Draft
UNIVERSITY OF PRETORIA
LAW FACULTY
LLM 2008 (HUMAN RIGHTS AND DEMOCRATISATION IN AFRICA)
HIV CLINICAL GROUP
ACCESS TO MEDICINES IN AFRICA: EXPLORING THE POTENTIAL
ROLE OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS
Ngcimezile Mbano
Samuel Tessema
Aquinaldo Célio Mandlate
Coordinator: Patrick Eba
Reseacher Centre for the study of AIDS
PRETORIA APRIL 2008
Table of contents
Contents
1.
page
INTRODUCTION
Background and objectives………………………………………….3
Research questions………………………………………………….. 4
2
ENSURING ACCESS TO MEDICINES TRHROUGH THE PROMOTIONAL
MANDATE OF THE AFRICAN COMISSION
2.1
State reporting………………………………………………….……. 4
2.2
Special mechanisms…………………………………………….…… 5
2.3
Promotional visits………………………………………………….... 6
2.4
Other mandates…………………………………………………….. 6
3
ENSURING
ACCESS
TO
MEDICINES
THROUGH
THE
PROTECTIVE
MANDATE OF THE AFRICAN COMMISSION
3.1
Communications………………………………………………..……. 7
3.1.2
Locus standi……………………………………………………….…. 9
3.1.3
Procedures (strictu sensus)………………………………………… 10
3.1.4
Inter state communications………………………………………... 10
3.1.5
Non state actor communications………………………..…………. 11
3.2
On sight visits and fact finding missions………………….……… 13
4.
REMEDIES………………………………………………………………... 14
5.
RECOMMENDATIONS AND CONCLUSION……………………….. 17
6.
BIBLIOGRAPHY…………………………………………………………. 18
2
1. Introduction
Background
The African Commission on Human and Peoples Rights (the Commission) was established
under the African Charter on Human and peoples Rights (African Charter) with the mandate
to promote and protect human and peoples’ rights.1 The Commission comprises of eleven
commissioners elected by the African Unions Assembly of Heads of States and Government.
It seats in Banjul, the Gambia away from the secretariat of the African Union in Addis Ababa
and it started functioning in 1987. Among the mandates confined to the Commission it has to
guarantee the implementation of the provisions of the Charter.
This paper seeks to provide a brief overview on how the Commission can use its mandate to
bring states to provide access to medicine in order to ensure the realisation of the right to
health provided under Article 16 of the Charter.
The motivation behind the assessment of the role of the Commission is a result of the rapidly
increasing numbers of HIV infections in Africa and the inertia of most African governments
to take measures to provide for access to medicine to the infected people at an affordable
prices in concerned. The motivation of the writers is further fostered by virtue the fact that
most African states are parties to the TRIPS agreements of the World Trade Organization
(WTO) which provide for flexibilities in regard to intellectual property related aspects of
access to treatment.
The methodology used in the discussion required the paper to be structured in two main parts.
The first part deals with ensuring access to medicine through the promotional mandate of the
African Commission. It provides an insight to the alternatives the Commission can implement
in order to ensure that states provide or access to medicine. The second part, then deals with
access to medicine and the protective mandate of the Commission. It discusses a range of
issues going from the procedures to lodge complaint at the African Commission to the on
sight protective mandate and fact finding missions of the African Commission.
1
Art 30 of the African Charter on Human and Peoples Rights, adopted in 1981 and entered into force in
1986.
3
Research question
The basic research question devised to assess the role that the African Commission can play
in order to bring state parties to the African Charter to provide access to medicine and
therefore fulfilling their obligation under Article 16 of the African Charter is to find how can
the Commission use its mandate under the Charter to bring state parties to the Charter to
provide their citizens with access to medicine?
2. Ensuring access to medicine through the promotional mandate of the African
Commission
The promotional mandate of the Commission includes its duties to examine state reports, to
undertake promotional visits, adopt resolutions, organise seminars and conferences and to
publish and disseminate information on human right issues.2
The promotional mandate of the Commission is an appropriate tool which enables it to play a
significant role in ensuring that states comply with their obligation under the Charter to fulfil
the right to health, which should be interpreted to encompass states obligation to provide its
citizen with access to medicine. Below we discuss how the Commission can carry out such a
role.
2.1 State reporting
The Commission has mandate to receive and examine reports of state parties3 to the Charter
as provided for in Article 62 and rules 78, 83 and 85 of Rules of Procedure. Each state party is
required to submit a report to the Commission after every two years from the date of coming
into force of the Charter, accounting of the legislative or other measures taken with the view
to giving effect to the provisions of the Charter.4 Such a report shall be examined by the
Commission which may then address all issues therein and make appropriate
recommendations in its concluding observations.5
Following the analysis of a states reports, in making its concluding observations the
Commission could consider to mention that states are found to be in breach of their
obligations under Article 16 of the Charter for not providing access to medicine, and
E A Ankumah (1996) The African Commission on Human and Peoples Rights – Practice an
procedures, 21
3
I Osterdahl (2002) Implementing Human Rights in Africa – The African Commission on
Human and peoples Rights and individual communications, 68.
2
4
5
Art 62 (n 1 above).
F Viljoen (2007) International Human rights law in Africa, Oxford University Press, 385.
4
therefore, recommend them to that take measures to provide for access to medicine even to
use the TRIPS flexibilities to ensure that citizens have access to affordable medicines.
On the other hand Article 62 of the Charter requires that reports submitted by states should
refer to measures taken to give effect to the provisions of the Charter, the Commission can
adopt guidelines for state reporting mechanisms and establish that apart from other reporting
obligation states are required to specify what measures they have put in place to ensure the
realisation of the right to health provided under Article 16 of the Charter and this should
including specific measures taken to ensure access to medicines.
2.2 Special mechanisms
Under its promotional mandate the Commission can resort to the establishment of especial
mechanisms namely the special rapporteur. The establishment of special rapporteurs is not
provided by the Charter however, the Commission has made progressive interpretation of its
mandate under the Charter to include powers to establish such special mechanism.6
Since the Commission can into being it has established six special rapporteurs namely, a
rapporteur on extrajudicial, summary or arbitrary executions in Africa, a special rapporteur on
prisons and conditions of detention in Africa, a special rapporteur on the rights of women in
Africa, a special rapporteur on human rights defenders in Africa, a special rapporteur on
refugees, asylum seekers and internally displaced persons in Africa and a special rapporteur
on freedom of expression in Africa.7
The While state reporting is greatly dependent on the initiative of states to report and the
cross analysis of the reports is restricted to the provisions of the Charter, under the special
rapporteur mechanism, the Commission is empowered to make recommendations for human
rights violation in general as part of its promotional mandate based on the facts provided on
the report submitted to it by the special rapporteur.
To ensure access to medicine in Africa to give effect to the right to health, the Commission
could establish a special rapporteur for health issues. The powers of this rapporteur may
include making reports on issues dealing with violation of the right to health under the
Charter as a consequence of failure of state to provide access to medicine. In this regard,
based on the report of such rapporteur the Commission may make recommendations to state
parties to the Charter call on then to take measures to provide for access to medicine as a pre
6
Viljoen n (5 above) 392.
7
Viljoen (n 5 above) 392 – 399.
5
requisite to ensure the protection of the right to health. Such recommendation as earlier stated
may request states to use the TRIPS flexibilities.
2.3 Promotional visits
The Commissioners may undertake visits to country on their own initiative to promote
compliance with the African Charter. In such cases the practice requires that the Commission
obtains consent be granted by the country to be visited. This is also based on Article 46 and
again the arguments raised for the promotional mandate of the Commission may be raised in
this section.
2.4 Other mandates
Other powers of the Commission are provided for under lines (a) to (c) of Article 45(1) of the
African Charter. These include organising seminars, symposia and conferences, disseminating
information, encourage nation and local institutions concerned with the rights under the
Charter
Article 45 of the Charter also provides for other functions of the Commissions which includes
giving views or making recommendations to governments, cooperating with other African
and international institutions concerned with the promotion and protection of human and
peoples’ rights and ensuring the protection of human and peoples rights under conditions of
the Charter.
Taking into account the Commissions duty to cooperate with other institutions in the
promoion and the protection of human rights, it has been suggested by Evelyn Ankumah in
his article concerning the practices and procedures of the Commission that the Commission
can work with grassroot NGOs’ to complement its promotional mandate.8 So for instance, the
Commission can involve NGOs in its task to disseminate information on the right to health
and include in such workshops and group discussions concerning issues dealing with access
to medicines, thereby creating awareness on people and increasing the presuure on
governments to provide for medicines or at the kost least to take measures to ensure that
people have access to medicines.
8
Ankumah (n 2 above) 21.
6
Again, it is important to understand here that under the promotional mandate the Commission
can invoke provisions outside the Charter. So that hrogh the invocation of this norms and
standards the it may make recommendations encoraging states states calling them to comply
with human right standards in general and provide to access to medicines in particular.9
Most recently the Commission has issued an advisory opinion on indigenous rights. Again,
we find that requesting the Commission to issue advisory opinions on issues dealing with the
interpretation of Article 16 and its linkage to access to medicine could be an opportunity to
bring the Commission to play a significant role influencing state to provide its citizens with
the required medicine in order to fulfil their right to health.
It is our view that such advisory opinions may be requested by both, states parties to the
Charter and by non state actors. We have elaborated on non state actors that can bring cases to
the Commission on the sections that follow.
3. Ensuring access to medicines through the protective mandate of the African
Commission
In order for the Commission to successfully carry out the tusks entrusted to it by the Charter it
is provided with a protective mandate.10
The protective power which is correlated to the protective mandate of the Commission
includes receiving inter state and individual or NGOs communications that allege violation of
rights under the Charter and on site fact finding missions.11
Again under the exercise of its protective mandate the Commission can play a significant role
in ensuring that states comply with their obligation under the Charter to fulfil the right to
health through finding them in the obligation to provide its citizens with access to medicine.
3.1 Communications (protective mandate)
The Charter entrusts the Commission with the mandate for receiving two types of
communications or complaints, namely inter state communications and non state actors’
9
Osterdahl (n 3 above) 43.
10
Viljoen (n 5 above) 317.
11
Ankumah (n 2 above) 22.
7
communications. Articles 47 to Article 54 regulate inter state communications.12 These are
communication which can be brought by states against other states.
Article 55 of the Charter provides for non state actors communications. These are
communications which are brought to the Commission by individual or NGOs. The powers
to receive and to consider such communications can only be exercised provided that certain
procedural requirements are met. Such procedures requirements shall be dealt with latter in
the paper.
It is most probable that the Commission will not have many opportunities to deal with inter
state communications as these communications may often be avoided by state which try not
to engage in strenuous relations with other states though when they are submitted to the
Commission it will consider and make findings over them.13 It therefore suggests that
communication filled by non state actors may be the most frequent to be analysed by the
Commission.
In any case, whether inter state complaint or non state actors’ complaints, it is most important
before any potential role could be expected from the Commission, in regard to it making
findings against states for violation of obligation to provide access to medicine, that the
communication or complaint should make reference to violation of a right provided under the
Charter and never directly to state obligation to provide access to medicine as it is not
provided under the Charter.
In the context of access to medicine it would be most appropriate if the right health, which is
provide under the African Charter14 is said to be have been violated before the Commission
can be requested to play a significant role. This is so because under the protective mandate the
Commission can only make findings for violations of rights which are contained in the
African Charter.15
Then it should be easy to understand that if an inter state communication or one by a non state
actor was brought before the African Commission alleging that a state A violated the right to
health of its citizens for failure to provide them with access to medicine, the Commission
would take a favourable decision to the complainant. In the case the most significant role of
12
Art 47 to Art 54 (n 1 above).
F Viljoen & C Odinkalu (2006) The prohibition of torture and ill treatment in the African Human Right
system – A handbook for victims and their advocates, Vol. 3 World Organization Against Torture, 162.
14
Art 16 (n 1 above).
15
Art 45(2) (n 1 above).
13
8
the Commission would be to interpret the right to health under Article 16 of the Charter to
integrate in it the right to access to treatment by applying the interpretation of General
Comment No. 14 of the Human Right Committee applicable by force of Article 60 of the
African Charter which allows it to draw inspiration from international law instruments.16
3.1.2 Locus standi
The African Charter on Human and Peoples Rights which establishes the African
Commission does not provide for clear rules on standi.17 The Charter does not have a specific
provision concerning people whom can fill complaints or communications before the
Commission for violation of human rights. However, a broader interpretation to some of the
provisions of the Charter helps to identify who can bring complaints or communications
before the Commission.
Article 48 and Article 49 read together with Article 47 provide the legal basis for states to
submit communications against other states for violation of the provision of the Charter. On
the other hand Article 55 of the Charter allows the Commission to consider communications
brought to it by non state actors.
Non state actors could be individuals, NGOs (national or international) and others.
Jurisprudence from the African Commission has suggested that both individuals and NGOs
can bring cases before it. The case of Jawara v the Gambia is an example of an individual
complaint which was filed at the African Commission.18 Most important to note is that there
is no victim requirement for submission of complaints before the Commission. Anyone or
institution can submit a case in the African Commission. There is no requirement that the
institution submitting the case before the Commission, in case it is an NGO, it should be an
African NGO or that it should be registered in the territory of the state found in breach of the
Charter or that it should be NGO with observer status before the Commission.19
Although NGO are not necessarily required to enjoy observer status before the Commission,
in dealing with the promotional mandate of the Commission, a practical advantage is drawn
form NGO that enjoy observer status before the Commission. They can participate in the
16
Art 60 (n 1 above).
Viljoen (n 5 above) 323.
18
C Heyns, M Killander (2007) Compendium of key Human Rights documents of the African Union, third
edition, 208.
17
19
Viljoen (n 5 above) 324).
9
meetings of the Commission and thus make statements in view of influencing the decisions
made by the Commission.
In order to obtain the observer status before the Commissions the interested parties are
required to make a formal application to the Commission. The parties should enclosed
documents proving their legal and financial status. Such documents may include proof of
registration, the articles of association or relevant document showing body structure of NGO
including the decision making mechanism, sources of funding and objectives of the NGO.20
3.1.3 Procedures (strictu sensus)
The procedures of the African Commission are the various concrete ways by which the
Commission carries out its functions or mandates.21
Should an individual whose rights have been violated, a state acting on behalf of nationals of
another state or NGOs acting on behalf of individuals desire to submit a complain or
communication to the African Commission dealing with violations of the Charter that have
been committed by a state party to the African Charter on Human and Peoples Rights, it is
important that they comply with the procedures established by the African Charter and the
rules of procedure of the African Commission.
However, it is important to distinguish the rules and procedures of filling communications as
applicable to states from those which are proper to non state actors’ such as individuals and
NGOs. To this effect Articles 47 to 51 and Article 56 of the African Charter become of
relevant references.
3.1.4 Inter state communications
Articles 47 - 51 draw the legal frame for inter state communications. In terms of these
Articles states have two options for settling the dispute.
Option one
In the first option regulated under Article 47 state may consider to draw the attention of the
state found in violation of the Charter. This is done by submitting to the state in breach a
written communication informing them of the violation they have or are found to be
20
Viljoen & Odinkalu (n 13 above).
21
Chapter II (n 1 above).
10
committing and requesting them to give reason for such violations. The communication letter
is copied to the Secretary General of the African Union and to the Chairman of the
Commission.
This is a purely administrative measure which does not entail any contentious issues.
However, should there be failure to settle the dispute between the parties within a period of
three month following the submission of the communication to the state found at breach,
either of the two states may submit the matter directly to the Commission through its
Chairperson and it should notify the Secretary General of the African Union.
On this option the requirements for the Commission to consider the matter are that the state
raising the communication should be a state party to the African Charter and the parties must
have failed to reach an amicable settlement of the dispute by negotiation or other methods that
could be applied.22
Option two
Through the second approach a state can directly submit the matter to the African
Commission provided certain requirements are met.
First it is important that before the matter is submitted to the Commission the state willing to
refer the matter to the Commission must exhaust all domestic remedies of the state found to
be in breach.23 In cases dealing with access to treatment this does not seem reasonable at all
since states are sovereign and it would be absurd to ask another state to submit to be
submitted to the sovereignty of another state.
The second requirement is that the complainant state should submit together with the
complaint or communication all the relevant information dealing with the alleged violations.
3.1.5 Non state actors’ communications
Article 56 is the basis of the procedures of submission of complaints by non state actors
against states that are found in violation of the provisions of the Charter. We have earlier
stated that such non state actors may be individuals or NGOs.
22
23
Art 47 and Art 48 (n 1 above).
Art 50 (n 1 above).
11
Again here we find that the Charter requires such non state actors bringing the claim to the
Commission must have exhausted all the local remedies before referring the matter to the
Commission although there may be situations were exhaustion of local remedies may not be
required once it is proved that they are not available.24
However, in case local remedies are available it is required that the applicnt exhausts all the
local remedies before bringing the case before the Commission. The interested individual or
NGO should consider notifying the state found to be in breach of it obligations under the
Charter. This practice entails submitting the matter to the courts up until all domestic
remedies are exhausted before it can be submitted to the Commission. In other words the state
must fail to settle the dispute before it is brought to the Commission.
The rational behind the test of admissibility requiring that domestic remedies must all be
exhausted before a communication is brought before the Commission, seeks to ensure that
state is given a chance to provide remedies and redress the violation before the Commission
takes on to have a say on the matter.25
Another technical requirement constituting part of the procedures to bring the a
communication against a state that is found in breach of its obligation before the Commission
is that the complaint itself must be in line, both with the Constitutive Act of the African
Union, and with the provisions of the Charter.26
Other less exigent requirements are that the communication must not contain vulgar language
and that the author must be clearly identified.
Lastly, the communication must not be exclusively based on news from media. It is important
that evidentiary proofs of violation of obligations under the Charter are attached to the
communication.
It is under these procedures that an interested part with locus standi before the Commission
can bring complaints or communications dealing with issues pertaining to the access to
medicine as a pre requisite for the fulfilment of the right to health under the Charter.
24
25
26
Osterdahl (n 3 above) 77.
Osterdahl (n 3 above) 68.
Art 56 (2) (n 1 above).
12
Still important is to note that such communications can only the brought against states that are
part to the African Charter no matter whether the author of the communication is a national of
that state or a foreign international organization which is not registered in that country.27
3.2 On-site visits and fact-finding missions (protective mandate)
The on site visits and the fact finding missions also fall under the Commissions protective
mandate. The Commission may undertake to an on site visit when it has received several
communications against a particular state.28 The aim of the visit is to investigate the truth of a
matter. It could also be aimed at settling the dispute amicably.
Here we replicate our suggestions forwarded for inter state communications and
communications filled by non state actors, in so far as the role of the Commission is
concerned for making state accountable for failure to provide access to medicine.
In relation to fact finding missions, it has been suggested by some scholars that under this
function the Commission shall be engaged in higher level missions which is most often
undertaken to establish the veracity of allegations of general nature. In this case there is no
need that a communications should be prior submitted before the Commission engages in s
fact finding mission.29 It is a mission carried out but initiative of the Commission independent
of prior submission of communication or complaint before it.
The nature of these missions tends to differ largely from that of the communications and the
on site visits which in essence are motivated by a communications or complaints. Though
embedded under the protective mandate, fact finding mission can turn out to fit within the
promotional mandate of the Commission to the extend that, the decision made by the
Commission may aim to promote human right standards in a particular state. Meaning that
although the decisions of the Commission made under fact finding missions for violations of
the rights under the Charter may aim at protecting the victims, such decisions may also aim at
ensuring that human rights standards are respect by the state found to be in violation. In this
case one can argue that more than protecting the rights violated the Commission is engaged at
stopping future violation of rights and therefore protecting and promoting human rights.
27
28
29
Viljoen & Odinkalu (n 13 above).
Viljoen (n 13 above) 363.
Viljoen (n 13 above) 363.
13
Now taking into account the promotional feature of the fact finding missions, the Commission
is free to engage in the protection of rights human rights out side the boundaries of the
standards established by the African Charter.
In fact Article 45 of the Charter is most clear upon establishing that:
‘The functions of the Commissions shall be:
1. To promote human and peoples rights and in particular (…)’
They key words are ‘to promote human and peoples right’, it become relevant to notice that
the use of the term ‘and’ here is simply to emphasise that that upon exercising its mandate to
promote human and peoples rights the Commission must take into account, but not be
restricted to carrying out the activities which are subsequently under listed in Article 45 (1)
lines a) to c).
So that a better interpretation of Article 45(1) of the Charter should allow the Commission to
promote human rights standards in general and not only those provided by the African
Charter.
Recalling the issue of concern, one can then say that under fact finding missions differently
from other human rights protective forms of mandate accredited to the Commission, namely
communications, the Commission can decide by resolution or recommendation to call African
states to comply with other human rights standards under international law. To this effect and
under the fact finding ‘promotional mandate’, the Commission can request states to comply
with the TRIPS agreements in as far as they provide for flexibilities which can ultimately be
used to ensure the protection of human rights standards which is within the scope of the
mandate of the African Commission.
In so doing the Commission will the contributing to grant access to medicine to the people
living with HIV and hence protecting their right to life.
4. Remedies
Without the intending to define, one can suggest that remedies are the different forms of
redress that the Commission can allocate to a person that has been victimised by a state in due
regard to a matter concerning the violation of any right(s) protected under the Charter.
14
Although the Commission is a quasi-judicial organ and hence required to give some form of
remedy when the applicant’s rights are found to be violated, the Charter is silent as to the
remedies available. This gap in the Charter has been spotted by many human rights scholars.
For instance Professor Frans Viljoen has identified the lack of remedies as one main reason
creating inconsistent, ad hoc practices in the Commission.30 If one looks at the jurisprudence
of the Commission, it is not difficult to see that the critique is well-founded.
However, based on the jurisprudence developed by the Commission, the available remedies
can be generally categorised into two: as open-ended and specified and detailed remedies.31
Open ended remedies do not give sufficient direction or clue as to what the party found in
violation of rights should do. Under such circumstances it is difficult for the state to comply
with the decisions of the Commission as it is not clear what it should do. The lack of clarity
also makes the situation equally difficult for the applicant to demand the enforcement of the
decision of the Commission. A good example for such kind of remedies is when the
Commission generally recommends a state to amend its law(s) in order to be in line with the
provisions of the African Charter.32
In the same line of argument and in so far as it relates to the issue of access to medicine the
Commission may issue remedies dealing with such matters under both its promotional and
protective mandate.
The second type of remedy is relatively clearer and detailed. The remedy given in such types
of cases could require the executive to take some actions or to refrain from taking certain
actions. Or it could be forwarded to the legislature to enact, amend or nullify a law. The
Commission may as well urge the state to pay compensation even though in its decisions it
has never specified the amount.33
Again such remedies in so far as the access to medicine is concerned may be delivered by the
Commission both in light of its protective mandate or in light of the promotional mandate, so
long as in the case of protective mandate the Commission is clear to say it is instating such
remedies because it found violation of the right to health under the Charter which requires
that states provide access to medicine.
30
Viljoen (n 5 above) 425.
Viljoen (n 5 above) 425.
32
Viljoen (n 5 above) 356. Prof Viljoen cites Media Rights Agenda v Nigeria (2000) & Organisation
Mondiale Contre la Torture and Others V Rwanda (2000) as exemplary cases where the Commission has given
open ended remedies.
33
Viljoen (n 5 above) 356.
31
15
It should be recalled that in dealing with the protective mandate, prima facie the Commission
can not make findings against state for violation of their obligations under TRIPS because its
mandate is restricted to the implementation of the African Charter on Human and Peoples
Rights. However, through a progressive interpretation and application of the provisions and
principles of the Charter the Commission can decide to interpret the right to life to say that it
also includes the right to health and consequently the right to access to medicine. The
Commission can particularly take this approach when it is faced with a situation that calls
upon the application of its promotional mandate and it is free to apply other instruments of
human rights either than the Charter.34
It then entails that communications brought before the Commission should be framed in such
a way that they refer to violation to a right under the Charter, with regard to access to
medicine particular reference should be made to the violation of the right to health. In this line
of argument the Commission can adopt decisions providing for remedies on issues dealing
with access to medicine. So for instance, depending on the case and the remedies requested by
the applicant, the Commission may advise the state, for instance, to issue a compulsory
license or to make law that allows parallel importation. The applicant could also request the
Commission to recommend states to use all the TRIPS flexibilities available to ensure access
to medicines, if the state is signatory to the TRIPS Agreement. For instance, in Purohit and
Another v The Gambia one of the grounds for making the complaint before the Commission
was the fact that the legislation governing mental health in The Gambia was outdated and
hence deprived patients of any safeguards during diagnosis, certification and detention of
ultimately resulting in the violation of Articles 2 and 3 of the African Charter. In this case the
Commission strongly urged The Gambia to repeal the Lunatics Detention Act and replace it
with a new one.35 Therefore, from this case we can see that the Commission can recommend
change of laws as a remedy.
Finally, in dealing with remedies, it should not be denied that the unclear rules dealing with
this matter live an open margin for the victim to request that the Commission establishes a
certain form of redress for the violation of the rights protected under the Charter. Even in
cases where a communication was submitted to the Commission and an amicable settlement
of the dispute was the outcome of the process, the Commission still retains a say as to
In Implementing Human Rights in Africa – The African Commission on Human and peoples
Rights and individual communications, Osterdahl explains that it has become a practice of the
Commission to apply other human rights instruments either than the Charter such as the UN Human
Rights Committees general comments..
34
35
Purohit and Another V The Gambia (2003) AHRLR 96 (ACHPR)
16
whether the remedy or form of redress given to the victim is in conformity with principles of
Human right or not.36
5. Recommendations and conclusions
Following the extensive analysis of the potential role which the African Commission can play
in influencing state parties to the African Charter to provide for access to medicine as a pre
requisite for the fulfilment of the right to health in light of its mandate, it pays to make some
recommendations and lay some concluding remarks.
The study has illustrated that both under the protective mandate and under the promotional
mandate the Commission can compel states to provide medicine. However, as far as it
concerns to the promotional mandate whether under inter state communications or under non
state actors communications it is important that the complainant makes clear reference to
violation of the right to health and plead that the Commission makes a broader interpretation
of the right to health so that it should also embrace access to medicine.
Again we find that the use of special mechanism such has the special rapporteur on the right
to health would not be an innovative practice, but a decision reiterating the efforts and
commitment of the African Commission to deal with human rights issues. In fact, up to this
date the Commission has established six special rapporteurs dealing with various areas
including one that deals with freedom of expression in Africa.
The Commission can also use other mechanisms to compel states to provide their citizens
with access to medicine. We find that state reporting under the promotional mandate to be a
very effective instrument to achieve the is found to be could be used to ensure that countries
provide access t medicine
36
Osterdahl (n 3 above) 127.
17
6. BIBLIOGRAPHY
Books
1.
C Heyns, M Killander (2007) Compendium of key Human Rights documents of the
African Union, third edition, 208
2.
Evelyn A Ankumah (1996) The African Commission on Human and Peoples Rights –
Practice an procedures, Kluwer Law International, 246
3.
F Viljoen (2007) International Human rights law in Africa, Oxford University Press,
317.
3.
F Viljoen & C Odinkalu (2006) The prohibition of torture and ill treatment in the
African Human Right system – A handbook for victims and their advocates, Vol. 3
World Organization Against Torture, 162.
4.
Inger Osterdahl (2002) Implementing human Rights in Africa – The African
Commission on Human and peoples Rights and individual communications, Vol 15,
Uppsala University Swedish Institute of international Law, 223.
Legislation and documents
1.
African Charter on Human and Peoples Rights adopted in 1981 and entered into force
in 1986.
2.
Rules of Procedure of the African Commission on Human and Peoples Rights.
Cases
1.
Jawara v the Gambia.
2.
Purohit and Another v The Gambia.
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