Published in July 2018.
This module is a resource for lecturers
The African region
The African continent has had to wrestle with many different forms of terrorism and terrorist actors, including Al Qaida, al Shabaab, Boko Haram and the Lord's Resistance Army. As a consequence, the African Union (55 Member States), and its predecessor the Organization of African Unity (OAU), have been actively engaged in continental efforts to prevent and combat terrorism for over four decades. A key distinguishing feature between their respective approaches to regional peace and security matters is that whereas the OAU was premised on a principle of non-intervention in the domestic affairs of its Member States, the African Union has an increased mandate to be more interventionist on matters of continental concern, which include terrorism and international crimes.
The first relevant instrument was the adoption of the OAU Convention for the Elimination of Mercenarism in Africa in 1977 (adopted 3 July 1977, entered into force 22 April 1985) (CM/817 (XXIX) Annex II Rev.1.), which criminalized mercenarism. Under the Convention, this was defined as a "crime committed by the individual, group or association, representative of a State and the State itself ... with the aim of opposing by armed violence a process of self-determination stability or the territorial integrity of another State …" (article 1(2)). The Convention was also significant in terms of raising the profile and importance of non-State actors, including their potential impact on regional peace and security.
The next milestone for regional counter-terrorism measures was in 1992 when the OAU adopted the Resolution on the Strengthening of Cooperation and Coordination among African States (AHG/Res.213 (XXVIII)) in which the Union pledged to fight the phenomena of extremism and terrorism. Shortly thereafter, the Declaration on the Code of Conduct for Inter-African Relations (AHG/Del.2 (XXX)) was adopted, in which the OAU rejected all forms of extremism and terrorism, whether attributable to sectarianism, tribalism, ethnicity or religion. The Declaration further condemned, as criminal, all terrorist acts, methods and practices, and expressed its resolve to enhance cooperation to combat such acts.
The principal instrument against terrorism is the OAU Convention on the Prevention and Combating of Terrorism (adopted on 1 July1999, enteredinto force 6 December 2002). The Convention requires that States parties criminalize terrorist acts under their national laws as defined in the Convention. It defines areas of cooperation among States, establishes State jurisdiction over terrorist acts, and provides a legal framework for extradition as well as extra-territorial investigations and mutual legal assistance. Following the Dakar Declaration against Terrorism in 2001, which recognized the pressing need to strengthen inter-State cooperation across the continent, a Protocol to the 1999 Convention was adopted in 2004 (adopted 1 July 2004, not yet entered into force). This recognizes the growing threat of terrorism in the continent and the growing linkages between e.g., terrorism, drug trafficking, transnational organized crimes, and money-laundering.
The 2004 Protocol seeks to give effect to article 3(d) of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union 2002 (adopted 9 July 2002, entered into force 26 December 2003) namely to further the objective of "co-ordinat[ing] and harmoniz[ing] continental efforts in the prevention and combating of international terrorism in all its aspects". Article 7 of the Protocol is notable since it requires that key conventions and other instruments against terrorism be implemented in a rule of law compliant manner consistent with each Member State's other obligations under international law.
Since then, the African Union has adopted a number of other important terrorism-related instruments, such as the 2002 African Union Plan of Action on the Prevention and Combating of Terrorism (Mtg/HLIG/Conv.Terror/Plan.(I)), which aims to strengthen the existing commitments and obligations of States parties, including to implement and enforce the 1999 Convention. The Action Plan seeks to strengthen aspects such as police and border control, legislative and judicial measures, financing of terrorism, and the exchange of information. In a further effort to strengthen continental cooperation and address some of the ongoing challenges, in 2010, the Assembly of the Union (Assembly/AU/Dec.311(XV)) adopted a resolution on the Prevention and Combating of Terrorism in which it appointed a dedicated African Union Special Representative for Counter-Terrorism Cooperation.
A further initiative to strengthen international cooperation and to facilitate the achievement of core African Union counter-terrorism objectives has been the creation of the African Centre for the Study and Research on Terrorism (ACSRT) to undertake a range of research, analysis, knowledge management and capacity-building activities.
While much good progress has been made, including in relation to strengthening the regional framework for countering terrorist threats and better coordinating responses, significant challenges remain. These include financial and human resource capacity constraints, together with difficulties associated with securing the requisite levels of accompanying political will of African Union Member States on some issues (reflected in the ratification status of the 2004 Protocol). Historically too, counter-terrorism initiatives have sometimes been poorly resourced, in part because terrorism is not always a high priority for some Member States when compared to more immediately pressing economic, environmental, developmental, and poverty eradication issues.
Key African Union counter-terrorism instruments
Human rights instruments
The African system for the protection of human rights is the most recent addition in terms of regional enforcement mechanisms. It is founded on the African Charter on Human and Peoples' Rights (also known as the Banjul Charter, adopted 1 June 1981, entered into force 21 October 1986), which is the primary binding human rights convention and has been ratified by all African Union Member States. Prior to the Charter's adoption, there were no explicit obligations on its Member States regarding the protection of human rights. The OAU founding Charter only required States parties to have due regard for human rights as set out in the 1948 Universal Declaration of Human Rights in their international relations. This reflected the political context of the OAU at the time of its adoption which gave preference to socio-economic development, territorial integrity and State sovereignty over human rights protection, as well as firm reliance on the principle of non-interference in the internal affairs of Member States. Since then, more explicit references to human rights promotion and protection have been included in the 2000 Constitutive Act of the African Union. (See especially articles 3(h) and 4(m)).
The African Union is also guided by the principle of the right of intervention in a Member State pursuant to a decision of the African Union Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity; or when the Peace and Security Council determines that a serious threat exists to the legitimate order such that intervention may be necessary to restore peace and stability to a Member State. Such an interventionist approach, even without the backing of the Security Council, moves Africa away from its earlier stance of non-interference to that of non-indifference.
In this way, the African Union is built on a culture of respect for human rights, democracy, respect for the rule of law, good governance and non-recognition of impunity. For example, article 4(o) of the Constitutive Act provides that: "The Union shall function in accordance with, among other principles, respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities."
The African Charter has a number of distinguishing features and differences compared with the text of other regional human rights instruments. For example, the Charter places considerable importance on intergenerational, including socio-economic and environmental, rights, and provides that no derogations are permitted even during times of public emergency (see Module 7).
The African regional human rights system also has a number of other important instruments relevant to the promotion and protection of human rights in Africa, as are detailed in the interest box below.
There are two principal monitoring and enforcement mechanisms, the African Commission on Human and Peoples' Rights and African Court of Human and Peoples' Rights.
African Commission on Human and Peoples' Rights
The African Commission on Human and Peoples' Rights (ACommHPR) was established as an organ of the OAU in 1987 and is responsible for ensuring the promotion and protection of human and peoples' rights throughout the African Continent. It a quasi-judicial body. A key function of the Commission is to monitor the compliance of States parties to the African Charter, through such activities as the review of periodic reports submitted by States parties as well as the consideration of communications by complainants alleging human rights violations. Although most African States have incorporated the Charter's primary provisions into their national constitutions, significant challenges remain (which are discussed further in the suggested readings). These can range from the weak implementation of Charter obligations into national legal systems, as well as variable compliance with the Commission's monitoring mechanisms such as the submission of periodic reports. The Commission is sometimes constrained in its role by such factors as its lack of judicial capacity and constraints in terms of political influence, limited as it is to adopting non-legally binding recommendations.
The Commission has a number of special mechanisms of relevance to counter-terrorism, notably the: Special Rapporteur on Freedom of Expression and Access to Information; Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa; Special Rapporteur on Human Rights Defenders; Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons; Committee for the Prevention of Torture in Africa; Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary killings in Africa. Generally, their mandates encompass analysing and advising on the development of related legislation, policies and practice within Member States, as well as investigative missions, promoting human rights, and recording allegations of human rights violations relating to their mandate.
African Court on Human and Peoples' Rights
The African Court on Human and Peoples' Rights (ACtHPR) was established by article 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (adopted 10 June 1998, entered into force 25 January 2004). In 2008, the African Court of Justice (with a remit to serve as a continental Criminal Court) and the ACtHPR merged into the African Court of Justice and Human Rights, with two separate chambers.
Originally, it was envisaged that the African Court of Justice, one of the organs to be set up under the African Union framework (articles 5(d) and 18 of the 2002 Constitutive Act), would be set up through the Protocol on the Court of Justice of the African Union (adopted 1 July 2003, entered into force 11 February 2009). Before the Protocol came into force, however, the African Union proposed the merger of the ACtHPR and the African Court of Justice into the African Court of Justice and Human Rights after reaching agreement on the Protocol on the African Court of Justice and Human Rights (adopted 1 July 2008, not yet in force). Before the Protocol takes effect, the Africa Union has proposed the introduction of a new protocol which would extend the jurisdiction of the African Court of Justice and Human and Peoples' Rights to cover the prosecution of international crimes, namely the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted 27 June 2014, not yet in force).
Under article 14 of the Protocol "International Criminal Jurisdiction of the Court", article 28 Jurisdiction of the Court would extend to such serious international crimes as genocide, crimes against humanity, war crimes, piracy, terrorism, trafficking and money-laundering. As at 26 June 2018, the status of the Protocol was that ten States had become signatories but that no African Union Member State had yet become a State party. This is especially notable in a context where a number of Member States have withdrawn or are threatening to withdraw from the jurisdiction of the International Criminal Court on grounds of inter alia alleged bias against African States, yet they are currently not supporting the possible coming into being of an alternative regional international criminal court. Such a court has the potential to strengthen efforts to prosecute terrorist actors on the continent and to strengthen the efforts of individual States especially if/where attaining the requisite levels of technical capacity, laws and mechanisms may be more challenging. For example, in some parts of the continent suspected terrorists are detained without (sufficient) due process for many years, which can in turn further fuel unrest and potential radicalisation. (See further Module 2).
As things stand in June 2018, the ACtHPR is operating with its original mandate. It was created as a continental court to ensure the protection of human and peoples' rights in Africa, and to complement and reinforce the protective functions of the African Commission through its ability to issue binding decisions and ordering specific remedies. The Court has the competence to make final and binding decisions on human rights violations. Its jurisdiction extends to cases and disputes submitted to it regarding the interpretation and application of the Banjul Charter and the Protocol to the Charter on the Establishment of the African Court on Human and Peoples' Rights. Furthermore, and another unique feature of the African human rights system, the Court also has broader jurisdiction over any other relevant human rights instrument ratified by States that are party to a case; in contrast, its European and Inter-American judicial counterparts are largely confined to examination of their founding charters and region-specific human rights instruments. It has jurisdiction over both contentious and advisory cases. In 2009, the ACtHPR delivered its first judgment. As at 26 June 2018, the Court had received 147 applications out of which 41 cases have been determined. Currently, the Court has 106 pending cases and 4 requests for advisory opinion.
One of the principal obstacles to the Court realizing its full potential as a regional protector of human rights and upholder of the rule of law is the fact that as of June 2018, only eight of the 30 States Parties to the Protocol had made the declaration recognizing the competence of the Court to receive cases from NGOs and individuals.