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Project Performance and Outcomes
  • Within the three years of implementation, the project has tremendously improved the Commission’s yearly productivity on Communications; considerably reduced the length of time a Communication takes to be concluded; and a subtle feature which may not be amply made out within the limited space of this document is the sanitisationof some inconsistent, retrogressive, and ambiguous jurisprudence especially on admissibility. In the process, the jurisprudence developed has also been instrumental in clarifying salient points of law. The project’s intervention has also revamped efforts to improve work-flow processes at the Secretariat and initiated restructuring of the Secretariat to ensure optimum productivity on the protective mandate. Plans to restructure the Secretariat include putting together a team of legal officers dedicated to processing of Communications and prosecution of cases before the Court.
  • Whereas referral of cases to the Court stalled following the experience in which one of the three cases referred to the Court was thrown out, the project’s preoccupation has been to iron out the technical and practical challenges faced by the Secretariat and the Commission in referring cases to the Court. Factors that could further limit referral of cases from the Commission to the Court relate to the limited number of states that have ratified the Protocol establishing the Court (27 states as at September 2015) and general lack of knowledge about the mechanisms of the Commission and the Court. During the implementation period, the project team of experts participated in prosecution of the two remaining cases that have been referred to the Court.
  • These positive outcomes of the project, and the on-going efforts of the Secretariat and the Commission have not got the attention of stakeholders, including in particular current and prospective complainants whose confidence in the protection mandate of the Commission have eroded over the years owing to perceived underperformance. This brief serves to highlight the strides being taken to improve the performance of the Commission on its mandate to protect human and peoples’ rights in Africa. The outcomes are considered in further details below.

2.1 Increased capacity to deal with cases (productivity)

Table: Increased number of decisions tabled before (adopted by) the Commission during project intervention.[4]

Source: Table prepared by the legal experts. Data used are extracted from Activity Reports of the Commission, audits of Communications compiled by the Commission’s and academic empirical studies.[5]

As the table above shows, there has been a significant increase in the number of decisions prepared and adopted by the Commission in the intervention period, i.e. 2013-2015.

  • The “project impact” column shows decisions prepared and tabled before the Commission, while “adopted” shows decisions actually adopted by the Commission in a particular year. Decisions deferred to subsequent years where eventually adopted before the end of the project. Establishing an increased productivity requires comparators both prior and subsequent to the intervention.Comparator 1: A first comparator is the productivity for the period between 2004 and 2011, when the Commission adopted five (5) decisions on average every year. The highest number adopted yearly during the same period was nine (9) and the lowest was two (2).[6]
  • Comparator 2:A second comparator is the productivity between 2010 and 2012, which is the three years preceding the initiative aiming at strengthening the capacity of the Commission by seconding legal experts to clear the backlog (project intervention period). In the three-year period 2010-2012, the Commission adopted 32 decisions, with the highest annual output being 16 decisions in 2012, and the lowest 8 decisions.
  • Project impact: The situation in the intervention period, which is 2013-2105, reveals a significant improvement in terms of productivity. Over the period, the annual output almost doubled, while the same tripled for the overall project period.

2.2 Reduction of backlog

  • Backlog is dynamic: In this context it refers to the number of cases pending before the Commission as an adjudicatory body at a particular point in time. Backlog is therefore inherently dynamic and increases as new cases are filed. However, in a project situation, indicators need to be constant to allow assessment of outcome and deliverables between the commencement and completion. In the case of this project, the target was to reduce the backlog of the Commission by 26 cases at the end of the final year; that is 2015.
  • The Commission has a three-stage procedure: Unlike other bodies with an adjudicatory mandate, such as the African Court or the ECOWAS Court of Justice, which receive “all in one” complaints and may deal with a case at once, the Commission has a three-stage procedure. Seizure: At this stage, the Commission decides whether it will consider the case or not. The procedure is merely about assessing whether the Complaint contains all the information necessary for the Commission to examine the case on admissibility (see art 93 of the Commission’s Rules of Procedure). Admissibility: Once it has decided to consider the case, the Commission proceeds to determine whether the claim is valid and if it may consider the merits of the matter brought before it. Merits: Once the case has been declared admissible, the Commission assesses whether the facts making up the claim constitute a violation of a specific provision of the African Charter.
  • Backlog under the project: In the light of the abovementioned procedure, reducing the backlog of the Commission therefore entails finalising a case, that is either when the Communication is declared inadmissible or when the matter is decided on the merits.
  • The table above shows figures pertaining to the number of decisions prepared and adopted by the Commission, with the notable exception of the last row, which indicates the extent to which the backlog has been reduced over the past three years, that is the project period.
  • Backlog reduction pre project: As the first three data rows of the table shows, 9 cases were finalised in the three years preceding the project intervention, i.e. 2010 to 2012. The lowest figure was of 1 case while the highest number of cases finalised was 5 in 2012.
  • Backlog reduction in project: As the table reveals, the backlog of the Commission was reduced by 52 cases in the intervention period, between 2013 and 2015, which is an average of 17 cases concluded annually. That overall output represents almost five times that for the same number of years preceding the intervention. It is twice the projected target of 26 for the intervention period.

2.3 Faster completion of cases

  • The Commission holds two ordinary sessions and two extraordinary sessions in a year. Counting on the basis of the ordinary sessions only, in the decade 1994 – 2004, it took the Commission an average of 2 to 6 years to complete a case.[7]
  • Length of time pre-project: As to the average time within which the Commission disposed of cases between 2004 and 2012, an overall observation shows that the situation did not significantly improve in comparison with the previous decade (1994 – 2004). At the inception of the project in 2013, a significant number of cases filed between 2002 and 2012 had been on the backlog of the Commission for periods varying between 4 to 10 years. Those cases were at different stages, whether admissibility or merits. A dominant feature of the delays was the failure to adopt a decision because a Respondent State had not presented its submissions on either admissibility or merits. The standard practice had been to issue as many reminders as it took the State to present its submissions, if at all a State eventually submitted. Exceptionally, the Commission adopted decisions based on submissions of the complainant, or struck out the Communication where the defaulting party is the complainant.
  • Length of time in project: In the period of intervention, cases as recent as 2012 were completed within one year, i.e. both admissibility and merits decisions were prepared, tabled, and adopted. In terms of average length of time to complete a case, the longest period of time to take a case from admissibility through the merit stage was 2 years. The shortest period was 9 months. Some cases could have reached completion within less than nine months if not for the cancelling of sessions of the Commission and the delays on the part of both the complainants and respondent states in making their submissions. Apart from improved efficiency in processing of Communications at the Secretariat level, the project’s intervention resulted in adoption of default decisions as a standard approach when a State does not submit its observations within the statutory time of sixty (60) days as stipulated in the Commission’s Rules of Procedure, as opposed to being a sporadic exception. This has greatly shortened the period for concluding Communications and helped clear Communications, which had stalled and clogged the caseload for a long period of time.

[1]The overall number of substantive Communications (i.e. on admissibility and merits) prepared by the Legal Unit of the Secretariat in that year is 20.

[2]The overall number of substantive Communications (i.e. on admissibility and merits) prepared by the Legal Unit of the Secretariat in that year is 31.

[3]The overall number of substantive Communications (i.e. on admissibility and merits) prepared by the Legal Unit of the Secretariat in that year is 36. Of the 28 cases indicated as adopted in 2015, 09 were deferred from the last session of 2015.

[4]Figures appearing on the table do not include decisions striking out Communications for various reasons, mainly lack of diligent prosecution on the part of the Complainants. Decisions on seizure of Communications are not included either because, under the project, legal experts are contracted to prepare only substantive decisions that is on admissibility and merits.

[5]F Viljoen & L Louw ‘State compliance with the recommendations of the African Commission on Human and Peoples’ Rights 1994-2004’ (2007) 101 The American Journal of International Law; HS Adjolohoun Giving effect to the human rights jurisprudence of the ECOWAS Court of Justice: Compliance and influence (Doctoral thesis, Pretoria, 2013).

[6]F Viljoen & L Louw as above. The figures are based on an average calculation of the overall number of decisions divided by the number of years. It appears that a sharp increase is observed from 2012, that is the year before the commencement of the project.

[7]See F Viljoen & L Louw as above. Those figures being a ‘rough’ average, several cases were completed in a longer period of time, some reaching ten years without a final decision. In 2013, the backlog of the Commission included a significant number of cases filed and seized in 2001, 2002, 2003, and 2004.

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