Resolution on the Rights of Minorities and Indigenous Peoples

We the participants at the Forum on the Participation of NGOs in the 32nd Ordinary Session of the African Commission on Human and Peoples’ Rights and the 6th African Human Rights Book Fair held at the Kairaba Beach Hotel in Banjul from October 14th-16th, 2002

Recognising Article 60 of the African Charter on Human and People’s Rights, which states that inter alia “ the Commission shall draw inspiration from international law on Human and People’s rights … as well as from the provision of various instruments adopted with the Specialised Agencies of the United Nations….”,

Recalling Article 45 of the African Charter on Human and People’s Rights on the functions of the Commission to promote and protect human and people’s rights in Africa,

Noting the nature and scope of discrimination against, and exclusion and marginalisation of minorities and indigenous peoples where ever it exist in Africa,

Recalling the Commission’s request for states to include information on minorities in their periodic reports,

Acknowledging the advances made by the African Commission in the promotion and protection of the rights of minorities and indigenous peoples, by establishing a Working Group on Indigenous Peoples/ Communities in Africa, and further encouraging the Commission to mainstream the rights of indigenous peoples and minorities throughout its work,

We hereby call upon the Commission to:

Urge State Parties to respect international standards that pertains to a right to a nationality, without which minorities are excluded from the political processes, and in order to avoid conflicts and further violations of their rights,

Encourage State Parties to respect international standards with regards to the recognition of the rights of minorities and indigenous peoples based on the principles of self-identification,

Ensure that State Parties respect the rights of minorities and indigenous peoples with regard to their meaningful and effective participation, and free and informed consent in decisions concerning the minority groups to which they belong, the regions in which they live and the issues that affect them.  Local, national and regional development policies and programmes including all future initiatives under NEPAD should also meet these standards.

Urge State Parties to include comprehensive information on minorities in their periodic reports to the Commission.

Done in Banjul, The Gambia 16th October 2002

Resolution to end all forms of discrimination based on sexual orientation, and gender identity in Africa

We, the participants to the NGO Forum in preparation of the 49th ordinary session of the African Commission on Human and Peoples’ Rights,

Recalling “the inherent dignity of and the equal and inalienable rights of all members of the human family” and that “All human beings are born free and equal in dignity and rights” and that all human rights are universal, interdependent, indivisible, and interrelated;

Affirming that “human beings of all sexual orientation and gender identity are entitled to the full enjoyment of all human rights” as established in the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity and as recently highlighted by the UN Secretary General Mr. Ban Ki Moon;

Further recalling Article 2 and 4 of the African Charter on Human and Peoples’ Rights, the Declaration on the Rights and Responsibilities of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declaration on Human Rights Defenders), the African Commission on Human and Peoples’ Rights Resolution 69[XXXV]04 on the Protection of Human Rights Defenders in Africa;

Noting the failure by states to ensure the enjoyment of the right to the highest attainable standard of health by everyone irrespective of their sexual orientation and gender identity, which has impacted to the scourge of HIV in communities of men who have sex with men (MSM) and women who have sex with women (WSW) despite the proven impact of the pandemic in these communities and the population at large;

Notwithstanding that human rights protection for all women are guaranteed in various international instruments including the U.N. Security Council Resolution 1325 on women, peace and security which deals with the impact of conflict situations on women and girls especially as victims of sexual violence, the African Commission on Human and Peoples’ Rights Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 18 of the African Charter on Human and Peoples’ Rights, Article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Solemn Declaration on Gender Equality in Africa, states continue to fail in their obligation to protect the rights of lesbian, bisexual and transgender women;

Noting that Article 60 of the African Charter requires the African Commission on Human and Peoples’ Rights to draw inspiration from the content of other international treaties and laws, and further noting that articles 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR), to which all African states are party, as well article 2 of the International Covenant of Economic, Social and Cultural Rights (ICESCR) establish the principle of non discrimination on grounds of sexual orientation, as elaborated respectively by the United Nations Human Rights Committee and the United Nations Committee on Economic, Social and Cultural Rights; and that U.N. treaty bodies and Special Procedures, including the U.N. Working Group on Arbitrary Detention, the U.N. Special Rapporteur on torture and other inhuman, degrading and cruel punishments and treatments, the UN Committee on Social, Economic and Cultural Rights, and the Committee on the Elimination of Discrimination against Women, have consistently held that all U.N. treaties include protection against discrimination based on sexual orientation and gender identity;

Further noting the continuing and increasing human rights violations against individuals and communities on the basis of their sexual orientation and  gender identity, which include arbitrary arrests, detentions, extra-judicial killings and executions, forced disappearances, extortion and blackmail, hate speech, violent attacks, including rape and other sexual assault, physical assaults, torture and murder, as well as the failure of protecting the rights to safety and security of the person, freedom of movement and association, freedom of expression;

strong>Recognizing that lesbian, gay, bisexual, transgender and intersex people are not a homogenous group and that certain identities including race, ethnic and social origin, sexual orientation and gender identity, as well as legal, economic, social and cultural situations disproportionately impact on their experiences and access to the full enjoyment of all rights and freedoms;

Particularly alarmed by the situation of hatred against individuals on grounds of their perceived or real sexual orientation and gender identity by state and non-state actors across the continent, that recently resulted in the murder of Ugandan human rights defender David Kato; the rape and murder of lesbian activists in South Africa, including the brutal killing of Noxola Nogwaza; the recent arrest of three men in Cameroun on count of same-sex conducts; as well as for the attempt to introduce legislation criminalizing same sex conducts in the Democratic Republic of Congo and the recent criminalization of same sex conduct between women approved by the Parliament of Malawi.

Call for urgent and sustained action by the African Commission on Human and Peoples’ Rights to ensure the realization of the full range of human rights for all people living on the African continent, in particular people whose sexual orientation and gender identity render them more vulnerable.

And further calls on the African Commission on Human and Peoples’ Rights to adopt a resolution to:

  1. Acknowledge and condemn the continuing and increasing incidence of human rights violations, including murder, rape, assault, persecution and imprisonment based on perceived or actual sexual orientation and gender identity on the continent as a problem requiring urgent action;
  2. Condemn discrimination and exclusion of individuals and communities from the enjoyment of rights and the full realization of their potential because of their sexual orientation and gender identity;
  3. Specifically condemn the situation of hatred and systematic attacks by state and non-state actors against lesbian, gay, bisexual, transgender and intersex individuals with particular focus on the attacks against human rights defenders who are operating for the protection of LGBTI human rights in Uganda and South Africa, on the legislative measure under consideration in the Democratic Republic of Congo and Malawi, on the recent arrests in Cameroun;
  4. Mandate the Special Rapporteur on Human Rights Defenders, the Special Rapporteur on the Rights of Women and the Special Rapporteur on the Freedom of Expression to coordinate a Special Committee to investigate, document and report on these violations in order to develop appropriate responses and interventions;
  5. Create a mechanism to address human rights violations based on sexual orientation and gender identity;
  6. Ensure that states put in place mechanisms for access to HIV prevention treatment and care services for everyone regardless of their sexual orientation and gender identity.
  7. Strongly urge  states to:

7.1   Comply with the African Charter on Human and Peoples’ Rights, and other binding international treaties, by repealing laws which criminalise non-heteronormative sexualities and gender identities, such as laws criminalizing sexual conducts between consenting adults of the same sex, or laws banning cross-dressing, and by amending other laws that are implemented with the purpose of persecuting individuals and communities based on their sexual orientation and gender identity, such as laws against indecency, impersonation, and debauchery, among others.

7.2    End impunity for acts of violation and abuse, whether committed by state or non-state actors, by enacting appropriate laws prohibiting discrimination and punishing hate crimes, ensuring proper investigation, arrests and punishment of the perpetrators, and establishing judicial procedures favorable to the victims.

7.3   Protect the right of all people, regardless of their sexual orientation and gender identity, to freedom of association and assembly, freedom of expression, and freedom to participate in civil society and key decision-making organs of government.

Statement by Mrs Hannah Forster on behalf of Participants of the Forum of NGOs at the Official Opening of the 49th Ordinary Session of the ACHPR

Madame Isatou Alwar Graham representing the Honourable Attorney General and Secretary of State for Justice of the Republic of The Gambia;
Your Excellency, Commissioner Julia Joiner, Department of Political Affairs, African Union Commission (DPA/AUC);
Honourable Chairperson of The African Commission on Human and Peoples’ Rights (ACHPR), Madame  Reine Alapini Gansou and Members of the African Commission;
Honourable Vice Chairperson and Members of the African Court on Human and Peoples’ Rights (AfCHPR);
Honourable Members of the Committee of Experts on the Rights and Welfare of the Child;
My Lord, Chief Justice of the Republic of The Gambia;
Mr. Musa Gassama, Representative of the Office of the High Commissioner for Human Rights, East  African Office;
Representative of the United Nations Office in West Africa;
Your Excellencies, Members of the Diplomatic and Consular Corps;
Honourable Members of the National Assembly;
Honourable Secretaries of State;
Distinguished State Representatives;
Venerable Religious and Traditional Leaders;
Representatives of National Human Rights Institutions;
Representatives of National and International NGOs;
Representatives of the Press;
Distinguished Ladies and Gentlemen;

All protocols respectfully observed

As the Executive Director of the The African Centre for Democracy and Human Rights Studies (ACDHRS), the Secretariat of the NGO Forum and the Chairperson of the NGO Forum Steering Committee, I am humbled to be called upon to stand before this august gathering, charged with the responsibility to deliver a statement on behalf of my colleagues of the Forum on the Participation of NGOs in the 49th Ordinary Session of the African Commission on Human and Peoples’ Rights.  On behalf of all the participants of the NGO Forum, and indeed on my own behalf, like to thank the Chairperson and Members of the African Commission for affording us this opportunity.

Your Excellencies, Distinguished Ladies and Gentlemen

Allow me to also express the gratitude of all the participants to the Government and people of The Gambia for their hospitality, in facilitating the activities of the 49th Ordinary Session and to reiterate the appreciation of the Forum of NGOs for the warm welcome afforded them since their arrival on the ‘smiling coast of Africa’.

Distinguished Ladies and Gentlemen

The Forum is saddened by news of the demise of a dear colleague and former participant of the NGO Forum.  Mr. Alpha Fall was one of the co-founders of the African Institute for Human Rights and Development.  (1 minute silence) May his soul rest in peace.

Your Excellencies, Distinguished Ladies and Gentlemen,

The NGO Forum, held for three days prior to the commencement of this Session of the Commission, registered yet another remarkable turnout. Notwithstanding the limitation of time and the many human rights areas to be reviewed, the debate was objective and professional leading to commendable outcomes.  About 200 representatives from over 30 African countries participated including 25 participants from Europe, The USA and Asia.

The Forum acknowledged that despite the persistence as a result of the human rights and democracy situation on the continent leading to violence, insecurity and conflict, real and positive developments have been registered in a good number of African countries.

Some of these positive and welcome developments reported during the Forum were the conscious harmonisation of domestic law to take into consideration the human rights of persons with disabilities as well as the human rights of women; some countries have been applauded for taking steps to progressive inclusion of people with disability in the electoral process.   It was noted that six African countries have adopted legislation criminalising torture in their jurisdiction while ten have ratified the African Charter on Democracy, Elections and Governance.  The Forum welcomed the fact that a spirit of goodwill and cooperation exist among many African countries to respect the human rights of its citizen despite the negative economic environment with its attendant challenges.  These times have also seen an increasing trend of collaboration between state and non state actors for human rights in Africa, to name but a few.

Despite these and many other positive developments, The Forum was overwhelmed by the situation in some countries in recent months which remain a cause for concern for all the participants of the Forum.

Distinguished Ladies and Gentlemen

Please bear with me as I present to you the highlights of the said deliberations.

Participants opined that North Africa would never be the same after the tumultuous and historic demand for human rights that had been spreading like wild fire in that sub region, particularly in Tunis, Egypt and Libya.  Furthermore, the persistence of challenges related to the conduct of elections have been brought alive by the stalemate in Cote D’Ivoire.  In an effort to encourage the African Commission and its partners to curb and or deal with these issues in a timely manner, The Forum has highlighted the situation in many an African country but have come out with resolutions on Burundi, Djibouti, Cote  D’Ivoire, Libya, North Africa and Swaziland. Thematic resolutions and recommendations prepared for the attention of the African Commission includes the following themes: the African Court on Human and Peoples’ Rights; the Human Rights of Children; Persons with Disabilities; Elections; Forced Disappearances; Freedom of Expression, Opinion, Assembly and the Press; Conditions of Prisons and Places of Detention; the observance of Economic, Social and Cultural Rights; HIV/Aids and Human Rights; the prohibition of Torture; Refugees and Internally Displaced Persons; Reprisals of Human Rights Defenders; Sexual Orientation and Gender Identities; the human rights of Women and the African Consensus emerging from The World Social Forum. Furthermore, the Forum also prepared a Declaration of Solidarity with the People of North Africa. Full details are provided in the resolutions and recommendations emanating from the Forum.

I would wish to reiterate that it is not the intention of the Forum to name and shame but a call to action in order to address potentially deteriorating observance of human rights, rule of law and democracy on the continent.

We, therefore, request the African Commission to express solidarity with all human rights defenders, especially women human rights defenders; journalists, LGBTIs (Lesbian, Gay, Bi-sexual, Transgender and Intersex) other marginalised groups living under extreme persecution and to urge states to abolish repressive laws and to ensure a conducive environment for the protection of all these groups in Africa.

Your Excellencies, Distinguished Ladies and Gentlemen,

We noted that human dignity has been observed by some states by substituting life imprisonment for the death penalty.  However, the need for states to condemn the death penalty and to commit themselves to its abolition was also reiterated.

Your Excellencies, Distinguished Ladies and Gentlemen

The Forum also re-emphasised the necessity of popularising the various documents emanating particularly from the African Union and the African Commission to ensure that the messages contained therein reach the African populace.  The importance of human rights education was underscored and representatives of the Forum re committed themselves to work towards the achievement of this goal.

The Forum would like to encourage more collaboration and joint actions between the Institutions of the African Union especially the African Commission on Human and Peoples’ Rights and the Committee of Experts on the Rights and Welfare of the Child and The African Court on Human and Peoples’ Rights.

Your Excellencies, Distinguished Ladies and Gentlemen

On behalf of all the participants, I would wish to again congratulate the African Commission and indeed the Chairperson for the many missions and achievements registered during the last inter session.  The Forum noted with satisfaction, the reaction of the Commission to the situation in North Africa and for taking the necessary action to contribute towards its resolution.  While we congratulate the joint harmonization and adoption of the rules of procedures for The Court and The African Commission, we would equally wish to recognise and applaud the joint effort of The African Court and The African Commission on securing the order of provisional measures in relation to the current situation in Libya as we reiterate the readiness of the NGO community to work with these and other relevant institutions and their mechanisms in the realization of their mandates.

The threat of citizenship as a potential source of conflict in Cote d’Ivoire has been raised over a decade ago by the Forum calling on the Commission to action.  However, we are also pleased that the African Commission is seized of the situation in Cote d’Ivoire and we would wish to acknowledge the nomination of Madam Alapini-Gansou as a member of the UN Investigation Team to this country.

Madam Chairperson, allow me, on behalf of the Forum, to express our profound gratitude to the African Commission for your collaboration and support in the organisation and facilitation of the NGO Forum.  We would equally like to extend our appreciation, through you, to the Secretariat of the African Commission, and particularly to the Secretary and the Legal Officers, for the interest and continued support enjoyed by the NGO community, particularly those with observer status.  We continue to urge as many of our colleagues in the wider community to consider applying for observer status to enable them play their role and maximise the accrued benefits that can be achieved from the access provided by this great institution.

The Forum applauds the resounding success of the January Summit with its apt theme of Shared Values and would like to congratulate Department of Political Affairs of the African Union Commission for effectively leading the formulation and discussion process of the development of a human rights strategy for Africa, which has led to its adoption in the last few days.  We recognise that the human rights strategy for Africa forms an integral part of the African Governance Architecture and hereby wish to convey the Forum’s pledge and commitment to support and collaborate with your esteemed institution in its implementation.

Within this framework of collaboration, the Forum wishes to request the African Commission to urge states to cooperate in the operationalisation of their commitment to the UPR process. It was observed that many African countries have undergone the APRM process, the need for the UPR process to draw inspiration from the APRM was proposed.

Your Excellencies, Distinguished Ladies and Gentlemen,

Participants at the Forum recognised that while there has been some progress in the ratification of the African Charter on Democracy, Elections and Governance (ACDEG), there is a need for more states to ratify and accelerate its entry into force into the not too distant future.   Lack of independence of the electoral systems have made elections in Africa a growing source of conflict.  Spurred by the substance of the ACDEG, participants have committed themselves to actively support the call of the DPA/AUC to campaign for its speedy ratification and implementation. The efforts of the Pan African Parliament and other AU organs in this endeavour were also noted.

The Forum also noted that many African and International instruments have been ratified by states, which is commendable.  However, the challenge remains that there is need to harmonise and implement these treaties at the national level in order to maximise their impact. Consequently, we would wish to appeal to states, which have not ratified these pertinent treaties, to speedily ratify them and therefore enable their inevitable implementation.  We similarly, urge those who have ratified to ensure that harmonisation does take place to speed up their implementation and thereby give life to their provisions.

In the same vein, we wish to urge states to ratify and expedite action on the domestication and effective implementation of the Rome Statutes.

Furthermore, to date, there are only 22 ratifications of the Protocol to the African Court adopted since 1998, we would equally urge state parties to work towards its universal ratification and to consider also signing the Declaration, as per Article 34 (6) by which individuals are granted access to the Court.

Distinguished Ladies and Gentlemen,

The entry into force of the Protocol to the African Charter relating to the Rights of Women in Africa continues to be a beacon of hope for the promotion and protection of human rights and gender equality in Africa.  We fervently hope that universal ratification by other states would usher in that much needed momentum to put into action gender equality in our various countries. The launch of the African Women’s Decade provides the much needed impetus in the development of the human rights of women.  The Forum reviewed the linkages between HIV/AIDS and the Protocol and wishes to acknowledge that Violence Against Women is adequately covered in the Protocol.

Participants at the Forum recognised the lack of impetus in the implementation of the World Conference against Racism (WCAR) Declaration and Programme of Action urged the OHCHR to renew and revitalise its strategy in accompanying the implementation process of the Programme of Action.

Madam Chairperson, Distinguished Commissioners, Honoured Guests, Ladies and Gentlemen,

While the Forum congratulates the African Commission as its celebrates 30 years since the adoption of the African Charter on Human and Peoples’ Rights, allow me to conclude by reiterating the readiness of your partners, particularly NGOs with Observer Status to work in collaboration with the African Commission and its partners to further complement your efforts in your work to promote and protect human rights, good governance and the rule of law in Africa.

Madam  Chairperson

On behalf of the participants of the Forum on the Participation of NGOs in the work of the 49th session of the African Commission, allow me to wish you, Your Excellency, and all the Commissioners a fruitful deliberation and a successful session.

Thank You.       

HJF / ACDHRS

April 2011

Recommendations on Prevention and Prohibition of Torture and Other Inhuman and Degrading Treatment or Punishment; and Prison and Conditions of Detention in Africa

During the NGO Forum proceeding the 49th Ordinary Session of the African Commission on Human and Peoples’ Rights,

1. Introduction:

The Working Group focused on two thematic areas namely:

  1. Prevention and Prohibition of Torture;
  2. Prisons and Conditions of Detention in Africa.

The group assessed the situation relating to these issues and the status of compliance to human rights conditions in relation to these. The group further discussed on how to follow – up on previous resolution adopted by the commission to ensure their effective implementation and on strategies to enhance NGO engagement with the Commission and its relevant mechanisms. The group also noted best practices and obstacles faced in realisation of these rights as well as identified strategies to promote effective networking amongst the Working Group. Participants presented reports on the following African Countries: Uganda, Kenya, Cameroon, Zimbabwe, Togo, Nigeria and South Africa.

The group also noted that there are several cross-cutting issues in relation to torture and Prisons in Africa such as: Pre – Trial Justice, Mentally Challenged Persons in Prisons/Detention Facilities, Poor Legislative Framework, Lack of Adequate Health Facilities in Prisons and Detention Facilities, Refugees in Detention Centres; Solitary Confinement, etc.

Key recommendations were made by the Working Group to the Commission towards enhancing the promotion and protection of human rights in Africa with respect to prevention of Torture and other Cruel, Inhuman and Degrading Treatment, and promotion of Prison and Conditions of Detention in Africa.

2.  Recommendations:

On Torture:

1. Commends the Commission for its promotional visit to the Democratic Republic of Congo (DRC) and applauds the government of DRC for adoption of legislation criminalising torture in its jurisdiction, we are concerned that most African States are yet to criminalise torture in their respective domestic laws and urge all African States to urgently do so as well as establish the effective implementation of these.

2. Condemns the practice of extra-ordinary renditions where persons are transferred to another State where they are at a risk of being subjected to torture, cruel, inhuman and degrading treatment or punishment contrary to Article 20 of the Robben Island Guidelines.

3. Condemns the practice of expelling or extraditing individuals to other States where they are at a risk of being tortured contrary to article 15 of the Robben Island Guidelines, Article 3(1) of the United Nations Convention Against Torture, Cruel, Inhuman and Degrading Treatment or Punishment.

4. Urges the Commission to strengthen its focus on the rights of victims of torture to holistic rehabilitation including health, social, legal and other services and to justice and reparation. Furthermore, to engage with Member State to ensure that thesevictims’rights are fully respected, protected and promoted and mechanisms /structures are put in place to implement these accordingly; including activities aimed at documentation and redressing of torture and to support rehabilitation services/centres in the African region.

5. Urges the Member States to put in place measures to end impunity and to allow independent investigation to prosecute public officials responsible for acts of torture and request the Commission to take concrete steps to monitor the implementation of this.

6. Urges that Member States to make public ALL places of detention and avail the Commission and the National Human Rights Institutions as well as relevant NGOs with this information and allow access to these places of detention by national, regional and international oversight/monitoring mechanisms.

7. Urges Member States to cooperate effectively with the CPTA in order to fully implement its mandate.

On Prisons:

1. Urges the Commission to effectively engage with the African Correctional Services Association (ACSA), relevant African and international NGOs and other agencies working in the field of prisons  and develop standard norms to enhance prison reform in Africa as well as implement relevant resolutions of the Commission on Prisons and Conditions of Detention in Africa.

2. Commends the Commission on its support for the Prisons Reform Intervention in Africa and urges the Commission to further support the Prison Reform Intervention in Africa Project as well as ensure practical implementation of programmes to promote prison reform in Africa as well as work with member states and NGOs to ensure the full actualization of concrete initiatives in this regards.

3. Urges member states to effectively fund prisons in their respective countries and put in place mechanisms to bring them in accordance with international standards.

4. Requests member states to guarantee access to the Special Rapporteur on Prisons and Condition of Detention in Africa, National Human Rights Commission and to CSOs/ NGOs to Prisons and ALL places of Detention within their jurisdiction, to ensure effective monitoring, oversight of conditions and provision of support services to detainees and prisoners.

5. Urges Member States to take urgent measures to address the problems of high prison population, high number of awaiting trial prisoners and other issues relating to pre-trial justice in their respective jurisdictions and call on the Commission to monitor compliance of member states to this.

 

Done at Banjul, April 28th, 2011