Human rights move up on Africa's agenda

New African court to promote rule of law, end impunity for rights violators
From Africa Renewal: 
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An April 2004 demonstration in Nairobi organized by the Kenya Human Rights Commission. Photo: AFP/Getty Images/Simon Maina

For decades, the protection of basic human rights in Africa seemed to be championed mainly -- if not exclusively -- by a handful of courageous and beleaguered civil society activists. But in recent years, as democracy has spread across the continent, the vital importance of human rights for Africa's long-term security and development has been gaining recognition. More and more African national and intergovernmental institutions are now taking up rights issues.

Earlier this year, Africa took an important step in advancing human rights when the African Union (AU) officially established the African Court on Human and People's Rights. The court adds an enforcement arm to existing human rights institutions on a continent known more for the impunity of those who govern than the strict defence of the rights and liberties of citizens.

The ratification of the protocol to establish the court was welcomed by acting UN High Commissioner for Human Rights Bertrand Ramcharan as "another major advance towards the international rule of law and the fight against impunity for gross violations of human rights." The court will strengthen the work of the African Commission for Human and People's Rights, established in 1987 to promote the continent's principal human rights manifesto, the African Charter for Human and People's Rights (see box, below).

Challenging 'culture of impunity'

The court's inauguration is but the latest indication that many African governments, acting nationally and also collectively through the AU, are becoming more serious about strengthening human rights protections and ending what many observers describe as a "culture of impunity" for violators. Even the toughest critics of African governments -- African human rights activists -- agree.

"The coming into force of the protocol of the African court . . . brings forth greater possibilities of consolidating human rights on the continent," noted Mr. Halidou Ouédraogo, head of the Union Interafricaine des Droits de l'Homme (UIDH), a network of non-governmental human rights organizations in 50 African countries. Speaking from his home in Ouagadougou, Burkina Faso, the veteran political leader and rights advocate told Africa Renewal that "there is a desire to break with the past," when continental politics was dominated by autocratic one-party states and when human rights were generally viewed as domestic matters by the Organization of African Unity (OAU), the AU's predecessor.

The main judicial issue in Africa today, he said, "lies between the question of an independent judicial system and the question of impunity." Many African judges are unwilling or unable to rule against their governments, he noted, because they are dependent on the ruling parties for their positions, lack the authority to enforce their rulings or, in some cases, may face arrest or assault for challenging government actions.

"With the [African] court we can put pressure on states to lessen their hold on the courts, which they use to massively violate human rights throughout the region. The creation of the AU was done with input from civil society," he asserted, and as a result "serious violations can be brought before the African Court and [governments] will no longer have a choice in the matter."

New thinking

Africa's human rights record has generally paralleled its political history. The denial of human and civil rights by the colonial powers was an important weapon in the hands of the anti-colonial movements of the 1950s and 1960s -- mobilizing domestic and international opinion in favour of African self-determination.

Then, as the Cold War increasingly took hold in Africa, many independence-era governments were replaced by authoritarian, often military regimes. Human rights abuses became more common. Freed from any effective accountability at the ballot box, and with economic and military aid influenced more by superpower allegiances than good governance, some African governments felt at liberty to violate their citizens' rights. The studied silence of other African leaders to the abuses of their peers, justified under the OAU doctrine of non-interference in the internal affairs of member states, led critics to deride the body as a "dictators club."

The wave of democratization that swept Africa in the 1990s, the emergence of a vigorous civil society and greater donor pressure combined to impel important changes in official thinking on human rights.

That pattern began to shift in the 1990s. The wave of democratization that swept much of Africa, the end of white-minority rule in Southern Africa, the emergence of a vigorous and independent civil society and greater pressure by donors combined to impel important changes in official thinking on human rights, say African and international human rights activists. Many African governments, they argue, now understand that they must be seen to be responsive to human rights concerns if they are to retain their domestic legitimacy and their overseas development partnerships.

New institutions like the African Peer Review Mechanism of the New Partnership for Africa's Development (NEPAD) and the AU's Peace and Security Council (see "Watch" page), alongside the African Court, reflect this new thinking.

'Historic achievement'

Although the court, like the commission, takes its authority from the African Charter, it differs from that body in important ways. In contrast to the commission, whose role is largely advisory and educational, the court's decisions are considered binding, at least on the protocol's signatory governments. The court adds an enforcement mechanism to the charter and other human rights treaties for the first time. It is mandated to receive cases from the commission, African governments -- including governments acting on behalf of individual citizens -- and African intergovernmental agencies.

The court's founding protocol also establishes a limited right for individuals and non-governmental human rights organizations to bring cases before it.

"I congratulate all of Africa and the African Union on this historic achievement," Mr. Ramcharan noted in January, "and strongly urge speedy ratification of the protocol by all African states." The court's 11 judges will be elected at the upcoming AU summit in July.

The Ghanaian representative on the African Commission, Prof. Emmanuel Dankwa, also underscored the court's status as an AU institution in welcoming its ratification. "A bill of rights without a court is incomplete," he told Africa Renewal in March. Where governments could disregard commission findings without penalty, he observed, the rulings of the African Court can be referred to the AU Council of Ministers for enforcement. "The commission therefore sees the court as a complement that will definitely help in the area of human rights in Africa."

Establishment of the African Court was also hailed by Amnesty International as "an extremely positive step for the defence of human rights." The emergence of an independent, effective and adequately financed court, the organization noted, could finally bring an end to official impunity and "stimulate positive changes throughout Africa" by strengthening domestic judicial systems and enforcement of human rights instruments in national courts.

How effective?

Amnesty International and other human rights groups have, however, expressed reservations about some aspects of the court's mandate and jurisdiction. They also question the ability of the court to insulate judges from political pressure.

Mr. Peter Takirambudde, the head of the Human Rights Watch Africa division in New York, told Africa Renewal that the "sharp limitations" placed on access to the court by private citizens and non-governmental organizations could greatly limit its effectiveness. Not only must governments individually grant the court jurisdiction over private cases, he noted, but "it has to be established that the complainant has exhausted all local remedies, which unfortunately often cannot be done."

Individuals must also rely solely on personal knowledge when presenting evidence to the court, he said, and are specifically prohibited from using information from the media and other public sources. "This is a severe limitation," he asserted.

Past experience, he noted, argues against relying on governments to bring individuals' cases before the court. "If you go by the record of the African Commission, there is not a single instance of a case brought by one state against another. It has never happened, and it is unlikely to occur. It is not now part of the political culture of Africa."

Changing that culture is one of the challenges facing the African court, Mr. Takirambudde continued, and will require the support of both governmental and non-governmental human rights advocates. "Without civil society, the court will become just another state institution that cannot meet its mandate to protect and advance human rights."

Despite such reservations, Mr. Takirambudde applauded the court's launch as "a step in the right direction" and evidence that African governments are taking human rights more seriously. "The launch of the African Union and adoption of the NEPAD peer review mechanism -- a revolutionary concept -- shows a willingness to take human rights protections to a higher level. It may never be fully implemented, but at least they have made the commitment."

Mr. Ouédraogo expressed confidence that many of the court's perceived shortcomings could be addressed over time and noted that the UIDH has already opened a dialogue with African governments and AU leaders about ways to strengthen the court. "We have worked with the African Commission to ensure that individuals and non-governmental entities have access there," he said, adding that it will be vital to achieve similar access to the African Court.

The UIDH is lobbying more governments to ratify the protocol, he explained. "Every country must make a public declaration that NGOs, civil society and ordinary people can take the country to court in cases of serious human rights violations." The UIDH will also conduct a campaign to explain the workings of the AU and the court -- sensitizing civil society and government officials to the importance of human rights in good governance, development and conflict resolution.

Mixed record of national commissions

Since Africa's wave of democratization began in the early 1990s, there has been a dramatic increase in governmental human rights institutions -- from just one national agency in 1989 to 24 a decade later.

The trend towards the creation of state human rights bodies has been strongly encouraged by the Office of the UN High Commissioner for Human Rights. In 1993, the agency developed a set of guidelines for official human rights commissions, known as the Paris Principles, and maintains a department at its Geneva headquarters to provide technical assistance and support.

In the view of many African and international human rights group, including the UIDH and Human Rights Watch, the establishment of official human rights bodies are welcome evidence that African governments feel pressure from their own civil societies, donors and other development partners to institutionalize the protection of human rights. But the record so far, they add, is very mixed.

In a 2001 study of government human rights commissions entitledProtectors or Pretenders?, Human Rights Watch noted that some commissions operate with a broad mandate and are effectively insulated from undue government control. In other cases, however, the study argues that national commissions are intended solely to deflect international criticism of abuses and to mollify donors, who sometimes make their aid conditional on improvements. In many cases, official control of budgets and appointments lead commissioners to avoid politically sensitive issues and focus on important but less controversial aspects of human rights advocacy, such as public education.

"Every country must make a public declaration that NGOs, civil society and ordinary people can take the country to court in cases of serious human rights violations."
-- Mr. Halidou Ouédraogo, head of the Union Interafricaine des Droits de l'Homme

"It would be a mistake to equate the creation of a national human rights commission, in and of itself, with greater respect for human rights," the report warns. "Yet the activities of the more promising commissions are proof that these state bodies have the potential to contribute positively to strengthening the human rights culture."

Uganda: defending democratization

The Uganda Human Rights Commission (UHRC) has emerged as one of the strongest and most effective official human rights bodies on the continent. Entrenched in the 1995 constitution after decades of brutal abuses by previous governments, the UHRC's independence and statutory authority -- and its willingness to challenge government actions -- has been credited for significantly improving the country's human rights record.

Unlike many of its counterparts elsewhere in Africa, the UHRC has quasi-judicial status, with the authority to:

  • subpoena any person or document
  • compel testimony
  • order the release of detainees
  • order financial restitution or other remedies for victims of human rights violations.

Decisions of the commission can be appealed, but only to the supreme legal authority, the Ugandan High Court -- a fact that gives the UHRC unusual influence within the national legal system. The commission's ruling in a recent case demonstrates its reach and effectiveness.

Mr. Kabasaala Stephen, a Kampala produce merchant, alleged that in 1999 he had been shot and illegally detained without charge for 109 days by three members of Uganda's military intelligence force. In a detailed 29-page decision issued on 3 March 2004, UHRC Commissioner Fauzat Marriam Wangadya found that the security men had improperly detained and injured Mr. Stephen, in violation of numerous Ugandan laws and international treaties, including the African Charter and the Universal Declaration of Human Rights. She ordered the government to pay Mr. Stephen 29 mn Ugandan shillings (US$15,000) in compensation and penalties -- an amount Ms. Wangadya deemed "sufficient" to make good the injuries and deter the security forces from further abuses.

By subjecting even national security agencies to UHRC scrutiny and making its decisions public, the Ugandan government has made itself accountable for its human rights record.

The commission also plays an important role in education and advocacy, teaching citizens about their human and civil rights as well as their civic duties and obligations. That role will increase as Uganda begins a transition to multiparty democracy, noted UHRC Chairperson Margaret Sekaggya. "It is important that people be empowered to develop the competence and motivation to engage in public problem solving," Mrs. Sekaggya observed at a conference on democratization in November 2003. Civic education cultivates "a sense of personal responsibility for the destiny of society." An informed, engaged and politically aware citizenry, she concluded, was the best guarantor of human rights.

'Proactive' in Namibia

Awareness raising is a central activity of Namibia's non-governmental Legal Assistance Centre, that country's principal human rights organization. Until Namibia's independence in 1990, the LAC represented thousands of victims of apartheid South Africa's occupation army, including members of the Namibian liberation movement.

After independence, LAC Director Clement Daniels told Africa Renewal, "We did some soul-searching . . . regarding the role of an independent human rights organization in a post-apartheid society.... The consensus was that . . . we shift focus from reactive litigation to a proactive human rights awareness campaign, as well as lobbying and advocacy for legislative reform in the areas of gender equality, social justice and racial discrimination."

Although Namibia does not have a formal human rights commission, the independence constitution did establish an ombudsman's office, which is authorized to investigate human rights complaints. In practice, Mr. Daniels said, the office deals largely with cases of corruption and illegality in the public sector -- leaving a gap in human rights advocacy the LAC and other civil society groups are struggling to fill.

Today, he noted, "the basic challenge that Namibians face is ignorance about their human and legal rights and the means to effectively enforce and protect [against] the violation of these rights. The justice system remains inaccessible to the vast majority due to financial constraints." Economic and social issues, such as access to education and health care, land reform, racial discrimination, violence against women and children, police brutality and the stigmatization of homosexuals and people living with HIV/AIDS, he said, now dominate the centre's caseload.

In addition to human and constitutional rights awareness programmes, the LAC has trained 280 community-based volunteers in basic law and helped launch a national paralegal association to expand public access to the courts. Mr. Daniels praised the Namibian judiciary for its independence and professionalism and predicted that, because of them, the African Court will not have an immediate impact on the country. But "for Africa in general, it is a great move." In countries with weak judiciaries, he pointed out, "complainants might find the African Court as the only option."

Africa's own human rights declaration

The African Charter on Human and Peoples' Rights was adopted by the African Union's predecessor, the Organization of African Unity, in 1981, as the continent's primary human rights instrument. It incorporates the same individual rights enshrined in the UN's Universal Declaration of Human Rights, including equal protection before the law, freedom of speech, religion and assembly, the right to work, own property and have a minimum standard of living and access to health and education and freedom from arbitrary arrest, detention, degrading treatment and torture. With individual rights come individual duties, including the obligation to strengthen the family, to serve the state and to work.

The Charter also establishes a group of "peoples'" or communal rights and obligations, such as a right to national self-determination, that are absent from the 1948 Universal Declaration. Those rights, and such provisions as the obligation of states to "eliminate all forms of foreign economic exploitation" and the right of peoples to pan-African solidarity in the anti-colonial struggle, emerged from Africa's particular historical experience and what the Charter's preamble describes as "the values of African civilization." These rights and duties include:

  • The right of equality with other peoples and to be free of domination
  • The right to international peace and security
  • The right of oppressed peoples to free themselves by "any means recognized by the international community"
  • The right to control national wealth and resources "in the exclusive interest of the people"
  • The right to economic, social and cultural development
  • The duty to promote and strengthen national unity and the state
  • The duty to preserve "positive African cultural values"
  • The duty to contribute to the achievement of African unity