States often evade or limit their due diligence responsibility by passing legislation providing
different forms of remedies and compensation to the victims and survivors without putting
any monitoring mechanism in place to ensure its implementation. In general terms, the
Human Rights Committee has held, for example, that the existence of legal rules or
legislation is not sufficient in and of itself. The rules must also be implemented and applied
(entailing for instance, investigations and judicial proceedings) and victims must have an
effective remedy.103
Some States contend that beyond having legislation there is little they can do to foresee
private violations and prevent them. The African Commission states that “[e]ven though it
is not always possible for a State to know beforehand how a non-State actor is going to act,
the question to be addressed here is not necessarily who violated the rights, but whether
under the present communication, the State took the necessary measures to prevent
violations from happening at all, or having realized violations had taken place, took steps
to ensure the protection of the rights of the victims”.104 The question that arises therefore
is: what must States do to fulfil their responsibility to protect individuals from private
violations?
The doctrine of due diligence requires the State to “organize the governmental apparatus,
and in general, all the structures through which public power is exercised, so that they are
capable of juridically ensuring the free and full enjoyment of human rights”. 105 For
example, actions by officials of all the State’s institutions of law enforcement, the
judiciary and administrative bodies that implement laws, rules and policies to prevent and
protect victims of violence are indicators to measure due diligence. Individual cases of
policy failure or sporadic incidents of non-punishment would not meet the standard to
warrant international action. Rather, the test is whether the State undertakes its duties
seriously.106 Such seriousness can be evaluated through the actions of both State agencies
and private actors on a case-by-case basis.
Thus the due diligence standard for establishing State responsibility for private violations is
flexible. However, when States condone a pattern of abuse through pervasive non-action when they do not actively engage in acts of violence but routinely disregard evidence of
violence, rape or assault, it can be said that the State has generally failed to take the
necessary steps to protect their citizens and may be considered, by extension, complicit in
the violation. To avoid such complicity, States must demonstrate due diligence by taking
active measures to protect, prosecute and punish private actors who commit abuses.
4.1.3 Challenges and Limitations
One of the significant limitations of the ACHPR is that cases can take many years from the
time of submission of a petition to the issuance of a decision. There are cases pending in
the ACHPR for as long as ten years. Given that most of the human rights commissions both
at the regional and international level (including the ACHPR) have determined undue delay
in providing redress at the national level as failure on the part of the State to provide an
effective remedy, it is of importance to know how these mechanisms view delay on their
103
E, Klein, “The Duty to Protect and to Ensure Human Rights Under the International Covenant on Civil and
Political Rights”, in Eckart Klein (ed.), The Duty to Protect and to Ensure Human Rights (Colloquium, Potsdam, 1-3
July 1999), 2000.
104
Zimbabwe Human Rights NGO Forum v Zimbabwe (Commu. No. 245/02) available at:
http://caselaw.ihrda.org/doc/245.02/view/, ¶ 157.
105
Velásquez Rodriguez v. Honduras, Inter-Am Court of Human Rights, Judgment of 29 July 1989, ¶ 166.
106
Commission on Human Rights, Fifty-second session, February 1996, Report of the Special Rapporteur on
violence against women, its causes and consequences, “Further Promotion And Encouragement Of Human Rights
And Fundamental Freedoms, Including The Question Of The Programme And Methods Of Work Of The Commission
Alternative Approaches And Ways And Means Within The United Nations System For Improving The Effective
Enjoyment Of Human Rights And Fundamental Freedoms”, submitted in accordance with Commission on Human
Rights Resolution 1995/85.
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