Can the UNHRC secure human rights in Africa?

For a long time, the Human Rights Council (HRC) was created by the General Assembly in March 2006 to replace the commission. With a newly regionally distributed membership, the HRC assumed all the former mechanisms, mandates, functions and responsibilities of the commission. In addition, the HRC created a Universal Peer Review (UPR) process by which it aims at reviewing the human rights situation in the 193 states of the UN.

Bloc-voting has been playing crucial role in the activities of the HRC at its meetings and processes. This pattern of voting itself is informed by inter-region politics. Against this background, this article examines the prospects of HRC as they affect Africa. It concludes that except a culture of human rights compliance is placed above bloc politics, the HRC may well be no more than another ‘mere talk shop’ on the state of human rights in the African states.

THE HUMAN RIGHTS COUNCIL: INSTITUTIONAL BACKGROUND

The Human Rights Council was created by the General Assembly in March 2006 to replace the former Commission on Human Rights (the Commission). The commission had served as the main political body which addressed human rights issues in the United Nations for more than sixty years now.[3] The commission and its procedures were criticised in terms of its functioning.

Major criticisms revolved around the membership of the commission and its monitoring of countries. Most NGOs censored the commission for failing to take action on a number of countries where there was clear evidence of gross human rights violation.[4] Others condemned the commission for punishing the few countries it had taken actions on alleging that the commission’s actions were motivated by political considerations and it applied double standards by targeting developing countries but shielding the most powerful.[5] An attack led by the United States was aimed at the membership of the commission, which came to a head in 2003 when the Ambassador of Libya was ‘elected’ as the chairperson of the commission while Sudan was re-elected in 2004, despite its actions in Darfur.[6]

The HRC appears to be on the right track considering its involving formation process as an institution. The HRC was created after five months of negotiations,[7] by the General Assembly with 47 regional distributed members.[8] The resolution provides for each member of the HRC to be elected directly and individually by the majority of the General Assembly and also enables rotation of membership by specifying that states shall not be eligible for immediate re-election after two consecutive terms.[9]

This arrangement, it is contended, seems a clear departure from the initial regime and provides the HRC with a popular base for the exercise of its mandate. Most importantly, it should offer at the very least to every elected state member, a window of opportunity to critically assess its contribution to the debate and decisions on human rights issues across the world. Its policy of a fair human rights record as criteria for membership is also an important lesson for non-selected member states in the UN that may, due to the fear of public international shame, be pressured into improving their human rights records.

In addition to broadly based membership, the HRC has a broader agenda which among other things includes the undertaking of a universal periodic review, based on objective and reliable information, of the fulfilment by each state of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all states.[10]

Also, mechanisms inherited by the HRC including special procedures, the sub-commission and the 1503 procedures have not remained as inherited; they have been under review. Since June 2006, the HRC has engaged in a review of the special procedures system and selection of mandate holders. As of May 2008, all thematic mandates, which have been reviewed, have been extended. Some new thematic mandates have also been established, namely on contemporary forms of slavery and access to safe drinking water and sanitation.[11]

A new complaint procedure is being established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. The new complaint procedure allows the filing of communication by a person or a group of persons claiming to be the victim of violations of human rights and fundamental freedoms or by any person or group of persons, including NGOs acting in good faith in accordance with the principles of human rights.[12] Although, this has been criticised as mere repetition of the 1503 procedure, notable and significant differences exist in terms of the exclusion of complaints against states under public procedure now relaxed under the new complaint procedure.[13]

In the working of the foregoing framework, bloc politics has played some role deserving a critical examination. The positive impact of regional distribution of membership in the working of the HRC was demonstrated when Algeria (on behalf of the Africa Group) tabled a resolution asking the working group to review the manual of special procedures and to draft a code of conduct.[14] This resolution was put to vote and supported by all members of the HRC belonging to the African group, and almost all Asian states as well as Brazil and Ecuador. As some writers have argued, this seems to represent a successful demonstration of the shift of balance of power and votes within the council.[15] Emerging events are however showing an increasing downside of the interplay of inter-regional politics in the working of the HRC.

BLOC POLITICS AND THE WORKING OF THE HRC

To begin with, perhaps, describing with a particular clarity on the role of bloc politics in the working of the HRC is the event surrounding the discussion around the United Nations Declaration on the Rights of the Indigenous Peoples. Only a minority of African states voted in favour of the declaration. When the matter was taken up by the UNGA’s Third Committee, the African Group in the UNHCR proposed that discussion of the declaration should be deferred ‘to allow time for further consultation’.[16] Although, it was eventually adopted in 2007,[17] the African Group were instrumental in thwarting its earlier adoption.[18] In maintaining such position, it was clear that African concern was political as shown by the approval of the African Union of the deferral of the adoption of the deferral, and its mandate to the African Group at the UN to guard Africa’s interests and concerns about the ‘political, economic, social and constitutional implications’ of the Declaration.[19]

The African bloc, it would seem, has also consciously ensured that the complaint mechanisms of the HRC have been dominated by debates about the conflict in the Middle East, and not so much about Africa. For instance while the African Group joined the Organisation of the Islamic Conference (OIC) in condemning Israel, the group was reluctant in the case of situation at Darfur. During the fourth Special Session in 2006 devoted to the situation in Darfur, in response to the initiative of European and WEOG states,[20] the African Group proposed an amendment to a proposed resolution, omitting the word ‘gross’ from the description of human rights situation in Darfur; and inserting a call to the international community to ‘provide urgent and adequate financial and technical assistance’ to the Sudanese government.’[21] The final text of the resolution watered down the urgency of the situation in Sudan.

Thus rather regretfully, the African Group could not rise beyond regional sentiments even in describing and discussing human rights situation in Darfur. One wonders what would qualify as ‘gross human rights violation’ if situation in Darfur did not. Even when the International Criminal Court (ICC) took the initiative to indict Bashir, the sentiments remain, as the AU criticised the move on the ground that it would ground peace initiatives in Darfur.[22]

On the situation in Zimbabwe, in different presentations made at its meetings, civil society [23] has called for the immediate attention of the HRC on the situation in Zimbabwe. No impact however appears to have been made by such presentations in that as recently as March 2009, the HRC has been criticised on the same platform of failing to emerge as a powerful champion of human rights and doing too little to abuses of human rights in Darfur and Zimbabwe.[24]

The Universal Periodic Review has so far had its own fair share of the bloc politics. Regarded as the most tangible innovation of the reform process that created the Council, UPR principles are to: Promote the universality, interdependency, indivisibility and interrelatedness of all human rights; be a cooperative mechanism based on objective and reliable information; foster interactive dialogue; ensure universal coverage and equal treatments of all states; fully involve the country under review; and be conducted in an objective, transparent, and no-selective manner.[25] In tracing the historical parallel between the UPR and the forgotten system of self reporting of states to the commission, Alston cautions that ‘unless the Council makes specific, well formulated and feasible recommendations based on its review of each country’s performance , the process will lack credibility, and will soon fall into disrepute and then into desuetude’.[26]

A good way of measuring the seriousness and effectiveness of recommendations is in whether mechanisms exists for follow up and outcome. However, starting from when discussion was being held on the process of the UPR, it appears that UPR is required to stop at recommendations without more. Facilities such as follow up were protested as being intrusive. Leading the African Group for instance, Algeria opposed proposals for concrete follow-up mechanisms such as appointment of a follow-up rapporteur.

Lacking in follow-up mechanisms, the outcome of the review process of the recently reviewed African states, such as Nigeria, Mauritania, Chad, Congo DRC and Senegal seems to serve no useful purpose. A look at the process of the review involving these states indicates that the process mostly featured spate of allegations by the HRC and denial by the states. A general review of the recommendations also shows that they do not evince a clear direction on how to ensure compliance. In the case of Senegal for instance, there were allegations by the HRC and denial by the representative of Senegal on the violation of rights relating to homosexuality, press freedom, women, and independence of the judiciary and separation of powers. There was nothing done to establish the correct position on these issues.[27]

Critical comments and recommendations were made by the HRC but they fell short of a clear direction on compliance. Appointing a follow-up rapporteur or requesting for a feed-back from reviewed nations for instance would have been useful not only in assisting with the finding out of the correct situation in terms of disputed issues, but most importantly, in observing whether before the next review, tangible steps have been taken to ensure compliance with the recommendations. In addition, it appears that the mere existence of the office of a follow-up rapporteur or a feed-back mechanism may also serve the useful means of pressurising African States into taking steps on recommendations. However as it is, appointment of a rapportuer is not part of the HRC procedures.

There appears though a little space for the HRC to address cases of persistent non-cooperation with the mechanism, but only after all efforts to encourage a state to cooperate with the mechanism. However, as Abraham argues, ‘there is likely to be disagreement amongst states about what constitutes “persistent non-cooperation and exhausting all efforts.”[28] More importantly, it is unclear what actions the HRC may take, other than urging the state to comply or in deserving situation, reporting to the UNGA. Where a matter is reported to the UNGA, it may constitute an important question regarding which a decision or resolution may be passed in line with part of the responsibilities of the UNGA of assisting in the ‘realisation of human rights and fundamental freedoms for all’.[29] Although not legally binding, UNGA resolutions directed to member states may have some legal consequences, not least being that it may provide legal authorisation for states to take political decisions against a non-cooperating member state.

For Africa however, the passing of such resolution on a report from the HRC remains a matter of conjecture, in the light of the present composition of the UNGA, where the Afro-Asian bloc constitutes the majority. Consequently, it is likely that the African Group with their age-old alliance with the Asian bloc will be inclined to oppose the proposal of any resolution considered to be intrusive of any state, particularly the sovereignty of an African state. As far back as 1999, on the issue as to whether the UN Charter recognises rights beyond borders, while speaking on behalf of the Organisation of African Unity in 1999, President Abdelaziz Boute-filka of Algeria noted that interference into internal affairs of a state can only occur with the consent of the state concerned. He commented:

‘We do not deny the right of Northern hemisphere public opinion to denounce the breaches of human rights where they occur. Furthermore, we do not deny that the United Nations has the right and duty to help suffering humanity. But we remain extremely sensitive to an undermining of our sovereignty, not only because sovereignty is our last defence against the rules of an unequal world, but because we are not taking part in the decision making process of the Security Council.’[30]

Rather sad, it appears true still that the African bloc under the HRC regime, as shown through its political behaviour at the HRC processes and debates, is not prepared for any step or course of action that questions the internal affairs of its member states at the global level. Although the Constitutive Act of the African Union recognises the right of the Union to intervene in a member state in respect of grave circumstances such as war, crimes, genocide and crimes against humanity,[31] and application of international standards on human rights,[32] Africa has continued to maintain through its political group behaviour, the sovereignty of its member states in the face of scrutiny by the larger world.

CONCLUSION

Considering the backdrop of its institutional framework, the HRC has the potential to make a difference in the compliance of UN member states to human rights. Presently however, the dynamics of the process, and indeed the system shows that bloc politics could have some downside on the relevance of the HRC. But a political body, regional interest or fear should not be a major determinant of the direction of the HRC, particularly in the promotion of implementation and enforcement of human rights in a globalised world. This is because it is unlikely that human rights situation will improve anywhere and indeed in Africa, if genuine efforts are watered down and discouraged in the interest of regional sentiments.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Jegede Ademola Oluborode is a legal practitioner and a human rights activist in Nigeria.
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES

[1] M Nowak, ‘Introduction to the International Human Rights Regime’, 104
[2] P Alston, ‘The Commission on Human Rights’, in P Alston, ‘The United Nations and Human Rights ‘ ( Clarendon Press, 1995) 126-209.
[3](n 2 above)
[4]Amnesty International, ‘Meeting the Challenge: Transforming the Commission on Human Rights into a Human Rights Council ‘ (2005) 6-7
[5](n 2 above)
[6] P Alston, ‘ Re-conceiving the UN Human Rights Regime: Challenges Confronting the New Human Rights Council’ 7 Melbourne Journal of International Law (2006) 185
[7] M Abraham, A new Chapter for Human Rights: A Handbook on Issues of Transition from the Commission on Human Rights to the Human Rights Council
[8] General Assembly resolution 60/251, para 7
[9] (n 8 above) para 9.
[10] Other functions of the Council is in the General Assembly resolution 60/251
[11] http://www2.ohchr.org/english/bodies/chr/special/index.htm
[12] Human Rights Council Complaint Procedure
[13] (n 2 above) 6
[14] Human Rights Council resolution 2/1
[15] (n 2 above ) 9
[16] UN Doc A/C.3/61/L.57/Rev.1; F Viljoen International Human Rights Law in Africa (2007) 279
[17] Adopted on 13 September 2007, Sixty-first General Assembly Plenary 107th & 108th Meetings
[18] Viljoen (n 16 above)
[19] AU Doc Assembly/AU/Dec.141 (VIII) para.3.
[20] Draft Resolution, ‘The Human Rights Situation in Darfur’ (UN Doc. A/HRC/S-4/I.1 (4 December 2006)
[21] Algeria ( on behalf of the African Group ): Draft resolution (UN Doc A/HRC/S-4/L.2 (6 December 2006)
[22] ‘African Union demands Security Council suspend ICC indictment of Bashir’ VOA News 22 July 2008.
[23] For instance the World YWCA, representing about 30 NGOs presented a statement at the 8th session of the Human Rights Council
[24] The opinion of R. Bolton, former US ambassador to the United Nations, Washington Post 31 March 2009.
[25] UNGA Resolution 60/251
[26] (n 6 above)
[27] Review of Saudi Arabia, Senegal and China International Service on Human Rights (ISHR) UPR Monitor Monday, 9 February 2009
[28] (n 2 above)
[29] UN Charter, art 13
[30] Quoted in S Meisler Kofi Anan- A man of Peace in a world of War (2007)186
[31] The Constitutive Act of the AU, art 4 (h)
[32] The Constitutive Act of the AU, art 3 (e) and (h).