Since it was established by member states of the African Union in 1987, the African Commission on Human and Peoples’ Rights (ACHPR) has worked steadily to establish its authority as a protector and monitor of human rights in Africa, as laid down in the African Charter of Human and Peoples’ Rights. It has not been an easy task. Many African governments insist the commission has only an advisory role; as a result it has struggled to see its recommendations and decisions implemented.
Nevertheless, the commission has continued to pursue the aspirations of the African Charter, and to establish its authority. At its most recent session in the Gambian capital, Banjul, the commission marked a new milestone by launching two important documents—a model law (on access to information), and a set of general comments (on the interpretation of the rights of women in Africa). Both are the first documents of their kind in the history of the ACHPR.
The general comments provide clarification on the 2003 Maputo Protocol on the Rights of African Women, which is the first legally binding human rights instrument to recognize the intersection between HIV and the rights of women. Two sections of the protocal establish the right of women to protection from HIV infection, and to be informed of their HIV status and those of their partners. But the document does not prescribe the measures states should take to ensure full implementation. The ACHPR’s general comments seek to redress this.
Article 45(1)(b) of the African Charter empowers the commission to formulate rules and principles with a view to resolving problems such as described above, so it provides the legal basis for the commission’s intervention. The general comments interpret two articles of the Maputo Protocol:
- Article 14(1)(d), on the right to self-protection is interpreted to include women’s right to access information, education and sexual/reproductive services, as well as the right to equality and non-discrimination, life, dignity, health, self determination, privacy and the right to be free from all forms of violence
- Article 14(1)(e) on the right to be informed of one’s health status and the health status of one’s partner is interpreted to include right of women to access adequate, reliable, non-discriminatory and comprehensive information about their health. In the context of HIV, this includes access to HIV testing CD4 count, viral load, tuberculosis and cervical cancer screening.
The ACHPR general comments create state obligations to respect, protect, promote and fulfil these rights. The obligation to respect demands non-interference by states with the right to self protection and right to information on the health status of individuals and their partners. The obligation to protect is construed as a positive one, in that it requires states to take measures to prevent third parties from interfering with these rights. The obligation to promote is also positive, to the extent that it requires states to create the legal, social and economic conditions for women to exercise their rights in relation to sexual and reproductive health. For its part, the obligation to fulfil requires states to adopt all necessary measures to ensure full realization of the rights guaranteed under this article.
This is a highly laudable achievement by the commission. But the question remains: will member states respond? The challenge for the commission now is to find a way to persuade states to take these first general comments seriously. Then its subsequent comments on the interpretation of the charter and related protocols will impact positively on the promotion and protection of human rights.
By far the more popular document launched at the 53rd ordinary session is the Model Law on Access to Information for Africa, which provides a template for legislation that meets the requirements of the African Charter and other international standards.
Its popularity is partly a result of its history. The model law was a product of robust collaboration between civil society and the commission. The process leading to its adoption was led by an all-Africa team of nine distinguished professionals, with financial support from institutions within and beyond the continent, including Open Society Foundations.
The model law builds on advances in regional standards such as theAfrican Charter on Democracy, Elections and Governance; the African Union Convention on Preventing and Combating Corruption; the African Charter on the Values and Principles of Public Service and Administration; and the Maputo Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa – all of which have explicit access to information provisions. It seeks to guide the development of new access to information legislation (and any review of existing legislation) across the continent. It will also serve as an advocacy tool to encourage the adoption of access to information laws. And it compiles best practices in legislative drafting on the subject, while reinforcing a common approach and harmonization of access to information laws.
The model law is 88 articles long. It sets out the general principles and objectives of the law; creates obligations on public institutions, for example, to create, keep, organize and maintain information; to proactively disclose information and to submit implementation plans, annual reports and information manuals. It also creates a right to access information and describes how requests may be made, responded to, transferred and deemed refused. In part III, it creates exemptions for classified information, personal information of third parties, amongst others. Part V creates an oversight mechanism, including its structure, operations, powers and duties. Part VI subjects the decisions of the oversight mechanism to judicial review while article 88 of Part VI creates offences and prescribes punishment for individuals and institutions that violate the right to access information.
Like the general comments, the biggest obstacle to realizing the lofty goals enunciated in the model law is implementation. Adopting access to information legislation is extremely important, and states should be encouraged to do so. However, more attention needs to be devoted to monitoring and reporting on implementation of access to information legislations on the continent.
Taken together, the adoption of the first general comment and model law in Africa opens a new vista for the promotion and protection of human rights on the continent. It creates new standards, clarifies existing provisions and articulates a future in which the rights of union citizens are respected and preserved by their governments.