A critical analysis of article 56 of the Banjul Charter

Abstract

Human rights have gradually gained widespread recognition and have attained a priority status at both universal and regional level. Thus, there exist certain regional institutional mechanisms that capture the procedures necessary for submitting communications. The African Commission on Human and Peoples' Rights is one such institutional mechanism established in terms of Article 30 of the Banjul Charter to decide on communications by individuals in terms of article 55 of the Banjul Charter. In this regard, legal scholars have long since raised the issue that, in comparison with other regional and also global human rights complaints mechanisms, the number of communications received and dealt with under the African human rights system is miniscule. A problem is that the procedures available remain unknown to many. Even many a lawyer or NGO, who might otherwise contemplate bringing a claim before the African Commission is unaware of the procedures. Knowledge of especially the individual communication procedure before the commission is therefore crucial. Hence, there is a need for these criteria to be known, and for it to be understood so as to know how the Commission applies them. The way the Commission applies them should be predictable, meaningful and lenient, to make the communication procedure a successful tool in vindicating human rights in Africa. These communications must comply with certain admissibility requirements embodied in article 56 of the Banjul Charter. These requirements stipulate that a communication "must indicate the authors"; "must be compatible with the Charter of the OAU or with the Banjul Charter"; "must not be written in disparaging or insulting language"; must "not be based exclusively on news disseminated through the mass media"; must "be sent after exhausting local remedies"; "must be submitted within a reasonable period from the time local remedies were exhausted" and "must not deal with cases which have been settled by these States". Though such requirements may appear direct and simple to understand, they contain a vast array of impediments to individuals seeking to submit such communications. In other words, these requirements contain some words and phrases which are ambiguous and need clarity. For example, the "communication must not be written in disparaging or insulting language" the "communication must be sent after exhausting local remedies, if any, unless if they are unduly prolonged"; and the "communication must be submitted within a reasonable period from the time local remedies are exhausted". In this light, obvious questions such as the meaning of "disparaging or insulting language"; "exhausting local remedies"; "unduly prolonged"; and "reasonable period" as used in these sub-paragraphs require clarity. This in turn presents a problem in the interpretation of the Banjul Charter as several individuals have a narrow understanding of article 56 which could result in a communication that does not comply with the requirements. Considering these ambiguities, this study interprets the requirements for the admissibility of a communication by making use of the jurisprudence of the European Court of Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. It examines the African Commission's interpretation of article 56 in comparison with the equivalent criteria applicable under the European and American systems. The jurisprudence of the European Court, the Inter-American Commission and the Inter-American Court will be considered alongside that of the African Commission so as to see whether, and if so, there is any potential for improvement of the admissibility criteria under article 56 of the Banjul Charter. Upon such exposition, the study attempts to provide clarity to any misunderstanding that may exist concerning the requirements for admissibility encapsulated in article 56.