in government— provide limited windows of opportunity for effecting large changes in the system. Indeed, when major changes in human rights practices occur, it is often because of such an event.” Hathaway, supra note 3, at 2002–03. Evidence that regime changes could lead to the implementation of the findings of treaty bodies, even years after the decisions were originally taken, has been recorded in reference to both the Human Rights Committee and the Inter–American Commission on Human Rights. Heifer and Slaughter reported that the Human Rights Committee “must contend with systematic repression and grave abuses anywhere in the world.” But they conclude that “persistence may pay off. For example, after many years of nonaction, the Committee received a statement from Uruguay indicating that, after a change of government, it had released from imprisonment or offered amnesty to several individuals whom the Committee had determined were victims of serious human rights abuses.” Heifer & Slaughter, supra note 2, at 362–63. Dr. David Padilla, a specialist on the inter–American human rights system, highlighted the importance of a change of regime as a “good hook” to get previous decisions of a treaty body implemented. He referred to Ecuador as a case in point: the attorney general of the new regime implemented all the findings of the Inter–American Commission on Human Rights that had never been implemented under the previous regime. Interview with David Padilla at the Centre for Human Rights, University of Pretoria (Apr. 2002).

119 Although partial compliance was recorded for SERAC v. Nigeria, supra note 74, a great many of the recommendations forwarded in this case are still outstanding.

120 Members of Huri–Laws, a Nigerian–based NGO, commented that cases are now taken to domestic courts, as the jurisdiction of the courts to decide human rights issues is no longer ousted by military decrees. Interview at the Huri–Laws offices in Lagos, Nigeria (Nov. 2002).

121 The statistical analysis also lends support to this trend, with a p value of 0.0880, placing the predictability of this factor in the 10 percent level of significance.

122 Transparency International, CPI 2006 Press Conference (Nov. 1, 2006), at <http://www.transparencyinternational.org/layout/set/print/news_room/in_focus/cpi_2006/>.

123 CPI Table (2006), available at <http://www.tranparency.org/layout/set/print/news_room/in_focus/cpi_2006/cpi_table>.

124 See also the result of Fisher’s Exact test, which measures NGO involvement in cases at a p of 0.1093.

125 Tullio, Treves, Introduction to Civil Society, International Courts and Compliance Bodies 1, 5 (Tullio, Treves et al. eds., 2005)Google Scholar.

126 For example, in the communication in the Zambian Deportation case, supra note 34, filed by Amnesty International, it was reported that the political nature of the case brought a lot of international pressure to bear on the government to comply. The Sierra Leone Coup case, supra note 51, was one of those instances where the Commission did make an attempt at follow–up through a promotional mission to the state. But implementation of the Commission’s recommendations could also be attributed to the mobilization of Sierra Leonean civil society. See note 54 supra.

127 Constitutional Rights Project (in Respect of Lekwot and Six Others) v. Nigeria, Comm. No. 87/93, 2000 AHRLR 183 (ACHPR 1995).

128 The Constitutional Rights Project (CRP) attributed the partial compliance secured in this case to the communication of the Commission, as well as the widespread advocacy campaign run by the CRP. According to the CRP, there was a lot of pressure on the government to comply with the Commission’s findings. Interviews with Agnes Olowu, supra note 43, and Kolawole Olaniyan, supra note 46.

129 Paulson recorded a similar finding in reference to state compliance with the final judgments of the ICJ, as follows: “International pressure to comply played a prominent role in many states’ decisions to implement the judgments, as did internal political pressure . . . .”Paulson, supra note 2, at 457. See also the result of Fisher’s Exact Test, supra note 55, which attached a p of 0.0116 to this factor, making it a primary predictor of compliance.

130 Proof that state parties do react to “international shaming” to protect their reputations in the international sphere is given by Schmidt, who reported that France and Ecuador “promptly reacted” and “forwarded follow–up replies and provided victims with remedies” upon publication of the 1995 and 1998 annual reports of the Human Rights Committee, listing the uncooperative states under the Committee’s follow–up mandate. Markus G., Schmidt, Follow–up Mechanisms Before UN Human Rights Treaty Bodies and the UN Mechanisms Beyond, in The Un Human Rights Treaty System in the 21st Century, supra note 60, at 233, 238 Google Scholar; see also Byrnes, supra note 60, at 151–52; Hathaway, supra note 3, at 2008.

131 Report of the Human Rights Committee, UN GAOR, 51st Sess., Supp. No. 40, vol. 1 at 70, para. 436, UN Doc. A/51/40 (1997). Before 1994, the Human Rights Committee considered follow–up information on a confidential basis. The Committee came to the conclusion, however, that “publicity for follow–up activities would be the most appropriate means for making the procedure more effective.” Id.

132 Article 59(1) of the African Charter reads as follows: “All measures taken within the provisions of the present Chapter shall remain confidential until the Assembly of Heads of State and Government shall otherwise decide.”

133 Decision on the Periodicity of the Ordinary Sessions of the Assembly, AU Doc. Assembly/AU/Dec.53 (III) (2004).

134 Article 54 of the Charter, supra note 4, provides that the Commission “shall submit” a report to “each Ordinary Session of the Assembly.”

135 See note 8 supra.

136 Through its promotional missions, the Commission has been aware of some instances where state parties did implement its recommendations. In the Zambia Deportation case, supra note 34, for example, where full compliance was recorded, the Commission noted in its Report of the Promotional Visit to the Republic of Zambia, supra note 39, at 10, that the state had complied with the recommendations. The Commission did not, however, use this information to praise the state concerned through the media in an effort to encourage other states to follow suit.

137 The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, June 10, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III) (entered into force Jan. 25, 2004) [hereinafter Court Protocol], established the African Court on Human and Peoples’ Rights (African Human Rights Court) to complement the protective mandate of the African Commission. Although the eleven judges, elected by the AU Assembly of Heads of State and Government, were inaugurated on June 2, 2006, and the seat of the Court (Arusha, Tanzania) has been assigned, the Court has not started functioning. Rules of Procedure are in the process of being elaborated. Because of apprehension about duplication and limited financial resources, a process was set in motion to “merge” the African Human Rights Court and the Court of Justice of the African Union into a single judicial body. AU Doc. Assembly/AU/Dec.45 (III), para. 4 (July 2004). According to the version of the draft Protocol on the Statute of the African Court of Justice and Human Rights, adopted in June 2006, the merged institution will be called the “African Court of Justice and Human Rights,” will have an increased number of judges, and will consist of two “Chambers” (a “General Affairs Section” and a “Human Rights Section”). AU Doc. EX.CL/235 (IX), Annex II (June 2006).

138 Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States Parties, adopted at the Commission’s fortieth session, Doc. ACHPR/ Res.97(XXXX)06, paras. 2, 4 (Nov. 29, 2006), available at <http://www.achpr.org/english/resolutions/resolution102_en.html>. This resolution reflects almost verbatim the draft recommendation contained in Non– Compliance: A Legal Approach, supra note 13, prepared by the secretariat in 1998. This draft resolution calls on all state parties to the Charter to comply with the Commission’s recommendations, to “implement them within a maximum period of ninety (90) days,” and to “indicate the measures taken for their execution.” Draft Resolution on the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights (ACHPR), para. 4, in Achpr Documents, supra note 13, at 760, 761.

139 ACHPR Res. 97(XXXX)06, supra note 138, para. 3.

140 Douglass, Cassel, Inter–American Human Rights Law, Soft and Hard, in Commitment and Compliance, supra note 2, at 393, 417 Google Scholar.

141 See, for example, Article 29(2) of the Court Protocol, supra note 137, according to which the AU Executive Council will monitor the execution of the Court’s decisions on behalf of the AU Assembly; and Article 30, in whose terms states “undertake to comply” with the Court’s judgments.

142 African Charter, supra note 4, Arts. 54, 59.

143 For this article, we followed up on all communications published until the Sixteenth Annual Activity Report. Only the fifteenth and sixteenth reports were adopted by the African Union.

144 Constitutive Act of the African Union, Arts. 3(e) & (h), 4(m), July 11, 2000, OAU Doc. CAB/LEG/23.15, available at <http://africa–union.org>.

145 Decision on the 16th Annual Activity Report of the African Commission on Human and Peoples’ Rights, Doc. Assembly/AU/7 (II)–Assembly/AU/Dec.11 (II), para. 5 (2003).

146 See Frans, Viljoen, Recent Developments in the African Regional Human Rights System, 2 Afr. Hum. Rts. L.J. 347 (2004)Google Scholar.

147 See Decision on the 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights, AU Doc. EX.CL/109 (V)–Assembly/AU/Dec.49 (III), para. 3 (2004), which states that the Assembly “[u]rges all Member States to cooperate with the ACHPR, and the various mechanisms it has put in place, and implement its decisions in compliance with the provisions of the African Charter on Human and Peoples’ Rights.”

148 See the Executive Council decision not to “authorize” publication of the Seventeenth Annual Activity Report due to inclusion of the investigative mission report on Zimbabwe. AU Doc. EX.CL/Dec.l55 (V) (2004). The report was subsequently approved by the Decision on 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), AU Doc. Assembly/AU/Dec.56 (IV) (2005), together with a comment by the Zimbabwean government. See also Decision on the Activity Report of the African Commission on Human and Peoples’ Rights, AU Doc. EX.CL/Dec.310 (IX) (2006), in which the Executive Council approved the 20th Activity Report, with the exception of Communication No. 245/2002 against Zimbabwe, to give the government a further opportunity to respond, even though it had participated in the proceedings before the Commission and the case had been completed.

149 See Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, AU Doc. Assembly/AU/Dec. 101 (VI), para. 1 (2006), in which the Assembly—on recommendation by the Executive Council—decided to authorize publication of everything contained in the activity report, with the exception of the (promotional) resolutions on Eritrea, Ethiopia, Sudan, Uganda, and Zimbabwe. Except for the Eritrean resolution, these were all included together with the governments’ comments and approved as part of the 20th Activity Report. AU Doc. EX.CL/Dec.310 (IX) (2006), supra note 148.

150 Constitutive Act of the African Union, supra note 144, Art. 30.

151 See note 106 supra and corresponding text.