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INTRODUCTION Fifty-one years after the United Nations adopted
the 1948 Universal Declaration of Human Rights and almost nineteen years
after the Organization of African Unity (OAU) adopted its own African
Charter on Human and Peoples' Rights, the human rights situation on
the African continent is decidedly bleak. Indeed, achieving genuine
respect for human rights may constitute the greatest challenge facing
Africans in the new millennium. In June 1999 UNESCO Director-General Federico Mayor
expressed his deep concern over the ever increasing number of African
countries afflicted by war and associated human rights abuses. Fighting
has raged in Sierra Leone, Guinea Bissau, Angola, Congo, the Democratic
Republic of Congo, Somalia, Rwanda and Burundi, Ethiopia and Eritrea (1).
The same month, a report by the Coalition to Stop the Use of Child Soldiers
estimated that more than 120,000 children from ages seven to seventeen
were being exploited as soldiers across Africa. Some of these children
voluntarily joined government or revolutionary armed forces, but tens
of thousands of them were forced to become soldiers at gunpoint (2). THE GENERAL CAUSES OF HUMAN RIGHTS ABUSES What are the causes of extensive human rights abuses
in Africa? A recent OAU report attributed Africa's poor human rights
record mainly to racism, post-colonialism, poverty, ignorance, disease,
religious intolerance, internal conflicts, debt, bad management, corruption,
the monopoly of power, the lack of judicial and press autonomy, and
border conflicts (8). Poverty is certainly an endemic factor. More than
seventy-five percent of the continent's 700 million people live below
the poverty line, and ten of the world's thirteen poorest countries
are in Africa. Africa's troubling situation, however, is not unique.
As I have pointed out elsewhere, in many of the world's poorer countries,
the following elements comprise the system leading to human rights violations: undeveloped economies, with limited resource
bases and insufficient employment/income opportunities for large
segments of the population resulting in wide-spread povert high population growth rates further straining
the natural environment and local resources, while intensifying
competition for resources ethnic diversity and/or regional factionalism
promoting local/particularistic identifications, while hindering
the development of a national identification; ethnic and/or class politics involving competition
among leaders of different language, cultural, or regional populations
for state positions of political and economic power with the spoils
of victory going to supporters; lack of regime legitimacy as those large segments
of the population not culturally and/or politically affiliated with
the ruling elite and not sharing in the spoils refuse to recognize
the regime as legitimate; resort to military/police force to maintain
power by suppressing political opponents and disgruntled civilians; violation of economic, civil, and political rights
by the regime on the pretext of "national security" (9). Unfortunately, most African countries share these
elements. Part of the reason stems from the negative impact that colonialism
has had on Africa's indigenous ethno-political traditions. COLONIALISM AND THE AFRICAN STATE Because state creation in Africa differed so markedly
from the European experience, the Western liberal conception of individual-state
relationships does not easily apply to Africa. European imperialists
imposed the state structure on collections of ethno-political communities
that historically lacked intercommunal coherence. The imperialists forced
communities that lived independently of each other to live together
in the newly-created colonial state. Most of these new citizens lacked
any nationalistic bond to the colonial state. Today, only a few African
states bear any territorial resemblance to the political communities
that existed prior to European colonialism. The resulting disconnection
between Africans and the modern African state has created a crisis of
cultural, social, and political identity. As African scholar Makau wa Mutua points out, the
post-colonial "African states have largely failed to forge viable,
free, and prosperous countries....The new African states have failed to
inspire loyalty in the citizenry; to produce a political class with integrity
and a national interest; to inculcate in the military, the police, and
the security forces their proper roles in society; to build a nation from
different linguistic and cultural groups; and to fashion economically
viable policies" (10). This historic,
psychological process has adversely affected many African political leaders,
who, lacking a genuine national committment and sense of obligation, exploit
state budgets and power tostrengthen their ethnic power bases, enhance
personal privileges and thus retain power. Such a strategy ignores the
human rights entitlements of common citizens without discrimination. ALTERNATIVES TO THE CLASSICAL FORM Many African leaders have thus relied on ethnic
support in order to achieve and maintain positions of power. In return,
these leaders have often favored their supporters with privileged access
to the limited available resources. Such politics, by favoring the few
over the many, has not and cannot generate the generality of legitimacy
necessary for regime stability and internal security. Some African leaders
believed that, despite a country's ethnic, cultural, and regional diversity,
the development of a shared national identity and state stability could
be achieved if ethnic, regional, or other particularistic affiliations
were eliminated. Hence, these leaders supported strong central governments,
often without tolerance for an independent judiciary or effective local
governance. In the twentieth century, however, ethnonationalism
or politicized ethnicity represents a major legitimator and de-legitimator
of regimes. A government's legitimacy rests, in significant degree, on
its ability to convince the governed that it shares, represents, or respects
their ethnicity. In many countries with multi-ethnic populations, the
classic "nation-state" has proved to be a dangerous fiction.
Attempts by state governments to force diverse cultural populations into
a dominant ethnic mold have led to human rights abuses (11).
Clay, an anthropologist, concludes that "Post-independence efforts
to eliminate tribal identities may have contributed significantly to Africa's
catastrophic problems" (12). The bias of the UN and existing states against autonomy
or secessionist movements by cultural minorities seeking self-determination
and political independence from dominant ethnic power-holders could
very well prove detrimental to both the stability of states and the
human rights process. Historically, diverse ethnic populations with
a tradition of mutual animosity have not found common citizenship in
a single state a sufficient basis for social harmony. On the contrary,
the state form has simply become the new arena for interethnic political
and economic battles. In cases of intrastate, interethnic strife involving
cultural populations who are numerically dominant in different regions
of the country, at least two political paradigms or structural alternatives
to the pluralistic state are possible. One structural solution involves
replacing the state (which in the developing world has commonly been
dominated by the military or a single political party) with autonomous,
ethnic cantons that can opt for confederation on the Swiss model. Another
possibility is the creation of small independent ethnic states whose
leaders may (after feeling sufficiently secure) opt for some form of
interstate integration on the European Union model. Both the Swiss cantons
and the states comprising the European Union opted for forms of legal
integration to achieve anticipated political and economic benefits. The above solutions reverse the historic sequence
experienced by most post-colonial peoples who have had the state form
thrust upon them without regard to their political preferences. The
above solutions first offer regional ethnic populations political autonomy.
Secondly, they offer the resulting ethnic political entities the option
of voluntarily forming larger political units for the purpose of attaining
mutual political and economic benefits. Parties can negotiate additional
legal forms on a relatively equal basis. Hopefully, the mutual benefits
of the resulting interethnic cooperation will foster mutual respect
for each population's human rights. However, in cases of intrastate, interethnic conflict
involving populations intermingled within the same territory, a culturally
pluralistic, single-state solution may be necessary. In order to significantly
reduce and, hopefully, eliminate the causes of minority oppression and
state instability, the following minimal measures must be taken: states must establish an independent judiciary states must incorporate the various UN human
rights conventions into its domestic law state constitutions must place a duty on the
state to guarantee all citizens legal equality and non-discrimination,
while also granting injured citizens standing in court to initiate
claims when these guarantees have been broken; state constitutions must guarantee minority
cultural rights, including the rights to speak, teach, and write
their own language; practice their own religion; and practice other
aspects of their cultures to the extent that such practice does
not infringe on the rights of others; government and military officials as well as
the powerful elite must be responsive to judicial decisions; minority populations must be permitted some
effective means of participating in the political process (this
may involve the institution of weighted rather than strictly numerical
voting, however the particular mechanisms chosen should vary somewhat
with each state's special conditions); minority populations must be permitted some
effective means of participating in the economic process (in the
case of underclass minorities, special programs such as land redistribution,
vocational and special education, housing, cooperative formation,
etc. may be necessary). In exchange for the above guarantees and special programs,
minority populations must accept the inevitable fact that the majority
or plurality population and culture will be predominant at the national/state
level. For example, in states where numerous minorities and languages
exist, the selection of a single, official national language will be necessary
for the practical purposes of facilitating national and international
communication (13). Despite the political
problems outlined above, most African leaders have opted to work within
existing state structures and fashion a pan-African human rights charter
that distributes rights and duties between citizens, peoples and the state.
It is now necessary to explore how the suggestions listed above could
be integrated into the African Charter on Human and Peoples' Rights. THE AFRICAN HUMAN RIGHTS CHARTER Created under the auspices of the OAU, the African
Charter on Human and Peoples' Rights entered into force on 21 October
1986 (14). With the ratification of
this Charter, Africa joined Europe and the Americas as one of three world
regions with its own human rights convention (15).
The great majority of African states had previously ratified the United
Nations Covenant on Civil and Political Rights and the Covenant on Economic,
Social and Cultural Rights. Since most African states had already committed
themselves to respect a broad range of human rights, why was an African
Charter deemed necessary? Okoth-Ogendo argues that it is because many
African leaders felt the "need to develop a scheme of human rights
norms and principles founded on the historical traditions and values of
African civilizations rather than simply reproduce and try to administer
the norms and principles derived from the historical experiences of Europe
and the Americas" (16). The African Charter both resembles and departs from
the other regional conventions. Charter articles 3-17 list a fairly
typical array of individual rights, including rights to equal protection
of the law, to life and security, to due process, to education, to own
property, to work under equitable and satisfactory conditions, to enjoy
the best attainable state of physical and mental health, and to assemble
with others. These articles also promise individuals freedom of expression,
movement, conscience, religion, and political participation. These individual rights are followed by a catalog
of peoples' rights. The Charter grants "all peoples" the rights
to equality (Art. 19), to self-determination, to freely determine their
political status and economic development (Art. 20). In addition, "All
peoples shall have the right to national and international security"
(Art. 23) and "the right to a general satisfactory environment
favorable to their development" (Art. 24). Additionally, the Charter lists obligations that
states incur, including the obligation to eliminate every form of "discrimination
against women and also censure the protection of the rights of the woman
and the child as stipulated in international declarations and conventions"
(Art. 18); the obligation to eliminate all forms of foreign and domestic
economic exploitation of natural resources (Art. 21); the obligation
to promote and ensure the Charter (art. 25); the obligation to guarantee
the independence of the courts (Art. 26); and, what is especially African,
the obligation to "assist the family which is the custodian of
morals and traditional values recognized by the community" (Art.
18). Articles 27 to 29 spell out the duties that an individual
incurs "towards his family and society, the State and other legally
recognized communities and the international community" (Art. 27).
More specifically, these include duties to exercise rights and freedoms
"with due regard to the rights of others, collective security,
morality and common interest" (Art. 27); to respect "fellow
beings without discrimination" (Art. 28); to respect the family
and parents at all times, and "to maintain [parents] in case of
need", to serve the national community, both physically and intellectually;
not to compromise the security of the state; to preserve and strengthen
national solidarity, independence and territorial solidarity; to pay
taxes; "to preserve and strengthen positive African values";
and to promote African unity (Art. 29). This section spelling out a citizen's duties to the
state distinguishes the African Charter from other regional human rights
conventions and has earned it serious criticism. Some critics have warned
that politicians might use these duties to the state to trump individual
human rights and freedoms when the two sets of obligations are in conflict.
Donnelly, for example, points out that the former Soviet Union, a totalitarian
state, frequently used duties to abrogate individual rights (17).
Although he does not disagree with critics such as Donnelly, Mutua argues
that those duties to the state enshrined in the African Charter "are
inspired by the continent's history of domination and occupation by outside
powers
[they] represent an extension of the principle of self-determination"
by demanding citizen loyalty as a shield against foreign exploitation
(18). For example, "the duty to
place one's intellectual abilities at the service of the state is a legitimate
state interest, for the 'brain drain' has robbed Africa of massive intellect....the
Charter [also] asks individuals to promote African unity, an especially
critical role given arbitrary balkanization by the colonial powers"
(19). The remainder of the Charter
is devoted to the establishment and operation of a human rights commission,
an issue to which we now turn. AFRICA'S HUMAN RIGHTS COMMISSION In 1987, the OAU created the African Human Rights
Commission, in accordance with Charter Article 30, to promote human rights
and to monitor compliance by African States with their obligations under
the charter. The commission is comprised of eleven persons "chosen
from amongst African personalities of the highest reputation, known for
their high morality, integrity, impartiality, and competence in matters
of human and peoples' rights; particular consideration being given to
persons having legal experience" (Art. 31). The Assembly of Heads
of States and Governments of the OAU elects members of the commission
from a list of persons nominated by States Parties to the Charter (Art.
33). Commissioners serve for a renewable term of six years (Art. 36).
The commissioners elect a chairman and vice-chairman from among themselves
every two years (Art. 42). Members of the commission are elected to serve
in their individual capacities (Art. 32) and should, therefore, act independently.
"In practice, as with other international institutions and mechanisms,
the process of nomination and election to the Commission minimizes the
likelihood of the body being composed of persons who may be substantially
or rigorously impervious to state pressure" (20).
Each State Party to the Charter is obligated to cooperate
with the commission and to submit to it a report every two years in which
the state explains the measures it has taken and needs to take to ensure
its citizens the rights and freedoms guaranteed by the charter. As of
1998, however, thirty of the fifty-one States Parties to the Charter had
failed to submit a single report, and all other states, except Zimbabwe,
were in arrears (21). Odinkalu notes
that African states generally have not given the commission significant
co-operation. In addition to failing to fulfill their reporting obligations,
many refuse to respond to the commission's requests for information. In
one case, the commission sent twenty unanswered inquiries to Zaire requesting
a response to allegations contained in complaints of gross violations
of human rights (22). There also have
been cases in which State Parties have refused to admit the commission
on missions into their territories to investigate complaints of gross
human rights violations (23). Critics
charge that the OAU itself has failed to support the commission with an
adequate budget. The commission has had to rely on grants from West European
countries for basic operating expenses. Given these and other criticisms,
Mutua has dismissed the commission as "a facade, a yoke that African
leaders have put around our necks" (24). The charter allows for an interstate complaint procedure
whereby one state can charge another state with human rights violations
before the commission. Yet, despite the existence of widespread and
grave violations in many countries, not a single state has ever filed
an interstate complaint. The commission has received petitions only
from a limited number of individuals and NGOs. Once the commission reaches
a decision on the merits of a case, it has no effective mechanism to
enforce its judgment. Consequently, some African states have ignored
the commission with impunity. OAU Secretary General Salim maintains that the absence
of adequate institutions to monitor, promote and protect human rights
has tarnished Africa's image, so that many view it as being a continent
without the rule of law. He maintains that Africa's human rights charter
has failed because politicians and strong men have refused to support
it (25). Despite or because of the
shortcoming in human rights achievements under the Charter and Commission,
African leaders have decided to begin the process of creating a human
rights court, similar to what exists in Europe and the Americas. PROBLEMS IN CREATING A HUMAN RIGHTS COURT On 8 June 1998, members of the OAU meeting in Burkina
Faso voted to initiate the process for the creation of an African Court
on Human and Peoples' Rights. To come into effect, the protocol for the
proposed court requires the ratification of fifteen OAU member States
(26). As of late 1999, only Burkina
Faso and Senegal had ratified it. According to the protocol, the court
shall consist of eleven judges elected by the Assembly of Heads of State
and Government of the OAU from a list of nominees proposed by OAU member
States. The assembly shall ensure that there is adequate regional and
gender representation among the selected judges (Art. 14). The judges,
who may serve two six-year terms, are to function independently and shall
enjoy the immunities extended to diplomats in accordance with international
law (Art. 17). The envisioned court will complement the protective
mandate of the African Commission on Human and Peoples' Rights. It will
have both advisory and contentious jurisdiction over human rights matters.
As for its sources of law, the court shall apply the provisions of the
African Charter on Human and Peoples' Rights "and any other relevant
human rights instruments ratified by the States concerned." (Art.
7). This is a very significant provision, because the great majority
of African states have ratified many of the major United Nations human
rights conventions, including the Convention on the Elimination of Discrimination
against Women (entry into force in 1981) and the Convention on the Rights
of the Child (entry into force in 1990). Consequently, the court will
be able to apply a much broader array of human rights obligations against
states than the African Charter alone affords. African states, the commission, the OAU and African
intergovernmental organizations will be able to submit cases to Court
(Art. 5). Individuals and NGOs, however, may not file a petition with
the court against any state that has not explicitly made a declaration
under Article 36(6) of the protocol recognizing the competence of the
Court to consider such petitions. Unfortunately, this protocol provision
permits States to shield themselves from complaints by their own citizens
and NGOs who allege human rights violations. Because governments will
be reluctant to make such declarations, and because no state has ever
filed a human rights complaint against another state before the commission,
it is unlikely that the court will see much business. The protocol authorizes the court to issue appropriate
orders to remedy a human rights violation, including the payment of
fair compensation or reparation to the injured party (Art. 27). States
recognizing the court promise to comply with its judgments (Art. 30),
and the OAU Council of Ministers will be charged with monitoring the
execution of Court judgments on behalf of the OAU Assembly (Art. 31).
Presumably, the Council of Ministers will pressure a non-complying country
into honoring a court judgment. Historically, however, the OAU has been
extremely reluctant to interfere in the internal matters of member states,
even in those that have engaged in gross human rights violations. The
expenses of the court are to be borne by the OAU (Art. 32). However,
given that organization's inadequate support for its own Human Rights
Commission, one must wonder how well it will maintain the court. CHALLENGES AND PARADIGMS Can Africa meet the human rights challenge of the
new millennium? There has been no shortage of rhetoric and ceremonial
commitment. In April of 1999 the OAU held its first ever Ministerial Conference
on Human Rights. At that conference, held at Grand Bay, Mauritius, OAU
Secretary-General Salim called for the integration of human rights in
school curricula and the strengthening of institutions responsible for
promotion and respect for human rights (27).
He emphasized that Africa "needs to inculcate in its people a culture
of peace, tolerance and respect of human rights, to energetically fight
poverty, illiteracy and intolerance, to strive to overcome the scourge
of conflicts and ensure that human rights violations are not only condemned
but also effectively opposed and eliminated" (28).
The ministers concluded the conference with a Declaration
and Plan of Action that reaffirmed their commitments to human rights,
the rule of law, and democracy (29).
They recognized that human rights are founded on respect for the sanctity
of life, human dignity, tolerance of differences, prosperity and stability.
The declaration "urges all African states to work assiduously towards
the elimination of discrimination against women and the abolition of cultural
practices which dehumanize or demean women and children." The declaration
also calls on African states to eradicate genocide on the continent and
to ratify the African Charter on the Rights and Welfare of the Child,
the Protocol on the Establishment of an African Court on Human and Peoples'
Rights, the Four Geneva Conventions, the UN Statute of the International
Criminal Court, and a number of other major UN human rights conventions.
Furthermore, the declaration recognizes that the promotion and protection
of human rights are primarily state responsibilities. Therefore, it calls
on African states to establish and adequately fund national human rights
institutions and to "engage in a process of continuous dialogue with
the African Human Rights Commission." But will the states act? It took nine years to get
fifteen African states to ratify the African Charter on the Rights and
Welfare of the Child so that it could come into force (30).
After a year and a half, only two of the OAU's fifty-one members have
ratified the protocol to create an African human rights court. Some African
observers have high hopes for the court. They believe its existence will
make African leaders more conscious of their human rights obligations.
Others doubt that the court will do little to improve a grave human rights
situation whose causes are primarily economic, demographic and political. An Africa suffering from severe economic, demographic,
health, and political problems cannot easily achieve the human rights
status its people want. Speakers at the first African Development Forum
emphasized the need for a new paradigm for African development based on
a vibrant domestic private sector, a stable state, effective policy analysis,
and good governance (31). Such a paradigm
will also need a marked change in Africa's relations with international
financial institutions and donor states (32).
At the forum, OAU Secretary-General Salim stressed
the linkage between governance, economic development and human rights.
"Good governance and democracy or the respect for human rights cannot
thrive on empty stomachs," he said. "Democracy must deliver
on bread-and-butter issues, otherwise democratic transitions will be reversed
and the continent will slide back into situations where the politics of
poverty gives rise to the poverty of politics" (33).
Meeting the human rights challenge in the new millennium will require
Africans to adopt new political and developmental paradigms that also
meet the continent's economic, demographic, and health challenges. It
remains to be seen if this will happen. (1) "Amnesty International 1999 Regional Highlights,
Africa." Available at www.AI.org. (2) Zhenqiu, Gu, "More Than 120,000 Child Soldiers
Fighting in Africa," Xinhua News Agency, 24 June 1999. (3) "Amnesty International 1999 Regional Highlights,
Africa." Available at www.AI.org. (4) Achieng, Judith "African Governments Urged
to Vest More Power in the OAU," Inter Press Service, 12 April 1999.
(5) "Africa Overview," Human Rights
Watch 2000 Report, available at www. hrw.org. Reference
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