Circumventing obstacles to the implementation of recommendations by the African Commission on Human and Peoples’ Rights

Abstract

The African Commission on Human and Peoples’ Rights was inaugurated on 2 November 1987, with a mandate to promote and protect human rights in Africa. The commemoration of its thirtieth anniversary in 2017 presented another appropriate opportunity to revisit the long-standing debate on its quasi-judicial character, the status of its recommendations and its (in)ability to effectively monitor states’ compliance. This article assesses the challenges associated with the Commission’s seemingly ‘nonbinding’ recommendations and the perceived effect on its mandate, and proposes two solutions for their circumvention. First, the article suggests that if non-compliance is taken broadly as a sustained infraction of states’ obligations under article 1 of the African Charter on Human and Peoples’ Rights and allied instruments, the Commission’s recommendations can be elevated to binding African Union decisions that subsequently become enforceable under article 23(2) of the AU Constitutive Act. Second, it is proposed that where a state against which a violation has been found fails to comply with the Commission’s recommendations, the latter may institute an action before the African Court under article 5 of the Protocol Establishing the African Court against that state for non-compliance with its obligations under the Charter.