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Celebrating two decades of the African Charter on Human and Peoples'
Rights
Ahmed
C Motala
Extracted from Pambazuka News 260
June 22,
2006
The African
Charter of Human and Peoples’ Rights came into force in 1986, making
2006 the 20th year of its existence. As African heads of state prepare
to meet in Banjul, The Gambia for the 7th African Union Summit,
Ahmed C Motala evaluates the successes and failures of The Charter
for the protection and promotion of human rights on the continent.
The African Charter on Human and Peoples’ Rights (the African Charter)
was adopted on 27th June 1981 by the Organisation of African Unity
(OAU), predecessor to the African Union (AU), at its Assembly of
Heads of States and Government in Nairobi, Kenya. This year marks
the twentieth anniversary of the entry into force of the African
Charter, which came into force in October 1986. Some commentators
have hailed the African Charter as a progressive document that,
amongst others, recognises the indivisibility of civil and political
rights and economic, social and cultural rights, distinct from other
international human rights treaties. The African Charter was also
the first human rights treaty to refer to the right to development,
although it did not define this right. Others have criticised the
African Charter for its many shortcomings, in particular its ‘claw-back’
clauses, which make certain rights subject to domestic law. For
example, Article 9(2) of the African Charter states: "Every
individual shall have the right to express and disseminate opinions
within the law." Other rights such as the right to privacy
do not feature in the African Charter and some rights including
the right to fair trial are inadequately defined.
The African Commission on Human and Peoples’ Rights (African Commission),
the body created under the African Charter to monitor compliance
by states with the treaty, currently functions in an environment
plagued by civil wars in several countries including Sudan, Côte
d’Ivoire, Democratic Republic of Congo and Chad. Serious human rights
violations continue throughout the continent from Egypt to Equatorial
Guinea and Ethiopia. The phenomenon of coup d'état and counter
coups continue to haunt many countries. Measures adopted by governments
throughout Africa to counter terrorism make serious inroads into
long-standing human rights values. A growing commitment to human
rights by a handful of progressive countries including Mali, Benin
and South Africa on the other hand offer some optimism that the
continent is intent on improving its human rights record.
At the time of the drafting and adoption of the African Charter
the OAU Charter entrenched the central principle of State sovereignty
and non-interference in domestic affairs. This principle prevented
the OAU and African States from intervening to prevent serious human
rights violations including the massacre of civilians by dictators
such as Idi Amin of Uganda, Emperor Bokassa of Central African Republic,
Mengistu Haile Mariam of Ethiopia, Valentine Strasser of Liberia,
Hissene Habre of Chad and Samuel Doe of Liberia. In fact, former
dictators such as Mengistu and Habre continue to enjoy the hospitality
of Zimababwe and Senegal respectively, with both States refusing
to extradite them to stand trial for international crimes.
After its creation, the African Commission too failed to deal effectively
with some of the most serious human rights violations committed
on the continent, most recently the genocide in Rwanda. Being a
creation of the OAU, and now reporting to the AU, the African Commission
has been hampered, amongst others, by the lack of political will
and initiative of its political masters to deal with serious human
rights violations. After all, the dictators and human rights violators
have been part of the same club of heads of states to which the
African Commission was required to submit its annual report, which
included information on serious violations of human rights.
With the establishment of the African Union, on paper at least there
is a stronger commitment to human rights. The objectives of the
AU as enshrined in its Constitutive Act include "to promote
and protect human and peoples’ rights in accordance with the African
Charter on Human and Peoples’ Rights and other relevant human rights
instruments". The AU is also based, amongst others on the principle
of "respect for democratic principles, human rights, the rule
of law and good governance". The key question is whether the
values enshrined in the Constitutive Act are implemented by AU member
states or the institutions of the AU? There is little evidence to
suggest that the AU is willing to hold member states accountable
for human rights violations. Zimbabwe is a case in point. Despite
the African Commission presenting a report to the AU Assembly in
July 2004 on the human rights situation in Zimbabwe and recommending
measures to be taken to redress the situation, the Assembly failed
to hold the Zimbabwean authorities accountable. Instead, it took
cognisance of Zimbabwe’s objections that it had not had an opportunity
to comment on the report and delayed the adoption of the African
Commission’s annual report for six months.
However, the Peace and Security Council seems to have acted with
considerable resolve in attending to conflict situations. In trying
to address the conflict in the Darfur region of western Sudan, the
Council authorised the deployment of an AU peace-keeping mission
against the wishes of the Sudanese Government of President Omar
El Bashir. The Constitutive Act has narrowed the ambit of state
sovereignty by stipulating "the right of the Union to intervene
in a Member State pursuant to a decision of the Assembly in respect
of grave circumstances, namely: war crimes, genocide and crimes
against humanity". This right of intervention was the consequence
of the severe criticism of the OAU for its failure to act in the
face of the genocide in Rwanda. It is encouraging to see that the
AU is willing to act in accordance with its right of intervention,
even against the wishes of the member state concerned. Whether the
AU Mission in Sudan has been effective in reducing human rights
violations is the subject of another article.
How has the African Commission fared over the last two decades?
An analysis of the work of the African Commission would show considerable
progress over the last twenty years. However there also have been
many obstacles that have hampered its work and consequent effectiveness
on the continent.
The African Commission rendered numerous decisions on complaints
filed before it, primarily by NGOs. These decisions have been against
a range of countries including Egypt, Algeria, Sudan, Malawi, Nigeria,
Cameroon and Botswana. Its jurisprudence has improved considerably
over the years with recent decisions being well-reasoned. However,
the African Commission would have to improve its decisions considerably
if it expects the newly established African Court on Human and Peoples’
Rights to uphold its decisions. The current staff of the African
Commission comprises of dedicated but inexperienced lawyers. Without
skilled litigators and experienced legal researchers on its permanent
staff, the African Commission is not likely to improve its decisions
to a level that would be to the satisfaction of the African Court.
Unfortunately most States have ignored the rulings of the African
Commission and its parent body the AU Assembly has failed dismally
to hold these states accountable. As long as African States that
are the subject of such complaints ignore the decisions of the African
Commission, its status as the main body on the African continent
responsible for the protection and promotion of human rights would
remain minimal.
The mandate of the African Commission includes formulating and laying
down rules upon which African States may base their legislation.
In this regard the African Commission has made considerable contribution
by adopting a range of principles and guidelines. These include:
Declaration of Principles on Freedom of Expression in Africa, Guidelines
and Measures for the Prohibition and Prevention of Torture, Cruel,
Inhuman and Degrading Treatment or Punishment in Africa and Principles
and Guidelines on Fair Trial and Legal Assistance in Africa. The
intrinsic value of these pronouncements by the African Commission
is that they articulate standards that are of pertinence to the
situation prevailing in African countries. Regrettably there is
little evidence that African States have considered these declarations
in the development of their own legislative framework.
The African Commission has been plagued by inconsistency in its
performance, which has been dependent on its composition. The effectiveness
of the treaty body depends on the independence and impartiality
of the Commissioners. Disappointingly, African States have undermined
the independence of the African Commission by nominating and electing
Commissioners whose independence was compromised or who were perceived
to lack independence by virtue of their position in their government.
Over the last twenty years various Commissioners have held positions
of ministers, attorney-generals, ambassadors and advisers to their
president. This has not only coloured the perception of the African
Commission but has resulted in it lacking initiative to tackle some
of the most serious human rights violations facing African countries.
One example is that of the African Commission’s Special Rapporteur
on Extra-judicial Executions whose appointment came on the eve of
genocide in Rwanda in April 1994. During his tenure he failed to
investigate the events in Rwanda or to visit the country. During
his tenure at the African Commission the incumbent was the diplomatic
representative of his country in Ankara and subsequently in Geneva.
The lack of adequate resources has considerably hampered the work
of the African Commission. The annual budget allocated by the AU
for 2005 was US$1,142,051, considerably less than some large national
NGOs. This despite repeated resolutions adopted by the AU Assembly
urging that the African Commission has to be provided with adequate
resources. The African Commission has had to rely on assistance
from foreign donors including the European Union and individual
European governments. This should be a source of embarrassment to
the African Union that it is unable to provide sufficient resources
to its primary human rights body. It also calls into question the
commitment of the AU and its member states to the protection and
promotion of human rights on the continent.
The protection of human rights in Africa will be enhanced by the
establishment of the African Court on Human and Peoples’ Rights
(African Court). The eleven judges of the African Court were elected
at the AU Assembly in January this year and are to be sworn in at
the forthcoming Assembly at the beginning of July 2006. With the
African Court having the authority to hand down binding decisions
and the Executive Council of the AU being required to monitor implementation
of the decisions, the protection of human rights on the continent
is likely to improve. However, errant states are only likely to
fully implement its decisions if the Executive Council is willing
to take measures against states that fail or delay in applying the
decision of the African Court. Lack of resources is likely to plague
the African Court too unless the AU establishes the voluntary human
rights fund recommended by the First AU Ministerial Conference on
Human Rights held in Kigali in May 2003 and African states make
considerable contributions to that fund.
We are at the dawn of a new era in the protection of human rights.
Establishment of the African Court is only the first step in the
journey through this era. Much still has to be done in the identification
of a suitable location for the African Court, in the provision of
adequate facilities and resources and in recruitment of suitably
qualified and experienced staff. In all of this and in the effective
functioning of the African Court the political support of the AU
and its member states is of the utmost importance.
African states bear considerable responsibility for the protection
of human rights. Domestic institutions including national human
rights commissions and courts should bear the primary duty for the
protection of human rights. The establishment and strengthening
of an independent judiciary in each African state and respect of
and adherence to the decisions of the national courts is of vital
importance. The regional system of human rights protection only
becomes relevant where the national courts either fail to protect
human rights or in instances where the state ignores the decisions
of its own courts.
* Ahmed C Motala is Executive Director of the Centre for the
Study of Violence and Reconciliation
* Please send comments to editor@pambazuka.org
or comment online at www.pambazuka.org
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