A call to shift the seat: The Gambia is not a suitable seat for the African Commission on Human and Peoples’ Rights

Author: Frans Viljoen
Director, Centre for Human Rights, University of Pretoria; Professor of Human Rights Law

In 1986, the African Charter on Human and Peoples’ Rights (African Charter) entered into force. Under the African Charter, the African Commission on Human and Peoples’ Rights (African Commission) is established to monitor state compliance with the Charter. The Assembly of Heads of State and Government of the Organization of African Unity (OAU) in 1987 decided that the Commission’s Secretariat should be based in Banjul, The Gambia. It has been located in Banjul ever since.

The initial rationale for the choice of seat has since fallen away

At the time this decision was taken, the choice of Banjul made much sense. Much of the drafting of the African Charter took place in Banjul, to the extent that the African Charter is often referred to as the ‘Banjul Charter’. In fact, The Gambia was one of the few states in Africa that, at the time, had any claim to democratic credentials. The head of state at the time, President Jawara, strongly supported the drafting process of the Charter, and assisted in overcoming political difficulties that arose in the drafting process.

However, this situation has changed dramatically. Since Jawara’s removal from power through a coup d’état in 1994, The Gambia has lost its claim to democratic legitimacy. The 1994 coup leader and current President, Jammeh, has now been in power for almost 20 years. While elections have subsequently been held, they are widely regarded as not meeting the standard of “free and fair”. In 2011, the Economic Community of West African States (ECOWAS) decided not to send an electoral observer mission to The Gambia for the presidential election because the political environment was not conducive to free and fair elections (http://thinkafricapress.com/gambia/jammeh-win-extend-rule). The Gambia is now generally regarded as the “odd country out”, in an ever-democratising Africa, and counts among the most undemocratic and authoritarian states on the continent.

At the first session after the unconstitutional change of government had taken place, the Commission adopted a resolution condemning the coup as a “flagrant and grave violation of the right of The Gambian people to freely choose their government”, and called on the military government to observe international human rights standards (Resolution on The Gambia, adopted at the Commission’s 17th session, 22 March 1995, Eighth Annual Activity Report, Annex VIII). However, short of finding a violation of the Charter in a communication submitted by the Former President Jawara (communications 147/95, 149/95 (joined), Jawara v The Gambia (2000)), the Commission seemed initially to have settled comfortably into life under the new regime.

The Gambia is not only an authoritarian state, but also one of the prime human rights violators on the continent

The human rights situation in The Gambia is dire, and has deteriorated in the recent past. Key human rights violations include executions of individuals whose convictions were based on unfair trial; disappearances of critics of the government, including journalists; non-compliance with findings of the African Commission and decisions of the ECOWAS Court; and restriction of free speech. During a press conference after his re-election in 2006, a defiant Jammeh made the following statement: “The whole world can go to hell. If I want to ban any newspaper, I will, with good reason.”  A prominent example is the sentencing to life imprisonment of an opposition leader for printing t-shirts with a political slogan.

In 2008 the Commission adopted a pointed resolution on the human rights situation in The Gambia, calling on the government to release specific persons, and to immediately end the harassment of the media. (ACHPR Doc ACHPR/Res.134 (XXXXIIII) 08: Resolution on the Human Rights Situation in the Republic of The Gambia.) The Gambia has not implemented this resolution. In its 2009 resolution on the human rights situation in The Gambia, the Commission urged The Gambian government “to implement the recommendations of its previous Resolutions, in particular, Resolution No. ACHPR/Res. 134(XXXXIV)2008, adopted during the 44th Ordinary Session held in Abuja, Nigeria, from 10 to 24 November 2008, and to investigate the disappearance and/or killing of prominent journalists Deyda Hydara and Ebrima Chief Manneh”. These matters all remain unresolved.

The Gambia has a history of threatening the safety and security of civil society

It should be recalled that The Gambian government in 2009 openly and explicitly threatened the safety and security of civil society representatives intending to attend the Commission’s session in Banjul. That year, the President himself, on national television, threatened that he would kill anyone, especially human rights defenders and their supporters, whom he considered to be sabotaging or destabilizing his Government. The Commission reacted by adopting another resolution, calling on the President to withdraw the threats and to guarantee the security of participants in the upcoming session scheduled to take place in The Gambia. (Resolution on the Deteriorating Human Rights Situation in The Gambia, adopted at the Commission’s 7th extraordinary session, Dakar, Senegal, 11 October 2009). In what amounts to an ultimatum, the Commission requested the African Union (AU) to consider relocating the Commission’s seat if the human rights situation in The Gambia did not improve. The relevant wording of the resolution requests the AU to “consider relocating the Secretariat of the African Commission in the event that the human rights situation in the Republic of The Gambia does not improve”. After the President gave some guarantees to ensure the safety and security of NGOs, the session took place in Banjul. However, the human rights situation in The Gambia did not subsequently improve.

The Gambia has not honoured the terms of its hosting agreement

In terms of the hosting agreement, The Gambian government undertook to provide rent-free and adequate accommodation for the Commission’s Secretariat, including basic furniture, translation and interpretation equipment, and typewriting and photocopying machines. In 1992, the process to construct for the Commission a building of its own was set in motion. (Note on the construction of the Headquarters of the African Commission, AU Doc ACHPR/BS/01/005, prepared for the 2006 Brainstorming Meeting). Although the foundation stone was laid at a suitable site on 21 October 2001, the building process has not yet started.

Call on African Commission

Against this background, the Commission is invited to consider two avenues.

The first is to further exert pressure for the issue of the location to be debated at the political level. The African Commission could, for example, follow up with the AU its 2009 request to “consider relocating the Secretariat of the African Commission in the event that the human rights situation in the Republic of The Gambia does not improve”. The Commission may also clearly and strongly highlight this issue in its next activity report, and through its Chairperson, seriously engage on this issue with the Executive Council of the AU.

The second avenue is related to the location of sessions. We note the following disconcerting trend: Of the Commission’s first 43 sessions, 24 (or 55%) took place in countries other than The Gambia. However, of the last ten sessions, only 2 (so, 20%) have taken place outside The Gambia. While it is up to states to invite the Commission to host sessions in their countries, we call on the Commission to work proactively and energetically to ensure that as many sessions as possible take place in countries other than The Gambia. The possibility of a roster, based on regional rotation, should be investigated and if considered feasible, implemented.

Conclusion

If these measures are adopted, full NGOs participation in support of the Commission in the exercise of its mandate, would be enhanced.  Ultimately, it is clear that this is a matter for AU member states to resolve at the political level.  Re-designating the seat of an AU organ is quite a weighty matter, but there are good reasons to do so in this instance, and there clearly are more suitable AU member states in West Africa (the region in which The Gambia is located) that do not host an AU organ.

About the Author:
Prof Frans Viljoen is the Director of the Centre for Human Rights, Faculty of Law, University of Pretoria. He is also the academic co-ordinator of the LLM (Human Rights and Democratisation in Africa), presented by the Centre, in collaboration with twelve partner law faculties across Africa. He has published numerous articles dealing with international human rights law, and the book International human rights law in Africa (Oxford University Press, second edition, 2012).