The directive to the ACHPR to align its criteria for granting observer status with that of the AU is a culmination of many years of member states’ efforts to unduly control how and with which NGOs the ACHPR interacts. The AU criteria for granting observer status to NGOs (Decision EX.CL/230 (VII)) and its Statute of the Economic, Social and Cultural Council place overly restrictive requirements on prospective applicants. The most concerning is the requirement that the “basic resources of such an NGO shall be substantially, at least two-thirds, be derived from contributions of its members”. The ACHPR’s criteria are quite flexible; they require NGOs applying for observer status to simply declare their financial resources.
Given the limited financial resources in the region, most NGOs are understandably unable to meet the AU’s requirement. They depend substantially on donor funding. This is not dissimilar with how the AU is funded. The AU covers about 28% of its annual budget, with donors covering the rest of the budget (see here for details). These figures do not extend to the peace and security operations budget, which the AU covers only a mere 2% (Kaberuka Report, Annex 1, para 5). In 2014, the AU Peace and Security Council acknowledged that AU’s financial requirement had hindered many CSOs from participating in its activities (Maseru Conclusions, para 4(d)). It resolved to adopt a “flexible application”, which has allowed a relatively wide range of NGOs to now participate in its activities. If it is compelled to abandon its flexible criteria and adopt the AU approach, the ACHPR will close its doors on many of its partners who have supported its work for decades.
The political context that led to it. There is a potential risk that the proposed code will be used to circumscribe and undermine the activities of the ACHPR. Some AU member states have deployed a similar tactic within the auspices of the UN Human Rights Council, albeit with limited success (Limon & Power 2014).
The directive ignores the fact that the African Charter already contains provisions relating to the independence and impartiality of the ACHPR. The ACHPR members are experts serving in their personal capacity (African Charter, art 31). They are required to be individuals of high morality, integrity and impartiality. Before assuming office, they make skype database a solemn declaration committing to discharge their responsibilities impartially and faithfully (African Charter, art 38). The ACHPR’s Rules of Procedure contain additional provisions meant to address issues arising from real or perceived conflict of interest (Rules 7, 101 and 102).
If such a code is nevertheless adopted, its purpose should be to enhance rather than constrain ACHPR’s work. It should reflect existing best practices, as the code of conduct for UN special procedures or the guidelines on the independence UN human rights treaty bodies do.
Conclusion
The long-term effects of Decision EX.CL/Dec.1015(XXIII) are bound to be dire. It will erode ACHPR’s independence and undermine its mandate. Egypt, which has been leading the backlash against the ACHPR, will become the political figurehead of the AU in 2019. It is likely to use this position to further undermine the ACHPR. Yet, an effective ACHPR is essential to the success of the African human rights system. In its 2016 Annual Report on the state of the world’s human rights, Amnesty International called attention to the fact that “the system of international protection of human rights itself needs to be protected”. This call has never been more urgent.