‘Communications’ can be filed against any state party to the African Charter, and 53 member states of the African Union have ratified it. Individuals and NGOs can file a communication to the Commission without the need of a lawyer. Significantly, NGOs do not need observer status with the Commission to file a complaint. Furthermore, ‘the Commission may, either at the request of the author of the communication or at its own initiative, facilitate access to free legal aid to the author in connection with the representation of the case’ as long as the author lacks sufficient financial means.

Procedure

1. An individual/NGO must send a “letter of introduction” to the Commission which must include:

• -a brief description of the facts of the alleged violations;
• -show attempts to exhaust domestic remedies;
• -contacts and other information contained in Rule 93(2) of the Rules of Procedure.

 This can be done by email, although it is advisable also to send a hard copy by regular mail.

2. Once the communication is received, the Commission will request the complainant to present evidence and ‘arguments on admissibility’ within two months. Article 56 of the Charter sets out seven criteria for admissibility, which must all be met:

• Name and address of the author (and not necessarily the victim) must be provided, even if a request for anonymity is made.
• The Communication must specifically address violations of rights guaranteed in the African Charter, not vague statements about the general political situation in a country.  The alleged facts must have occurred after the ratification of the Charter by the state in question. The right to asylum is upheld in Article 12(3).
• The Communication must not be ‘written in disparaging or insulting language directed against the State concerned and its institutions or to the AU’. For example, in Ligue Camerounaise des Droits de l’Homme v. Cameroon (65/92) a Communication was found to be inadmissible because it contained the following statements: “regime of torturers”; “government barbarisms”; “Paul Biya must respond to crimes against humanity.” You must describe facts and events, not draw conclusions from them.
• Communication cannot be ‘based exclusively on news disseminated through the mass media.’ This requires that the author provides varied sources if possible. ‘Media reports can be used, though not exclusively.’
• Local remedies must be exhausted ‘unless it is obvious that this procedure is unduly prolonged.’ ‘Local remedies are any judicial/legal mechanisms put in place at the domestic level to ensure the effective settlement of disputes.’ This criterion is crucial as ‘most cases fail because of lack of exhaustion.’ The author of the communication must prove that local remedies exist (or not) and have been exhausted wherever possible. Bear in mind that asylum seekers who are no longer residing in their country of origin do not necessarily need to exhaust local remedies as they cannot return to their countries. The document supplied above provides more information regarding this.
• Communications must be submitted ‘within a reasonable period from the time local remedies are exhausted.’ It is advisable to submit as soon as possible, but recent case-law suggests that approximately 6 months is ‘a reasonable time’.
• Communications that have been finalised by some other international mechanism similar to the Commission are inadmissible. ‘The Commission will, however, consider communications that have been discussed by non-judicial international bodies, such as UN special rapporteurs’.

If the Commission declares a Communication inadmissible, it is possible to ‘reintroduce it to the Commission’ to be reviewed. This requires ‘the submission of new evidence, contained in a written request to the Commission by the author. For example, when the reason for declaring it inadmissible has been rectified or where the complainant believes that the Commission made a mistake.’

When a Communication is declared admissible and is not settled amicably between the victims and the State, ‘the Commission will invite the complainant to make a submission on the merits within 60 days. Generally, the more information that can be submitted to support an alleged violation, the better.’

Practical advice for drafting communication on merits:

• Ensure that all allegations are well supported and based on specific facts.
• Clearly specify the rights that are violated with reference to the African Charter.
• Conduct thorough research on Commission case law and other international human rights jurisprudence dealing with the relevant rights.’  African Commission case law can be found here and here and activity reports by the Commission are here.