conclusiones y recomendaciones agua subterránea 2

This Working Group started as a Focal Point which was created by the adoption of Resolution 118 by the Commission.⁸⁵¹ The Focal Point was with the view to initially consider developing a Protocol to the African Charter to deal with the rights of older persons in Africa.⁸⁵² A consultative meeting held in Mauritius in 2008 by the Focal Point on the rights of older persons led to the foundation for a co-ordinated approach towards the promotion and protection of the rights of older persons. The conclusion reached at this consultative meeting was that the principle of non-discrimination and equality before the law requires that States adopt special measures to protect older persons and persons with disabilities.⁸⁵³

849 See Intersession Report delivered by Honourable Commissioner Mohamed BechirKhalfallah, Chairperson of the African Commission Working Group on Economic, Social and Cultural Rights in Africa at the 56th Ordinary Session of the Africa Commission on Human and Peoples Rights held in Banjul, The Gambia from 21 April to 7th May, 2015. See also, Intersession Report delivered by Honourable Commissioner Jamesina Essie. King, Chairperson of the Working Group on Economic, Social and Cultural Rights In Africa at the 58th Ordinary Session of the African Commission on Human and Peoples Rights held in Banjul, The Gambia from 6 to 20 April, 2016.

850 Inter-Session Report of the Working Group on Economic, Social and Cultural Rights (2016) 7.

851 The Resolution was adopted at the 42nd Ordinary Session of the Commission held from15-28November, 2007 at Brazzaville, Republic of Congo. See Resolution ACHPR/Res.118 (XXXXII) 07.

852 Yeung Kam John Yeung Sik Yuen, ‘The Rights of Older Persons and Persons with Disabilities in Africa’ in Manisuli Ssenyonjo (ed.) ‘The African Regional Human Rights System: 30 Years after the African Charter on Human and Peoples Rights’ (2011) 228.

853 See Report on the Activities of the Commissioner Yeung Sik Yuen of the Working Group on the Rights of Older

By 2009, at the meeting of experts which was held in Accra, Ghana,⁸⁵⁴ the first Draft Protocol on the Rights of People with Disabilities in Africa was produced by including standards in the 1983- 1992 UN Decade for people with disabilities, the 1993 Standard Rules on Equalisation of Opportunities for Persons with Disabilities⁸⁵⁵ and the Kigali Declaration.⁸⁵⁶ The Focal Point, at the 45th Ordinary Session of the Commission,⁸⁵⁷ was transformed into a Working Group on the Rights of Older Persons and People with Disabilities ⁸⁵⁸ with an extended mandate to hold comprehensive brainstorming sessions to articulate the rights of older persons and peoples with disabilities.⁸⁵⁹

The ‘Accra Draft’ has been criticised for having been formulated without the participation of persons with disabilities and it also presented a diluted version of international standards, most notably the Convention for Rights of People with Disabilities, without adequately introducing an

‘African-specific’ perspectives.⁸⁶⁰ This led to the suspension of the Accra draft and it has been proposed that the existing potential of the African human right system to realise the rights of people with disabilities should be explored more fully. This may entail the adoption by the African Commission thematic resolutions that could act as guidelines to the interpretation of the African Charter.⁸⁶¹

Traditional African society was closely attached with deep-rooted cultural facts. Elders and older persons played a major role in problem solving in these African societies; they also created Persons and People with Disabilities, November 2009. Available at www.achpr.org/files/sessions/46th/inter-act- reps/129/achpr46_specmec_older_actrep_2009_eng.pdf (Accessed 10th April, 2015).

854 Expert Seminar on the Rights of Older Persons and People with Disabilities, held in Accra, Ghana from 26-28 August, 2009.

855 Article 18(4) African Charter.

856 Yeung Sik Yuen (2011) 229.

857 The Ordinary Session was held in Banjul, The Gambia from 13-27 May, 2009.

858 The Resolution was as a result of the recognition by the Commission that people with disabilities are entitled to the rights guaranteed for all in the African Charter and that mainstreaming disability in the development agenda of States Parties is an appropriate strategy for achieving equality for people with disabilities and older people. See Draft Report of Commissioner Y.K.J. Yeung Sik Yuen, Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa Inter-Session period, May 2009-November 2009. Available at www.achpr.org/files/sessions/46th/inter-act-reps/129/achpr46_specmec_older_actrep_2009_eng.pdf (Accessed 10th April, 2015).

859 See www.achpr.org/mechanisms/older-disabled/ for the mandate of the Working Group. (Accessed 10thApril, 2015).

860 Kamga S A, ‘A Call for a Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’ (2013) 21 African Journal of International and Comparative Law 219-237.

861 Secretariat of the African Decade on Persons with Disabilities The Architecture for an African Disability Rights Mechanism (2011)32-35. See also Helen Combrinck, ‘Disability Rights in the African Regional Human Rights System During 2011 and 2012’ (2013)1 African Disability Rights Yearbook 361-368.

strategies and shaped local visions based on skills and wisdoms. In achieving these, they used their experience which they acquired over time and their knowledge which transmit from generation to generation. These knowledge are indigenous knowledge acquired from their local community and applied to development planning as well as social problems in the community.⁸⁶² Conflict resolutions in the African Traditional societies through indigenous institutions perform a healing function. It provides opportunity for examination of alternative positive decision to resolve differences and as a result elders in the community are major players because they have wisdom and knowledge. They are also respected as trustworthy mediators;⁸⁶³ they are associated with the cultural norms and beliefs of the peoples. They gain their legitimacy from the community values instead of state. What this means is that traditional dispute resolution mechanisms function on the basis of local customary practices or cultural norms based on indigenous knowledge embedded in the elders.⁸⁶⁴

The African Traditional Justice system is inclusive, democratic, open and welcoming to the people who seek it. The traditional courts tried to promote harmony, reconciliation, compensation to the aggrieved, easy and inexpensive access to justice and the restoration of the wrongdoer. It also promoted the spirit of communalism where an individual exist for the benefit of the greater community. Establishment of the Special mechanisms by the Commission can be said to be a reflection of what indigenous Africans perceived as Justice.

They seek to foster harmony, reconciliation and an easy access to justice for the aggrieved.

5.3.2 Protective Mandate of the African Commission

Another mandate conferred on the Commission is to ensure the protection of human and Peoples’ rights as laid down by the African Charter.⁸⁶⁵ Article 45(2) specifically provide for the protective mandate of the Commission as ‘ensuring the protection of Peoples’ right under conditions laid down by the present Charter’. This power can be assessed based on the nature of the rights being violated, the place of their violation and the status of their subjects, whether active or passive. Unlike the promotional mandate, the protective mandate of the Commission covers the whole Charter in terms of specific rights, duties and obligations as laid down by the

862 Tasew Tafese, ‘Conflict Management through African Indigenous Institutions: A Study of the Anyuaa Community (2016) vol. 3 No. 1 World Journal of Social Science 22.

863 Tasew Tafese (2016) 22.

864 Tasew Tafese (2016) 22.

865 Article 45(2) African Charter.

Charter.

To be able to carry out this protective mandate effectively, the Commission identified two major areas which are the examination of State Reports and the examination of complaints or communications. The examination of Communications was further divided into State Communications and non-State communications. The protective mandate enables the Commission to take measures which will ensure the enjoyment of individual’s rights as spelt out in the Charter and this includes making sure that Member States do not violate individual’s rights as contained in the Charter and where a violation occurs, the right of the victim(s) are re- instated.⁸⁶⁶

The objectives of State Reporting as a protective mandate of the Commission, as summarised by the Committee on Economic, Social and Cultural Rights, can be said to be to ensure that a complete review of national legislation, administrative rules, procedures and practices is undertaken in order to ensure a strict adherence of the provision to the African Charter.⁸⁶⁷ Other objectives of State reporting as a protective mandate of the Commission includes, among others, to ensure that States Parties measure the actual situation of each and every rights on a regular basis thereby being aware of the level at which each and every rights are, whether the rights are being enjoyed or not by individuals within their jurisdiction.⁸⁶⁸

Other objectives of State Reporting is to enable a government to demonstrate that principled policy making has infact been undertaken; also to facilitate public scrutiny of government policies with respect to the right in question and to encourage the involvement of the relevant sectors of the society in the formulation, implementation and review of the relevant policies.

Another objective is to provide a basis on which the State Party itself, as well as the Committee, can effectively evaluate the extent to which progress has been made towards the realisation of the obligations contained in the Covenant. It is also to enable the State Party to develop a better understanding of the problem and shortcomings encountered in an effort to realise progressively the full range of economic, social and cultural rights.⁸⁶⁹

866 See African Commission on Human and Peoples Rights, Establishment Information Sheet No.1 at page 13.

867 Takele Soboka Bulto, ‘Africa’s Engagement with the Universal Periodic Review: Commitment or Capitulation’ in Hilary Charlesworth & Ema Larking (eds.) ‘Human Rights and the Universal Periodic Review: Ritual and Ritualism’

(2015) 239.

868 Morris Mbondenyi, ‘Human Rights in Africa’ (2011) 431.

869 Kofi Quashigah, ‘The African Charter on Human and Peoples Rights: Towards a more Effective Reporting Mechanism’ (2002) 2 AHRLJ 261-300.

Despite all the above listed objectives of state reporting, States have shown a lack of appreciation of the importance of putting together their reports and submitting as at when due⁸⁷⁰ and a s a result of the frustration being experienced by the Commission delay in the submission of these reports, the Commission, in its 5th

Activity Report, made a recommendation to the Assembly of Heads of State and Government of OAU asking it to adopt a resolution on overdue reports that was drafted by the Commission.⁸⁷¹ The Assembly, at its 29th Ordinary Session held in Cairo, Egypt, adopted a resolution urging States Parties to the African Charter that are yet to submit their reports to do so as soon as possible.⁸⁷²

Limited legal framework providing for reporting, lack of political will and irregular submission of reports, lack of seriousness on the part of the Commission and States Parties during reporting process and budgetary constraint among others, can be identified as the constraint of state reporting.⁸⁷³ The onus to make the state reporting procedure effective is not on the Commission alone, State Parties too do have an obligation to make it effective likewise NGOs. They provide

‘shadow’ reports to the reporting system and the benefit of this shadow report is that they provide the requisite information that will enable the Commission to engage in constructive dialogue with State representatives when periodic reports are considered.⁸⁷⁴