Africa's long road to rights

http://www.pambazuka.org/images/articles/328/fahamu_aubook_cover_200.jp… setting the scene with an account of how and why Africa has developed its own system for protecting human and peoples' rights, Hakima Abbas concludes that the success of the African Commission on Human and Peoples' Rights, in spite of 'the seeming lack of political will on the part of African states and governments to hold one another accountable for violations of fundamental freedoms', lies primarily in the distinctive engagement of civil society.

Since independence from colonialism, Africa has continued to bear witness to gross violations of human rights: from the genocide in Rwanda, leading to some 8000,000 deaths in as little as 100 days, to the continued violence in the DRC which has claimed more than 4 million lives, 1,000 people daily. The continent is home to some 120,000 child soldiers – more than a third of the global number. Africa has more internally displaced people than the rest of the world combined, with over 13 million people forced to flee from their homes and 3.5 million crossing international borders as refugees. The impact of HIV/AIDS has devastated whole communities, while access to health and information remains limited for some of the world’s poorest people.

While the Charter of the Organisation of African Unity (OAU) recognised and upheld the principles enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights (UDHR), the organisation was firmly rooted in the doctrine of non-interference between states established in the liberation era when unity and solidarity against colonialism were the primary driving force for the institutionalisation of pan-Africanism. The concepts of sovereignty and independence that made the OAU an effective anti-colonial body were later used to stifle human rights protection by implying political apathy toward the abuse by African states against their own people.

Following the 1963 adoption of the charter of the OAU, African leaders were invited to study the possibility of adopting an African convention on human rights. At that time, states and other perpetrators of human rights abuses on the continent often used a cultural relativist argument to dispel criticism and resist change in policy and practice. Accusing human rights defenders abroad and nationally of ‘neo-colonialism’ and labelling the very concept of human rights as ‘western values’, they failed to acknowledge or be held accountable to African human rights principles and norms that had yet to be formally enshrined into a charter system. This was soon to change due, primarily, to the efforts of the Association of African Jurists.[1] As early as 1961, African jurists convened under the auspices of the International Commission of Jurists and formulated the concept of an African human rights charter and court. Yet, only in 1979, after repeated calls from these jurists, did the OAU under the leadership of Togolese Edem Kodjo finally address the issue of human rights and make clear their relationship with African development. By the end of the same year, a committee of experts met in Dakar, under the direction of the OAU, to draft a charter on human rights. The African Charter on Human and Peoples’ Rights was finally adopted in Nairobi, Kenya, in July 1981.

The African system of human and peoples’ rights is both universal in character and distinctively African in its scope and principles. Now under the auspices of the African Union (AU),[2] Africa has a wealth of human rights mechanisms, laws and norms,[3] at the centre of which lies the African Charter on Human and Peoples’ Rights (the charter, hereafter). Unlike other human rights treaties, the charter uniquely recognises collective rights, individual duties and third generation rights, while also characteristically underscoring the interdependence between political and civil rights and economic, social and cultural rights. Following its adoption in 1981, the African Charter on Human and Peoples’ Rights came into force only in 1986 but has since been ratified by all 53 states of the African Union and is widely recognised within Africa, at least rhetorically, as setting the standard for the protection of human rights.
While some in the international community question the necessity of regional protection mechanisms given the very precept of universality enshrined in the concept of human rights, it is generally accepted that the advantage of such mechanisms are the common interest of states within a regional bloc in upholding human rights, the ability of these states and civil society within them to influence one another, as well as the ability to define human rights norms based on shared values within a region.[4] Such regional human rights mechanisms also exist in the Americas and Europe.

The charter laid the groundwork for the establishment of the African Commission on Human and Peoples’ Rights (the commission, hereafter), which was established in 1987. The commission has as its mission to promote and protect the rights enshrined in the charter by considering periodic state reports on national implementation and respect for the rights enshrined in the charter; contributing to the development and definition of human rights norms and principles on the continent; hearing complaints from states, civil society and individuals on human and peoples’ rights violations, issuing reports containing findings on whether abuses have occurred and making recommendations to the state and other perpetrators to remedy these violations; conducting fact-finding missions and establishing special procedures, such as appointing special rapporteurs and working groups, on salient issues on the continent.

While the principles of the charter have been widely adopted throughout Africa, as has the mandate of the commission, the principle of non-interference between states seems still entrenched. To this day, the African commission has heard only one inter-state complaint since its establishment. Despite the seeming lack of political will on the part of African states and governments to hold one another accountable for violations of fundamental freedoms, the success of the commission lies primarily in the engagement of civil society in its work. The Charter on Human and Peoples’ Rights does not explicitly define who is able to seize (appeal to) the commission with individual complaints but the commission itself has interpreted the charter to broadly permit individuals and NGOs to submit complaints. Additionally, at every session of the commission, an NGO forum – currently organised by the African Centre for Human Rights and Democracy Studies in Africa (ACHRDS) – precedes the official opening and deliberations.

The NGO forum has established itself as an important part of the commission’s work by providing reports on thematic and regional situations as well as providing a platform for joint civil society advocacy and action. In recognition of the important contribution of civil society to the commission’s work, the final communiqué of the NGO forum is read out to representatives of states, commissioners, and civil society during the opening ceremony of each commission session. The NGO forum has been successful in putting issues of importance on the agenda of the commission and in providing alternative information for the commission to consider alongside state reports. Further, the NGO forum has proved invaluable in creating a network of steadfast African civil society organisations that effectively engage pan-African policy makers and institutions to create real change in Africa. Holding not only the states and governments to account, the NGO forum has effectively pushed for greater emphasis on the commission’s work at the African Union, thus contributing to the furtherance of a culture of respect for rights in Africa.

In November 2007, the commission will be celebrating its 20th year of operation at its 42nd ordinary session in Congo-Brazzaville. At this juncture in the evolution of the commission and with the imminent operation of the African Court on Human and Peoples’ Rights,[5] it is important to critically assess the successes, challenges and effectiveness of the human and peoples’ rights system in Africa. The only true measure for such an assessment is the changes in reality for individuals and communities across the continent.
With this yardstick, it is difficult to ignore the failures of the present system as we observe the tragedies in Darfur, the ongoing crisis in Northern Uganda, the widespread violations of women’s rights, the systematic use of torture and other cruel and degrading punishment by state actors, among other violations that continue to be widespread in Africa. Given that the state is primarily responsible for guaranteeing human and peoples’ rights, it requires no leap of logic to conclude that without the political will to respect these rights, violations will continue unabated. But even beyond the will of states to hold one another and themselves accountable, the African human rights system faces very fundamental challenges. Among these is simply the lack of knowledge of these rights and mechanisms across the continent.

It is indeed true that there is a gap between the decisions made in most pan-African institutions and the people of the continent directly affected by these decisions. However, this fact is particularly detrimental when dealing with the commission since its recommendations and decisions are not binding, thus, they rely heavily on political will for enforcement. Yet, the states’ determination to implement the recommendations of the commission will continue to be deficient as long as there is no internal pressure for realisation. In order for the people of Africa to hold their heads of states and governments accountable to their obligations under the charter and the decisions of the commission, there needs to be widespread popularisation and promotion of these rights and recommendations. The commission, states themselves and civil society should lead this national sensitisation and institutionalisation campaign, with the media playing an essential role.

Suggestions have further been made that the African human rights charter system needs to be integrated into the legal culture in Africa by making it an inherent part of the curriculum in universities and law schools throughout the continent. This legal institutionalisation at the national level would ensure that the charter system is cited in national jurisprudence and used by lawyers who would, in turn, make it accessible to their clients.[6]

The current impediment to widespread publicity of the charter and the decisions of the commission has largely been the lack of a concerted multi-stakeholder effort across the continent. However, the charter itself contains a provision, unheard of in other regional human rights systems, which requires the assembly of heads of states and governments to approve the commission’s reports before they become public.[7] As a matter of course, the assembly has approved the publication of the commission’s reports. Yet, in 2004, this procedure, which had previously been taken for granted, was subjected to scrutiny as the publication of the commission’s activity report on a fact-finding mission to Zimbabwe was postponed by the assembly on the basis of the claim by the government of Zimbabwe that it had not been given the opportunity to respond. This unique precedent underlines the danger, especially in situations as politically contentious as the crisis in Zimbabwe, that the decisions of the commission may be made obsolete if silenced by African heads of states and governments.

Additionally, for the mechanisms, institutions and avenues for advocacy in Africa to be effective, the system must be utilised to its fullest potential. The use of laws creates precedence, the use of advocacy forums generates accountability and the sustained use of mechanisms enhances their powers of enforceability. However, the potential impact of direct advocacy within Africa has been little tapped by international NGOs and resource-constrained national or local human rights defenders. The underuse of this system is detrimental, with most solutions to human rights violations in Africa sought from outside the continent. While a global strategy is necessary, what is needed, to complement to the current emphasis on international protection, is a new approach that originates from the continent, embraces the existing system of protection and promotion in Africa and provides a pro-active Pan-African response to violations.

While one of the strengths of the African Commission on Human and Peoples’ Rights is the distinctive engagement of civil society, it is a tireless select number of African human rights organisations that have created the space for their engagement in the system through the NGO Forum and other platforms. While at the African Union level, efforts have been made by states to undermine access and meaningful engagement by civil society by creating criteria for observer status that favour governmental NGOs (GONGOs) rather than independent civil society organisations,[8] criteria for observer status at the commission itself allow for a wide range of civil society organisations and individuals to bring complaints before it. However, access to and engagement with the commission, as with other pan-African institutions, favours international NGOs because of the lack of resources, understanding of potential impact, and access to information available to national and local human rights defenders. Yet it is these local and national civil society organisations and activists that are critical in ensuring national implementation of the rights enshrined in the charter and enforcement of the recommendations of the commission. Despite this, the NGO forum successfully and critically attempts to amplify the voice of African human rights defenders in the proceedings. Such endeavours must be supported and expanded for the commission to be strengthened.

As of 2005, the African Commission on Human and Peoples’ Rights had issued an average of ten decisions per year, as compared to the Inter-American Human Rights Commission, which made decisions in approximately 100 cases per year. There are several reasons for the stark difference, but the budgetary contrast is striking: the African commission has a budget of $200,000 for each session, whereas the inter-American commission has an annual budget of $2.78 million and $1.28 million in external contributions and, as with the African commission, holds two sessions per year.[9]

Further to budgetary considerations to strengthen human rights system, complementary treaties to the African Charter on Human and Peoples’ Rights have the potential to strengthen respect for human and peoples’ rights in Africa. Currently, the African Charter on the Rights and Welfare of the Child, which came into force in 1999, has been ratified by 37 states and established the Committee on the Rights and Welfare of the Child to promote and protect child rights. However, if the commission remains obscure to many on the continent, the committee remains largely unheard of. Yet, other endeavours to complement the system have been more successful. In November 2005 the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa came into force. Having been adopted by the African Union in 2003, the protocol has been the fastest African treaty to come into force. This success is due primarily to the tireless efforts of women’s rights activists and human rights defenders across the continent, who formed coalitions, such as the Solidarity for Women’s Rights in Africa (SOAWR), to advocate regionally and nationally for the immediate ratification of the protocol without reservation. Proving that human rights protection and promotion is only as strong as the movement of defenders behind it, as suggested by Dr Issa Shivji,[10] the protocol lays the foundation for greater protection of women’s rights on the continent.

While the African Charter on Human and Peoples’ Rights, under Article 18 (3), addresses the rights of women, it has some shortcomings: its lack of a definition of discrimination, the scope of the rights it enumerates and its emphasis on tradition, which has been used, in some instances, to justify the violation of the rights of women. The protocol, however, is perceived to be groundbreaking in its breadth of rights. Though states seem to have readily adopted the protocol many have done so with reservations that are antithetical to the very principles of the protocol. It also remains to be seen how these states implement the rights enshrined in the treaty nationally. What seems certain, however, is that states will be held accountable to the commitments they have made under the protocol should the African women’s rights movement apply the same determination and coordination it used during the entry into force phase of the protocol to the domestication and enforcement phase.

In addition to the specialised treaty system that sits with the African Charter on Human and Peoples’ Rights, the African Union has finally established the African Court on Human and Peoples’ Rights to complement the protection of the commission. The protocol establishing the court came into force in 2004, after six years of waiting for the 15 state ratifications it needed, but the court has yet to become fully operational. While civil society hopes that the court can incorporate the lessons from the commission’s 20 years of experience, the political will so lacking to push the commission’s work to the fore of the African Union appears to still be missing in respect to the court. In a controversial step, the AU decided in July 2004 to merge the court with the African Court of Justice. What remains unclear is whether this merger, as yet still fully to be defined, will cause the adjudication of human rights cases to be delayed because of the differences in jurisdiction, rules and procedures of the two courts.

The establishment of the court is welcomed because it provides a legally binding recourse for survivors and victims of human rights violations as opposed to the recommendations of the commission, which rely so heavily on political will for enforcement. However, its potential to play a key role in providing remedy to victims is undermined by the fact that, unlike the commission, individuals and NGOs are unable to seize the court directly unless the state concerned has made a declaration under Article 34 (6) of the protocol establishing the court. Given the record of inter-state complaints at the commission,[11] this provision has the potential of rendering the court mute, except in cases that are referred from the commission. The complementarity between the court and the commission also remains unclear. For instance, Christof Heyns suggests that if in fact states made the declaration allowing access to the court by individuals and NGOs, the stipulation that such access be direct may undermine the commission as survivors and victims would be forced to chose, from the outset, between the potentially legally binding decision of the court and forfeiting the opportunity to seize the court by bringing a communication to the commission, where the best outcome would be a non-binding recommendation.[12] These and other similar issues certainly need to be resolved if the court is to strengthen the African human rights system.

Further to the additional protocols and protection mechanisms, other organs of the African Union dealing with good governance, development, rule of law and human rights, are complementary to the commission’s work. Notable among these is the New Partnership for African Development (NEPAD) and its associated African Peer Review Mechanism (APRM), which monitors states compliance with their obligations under regional treaties. It is vital that these processes are harmonised with the work of the commission so as to ensure the greatest protection for human and peoples’ rights. The objectives of the APRM are based on the four focus areas of the ‘Declaration on Democracy, Political, Economic and Corporate Governance’.[13] Less widely accepted than the African Charter on Human and Peoples’ Rights, the APRM has been acceded to by some 23 African states. Like the commission, the APRM has no enforcement mechanism but has been an important process in the few countries where the process has been carried out as it has included many stakeholders, including civil society, and has received regional attention. The commission’s decisions, recommendations and findings can and should provide reference for the APRM review. Further, the commission should participate in the preparation of the background report and review visits of the APRM in countries where communications have been heard and human and peoples’ rights violations found to have occurred, thus allowing for follow up and monitoring of implementation of commission decisions via consistent APRM reviews.[14] This state compliance with the findings and recommendations of the commission should be explicitly reviewed through the APRM as a means of strengthening enforcement and the protection of human and peoples’ rights.

In conclusion, as the ‘African renaissance’ of the new millennium is framed with the self-determined precept of African solutions to African problems, it is crucial that regional human and peoples’ rights protection are strengthened. Indeed, the African Charter and Commission on Human and People’s Rights provide a sound foundation, though not without inherent weaknesses, to guarantee the protection of these rights. As the commission advances towards its third decade, the challenges, failures and successes of its work must be critically assessed and the lessons drawn. In order to strengthen the protection the commission is charged with, African heads of states and government, through the African Union, must cease to de-legitimise the commission, be it through the lack of funding or the postponement of its reports; take all appropriate steps to facilitate a coordinated campaign to popularise the role and recommendations of the commission; ensure that the highest protection of human and peoples’ rights is guaranteed through complementary mechanisms and norms; and further strengthen civil society engagement with the commission.

The commission has proved itself to be the organ of the African Union that underscores the importance of African citizen and civil society engagement with pan-African institutions by illustrating that human rights protection is only as effective as the peoples’ movement spurring it on. Without the consistently active participation of African civil society, the ‘ghettoisation’ of the commission within the AU would have been absolute. Yet, through the efforts of the people of Africa demanding their rights, the commission has made waves in shifting the culture of denial and impunity among heads of states and other perpetrators of human rights violations, at least rhetorically, to one of recognition of the rights enshrined in the charter. It is high time these efforts were heeded so that the people of Africa can see real change in their lives and enjoy the rights and protection long overdue them. Only then will the man-made tragedies of Africa cease and the continent can, at long last, progress on the road to development.

* Hakima Abbas is the AU Policy analyst for Fahamu Networks for Social Justice

* Please send comments to or comment online at www.pambazuka.org

For references and notes, see link below.