The African Human Rights System: Origin and Evolution

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Author: Kofi Oteng Kufuor

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The African Human Rights System

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The African Human Rights System Origin and Evolution Kofi Oteng Kufuor

THE AFRICAN HUMAN RIGHTS SYSTEM

Copyright © Kofi Oteng Kufuor, 2010. All rights reserved. First published in 2010 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–60505–3 Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. A catalogue record of the book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: April 2010 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

CON T E N T S

Acknowledgments Introduction One Two Three

Four Five Six

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The Origin of the African Human Rights System

11

The African Commission and the Rewriting of the African Charter

37

The African Commission and Its Treatment of Economic, Social, and Cultural Rights

61

System Evolution through the African Commission’s Rules of Procedure

81

The Fragmentation of the African Human Rights System

99

The Future Direction of the African Human Rights System

121

Notes

147

Index

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AC K NOW L E DGM E N T S

This book began life as a paper entitled “The Origins of the Banjul Charter,” which was presented to a small seminar group at the British Institute of International and Comparative Law, in London (May 7, 2002). Constructive comments were made by all the participants but I am particularly grateful for the comments made by Ibrahima Kane at the time senior legal officer at the International Centre for the Legal Protection of Human Rights in London. On the basis of the comments made at the British Institute seminar, a revised version entitled “The Puzzle of Collective Action: A Revisionist Challenge to the Received Explanation for the Adoption of the African Charter on Human and Peoples’ Rights” was presented at a Law and Development Research Group seminar in the School of Law, University of East London (February 28, 2005). The useful comments made at this seminar helped me consider expanding the paper into a book on the evolution of the African human rights system. The task of writing this book was made much easier thanks to the excellent research assistance of my student Chioma Ishiodu. I owe her an eternal debt of gratitude for her hard work, her general support for the book, and, in particular, her swift responses to my last-minute requests for her time. Another student of mine, Cynthia Opoku-Gyamfi, was also of considerable assistance in the earlier stages of my research and my thanks go to her too.

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Acknowledgments

My interest in human rights began in my postgraduate days at London School of Economics (LSE). Then professor, now Judge Rosalyn Higgins was responsible for this path in my intellectual development. She supervised my Masters dissertation entitled “Safeguarding Human Rights: The Paradox of the African Charter on Human and Peoples’ Rights” and through this, she helped nurture my ability to understand complex human rights law and to also write critically; little did I know, all those years ago, that my career as an academic had begun at her feet. While at the LSE I had the privilege of taking a course on Human Rights in the Developing World at the School of Oriental and African Studies. My two lecturers for this course, Jane Connors and Michael Anderson, also did a lot to stimulate my interest in human rights and they too deserve my thanks. This interest in human rights, particularly economic, social, and cultural rights, was piqued further when I was doctoral student in the University of Warwick. My supervisor, Professor Upendra Baxi, helped me develop an interest in a sociological approach to the law the impact he has had on me is ref lected in this book. This book has also benefited from comments made by Professor Rachel Murray of Bristol University and Dr. Tunde Ogowewo of King’s College, University of London. They helped shed some light on parts of the draft manuscript and my thanks go to them as well. Last but certainly not the least the editorial team at Palgrave Macmillan, namely Laura Lancaster and Luba Ostashevsky, had so much patience for me and the deadlines that I missed. I am grateful for their understanding.

Introduction

The African human rights system can be described as consisting of three sets of interlocking laws and organizations: first it consists of the mesh of human rights–specific charters, protocols, declarations, and decisions of human rights tribunals, the product of deliberate decision-making by the Organization of African Unity1 (OAU) and its successor the African Union (AU).2 Second, the African human rights system also includes the human rights provisions of treaties that primarily, do not deal with the protection and promotion of human rights, especially subregional economic integration treaties and the decisions of tribunals and courts established under these treaties. Third, the African human rights system can also be expanded to include developments within the domestic jurisdiction of the members’ of the system that draw on developments emanating from the regional level. The demand for an African human rights charter has been traced to Nnamdi Azikiwe’s The Atlantic Charter and British West Africa. Azikiwe’s insistence on an African human rights charter was in response to what the Atlantic Charter of 1941 on the right of all peoples to a government of their choice. The Atlantic Charter excluded Britain’s colonial subjects from its scope on the ground that it was intended only for Europeans under Nazi yoke. In response to this assertion, Azikiwe presented a protest memorandum to the British Government calling for

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a Charter applicable to Africa.3 The next step in the development of the system is traced to the Law of Lagos in 1961 which enunciated the need for an African human rights charter and a human rights court.4 After the Law of Lagos there were a number of seminars and conferences aimed at drafting an African human rights charter or establishing an African human rights commission.5 The consequence of these meetings was the adoption of the primary instrument in the African human rights system, the African Charter on Human and Peoples’ Rights6 (the African Charter). The African human rights system has been the subject of a large body of scholarly research. The early work painted a grim picture of the system. The initial criticism was directed at the African Charter, this being the primary document of the system. Criticised as overly state-centric largely because of the Charter’s clawback clauses, attacked as being weak on account of the rights-duty linkage provisions, and accused of failing to create the necessary conditions for the African Commission on Human and Peoples’ Rights (the African Commission) to function effectively, scholars, practitioners and activists alike had very little hope for the African Charter as a effective human rights instrument.7 However, since the adoption of the African Charter, Africa has gone through fundamental political and economic change and the setting of the 1970s when the African human rights system began to emerge has altered considerably. This, in our view, calls for a reassessment of the system’s utility as an instrument for the protection of human rights. First, a number of authoritarian regimes have collapsed, replaced by relatively more liberal systems or even where authoritarian regimes still persist they have been forced to adopt and uphold legislation that protects basic human rights. Second, there is a stronger degree of social activism by a burgeoning civil society and this has implications for human rights in Africa. Now if legal systems whether domestic or international, spring forth from,

Introduction 3 and also respond to, particular political and economic circumstances then, as we argue in this book, there is evidence to support the supposition that the African system that in the past was of very little value now assumed much greater importance given the basic shifts in the continents political economy. This book is essentially a study of human rights law in Africa; however, it is interdisciplinary in approach and thus to develop and articulate its thesis, it teases out insights from a variety of social science disciplines. Accordingly, we start with the history of the African system, drawing on the early work of the first scholars to explore the system’s emergence. The history of the system is important to our study. It allows us to see the trajectory the African human rights system has taken: its origin is rooted in the rational and strategic calculation of states, as well as the activism of civil society. Not surprisingly, we argue that the system has been driven by the demands of the latter and the responses by the former. Our research into system evolution therefore begins with a challenge to the standard assumptions of the African Charter’s origins. Our study is further enriched, we argue, with the application of institutionalist theory the outlines of which we set out here. Scholars have identified three branches of institutionalism: rational choice institutionalism, sociological institutionalism and historical institutionalism. All three strands are of relevance to our study. Rational choice institutionalism posits that actors responsible for crafting and changing institutions have a stable set of preferences or tastes and they act so as to maximize these tastes. An actors’ behavior under the rational choice rubric is shaped by the actor’s strategic calculations and designed to maximize the realization of these preferences.8 Also, under the rational choice umbrella, decision-makers use states to design international institutions that monitor the behavior of other states and so reduce uncertainty in interstate relations.

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The role of international institutions, as rational choice theorists argue, is that they are crucial for stability and certainty in international relations; they fill the void created in the international system on account of there being no international government to issue command and no international policeman to ensure obedience to any such command. In our study the role of the African human rights system is to set out a clear conception of human rights and to regulate the cooperation and commitment of the actors that drive the system, structuring relationships between state actors and between state actors and civil society.9 In chapter two, we use rational choice theory to explain the decisions taken by the African Commission and we also apply this theory to the issues arising out of the new rules of procedure in chapter four. The second strand of institutionalist theory that is relevant for our study of the African human rights system is sociological institutionalism. Sociological institutionalism takes a broader approach to the institutions, going beyond them as means to secure decision-makers’ preferences. Sociological institutionalists construe institutions much more broadly to include, not just formal rules, procedures or norms, ‘but they are also those symbol systems, cognitive scripts, and moral templates that provide frames of meaning guiding human action’. Sociological institutionalists argue that institutions are not adopted just because they are efficient, as rational choice institutionalists argue. Instead, they assert that institutions should also be seen as specific to particular cultures, serving cultural purposes in addition to their efficiency roles.10 We demonstrate in this book that the African human rights system has evolved in response to moral templates and cultural scripts: specifically, in chapter three we draw these themes out in our examination of how the African system has responded to moral and cultural imperatives of human rights in Africa. Our focus in this regard is how the African Commission has approached the economic, social, and cultural rights in the African Charter.

Introduction

5

A third stand of institutionalism is historical institutionalism. Historical institutionalism defines institutions as the formal or informal procedures, routines, norms and conventions embedded in the organizational structure of the polity or political economy. As part of the conception of institutions and what they do, historical institutionalism sees institutions as decisive moments in a polity or political economy. For historical institutionalists, among other impacts, institutions provide strategically useful information and they also affect the preferences of the actors operating within institutions. Furthermore, once actors have ventured down a particular institutional path, they are likely to find it very difficult to reverse course. The dynamics set in motion by an episode or process tend to reproduce themselves and what historical institutionalists call path dependence sets in. The consequence of any such development is that for the polity or its decision-makers to proceed down another path becomes increasingly difficult as sets of actors begin to derive benefits from the original path. Historical institutionalism thus underscores the significance of initial decisions. Historical institutionalism has meaningful implications for our study. The adoption of the Charter and the African Commission’s willingness to accept non-state petitions moved all the parties onto a human rights path. Gradually, this path, as we shall see, has proven to be a fruitful avenue of action, especially for the African Commission and non-state actors. Together, these actors have worked to increase the output of human rights laws across Africa. We assume here that the application of institutionalist theory to understand the African human rights system as we have defined it might be rare, if not completely new. Human rights scholarship on Africa tends to focus either on the dilemma over universalism versus relativism, the interpretation of the various laws that make up the African human rights system, the design and practice of the African Commission, and the proposed African human rights court. Moreover the approach

6


taken is either the so-called black letter approach to understanding the various laws and decisions of courts and tribunals, or the approach is a cultural-anthropological one, that grapples with the complex issues underpinning cultural relativism. Institutionalist theory is therefore, we argue, of value to our study as it allows us to study and understand system origin and evolution from a fresh perspective. International lawyers have been calling for a dialogue between international law and international relations theory. The thrust of their argument is that international law and international relations theory can benefit each other in the quest to bridge “the existing divide between the two disciplines.”11 In our study of the African human rights system we embrace this call, drawing on regime theory as the premise for our interdisciplinary conversation. Regime theory describes regimes as those explicit or implicit principles, norms, rules, and decisionmaking procedures around which actors expectations converge in a given-issue area.12 Regime theory presupposes that international law matters and that the realist theory of international relations, premised on the argument that international law does not constrain state power and behavior, is an inaccurate explanation of the workings of international relations.13 Regime theory posits that regimes affect the behavior of the actors that constitute the very regimes.14 Regime theory can thus help us unpack the dynamics of the African human rights system, serving as a tool to understand why the system emerged and why it is undergoing change. Regime theory is of particular importance in chapters two and four where we explore the African Commission’s reinforcement of its impact through its interpretation of the African Charter and also through the use of its rules of procedure. Also, as we see in chapter five the adoption of the African Charter has set off developments that have led to the continuing production of human rights law on the continent and we explore this process, drawing out factors that explain why the process of fragmentation is taking place.

Introduction

7

Our analysis in this chapter also implicates regime theory as at its core, our study looks at the multiplication of sites for the protection of human rights across Africa. The Contours of System Evolution The evolution of the African system is captured in the following developments: The interpretation of the Charter’s clawback clauses by the Commission in a manner that is practically nullifying them. Then there is the strategic manipulation by the African Commission of its own rules of procedure to further enhance its ability to chart a course that diverges from the course set at the inception of the African human rights system. The Commission has also confronted and overcome, we argue, the dilemmas associated with the enforceability of economic, social and cultural rights. This has been done through a clarification of the meaning of the African Charter’s economic, social, and cultural rights and through the ‘creation’ of new economic, social and cultural rights. The process of evolution is also manifested in the fragmentation of the human rights system. On its face, the African Charter purported to cover all three generations of rights and is also applicable to all people within its ambit. However, overtime this centralization of human rights protection into one single document has been broken up into a number of human rights instruments. From the adoption of the African Charter on the Rights and Welfare of the Child,15 fragmentation has been manifested in a range of regional instruments and declarations such as the African Charter for Popular Participation in Development and Transformation,16 the OAU’s Grand Bay Declaration and Plan of Action,17 and the African Charter on Elections, Democracy, and Governance.18 The process of fragmentation is also ref lected at the subregional level under the umbrella of the numerous regional integration treaties. In the

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wake of the so-called new regionalism, a multiplicity of subregional economic integration treaties have been adopted and/or revised. Designed to liberalize economic activity, these treaties include human rights provisions. New regionalism treaties also establish courts and tribunals mandated to interpret treaty provisions and these courts have entertained human rights cases. As noted above we examine developments at the national level as part of the evolution of the African human rights system. Our inquiry into this begins with the analysis, overlooked in the literature, of the role of national civil society on the origins of the African system. This role is explored as part of our challenge to the standard account of why the African system emerged when it did with the adoption of the African Charter. Continuing with our analysis we extend our focus to the reception of the African human rights system in the domestic jurisdiction of the members.

The Plan of This Book This book proceeds as follows: Chapter one explores the argument, well accepted in the current literature, that the beginning of the African human rights system is rooted in the outcome of enthusiasm for human rights by African governments in the late 1970s. Chapter one argues that this focus on African governments fails to take into account the role of non-state actors in the process. Moreover, the assumption that the system’s origin is in state enthusiasm for human rights has to be challenged as not being an accurate and complete overview of the system’s emergence. On the contrary, we argue, evidence points to the following as more plausible explanations for the emergence of the African human rights system: the system was a response by African governments to developments that threatened their survival at the time.

Introduction

9

Chapter two examines the African Commission’s dynamism in construing the African Charter, in particular, its clawback clauses. Our aim here is not to focus just on describing and analysing the Commission’s decisions that have practically nullified the Charter’s clawback clauses. Rather, we seek to go beyond this approach and apply the methods from institutionalist theory to understand the Commission’s behavior. There has always been some tension between civil and political rights on the one hand, and economic, social, and cultural rights on the other. Developing country decision-makers in particular have regularly challenged the idea that civil and political rights are the only sets of enforceable human rights. Thus prior to the crystallization of the system in treaty form, African governments had stressed the importance, if not primacy, of economic, social, and cultural rights. The African Charter actually asserts in its preamble that there is a link between civil and political rights on the one hand and economic, social, and cultural rights on the other. The Charter also states that the satisfaction of economic, social, and cultural rights is a guarantee for the enjoyment of civil and political rights.19 However, the challenge to economic, social, and cultural rights has always been their enforceability. In chapter three we will see how the African Commission has confronted and tried to overcome this challenge and has thus enabled the progressive development of this aspect of the African human rights system. Chapter four looks at the growth of the African Commission’s power through the use of rules of procedure. Used strategically, rules of procedure enable decision-makers to legislative and administrative outcomes. We argue therefore that the African Commission’s rules of procedure are part of a larger process by which the African human rights system is being shaped. Chapter five examines what we have termed system fragmentation. As we noted in the introduction, the African human rights system has evolved from the African Charter into an ever-expanding body of laws. Focusing on a range of

10


post–African Charter developments we describe and proffer explanations for the fragmentation of the African system. While the early corpus of African human rights laws was developed through measures taken by the OAU, subsequent developments have seen the fragmentation of the process in two interrelated approaches. Thus there is the process where human rights laws are being written into subregional economic integration treaties, or being produced by subregional courts established under the same. System fragmentation also implies the diffusion of regional norms into national jurisdictions. We examine and dissect this development as well. Chapter six concludes with issues for the future that, in our view, will continue the evolution of the African human rights system.

CH A P T E R

ON E

The Origin of the African Human Rights System

Why did the members of the OAU, a collective with a dismal human rights record, and also so jealous of their state sovereignty, decide to draft and adopt the African Charter and so lay the grounds for the development of the African human rights system? This decision is puzzling given the view in Africa at the time that human rights, especially civil and political rights, were viewed by some political leaders as a “western construct with limited applicability.”1 The general consensus among postcolonial African leaders at the time was that the enjoyment of civil and political liberties would slow down economic development or, in the extreme, fuel political and social strife. Thus we must ask whether the decision to adopt the Charter was the result of a cognitive shift within the OAU away from the authoritarian political systems that they had deliberately constructed, toward more liberal democratic systems, or if the Charter can be construed as the outcome of collective rational calculation by a group of states seeking to survive challenges to their rule? Another question is whether the African Charter is a strategic move to lock-in democracy and liberalism while it places the dismantling of this construct beyond the reach of future authoritarian rulers who could emerge at the national level?

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While the Charter’s provisions have been extensively analyzed, there has not been any critical analysis of its origin; what has happened is that there has been a good description of the background to the Charter and the presumption that this was a major public interest episode in Africa. Arguably, this can be explained by a perception that understanding the origin of the Charter is secondary to any research on its substantive content, the workings of the African Commission, and the parties’ compliance with the Charter’s provisions. In addition, there may be the general consensus that the current explanation for the Charter’s origin is accurate and thus there is no need to study a development that has been accepted in the literature. However, there are two reasons why we must examine the African Charter’s origin: First, examining alternative explanations will help to enrich scholarship on Africa’s human rights system. Second, understanding the forces and factors that account for the African Charter’s adoption is crucial for policymakers and human rights activists. As a continent with a still poor human rights record, any analysis that illuminates the origin of the regional human rights system can only serve to help interested parties identify key variables in the emergence and strengthening of human rights law in Africa. In our inquiry we challenge established assumptions and examine explanations that, we assert, play a more important role in the decision to draft and adopt the African Charter, and thus begin the development of the African human rights system. Conceptual Issues on the Origin of Human Rights Treaties Realist theorists premise the origin of human rights systems on the strength of hegemonic powers, whether regional or international. For realists, in an anarchical world the main goal of the state is power and the ability to exploit that power to

The Origin of the African HR System 13 compel weaker states into adopting policies that are in consonance with the preferences of the hegemonic state. In some cases the preferences of hegemonic powers include compelling weak states to conclude human rights treaties and participate in international human rights organisations. Thus, for example, Jack Donnelly asserts that the creation of the Inter-American human rights system was a consequence the United States’ desire to establish it. Also, he asserts that the absence of a strong African human rights system is linked to the lack of a regional hegemonic power willing to coerce African governments to adopt the same.2 Assuming Donnelly’s arguments are correct, the absence of a regional hegemon led, according to the classical interpretation of the Charter, to the United States stepping into this void.3 As pointed out above, we challenge this version of the role the United States played, proffering an explanations why it had very little impact on the decision to adopt the Charter. Andrew Moravcsik identifies what he calls ideational factors as another plausible explanation for establishing human rights regimes.4 In his ideational interpretation, Moravcsik avers that governments and groups in established democracies seek to project their human rights values abroad. They believe that their values are or should be universal values and their aim is to draw countries with lower human rights standards into the systems that they seek to create. The dichotomy between ideational and realist arguments is in the formers’ reliance on moral discourse as the driving force behind the creation of human rights systems while the latter argument does not make the morality of human rights as the sole reason (if a reason at all) that motivates the hegemon to act.5 The ideationalist explanation intersects with public interest theories behind why particular laws are drafted, and organizations created, by national and international decision-makers. Public interest explanations stem from the assumption that politicians and national bureaucrats are benevolent decision-makers

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who pass laws and formulate policies with societies’ welfare in mind. Public interest organisations are then created to implement these laws and policies. International law and organisations are included in the range of legislative and policy outcomes that f low from the desire of national officials to advance the public interest.6 Thus the issues raised in the standard interpretation point to African governments being motivated by the value of human rights systems for their citizens. Our task, however, is to challenge the application of ideationalism and public interest law to the origins of the African human rights system. Moravcsik also stresses republican liberalism as another explanation for the adoption of human rights treaties. Republican liberalism underscores the role of domestic political forces in creating regional human rights systems. The motive here is self-preservation; local elites seek to protect themselves from any future governments that might be inclined to violate human rights. This self-preservation is best obtained through the construction of international human rights systems so as to ring-fence local elites. It is obvious that liberal republicanism does have some similarities with ideationalism because both see human rights regimes springing forth from action by governments and private actors. Yet liberal republicanism differs from ideationalism because for the liberal republicans, there is no moral or altruistic impetus behind decision-makers’ actions. Rather, facing an uncertain political future, liberal republicans act out of self-preservation.7 By surrendering part of their sovereignty to an international body, governments seek to establish judicial constraints on future governments that do not respect human rights and thus may try to undermine national constitutional rule and any laws and bodies that are supposed to protect human rights. While liberal republicanism is also a plausible explanation for the origins of human rights treaties, it is doubtful if this theory applies to the origin of the African human rights system. If protection against future human rights violations was the

The Origin of the African HR System

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driving force behind the adoption of the African Charter then this is at variance with a Charter that defers to the members’ sovereignty, vividly illustrated by a weak African Commission and clawback clauses. Public choice theory provides with a possible reason for the origins of human rights treaties. Public choice theorists have challenged the public interest explanation for law and policy outcomes and, they have extended this to international law and organization. Both public choice theory and liberal republicanism see strategic utility in assigning the protection of human rights to an international body.8 Drawing out the public choice thesis further, at its core is the argument that there is very little difference (if any at all) between public and private decisionmakers. Individuals in the public sector take decisions based essentially on their private interests, so public choice theorists posit. Thus law and policy shaped by those who control the state apparatus, when properly analysed, can be explained as private interest decisions. For public choice theorists then, compromising state sovereignty by ratifying an international treaty and establishing an international organization tends to be the consequence of calculations by national decision-makers acting in their parochial interests. Public choice theorists posit a number of scenarios in support of their hypothesis. For instance international law and organization is in response to politicians’ desire to provide favors and that these favors are best supplied at the international level, instead of the national level, the latter being the usual site for policy-making. International law and organization also promotes camaraderie among politicians at the international level politicians and this protects them from criticism at the national level. Another advantage of international organizations is that they raise the cost of information to taxpayers and other politicians on account of their lack of transparency and lower levels of accountability as compared to national institutions. These traits make them ideal venues for agendas that

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national politicians want to execute without the constraints imposed by national interests seeking information and holding them to account for their actions.9 Although not the only explanation for the growth of international law and organization public choice theory does provide us with tools to inquire into why the African human rights system was created by governments that, traditionally, had very little respect for the rights of their citizens. This line of inquiry has not been followed in the literature as the general thrust of scholarship has been toward the African human rights system being created with the interests of the public at large, consistent with ideationalism and also with hegemonic theories. The Classical Interpretation of the Charter’s Origin The adoption of the African Charter marked the beginning of the regional development of human rights “norms and institutions”10 The importance of the African Charter was threefold: first it was indicative of the OAU’s departure from its rigid adherence to the concept of state sovereignty;11 second, it signaled that the promotion and protection of human rights in Africa was now an issue of regional concern; and third, it set the stage for the development of the African human rights system.12 According to the orthodox view, four factors explain the decision by the OAU to adopt the Charter; these are as follows: The election of Jimmy Carter as president of the United States in 1976 and his policy that U.S. aid was to be linked to a government’s human rights record.13 This foreign policy decision, it is argued, made African governments aware of the need for a regional human rights system as this system would guarantee U.S. economic and development assistance—assistance that was imperative for the economic transformation of the continent. A second reason in the literature for the adoption of the Charter is


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the impact of the following tyrannical African regimes: Uganda (under Idi Amin), the Central African Empire (under Emperor Bokassa), and Equatorial Guinea (under Macias Nguema). The view held is that these regimes were so brutal and embarrassing that Africa was “shamed” into adopting a human rights Charter in order to distance itself from these tyrants and so signal that Africa could live up to norms of the civilized world.14 Third, there is the invasion of Uganda by Tanzania in 1979. The Uganda-Tanzania war was the first time in Africa one OAU member had invaded another and overthrown the incumbent government. In the wake of this war there were calls for the OAU to adopt an African human rights charter.15 This was because some OAU members felt that Tanzania had decided to overthrow Amin because of the repressive nature of his rule.16 Thus, the Charter was to signify that the OAU was concerned about its Members’ human rights abuses with the hope that this concern would prevent similar conf licts.17 Fourth, as Edward Kannyo claims, there was the view that the OAU was the best medium for the resolution of African disputes.18 The argument in this regard is that as the OAU confronted Africa’s increasing political conf licts, many of which had implications for human rights, and as it supposedly gained experience in successfully resolving such political problems, it was essential that a human rights charter be adopted by the OAU to help reinforce its role in this regard.19 As noted above, our research challenges these assumptions and offers up for discussion alternative explanations for the adoption of the Charter. In doing so, we draw out the following research questions: Whether the human rights conditionalities of Carter’s presidency were a novel development in U.S foreign policy such that they set off measures that resulted in the adoption of the Charter. Based on available evidence, how rigidly did the Carter administration adhere to its own human rights agenda? What validity is there to the contention that the human rights abuses by Amin, Bokassa and Nguema

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were so unique that they served as a stimulus for the adoption of the Charter? Does the evidence really support the assertion that the Uganda-Tanzania war caused the OAU’s members to move away from their traditional positions on human rights in Africa? How accurate was it at the time to describe the OAU as the ideal forum for the resolution of disputes in general? After we have demonstrated how implausible these assumptions are we set out the hypothesis that underpins this chapter; that is the adoption of the African Charter was the result of a completely different and complex interplay of factors and interests in Africa at the time: These are the quest for legitimacy by African governments; the rise of an increasingly active civil society within the OAU’s member states; and the strategic role that international organizations play.

A Critique of the Received Assumptions on the Origin of the Charter The Role of U.S. Foreign Policy during the Carter Administration President Jimmy Carter’s commitment to civil and political rights is described and analyzed in a number of works.20 This commitment was underscored during his campaign for election to the U.S. presidency when he stated his intention to link development assistance to the respect for human rights.21 Upon assuming office the Carter administration created structures to advance its human rights and foreign policy agenda. It established the Bureau of Human Rights and Humanitarian Affairs (BHRHA) to monitor and help implement its human rights agenda. The BHRHA was used as a lobby for a stronger human rights stance. It drew its information from NGOs, area studies specialists, and also regular U.S. state department reports.22


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Given the importance of economic assistance from the United States to Africa if there was to be a set of human rights conditions linked to economic aid, then, surely, it was prudent statecraft for African rulers to review their customary positions on human rights positions that saw the protection of civil and political rights as secondary to national socioeconomic development.23 Thus, it was this potential loss of valuable economic assistance, at a time when African economies were beginning to implode, that, according to the orthodox position, was an incentive for the OAU to adopt the Charter. Those who stress the importance of Carter’s foreign policy justify their position by pointing out that it was only during the Carter administration that African governments began to undertake meaningful regional initiatives that resulted in the adoption of the Charter. Prior to Carter’s election African governments had not organized any of the meetings and seminars where the possibility of an African human rights charter was discussed. It was in 1979 that, according to the orthodox view, the Dakar meeting of OAU experts addressed the issue of a human rights charter.24 However, this impact of Carter’s foreign policy is correct only if we ignore the following: First, linking foreign assistance to respect for human rights had been mooted and implemented by the United States long before Carter was elected president without there being a response by the OAU in the form of a human rights charter. For instance, the 1961 Foreign Assistance Act (FAA)25 prohibited the President of the United States from providing development aid to any government that engaged in a consistent pattern of gross violations of internationally recognized human rights. The 1961 FAA focused on such human rights violations as torture or cruel, inhuman, or degrading treatment or punishment, the denial of the right to life, and security of the person.26 The U.S. Congress developed further links between human rights and foreign policy when it tied aid to human rights under

20


the 1973 Foreign Assistance Act (FAA).27 Section 32 of the 1973 FAA recommended that the president deny economic or military aid to governments that practice the internment or imprisonment of its citizens for political purposes.28 In 1974, an amendment to the 1973 FAA 29 expanded the scope of the president’s power to cut military and economic aid to governments engaged in a consistent pattern of gross violations of “internationally recognized human rights.” Under the 1975, International Development and Food Assistance Act 30 U.S. Congress again linked human rights to U.S. foreign policy31 and Congress did so once more under the International Security Assistance and Arms Export Control Act of 1976.32 Second, the impact of Carter’s election also fails to account for shifts in foreign policy after Carter had left office. U.S. foreign policy has evolved continuously through the interaction of various factors and institutions.33 Consequently, it is simplistic to assume continuity of foreign policy after an incumbent president has left office. Thus, we can only accept the significance of Carter’s election as president if we also agree that U.S. foreign policy under any post-Carter administration would remain constant for an indeterminate period of time and thus serve as an incentive not only for the adoption of the African Charter, but continuing respect for its provisions by the OAU’s members.34 A further f law in the role of Carter’s human rights conditions is exposed when we ask whether there was a real sense of urgency to create an African human rights regime in the wake of Carter being elected U.S. president. Were there increased interactions among African governments with the aim of reaching agreement on a human rights charter just after Carter’s election in 1976? If there was heightened activity in this regard then we can argue that Carter’s election served as a stimulus for adoption of the African Charter. However, the evidence does not support this: from the Law of Lagos in 1961 initiatives toward the adoption of the Charter were taken by the United

The Origin of the African HR System 35

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Nations (UN) and Nongovernmental Organizations (NGOs).36 Moreover, this activity was from 1961 to 1973—before Carter became U.S. president.37 Although some African states acting in their individual capacities suggested adoption of a human rights charter or a human rights commission there was still no collective action under the umbrella of the OAU.38 Thus, by the end of 1978, two years into the Carter administration, the OAU on its own volition had not organized any conferences or seminars on a human rights charter. Also, we must question the general presumption that the United States was a human rights hegemon; this is because in the absence of an African hegemonic power, supporters of the role of the Carter administration’s impact seem to want to assign the U.S. hegemonic status for the purpose of the African Charter. Donnelly argues that the United States played the role of human rights hegemon in creating the InterAmerican Commission on Human Rights.39 Pointing to the Inter-American human rights system, Donnelly states that the United States decided there was the need to create this system and, consequently, played a vital role in establishing it and continues to support its work. The role and presence of the United States is felt in the fact that although the United States is not a party to the Inter-American Convention on Human Rights, there is always a U.S. member of the Inter-American Commission and also a U.S. judge on the Inter-American Court. Also, the United States has repeatedly persuaded governments of the wisdom of cooperation with the investigations of the Inter-American Commission.40 However, the role of the United States as a human rights hegemon is not borne out by its history especially in the post–World War II era and there is very little evidence to show that the episode leading to the African Charter was any different. Some scholars doubt Donnelly’s assertions pointing to specific features of the Inter-American system to buttress their position. First they argue that the insertion of duties in the American Declaration of

22


the Rights and Duties of Man41 is not characteristic of the U.S. understanding of human rights.42 Second there is also the fact that the United States was against the right of petitions to the Inter-American Commission on Human Rights. Third there is a mixed record for the United States as a human rights hegemon. While the United States did impose its views on human rights onto the defeated powers after World War II, and the Universal Declaration on Human Rights (UDHR) did ref lect its liberal tradition by 1953 it had abandoned its leadership role when it withdrew its support of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and it was as a weakened hegemon that, during the Carter presidency, it signed the two Covenants but still failed to secure their ratification.43 Thus with its inconsistent record, very little evidence of a hegemonic role in the Americas, and only mild enthusiasm for the international bill of human rights after the UDHR was adopted, to presume the United States under Carter to be a hegemonic power insisting on the adoption of the African Charter is in our opinion, a seriously moot presumption. Furthermore, no matter how committed the Carter administration was to advancing human rights abroad, U.S. foreign policy was such that its national interest was paramount and advancing and defending this interest entailed sustaining its strategic relationships with other governments and containing the threat from a very aggressive Soviet Union at the time. Accordingly, the primary objective of U.S. foreign policy was its own survival and if this was to be at the expense of human rights then this compromise had to be made. We noted above the creation and role of the BHRHA as a core component of the link between human rights and U.S. foreign policy. However, despite this organizational initiative the BHRHA was pragmatic about its function. It did not construe its role as that of a threat to the existence of foreign governments. BHRHA staff were conscious of their limited impact;


23

the BHRHA conceded that it had been established to work with governments to improve the respect for human rights.44 Moreover, U.S. aid projects, especially the Public Law 480 programmes are essentially instituted to meet the basic needs of the poor. As a consequence, loans under this programme were made without a detailed evaluation of human rights practices in recipient states. Another issue that led to the gradual weakening of the Carter Administration’s commitment to linking human rights to foreign aid was the bureaucratic struggles that took place within the administration that resulted in a number of aid programmes being placed beyond the reach of human rights conditionalities. A range of programmes were exempted including military assistance programmes economic support funds, and the Department of Agriculture’s food programs.45 The role of the United States and any sanctions it might impose on tyrannical regimes does not take into account the fact that there were parts of Africa where the French and British inf luence was still significant and this would have vitiated the impact of any U.S. sanctions. In addition, at the time Carter was president of the United States, the three most tyrannical regimes, Uganda, the Central African Empire, and Equatorial Guinea had already been sanctioned by the international community and as a consequence further isolation and sanctions imposed on them were not going to open make much of a difference. Finally, even after the OAU had begun measures to draft the African Charter half way through the Carter administration, these early measures failed to yield agreement because, as Bello has observed, there was a lack of agreement on the concept of human rights, there was a preference for the status quo, i.e., no human rights charter, and in some instances there were deliberate attempts by some African governments to thwart progress.46 It is obvious therefore that as at 1980, even if there was any pressure on the OAU from the Carter administration to draft a human rights charter, it was not responding to such

24


pressure and, it was only in 1981, after Carter had been voted out of office, that the Charter was finally adopted. Challenging the Link between Africa’s Tyrannical Regimes and the Origin of the Banjul Charter Is there any evidence to support the view that the OAU adopted the African Charter because of the human rights atrocities committed by Amin, Bokassa, and Nguema? These rulers’ tyranny and the full horror of their regimes has been documented and exposed. By the end of Amin’s rule he had destroyed all respect for civil and political rights in Uganda with more than 100,000 dead.47 Nguema’s reign of terror was equally tyrannical with an estimated 50,000 people perishing at the hands of his security forces48 while at the end of Bokassa’s tenure as Emperor, hundreds had been killed on his orders.49 However, what calls into question the adoption of the Charter by the OAU as a response to the atrocities of these regimes is that the OAU never censured any of these dictators. This is because the OAU had neither the power nor moral authority to do so. The OAU actually elected Amin as its Chairman in 197550 this again being indicative of how the OAU saw a government’s human rights abuses—a matter that was of no concern to it. It was obvious therefore, that the OAU’s position was shaped by its stance on state sovereignty and the respect for its members’ internal affairs. Second, assigning importance to the impact of Amin, Bokassa, and Nguema discounts the equally serious human rights abuses that occurred long before these regimes. For instance, genocide took place in Rwanda where, from 1959 to 1963, approximately 20,000 people were killed by the Hutudominated government,51 and in Burundi, government militias carried out genocide in 1972 against the Hutu with as many as 200,000 people killed.52 Moreover, Bokassa’s human rights


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abuses were minor when compared with the state-sponsored genocide in Rwanda and Burundi. Therefore, if adoption of the Charter was motivated by the OAU’s desire to distance itself from tyrannical regimes, then we can argue here that given the seriousness of previous human rights atrocities, the OAU would probably have initiated its measures to protect individual rights much earlier than 1979. The Impact of the Uganda-Tanzania War The Uganda-Tanzania war is another reason that is supposed to explain the adoption of the Charter. As noted above, the presumption is that Tanzania had exploited the war to overthrow Amin and that Tanzania’s rational for this had been Amin’s human rights violations. The OAU discussed the Uganda-Tanzania war during its Sixteenth Summit meeting. The Sixteenth Summit adopted a Declaration urging all OAU members to sign the various international human rights instruments. It is this Declaration that is the supposed link between the Uganda-Tanzania war and the beginning of the movement toward the adoption of the Banjul Charter.53 This is because the Declaration was supposedly the start of the OAU acknowledging the importance of human rights. Arguments to link the Tanzania-Uganda war with the adoption of the Charter also rely on the agreement by the members at the Sixteenth Summit to examine and revise the OAU’s Charter and thus avoid similar crises in the future.54 This is taken to imply that given that human rights abuses were at the core of the Uganda-Tanzania war, there should be a commitment to include human rights provisions in the OAU Charter. However, we argue here that this is an incorrect interpretation of the Declaration adopted at the Sixteenth Summit. First, on its face, the Declaration’s import was in its declared role in the struggle against apartheid in South Africa. Thus, it was

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not really part of a new and progressive African human rights agenda in general.55 The Declaration noted that the OAU would strengthen its struggle to overturn the apartheid regime if its members demonstrated a willingness to respect the rights of their own citizens.56 In effect, the Declaration stressed that respect for human rights was a means to a particular political end, i.e., the end of apartheid and not necessarily for the human rights of the members’ citizens. In addition, from a reading of the positions and statements made during the Sixteenth Summit, the focus was more on collective security than the protection of human rights. What was of importance during the debates was the suggestion that the OAU create a pan-African military force to meet security threats on the continent.57 Another point to note is that while the Ugandan delegate from the new regime did accuse the OAU of failing to condemn Amin’s human rights abuses58 the OAU Chairman at the time instructed that those comments be struck off the record.59 This instruction is further evidence of the extremely tenuous, if not nonexistent link between the Uganda-Tanzania war and the African Charter. Moreover, members such as Sudan,60 Liberia,61 and Nigeria62 condemned Tanzania for what it had done. The thrust of this condemnation was the violation of Uganda’s territorial integrity in breach of Article 3 (2) of the OAU’s Charter. None of the governments present supported Tanzania’s invasion on the ground that it resulted in the liberation of Ugandans from Amin’s tyranny. A further claim we make to challenge the link between the Uganda-Tanzania war and the adoption of the African Charter is that there had been serious political tensions between the two countries ever since Amin overthrew Milton Obote’s government in 1971. Ideologically, both Nyerere and Obote were radical members of the OAU.63 Also, Obote’s overthrow had upset steps toward the further development of the East African Community, a political and economic project that was central to Nyerere’s foreign policy goals.64 In effect, Nyerere and


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Obote had forged a close political bond—a bond that was shattered because of Amin’s coup. So important was the relationship that Nyerere had frustrated early attempts by Amin’s representatives to participate in OAU meetings as part of efforts to deny the Amin government recognition as the government of Uganda.65 Thus, although Nyerere acknowledged Amin’s atrocities toward his people, his aim had not been to liberate the oppressed Ugandans.66 He had always been against Amin’s rule and the war provided him with an opportunity to overthrow him. Hence, while the official Tanzanian statement on the war noted Amin’s lack of respect for human rights,67 the statement also reiterated the point that the invasion was a direct response to Amin’s previous attack on Tanzanian territory.68 As noted earlier, the injunction to the OAU’s Members at the Sixteenth Summit, calling on them to assent to the various international human rights treaties is regarded as evidence of the new era for human rights in Africa. This call has been construed as the defining moment in the OAU’s paradigm shift away from acceptance of authoritarian and repressive regimes in Africa, toward a new paradigm built around the Charter. However, a close analysis of the pattern of human rights behavior after the Uganda-Tanzania war does not support any assertion of a move toward political liberalism and respect for human rights on the continent. By 1979, the year the draft of the African Charter was laid before the members of the OAU in Banjul, sixteen of its then forty-nine members had signed, ratified, or acceded to the ICCPR.69 This averages at approximately one African state signing, ratifying, or acceding to the ICCPR per year since it was opened for signature in 1966. Between the OAU Sixteenth Summit and the adoption of the African Charter in 1981, only the Central Africa Republic acceded to the ICCPR. In effect, the average number of signatures, ratifications and accessions, fell to below one OAU member per year. Even when we extend

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the pattern of behavior to 1986, (when the African Charter came into force) there was still no marked change. Between 1979 and 1986, nine OAU members signed, ratified, or acceded to the ICCPR;70 again, the rate of signature, ratification, or assent averaged at just less than one member per year. What happens if we analyze the pattern of behavior by the OAU’s members regarding the ICESCR? Is there a marked difference between the OAU members’ rates of assent to this human rights instrument after the Uganda-Tanzania war when compared with their rates of assent to the ICCPR? Given the view among the OAU members at the time that economic, social and cultural rights were just as important (if not more so) as civil and political rights, perhaps the Uganda-Tanzania war as a catalyst can be seen in the impact it had on the OAU’s members’ embrace of the ICESCR. By 1979, fifteen of the forty-nine OAU members had signed, ratified, or acceded to the ICESCR.71 Between 1980 and 1981, only one additional member had assented to the ICESCR.72 Again as was the case with the ICCPR, even if we stretch the period to cover 1979 to 1986 we see no marked change in the rate of assent to the ICESCR. As at 1986 only nine new African states had assented to this human rights instrument in effect the average was just below one member per year.73 Moreover, if the Uganda-Tanzania war was a response to Amin’s atrocities a consequence of his unbridled power, then our argument is that the African Charter’s provisions should have restrained the hand of the state to prevent a similar occurrence in the future. However, this did not happen: Rather, the drafters deliberately protected the interests and rights of the state. The African Charter’s clawback clauses, its confidentiality provisions,74 the concept of duties that impose obligations on the individual toward the state75 and even the question as to the binding effect of the Charter76 are indicative of the Charter’s deference to executive power of the OAU’s members.


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The OAU as a Forum for the Resolution of Inter-African Disputes The fourth assertion, that the OAU was the ideal forum for resolving disputes amongst its members and thus the Charter was to reinforce this role, also fails to stand up to critical scrutiny. To argue that the OAU resolved inter-African disputes, or even showed the potential to do so is to seriously overestimate its capabilities at the time. The OAU did have some successes in its early years by mediating in the resolution of some border conf licts and civil wars.77 However, after the euphoria of the early 1960s, the OAU gradually sank into decline. By the 1970s even the most casual observer would have realized that it was an increasingly irrelevant body, incapable of serving as a viable forum for dealing with the economic crises and political instability on the continent—two of its key objectives.78 One observer79 has argued that by the 1970s the OAU was limited to settling minor, personal disputes among African leaders.80 Its rigid adherence to the provision on noninterference in a member’s internal affairs, the paralysis caused by its lack of material to resolve disputes;81 its design at inception which was intended to weaken it at birth;82 and its alleged connivance with “external forces” that, supposedly, wanted to subvert the OAU itself,83 have all been used to explain its irrelevance at the time. Thus the OAU failed to provide the political leadership that the continent needed. For instance, as at the time of the adoption of the Charter the OAU had done very little to peacefully resolve conf licts such as those in the now Democratic Republic of the Congo, Nigeria, Chad,84and the Sudan. These wars continue as at writing (Sudan, Chad, and the Democratic Republic of the Congo) or they ended with one side defeating the other (Nigeria). Given its record therefore the assertion that the OAU was a forum for the resolution of any issues at all is untenable. In addition, the OAU had no history of resolving individual human

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rights issues. If there were any human rights consequences to its few successful dispute resolution efforts, these were incidental to any measures it adopted. The OAU was always an organization that was “a trade union for African heads of state.” It sought to provide security for the state at the expense of individual civil and political liberties. As such, individual human rights were never an issue of concern for the OAU right from its creation in 1963. Even the appearance of respect for constitutionalism, to the extent that this implied concern for human rights, was dispensed with when it dissolved its Commission of Jurists without this organ ever having met.85 To sum up, it is these obvious f laws in the widely accepted arguments for the Charter’s origins that call for a more rigorous examination of alternative explanations as to why this human rights instrument came into existence as the primary document of the African human rights system. There are three probable causes that we believe merit discussion: these are the legitimacy crises African states faced, the emergence and activism of NGOs in Africa, and the strategic role that international regimes can play. The Crisis of Legitimacy as an Explanation for the Origin of the African Charter Legitimacy is the capacity of a political system to engender and maintain the belief that existing political institutions are the most appropriate and proper ones for the society. Among the definitions of legitimacy includes the role of the state as provider of basic needs. The rulers of a state are thus responsible for providing basic needs in exchange for compliance by the citizenry with their laws and also support for state structures and institutions.86 Economic growth and development were the primary goals of the postcolonial state in Africa.87 The newly independent African states had to meet the rising expectations


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of their citizens through the creation of employment opportunities infrastructure development and the satisfaction of basic needs.88 It was this objective that rationalized the emergence of postcolonial regimes in Africa with their focus on economic and social rights over civil and political liberties. The argument by African governments at the time was that in exchange for civil and political liberties, the state would accelerate the process of economic growth and development and so pull the continent out of its poverty.89 Thus, legitimacy in the view of postcolonial African leaders implied development accomplishments and improvements in the socioeconomic welfare of their peoples.90 For a brief period, the African state managed to sustain its legitimacy through improved access to health care and education. However, general economic mismanagement in Africa91 resulted in serious economic decline on the continent. The consequence of this was that the state could no longer uphold its part of the postcolonial compact between itself on the one hand and its citizens on the other. This failure resulted in the increased use of force to remove incumbent governments or heads of state. This is the thesis advanced by McGowan and Johnson in their study of the link between underdevelopment and coups in Africa.92 McGowan and Johnson argue that military interventions occurred when the state in Africa failed to meet the economic aspirations of its people. McGowan and Johnson’s thesis is that persistent economic underdevelopment explains the tendency for the military to intervene in domestic political affairs. The nature of underdeveloped economies, their dependence on one or two export commodities for crucial foreign exchange, low returns from labor-intensive production of primary products, and the terms on which they have been integrated into the world economy induce a general pattern of economic stagnation that results in widespread social unrest. McGowan and Johnson point to the rise in the incidence of coups at a time

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when African economies had imploded as support for their hypothesis that an interface exists between economic crises and the tendency for the army to question the claims laid to legitimacy by African governments.93 The following facts support the McGowan-Johnson thesis: The military in Africa staged three successful coups in 1965,94 seven coups in 1966,95 three in 1967,96 three in 1968,97 and four in 1969.98 There were no coups in 1970, only one successful coup in 197199, two in 1972,100 and one in 1973.101 By 1974 though, the incidence of successful coups was again on the rise. With the exception of 1976102 when there was only one coup, in 1974, there were three coups103; in 1975, there were three coups104, there were two coups in 1977,105 three coups in 1978,106 five coups in 1979,107 and five coups in 1980.108 In effect, the use of force to remove governments in Africa that seemed to have abated between 1970 and 1973 had returned with increasing intensity. However, if regime insecurity was a primary incentive for African governments to legitimize their rule through a commitment to individual civil and political rights, why was the Charter not adopted in the 1960s when there was an average of 4 coups a year between 1965 and 1969? Institutionalist theory offers a good explanation for this. Institutions change gradually; defined as the formal and informal rules that structure human interactions and their enforcement characteristics, institutional change is hardly dramatic. Douglass North has set out explanations for institutional persistence. He asserts that institutions are a ref lection of the power of more inf luential actors in society; they have the strength to make or amend the rules. Thus the benefits of authoritarian rule that accrued to dominant actors made rapid institutional change difficult. And therefore this made the move toward the Charter gradual instead of a sudden and rapid episode.109 Institutions are path dependent, as historical institutionalists argue, paralysed in their development by social forces that have a stake in maintaining the status quo.


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Returning to the McGowan-Johnson hypothesis as the basis for our arguments the question then is how could the state in Africa respond to this increasing military challenge to its authority based on the perceived illegitimacy of its governments? Our answer is that this was through a reinterpretation of the state’s claim to legitimacy. As noted above, legitimacy had emphasised economic growth and development. Having failed to deliver this and with its political consequences, African governments began the process of redefining legitimacy to mean respect for civil and political liberties. If governments created institutions to uphold this new definition of legitimacy, this would help stave off threats to their increasingly tenuous hold on power. The Underestimated Role of NGOs in the Origin of the African Charter Research on the role of NGOs in the adoption of the Charter has varied in its interpretation of the impact that these actors had. The standard view is that NGOs had virtually no impact on this process. Another view though, acknowledges the pressure NGOs exerted on African governments. However, those who hold this second opinion have not explained why African governments responded to pressure from NGOs. In effect, this second view just describes what NGOs did without explaining why they had any impact at all. In our opinion, both positions paint an incomplete picture of the role and impact of NGOs in the origin of the African human rights system. Our argument then challenges the orthodox position on the role of NGOs and elaborates on the second position on the impact of NGOs. We argue here that NGOs actually had a more profound inf luence than has been assumed and that the Charter can be explained in part as compromise between

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African governments on the one hand and an emerging class of NGO activists committed to human rights on the other. Scholars who claim that NGOs had very little impact point to the virtual weak nature of NGOs in Africa at the time as an explanation for this. The analysis by Harry Scoble illuminates this point.110 Scoble states that the extremely high level of poverty in Africa, the structure and subdivisions in African society, and the blatant hostility of African governments to NGOs all serve to explain why they were excluded from participating in the drafting of the Charter.111 In another vein, Emmanuel Bello has described in considerable detail the process by which NGOs promoted the idea of an African human rights charter.112 However, his description fails to offer up a sufficient explanation for why the OAU responded to NGO pressure. One point overlooked in discussions on the role of NGOs in the adoption of the Charter is that NGOs were very active at the national level before the OAU began measures culminating in the Charter. This is not intended to overturn completely, Scoble’s assertion on why they were excluded from the drafting of the Charter. What it does seek to achieve however, is to assert that Scoble’s focus on their role at the international level does not paint a complete picture. Second, by incorporating the role of NGOs at the national level into our explanation for the emergence of the African system, we set the stage for the development of the argument in our research that the African human rights system at the regional level cannot be detached from developments within the jurisdiction of the members of the OAU. Although human rights violations in Africa continued throughout the 1960s and 1970s, this should not be construed to mean that NGOs were passive observers of such practices. On the contrary, they consistently argued for greater recognition of human rights and the institutionalization of constitutional rule as a guarantee of respect for civil and political liberties. The political history of states such as Benin,113 Ghana,114 Liberia,115

The Origin of the African HR System 116

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117

Niger, and Nigeria, were all marked by robust NGO activism in pursuit of a human rights agenda.. Thus while there might not have been that much activism at the regional level for the respect for human rights through the adoption of a regional human rights charter, there was a considerably vocal movement across a number of states at the national level. Thus, as I argue below the Charter can be interpreted as a calculated response to the sociopolitical activism of NGOs within the various member states of the OAU.

The Strategic Role of the African Charter In responding to pressure from NGOs and as a means of staving off the numerous coups, one line of action open to African governments was to adopt a regional human rights charter as evidence of their commitment to civil and political liberties and so help enhance their legitimacy. However, why a regional human rights charter? Why not reforms by governments at the national level that would include constitutional rule, civil and political liberties and an impartial judiciary, all of which do contribute to the protection of human rights and which would appease civil society and the military? A plausible answer lies in Roland Vaubel’s analysis of the rational for international organisations. Vaubel’s “dirty work” hypothesis has implications for understanding the decision to draft and adopt the Banjul Charter. Before going any further however, we must assert here the important roles international organisations play and we dissect these roles in relation to human rights in the latter part of our study. Notwithstanding their positive contributions, Vaubel has argued that when national governments are reluctant to implement policies at the national level that, in their view would harm them, they shift responsibility to international institutions.118 In addition, Vaubel argues that governments tend to adopt international

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agreements because it is in their parochial interest to do so and not because of some notion of the public good.119 Vaubel also notes that the mutual approval of each other’s policies agreed or deliberated under the umbrella of an international organization helps to stif le criticism from competing politicians at home.120 What serves as stimulus or incentive in this regard is political pressure from cohesive and well-organized national factions or interests.121 Vaubel thus challenges the classical rationale that international institutions exist to promote the public interest. The essence of our argument then is that it is possible to interpret the origin of the African human rights system as a convenient escape mechanism for national elites threatened by challenges from the military and pressure from a nascent civil society. In effect, the African Charter was a strategic move designed to stave off challenges to the hegemony of Africa’s ruling elites.122 Conclusion Where do institutions come from and why do they emerge at particular times? These are some of the key questions that institutionalists have asked. Defined as rules that shape human interactions123 institutions emerge in response to social, political, or economic change. In this vein, we have endeavored to place the origins of the Charter in a context and as a response to sociopolitical forces that is broader than the relatively narrower framework of the early writings on the topic. We should note here that it has not been our intention to dismiss completely public interest motives for the adoption of the African Charter. In addition, we do not assert that the arguments we have outlined exhaust the interpretation of the Charter as a strategic move by the OAU’s members. All that we have done is to initiate new lines of research and thus, open up for discussion the origins of the African Charter and by extension, the African human rights system as a whole.

CH A P T E R

T WO

The African Commission and the Rewriting of the African Charter

Right from its formative stages the African Commission indicated that it would act as most organizations do; it would expand its turf.1 By unshackling itself from the strictures of the African Charter, it has created a setting in which it has been free to construe the Charter on lines it deems appropriate. This line of action is consistent with the public choice thesis that bureaucracies habitually expand and defend their turf. The Commission’s early initiatives signaled its intentions to play a more active role in the development of the African Charter when it sought and gained authority from the OAU Assembly of Heads of State and Government (AHSG) to receive and examine Article 62 state reports, and issue concluding observations. The Commission found it difficult to see which other organ of the OAU could accomplish this task and it thus concluded that it was the ideal organ to act in this capacity. The Commission’s concerns and request stemmed from the fact that the African Charter made no mention of the body or person to receive Article 62 reports. This gap led to questions as to whether reports should be submitted to a body of independent experts, or representatives of the state parties, possibly the AHSG or the OAU Council of Ministers.

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Allowing the representatives of the states parties to receive reports under Article 62 would most probably have compromised the reporting system. In addition, denying this responsibility to the African Commission would have called into question the African Commission’s relevance. If the Commission is to protect and promote human rights then surely it should be mandated to play a role in ascertaining whether its Charter functions yield dividends. On the contrary, to allow a political body lacking independence to perform this role, or to allow the AHSG or Council of Ministers to sit in judgement on its own human rights practices would have undermined the benefits of state reporting and, as a result, the role of the African Commission.2 Thus in order to expand its range of functions and defend its reputation as a relevant human rights body at its third session, the Commission adopted a resolution requesting the AHSG to entrust it with the task of reviewing state reports. Responding to this request, the AHSG assigned responsibility to the Commission to examine state reports and to give the state parties general guidelines on the form and content of the periodic reports.3. This expansionist behavior enabled the Commission confront what is arguably, the most serious issue facing the African Charter and forms the core issue of our analysis in this chapter: the issue of the African Charter’s clawback clauses; the language in the Charter that allows the state parties to take back the rights granted at the regional level if they collide with their domestic laws. The seriousness of these provisions was that so many of the parties were under authoritarian rule with very weak constitutional orders that made very little room for civil and political rights. Thus, making the protection of human rights subject to laws that were designed to suppress human rights made a practical mockery of the African Charter. Considerable intellectual capital has been invested in describing and analyzing the details of the Commission’s rulings on

Rewriting of the African Charter 39 4 communications before it. Stemming from this, our task therefore is not to revisit into too much detail the Commission’s decisions on clawback clauses; instead, we attempt to explain the changes drawing from the well of institutionalist literature that, we argue, can account for the dynamism (and in instances the static nature) of legal orders. First however, we should note that this dynamic treaty interpretation is indicative of a move by the African Commission away from formalism to realism in the interpretation of the African Charter.5 Formalism essentially sees judicial decision-makers applying distinct doctrines, in this case statist conceptions of human rights as enunciated in the African Charter, to advance a particular social purpose. While the Charter was a strategic move to ensure regime survival, as we saw in chapter one, and thus was held out as a concession to demands for more liberal forms of government, reading its text suggests that the Charter also played a specific sociopolitical purpose. The Charter’s preamble tells us that the drafters took into account the virtues and values of African civilization as their inspirational norms; and the text leads to the conclusion that the state and society have rights as enunciated in the clawback clauses and the rights-duty concept.6 A formalist interpretation of the Charter would have seen the Commission being mechanical in deducing what the law was, detached from any wider social context. This is because in essence, a formalist approach tells the audience what the law is based on the legal text before the decision-maker.7 It is doubtful, however, if the Commission has ever embraced formalism save, perhaps in instance where it finds itself unable to adopt any other methods of interpretation.8 What the Commission has done is adopt a realist approach in its interpretation of the Charter. The realist jurist decides explores gaps in the text of the law to produce outcomes that are the antithesis of the formalist judge. The realist exploits discretion available to him to drive home his conception of the law; he sees the law as

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an instrument, a tool in his hands to overcome problems or achieve a particular set of goals.9 The Clawback Clauses and the African Human Rights System Rosalyn Higgins has defined clawback clauses as those clauses that permit in normal circumstances the breach of an obligation for a specified number of public reasons.10 Clawback clauses are distinct from the other type of restrictions that she highlights, derogation clauses. Derogation clauses, she asserts, are those that permit the suspension or violation of particular obligations in circumstances of war or public emergency. Both clawback clauses and derogation provisions, she notes, are methods of accommodation in treaties that allow for a broad range of possibilities.11 The accommodation being sought through the use of clawback clauses is not between the state on the one hand and the individual on the other; rather it is between the rights of the individual under a treaty and the freedoms of the community as a whole.12 The implications that clawback clauses have for civil and political rights are made clear by comparing them with derogation clauses. The Human Rights Committee (HRC) of the ICCPR adopted a General Comment on derogations from human rights obligations.13 In its General Comment the HRC has noted that derogations must be exceptional and of a temporary nature. Moreover, prior to invoking derogations, two essential conditions must be met: first the situation must amount to a public emergency that threatens the life of the nation, and second, the state party must have officially proclaimed a state of emergency.14 After these conditions have been met, and the public emergency abates, then the state invoking derogations must take measures necessary to reembrace its treaty obligations.15

Rewriting of the African Charter

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The HRC has also delineated parameters within which parties to the ICCPR must operate when derogating from their human rights obligations. For instance, any derogation must be of an exceptional and temporary nature and also can only be taken in the event of a national public emergency which threatens the life of the nation. In addition, the state taking the derogation must have officially proclaimed a state of emergency.16 Furthermore, the HRC has noted that not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation.17 An additional safeguard on the use of derogations is that resort to them is subject to an international or supranational management process. The HRC has enunciated the position that a state party availing itself of derogations is under an obligation to immediately inform other states parties to the ICCPR, through the UN Secretary-General, of the provisions it has derogated from and of the reasons for such measures. Notification of the taking of derogations plays two functions: first it is necessary to enable the HRC assess whether the derogation being taken is strictly required by the demands of the situation. Second, notification is necessary to enable other states parties to monitor compliance with the provisions of the ICCPR. The HRC General Comment also states that notifications should include full information about the measures taken and a clear explanation of the reasons for them.18 Clawback clauses are not subject to international or supranational control; on the contrary, they give way to national legislation when the two clash in a human rights instrument. It is this deference to national legislation that makes clawback clauses more suitable for regimes wary of conceding human rights to their citizens. Hence, the African Charter’s clawback clauses make no mention of involving the African Commission in notification and monitoring when rights guaranteed under the African Charter, are restricted. Also, the clawback clauses do not require a public emergency to be declared before they take effect.

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The clawback clauses under the Charter are therefore not triggered by situations that threaten the life of the nation: Instead, they came into force from the moment the human rights treaty containing them also came into and, presumably, they were expected to remain in force until the state parties decided to delete them through the revision of the treaty or the repeal of the entire treaty regime.. Contrasting derogation clauses with clawback clauses therefore, we see that the latter are more open to abuse because they allow the state greater discretion to restrict civil and political rights. The insertion of clawback clauses was indicative of the drafters’ reluctance to concede too much to individuals by way of human rights modeled on Western liberal notions. Richard Gittleman probably captured the essence of concerns about the Charter’s clawback clauses when he noted that: The African Charter is woefully deficient with regard to the right to liberty. As that right is subject to national law, the Charter is incapable of supplying even a scintilla of external restraint upon a government’s powers to create laws contrary to the spirit of the rights granted. Even the African Commission’s ability to provide some external restraint in situations where a governmental activity contravenes a national law is highly questionable. Without precise legal guidelines the Commission will be severely handicapped in dealing with such situations.19

While the concerns about the impact of clawback clauses were real at the time, we argue that ref lection upon the decisions of the African Commission indicate that it has disregarded the strictures of the clawback clauses in its interpretation of the Charter’s provisions. In a series of decisions, the African Commission has progressively eroded the threat to human rights posed by clawback clauses. As noted above, it is not our intention to revisit in great detail the facts and recommendations the African Commission’s anti-clawback jurisprudence. However, a few decisions are needed to illustrate the direction


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it is taking the Charter in particular and, as a consequence, the African system as a whole. In Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria,20 the complainants alleged that decrees issued by the Nigerian military government violated the rights of Nigerians to receive information and to express and disseminate their opinions under Article 9 (2) of the African Charter.21 The African Commission, responding to the arguments submitted by the Nigerian government, accepted that the African Charter permits state parties to restrict Article 9 (2) rights.22 The Commission did note however, that to allow national law to take precedence over international law would defeat the purpose of codifying certain rights in international law and indeed, the whole essence of treaty making.23 The Commission noted further that what set apart the African Charter from other international human rights instruments is that it has no derogation clauses and that the only legitimate reasons for placing limits on the rights and freedoms of the Charter can be found in Article 27 (2), which provides that the rights of the Charter shall be exercised with due regard to the duties in the Charter.24 Following on from this, the Commission stated that any limitations on the Charter’s rights had to be strictly proportionate to the situation at hand. Of paramount importance was that limitations imposed by parties could not erode a right to the extent that the right is rendered illusory.25 In the Commission’s opinion, the government of Nigeria had submitted no concrete evidence that the proscription was pursuant to the duties set out in Article 27 (2) as it had failed to prove that banning of the newspapers was for any reason but because they had criticized the government. If the newspapers had been guilty of libel, for example, they could have been individually sued and called upon to defend themselves. Nigeria had failed to provide any substantive evidence that the newspapers continued existence posed a threat to national security or public order.26

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Thus it did seem to the Commission that the law being challenged was targeted at the newspaper in question and this raised the serious danger of discrimination and lack of equal treatment before the law, guaranteed by Article 3 of the Charter. The proscription of these publications could not therefore be said to be within the law, as allowed by the Charter’s clawback clauses and constituted a violation of the rights in Article 9 (2) of the Charter.27 The Commission has expanded its attack on clawback clauses to include not just that they do not provide a blanket override of the rights in the Charter but that in denying civil and political rights on the grounds that state action is justified because it is within the “limits of the law” the parties to the Charter are under an obligation to follow rules of natural justice. Thus in falling back on clawback clauses as a defense, parties to the Charter must carry the burden of proving that they have not been arbitrary in their use of the same. This interpretation of the parties’ obligations was set out in Amnesty International v Zambia.28 In this communication it was submitted that the Zambian government had deported two persons alleging that they were not Zambian citizens and that their presence in Zambia was a threat to good order, peace and security.29 In finding this action to be in breach of its Charter obligations the Commission was of the view that such a deportation order had to be in accordance with the rules of natural justice. In the Commission’s opinion, the Zambian Court that had failed to examine the basis for the administrative decision that formed the grounds of the deportation order and thus this failure was a violation of the audi alterm partem rule. The Commission cautioned against a too easy resort to the clawback clauses in the Charter and stated that state parties had to shoulder the burden of proof whenever they relied on clawback clauses as a defense for the violation of their Charter obligations.30 The Commission continued its shredding of the Charter’s clawback clauses by denying the state parties the right to rely


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on ouster clauses in national legislation as a valid defense against allegations the abuse of civil and political rights. In Civil Liberties Organisation v Nigeria31 the Commission examined Nigerian military decrees that ousted the jurisdiction of the Nigerian courts from reviewing the validity of military decrees. The Commission stated that the ouster clauses are an attack of incalculable proportions on Article 7.32 An attack of this sort, the Commission further opined, is especially invidious because while it is a violation of human rights in itself, it permits other violation of rights to go unredressed.33 We also point out that the Commission in its decision in Commission Nationale des Droits l’Homme et des Libertes v Chad34 seemed to close off all clawback clause defenses. In this communication, the government of Chad sough to justify its violation of Articles 4, 5, 6, 7, and 10 of the African Charter on the grounds that Chad was in a state of civil war and this thus was a valid defense of its actions. The Commission noted that as the Charter had no derogation clauses, then even an emergency situation such as civil war does not justify violation of the Charter’s provisions.35 Thus it would seem that the Commission will brook no breach of any of the rights in the Charter even in the most extreme of circumstances. In the wake of the direction the interpretation of the clawback clauses has taken, we must ask ourselves what accounts for the dynamism of the Commission leading it to effectively destroy the original intention of the drafters of the Charter? Furthermore, how has it been able to do so without any adverse reaction by the OAU and its successor the AU? First, with hindsight, it was myopic for the drafters of the Charter to presume that the Commissioners would forever act as if they were atomistic actors, disconnected from their wider society, and owing allegiance only to their principals; their principals being— members of what was the OAU at the time. Such a presumption would see the Commission upholding the state-centric conception of the African system and therefore construing

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narrowly the Charter’s clawback clauses so as to give effect to them as expected by the drafters of the African Charter. This presumption failed to take into account of world systems theory as a construct that explains the shaping of decision-makers and how the organizations they run function. World systems theory of international relations sees international relations as being about a society of states, and not about interstate conf licts in a hostile world as the realist theory of international relations presupposes. Driving this world society of states is the discourse and exchange of ideas between various groups and social orders across the globe. Actors are motivated to legitimize themselves and their organizations by adopting “universalistic models” of international law.36 Actors in the world systems model are states given that they are the paramount participants in international relations. Other world systems actors are “moral entrepreneurs” such as individuals and international organizations.37 One facet of world systems theory is that gives very little space for peculiarities of the system on any grounds save very general cultural grounds.38 Thus in world systems theory actors embedded in a social structure are drawn toward analogous patterns of behavior as they embrace mutual norms. The actors are therefore driven by a “logic of appropriateness,” copying each other in their quest to appear appropriate within their shared context of social relationships. World systems theory is a plausible explanation for the attack on the clawback clauses by the African Commission. Guided by Article 60 of the Charter which calls on the Commission to be inspired by other human rights systems, the destruction of the clawback clauses represents the insertion of the African system into a matrix of human rights institutions that are free of clawback clauses. Exposure to a different set of institutions encourages decision-makers to challenge existing rules and practices. This, we should note here however, does not mean institutional transfers from one human rights system to another are easy; they can be made very complex and difficult


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to achieve as vested interests need to be reconciled with the reception of external norms. Notwithstanding any existing or potential obstacles, in developing its anticlawback jurisprudence, the African Commission has been guided by the European Convention on Human Rights (ECHR) and the ICESCR. Although we only highlight a few examples here, numerous examples abound in the Commission’s case law. In Antoine Bissangou v Republic of Congo39 the Commission drew inspiration from the ICCPR asserting that citizens were entitle to equality before the law.40 In Article 19 v Eritrea41 the Commission referred to a HRC decision to support its ruling that the government of Eritrea’s arrest and detention of a number of journalists and political opponents was a violation of Articles 6 and 7 of the African Charter.42 In The Social and Economic Rights Action Centre and Centre for Economic and Social Rights v Nigeria,43 the African Commission was guided by the jurisprudence of the European Court of Human Rights in its decision that the authorities in Nigeria had obligations to their citizens based on Article 27 of the African Charter. In addition, the African Commission drew on the General Comment of the Committee on Economic, Social and Cultural Rights, established under the ICESCR, to place an obligation on the Nigerian government to avoid forced evictions of its citizens without providing access to appropriate forms of legal or other protection.44 Thus our argument is that the Commission, inspired by the ECHR and the ICCPR, continues to reject clawback clauses as a defense for the violation of the rights that form the basis of the African human rights system as these clauses have no place in the world system of human rights laws. Second, we noted in chapter one that one component of institutionalist theory is sociological institutionalism and we also stated that in essence a sociological understanding of how institutions emerge and are shaped requires going beyond the narrow confines of rational choice institutionalism. We must acknowledge here too that in our examination of sociological

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institutionalism, there is a similarity with this approach and world systems theory as both see a wider social dimension to the emergence and evolution of institutions. However, sociological institutionalism differs from world systems theory because on its face decision-makers use institutions to express their preferences instead of being submerged in external institutions, as is the case with world systems theory. Preferences under sociological institutionalism can be formed by immersion of decision-makers into a world system of human rights but they can also be formed, for example, by a particular decision-maker’s preferences that are detached from external institutions.45 It is plausible therefore to argue that the erosion of the clawback clauses is an outcome of the preferences of the members of the Commission.46 Another explanation for the Commission’s gutting of the Charter’s clawback clauses can be derived from the principalagent dilemmas that states must confront in their decisions to establish international organizations. The two key elements of the principal-agent model as it has been applied to the bureaucracy are goal conf lict and information asymmetry. Because there is goal conf lict between principals and agents, the latter are inclined to avoid their obligations to their principals and information asymmetry allows bureaucrats to be unresponsive to agents. The principal-agent model originated as a means to understand contractual and hierarchical relations. In the principal-agent model information is costly. Furthermore, as the agent tends to have more expertise than the principal, the agent need not necessarily keep faith with the law he is supposed to execute. We argue that the ability of the African Commission to engage in judicial activism is a consequence of principal-agent dilemmas that emerge in the relationship between states on the one hand and the international organizations they create on the other. The dilemmas in our instance are that of monitoring and asymmetric information.47


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How do principal-agent dilemmas help us understand the way the African Commission has treated the Charter’s clawback clauses? Even if the AU is aware of the dilemma thrown up in its relationship with the Commission, overcoming this difficulty is a rather complex undertaking. For the AU to maintain tight control over the Commission and so compel its fidelity to the original tenets of the Charter will require continuous monitoring of the latter’s decisions. However, the distance between the Commission and the AU makes close observation of it extremely difficult so that this shortcoming of oversight compounds the issue of agency dilemma and enhances the opportunity of agents to substitute their principals’ preferences with theirs. Moreover, any measures to rein in the Commission will have to confront its near monopoly over human rights information. A monopoly over human rights information strengthens the African Commission’s persistence and durability. By minimizing or suppressing information unfavorable to their own performance or abilities and exaggerating information that is favorable to them, agents submit optimistic reports about their own capabilities. Drawing this point out further, the African Commission has control over information and expertise in the field of human rights. It is tasked with human rights promotion and protection as its two specialized functions and its specialized technical knowledge, training, and experience are not immediately available to other actors, especially those that are in the AU system.48 This knowledge has two roles: it helps the Commission carry out its mandate, and it also gives it some power over politicians and other actors in the African human rights system. Therefore any fundamental reform of the African system to prevent the Commission from its progressive rewriting of the African Charter will probably have to rely on the views and inputs of the target of the reform process, the Commission itself. In this vein, the Commission will, most probably, act to present

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information that ensures it and the human rights system it seeks to craft remain intact.49 Also, rational ignorance tends to make control of international organizations extremely difficult. Gathering information can be a costly undertaking. Therefore it is possible that it may cost more to acquire information than the benefits such information will confer. Time and effort expended to force a rewriting of the Charter could be spent by policy makers in the AU countries or the AU itself, on other pressing issues. Hence unless there is the conviction that the benefits of acquiring information far outweigh the costs, it is rational to remain ignorant. The theory of rational ignorance therefore enables us to understand the political behavior of an agent’s principals including why the latter avoid or fail to tackle agency dilemmas. Principals might not invest the time needed to overcome rational ignorance if they are convinced that their actions will make no or very little difference while they might be forced to bear considerable costs.50 Agency dilemmas are further complicated by the procedures required to amend the African Charter and, so if desired, reverse the Commission’s interpretation of the clawback clauses. Article 68 of the Charter sets out the amendment procedures. To secure an amendment, a state party is required to make a written request to the AU Secretary-General and the AHSG can consider the request only after all the state parties have been informed of the proposed amendment and the African Commission has also rendered its opinion on the matter at the request of the state sponsoring the amendment. Amendments are to come into force three months after a simple majority vote in favor of the same.51 The inference from this procedure is that revising the Charter and stressing that the Commission should stick to construing the clawback clauses in their original form are rather convoluted and cannot be accomplished at the whim of the AU’s members. Through an intricate set of procedures on two-levels and involving multiple actors, the


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provisions of the AU’s Constitutive Act (and before that the OAU Charter) raises the costs associated with any attempts to compel the Commission to adopt an original approach to construing the clawback clauses. In effect we can argue here that the structure of treaty revision induces stability thus making reversal of any decisions by the Commission very costly if not impossible.52 Furthermore, the collegial nature of Commission decisions reinforces principal-agent dilemmas as this method of decision making denies the ability of nationals to seek to control the Commission through their own oversight.53 The African Commission’s decisions rarely contain individual or dissenting opinions.54 With collective decisions, even if members of the AU so chose, they cannot hold their nationals on the Commission accountable for decisions it has rendered. As a human rights treaty becomes stronger with the actors responsible for interpreting it taking expansive views of its provisions, there is the possibility that the states parties will become increasingly concerned about this development especially if the parties are governments with very little regard for human rights. The cost of a strong human rights treaty reverberates at the domestic level. There are political costs associated with protecting individual liberties as governments are under an obligation to change their national laws and thus bring them into conformity with international human rights standards. Strong national human rights laws limit the range of actions that a government can take in response to pressing social problems. The fact that states differ in their approaches to resolving national problems, approaches that may have consequences for individual liberties is why they design human rights treaties that allow leeway for government action that may implicate their protection of the liberties that a given human rights treaty seeks to protect.55 Thus the more legalistic a human rights treaty is the greater the likelihood of its denunciation by those states

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that believe too deep a degree of legalization is not conducive to the pursuit of national policy goals. However, whether a state exercises the option of withdrawal usually depends on a number of factors including the damage to its reputation and the credibility of its commitment to future treaty obligations. Interestingly however, none of the members have withdrawn from the Charter in response to the Commission’s dynamism.56 In actual fact the state parties to the African Charter have remained committed to human rights and have played the key role in the system fragmentation that we examine in a later chapter. Moreover, the features of these new systems tend to be free of clawback clauses that compounded the system’s early development. It would thus seem to us that the states parties agree with the Commission’s activism. In addition treaty exit would be burdensome for the members. First, the African Charter contains no exit provisions of its own. Presumably then, members would have to exit the AU as a body. If this line of action is followed, a member that ceased to be party to the AU would be denied the benefits of membership including loss of voice in African affairs and the denial of positions to their members in the myriad of African regional organizations. As the AU seeks to assert itself and increase its importance exit from the treaty system could hinder the development of any members that choose this line of action.57 Second, treaty exit will not mean that the member doing so will be free of human rights pressures of the kind emanating from the African Commission. For example African states belong to a variety of human rights bodies including the ICCPR.58 As noted above, the HRC of the ICCPR has made clear its position on clawback clauses and this position differs very little from the position being enunciated by the African Commission. Thus avoiding obligations under the African Charter would not mean similar obligations would not exist elsewhere. Moreover, treaty denunciation would invariably


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attract attention to the state that does so, in effect making it the object and concern of global actors keen to see human rights being protected. Such observation would most probably entail holding up the state in question to stricter human rights obligations. Third, there is the loss of reputation that is associated with treaty exit. In the absence of world government, states comply with their obligations because they seek to enhance their reputation for compliance with legal rules. States are managed by rational, self-interested actors and this class of persons is able to identify and pursue their interests on the international plane. Strictly speaking then, based on this conception states should have no inclination to comply with international law.59 However, states that honor obligations gain reputational capital. Reputations can be important for engaging in international intercourse, securing human rights related assistance and even ensuring regime survival.60 Thus exiting the African Charter can damage a state’s reputation resulting in negative consequences for it. Therefore we can cautiously conclude here that exit from the African Charter on account of the Commission’s dynamism is not an option seriously considered by the parties to the Charter. What could serve as a means of treaty exit without going through the above procedures is noncompliance with the Commission’s decisions. This is a relatively easy option given the Commission’s lack of power to enforce its decisions. However, available evidence from a study of compliance and noncompliance with the Commission’s decisions reveal that outright and deliberate noncompliance is hardly the norm. However, it would seem that even this line of action has not been pursued by parties found to be in violation of the Charter. In practice there is very little evidence of deliberate noncompliance by parties. Available evidence on compliance with the African Commission’s decisions indicates that blatant noncompliance is the exception, rather than the norm.61

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Frans Viljoen and Lirette Louw have carried out research into compliance with the recommendations of the African Commission. Their analysis does point to some inclination of the parties to comply with their Commission’s decisions. For instance they have observed that full compliance with Commission decisions amounted to fourteen per cent of the cases under study, out of forty-four cases.62 However, these cases of full compliance obscure other forms of compliance. This is because in certain instances there was noncompliance and then, on account of a sea-change in domestic politics, a recalcitrant state acted in conformity with the African Commission’s recommendations. Although this form of compliance does not fall into the category of full compliance we pointed to above, the obligation has been finally met on account of a changing domestic situation.63 Another category of compliance that does not amount to an explicit disregard of the Commission’s ruling is found in the partial compliance by the states parties found to be in violation of the Charter. Here the cases are when state parties implemented some, but not all of the Commission’s recommendations. The basis for this might not necessarily be a rejection of the ruling; rather parties were committed to implementation but without making a specific statement on the matter. In effect there was “a vaguely formulated remedy” and some action by the state was noted, this being classed as partial compliance.64 Thus blatant noncompliance, where states parties refused f latly to comply with the Commission’s rulings because they did not accept its recommendations, challenging it on factual and legal grounds, is not that prevalent, and might not be a sustainable path of action, given the possibility of situational compliance.65 In sum therefore, the acceptance of democratic and human rights norms by the state parties to the African Charter, as evidenced in full compliance, and situational compliance seems to suggest that exit through noncompliance is also an increasingly diminishing option.


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An unexplored dimension to the Commission’s rewriting of the Charter is in the “maximization of justice” concept. In pursuing this line of analysis we argue here that the behavior of the Commissioners is similar to the behavior of national judges in common law jurisdictions. With this assumption we also assume that statute law that is being interpreted by the Commissioners is equal to the law contained in the African Charter. Thus our conception of common law for the purpose of this study is that it is the judge-made law of the Commissioners. Now statute law even when contemplated as being in the public interest can emerge in a deformed state, the outcome of the impact of the superior organization and lobbying strength of interest groups within a state. Governments usually represent some segment of domestic society, whose interests are ref lected in state policy. This interaction between interest groups and the state, resulting in laws that are skewed toward the former (usually at the expense of society at large) is ref lected in international law. Liberal international relations theory captures the essence of this process. The creation of international law is therefore not free from interest group distorting processes. Scholars of the political economy of law tell us that international outcomes can ref lect the interests of dominant national social groups keen to shape international law and organization on lines they deem appropriate.66 Using this conception of international relations theory we can see the African Charter as the outcome of a legislative process that began with civil society activism in the 1960s but, however, was seized and deformed by the members of the OAU in the late 1970s. As a consequence, the Charter that was adopted was state-centric, catering to the needs and interests of its state parties instead of protecting the rights of Africa’s citizens. We can understand the role of the African Commission by drawing on the development of the common law in England. The common law tradition evolved to limit the power of the Crown to interfere in markets. In the evolution of the common

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law the judiciary had a stake in the protection of property rights. Also, this process coincided with the theoretical arguments of liberty propounded by John Locke and other political theorists and these theories helped shape common law jurisprudence at the time. It was a mix of these currents of thought that propelled common law judges toward the selection of rules that restrained the power of the Crown to violate individual rights. The common law system was an efficiency maximizing one and common law judges were seen to “select” the more efficient interpretation of the rules.67 Why judges select rules that tilt the common law toward “efficiency” remains a puzzle. Various explanations have been advanced. Some scholars argue that judicial decision-making is driven by utility-maximization and that judges are rational actors motivated by this concept.68 Other scholars argue that judges act in the public interest, driven by their conception of public welfare.69 Contrary to assertions in the public choice literature (as applied to international law and organization) the public interest does serve as a motivation for decisions by national and international decision-makers. Thus individuals are not motivated solely by their narrow self-interest or attempts to maximize their utility. Decisions are taken that are “irrational” when measured against the utility-maximization models of the rational choice theorists.70 This, we argue, is what is taking place under the umbrella of the African Charter. This pattern of interpretation of the Charter can thus be seen as judicial decision-making that is driven by the Commissioners’ utility-maximization, derived from the rational choice theory that we sketched in chapter one, and which sees decision-makers as rational actors, motivated by their preferences.71 Also at the heart of the common law tradition is that law at its essence is not something to be decreed but something that emerges spontaneously through the interaction of members of society. According to this vision, communities of people have


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developed certain customs and habits over time. Most of these customs and habits have not been imposed by government command but through the trial and error of ordinary people seeking to cope with the challenges of life and to establish manners of dealing with each other in peaceful ways. Following on from this, and given the interpretation of the African Charter, we argue that the shredding of the clawback clauses is possibly an acknowledgment that the argument of a non-liberal conception of human rights in Africa prior to colonial rule is incorrect, and that the norms of precolonial Africa are exactly what the Commission is progressively giving effect to.72 Thus the African Charter is a departure from precolonial human rights systems and the role of the Commission has been to destroy this alien order and usher governments down the path to real African conceptions of human rights with their respect for civil and political liberties and their constraints on the power of the state. Then there is the argument that judges act on their policy preferences and thus when there is a collision between these preferences and statutes they must interpret or precedents they are supposed to uphold, they act so as to ensure that their preferences trump what they deem to be bad statute (or treaty law) or they depart from established judicial precedent.73 The Clawback Clauses and the Transformational Model of Regime Design In appreciating the developments in the African human rights system, and especially the role of the African Commission in re-writing the clawback clauses and clarifying, we are inclined to draw parallels with what has been described as the Transformational Model for shaping international regimes74 The Transformational Model has as its objective the creation of a site for repeated interaction between members of a particular international regime.

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The strategy behind the Transformational Model is that gradually and progressively, participant states in a given regime adopt measures that deepen intra-regime cooperation and they also adopt more ambitious commitments. Whilst the African Charter in particular and African human rights system in general were not designed on the Transformational Model, we can still see traits of the Transformational Model in the way the system has developed. Some aspects of the Transformational Model can shed light on our supposition. First Transformational regimes set low levels of commitment to entice as many states as possible into the regime. We argue that the African Charter’s clawback clauses and the rights-duty linkage served this purpose. By privileging the rights of the state over its citizens, the Charter was embraced by the then OAU’s members and ratification was rather rapid as it came into force five years after it was adopted. By joining a regime, no matter how seemingly weak the obligations are, begins the dialogue that is needed to address the problem. Keeping some members out of the regime on account of rather burdensome obligations, delays getting to grips with the issue of concern. Thus the approach is to set low thresholds so as to achieve near universal membership.75 The inclusive regimes that follow from setting a low level of obligations permit key actors to apply collective pressure on recalcitrant members and so move the regime towards its optimal outcome, in our instance the protection of the rights. Thus though some regimes can begin with a small number of members, the ultimate aim is universal membership as regimes with a very narrow set of participants can be seen as justifying the human rights violating behavior of the larger pool of non-members.76 Another attribute of the Transformational Model is in the role of the regime as a producer and diffuser of information. The African Charter assigns an information diffusion role to the Commission in Article 45. This role was so important in the system’s formative years with some scholars arguing that


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the stress on disseminating information about human rights was being done at the expense of the Commission’s protective role. The dissemination of information facilitates problem solving by drawing as many actors as possible into the institutional matrix. Gradually, as information and knowledge spread, the actors that could benefit from a particular regime begin to develop an understanding of how the regime works and they begin to share experiences, and their interests start to converge. These developments make for a stronger regime. Transformationalists underscore a fourth component of the Transformational Model: the impact of repetitive interactions in designated forums on regime strengthening. The Transformational Model sees a vital role for regular meeting of actors with a stake in shaping the regime. Interaction among parties help to clarify the content of norms, and thus allow for more accurate assessment of state behavior with the view to determining if there is compliance with the law or not. This is because regular interaction among actors also encourages the convergence of interests and thus the development of a consensus on the contours and detail of the transformation process and expected outcomes. Furthermore, discourse within the framework of the regime serves to give more content to a regime’s objectives and thus cloaks collective outcomes with legitimacy. This can also add to the likelihood of greater compliance with the regime’s norms. Another facet of the Transformational Model that leads to securing compliance is through the managerial approach rather than enforcement of the law. Thus the Transformational Model privileges a managerial approach over the adjudicative approach and compliance is secured trough constructive engagement between the actors in the regime including states that are deemed to have violated the norms and principles of the regime. Compliance through coercion is deemed to be problematic as states might not be willing to compromise on their sovereignty.77 The African system calls for a friendly

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resolution of disputes before, should this fail, the parties proceed to file communications. Then there is also state reporting under Article 62 of the Charter under which the parties are to indicate to the Commission measures they have taken to give effect to the rights in the Charter. The African Commission has reinforced the Transformational facet of securing compliance by issuing recommendations after it has considered a communication. Further the Charter does not specify what should happen to a state party if it fails to comply with a recommendation by the Commission; the practice of the Commission however has been to engage in post-communication interactions to secure compliance by reluctant states. Conclusion The African Commission has been rather heroic in its rewriting of the African Charter by destroying the clawback clauses. We have tried to explain this development by using theories we set out in chapter one. Arguably, they provide good ground for understanding the dynamism of the African Commission. As noted, there is not that much evidence to claim that the institutionalist theories we have used have been applied to analyze the African Charter. We have also sketched the contours of the what is known as Transformational Model of Regime design in the hope that this will enhance our understanding of the Commission’s activism. Hopefully, our work in this chapter opens up this approach for scholars on human rights in Africa to engage in new or further intellectual inquiry.

CH A P T E R

T H R E E

The African Commission and Its Treatment of Economic, Social, and Cultural Rights

Introduction We noted in chapter one that in its preamble, the African Charter stresses the significance of economic, social and cultural rights (collective rights).1 The position in the Charter was a ref lection of the tensions between civil and political rights on the one hand, and collective rights on the other. Whilst the civil and political rights in the Charter are constrained by clawback clauses, this is not the case with majority of collective rights. This ostensible preference for collective rights could lead to the conclusion that the drafters of the Charter attached more weight to collective rights than they did to civil and political rights. What does compound issues here however, is that in international human rights scholarship, there is the argument that collective rights are not justiciable, being only programmatic rights instead.2 Thus on the one hand we have a Charter that, on its face, narrows the scope for governments to circumvent their collective rights obligations, yet on the other hand these rights are seen as unenforceable. The African Commission has confronted and, arguably, overcome, this jurisprudential difficulty. In this chapter we examine how the Commission

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has shaped the African system through its interpretation of the collective rights in the Charter. Notwithstanding the commitment in the African Charter to collective rights, Issa Shivji, writing just after the Charter came into force, holds the opinion that the Charter was the product of an imperialist legacy and thus did not completely fulfill the human rights needs of Africans. The thrust of Shivji’s argument was that while what he referred to as the dominant liberal conception of rights is important, Africa’s needs demanded a more comprehensive human rights agenda based on full respect for collective rights such as the right to self-determination and the right to organize.3 Shivji was concerned about the role of what he saw as the bourgeois approach to shaping the human rights agenda in Africa. According to Shivji evidence from the debates in the run up to the Charter, and the provisions of the Charter itself, support the presumption that the Charter’s drafting was dominated by interests representative of Africa’s ruling classes and their elite international collaborators.4 For Shivji therefore, priority in the development of human rights in Africa should be given to the right to self-determination as central to the African human rights struggle.5 This right should be combined with the right to organize as these two rights, in tandem, enable oppressed people to give vent to the basic tensions between them on the one hand and the exploitative state and its allies on the other. Without enforceable collective rights such as the right of self-determination and the right to organize, there is the inevitable concentration of power in the state leading to the marginalization of civil society and the creation of authoritarian single-party regime or military dictatorships with implications for the entire range of rights contained in the Charter.6 Although the African Charter does provide for the right to organize in Article 10 (1) it is constrained by a clawback restriction, given the reservations expressed in the early years of the Charter system about clawback clauses, Shivji’s misgivings are understandable. Elaborating on the right of

African Commission: 2nd & 3rd generation Rights 63 self-determination, Shivji points out that although the African Charter contains provisions on peoples’ rights, it is essentially the state that has the right to self-determination. Shivji argues that for the Charter to be meaningful and for Africans to enjoy all the rights therein, the right of self-determination, and the right of working classes to organize must be core rights in the Charter, capable of being enforced.7 Makau Mutua has added his concerns about the African Charter and its shortcomings in respect of collective rights. He too expresses reservations about the overemphasis on liberalism in the struggle for human rights in Africa.8 For Mutua, the consequence of overemphasizing liberalism in the African human rights system is the risk of a disjuncture between the ratification of treaties by African countries and the internalization in their domestic jurisdictions of the norms of these treaties.9 Mutua faults human rights scholars and activists for embracing liberalism as the primary philosophy of the human rights movement without engaging in any critical analysis to discover the relevance of liberalism for African conceptions of human rights. So dominant is liberalism in human rights discourse and practice that, as Mutua argues, any challenge as to the degree of its relevance for Africa risks one being accused of disloyalty to the human rights movements or being accused of collaboration with the very states that are guilty of human rights abuses.10 The virtual unconditional acceptance of a liberal conception of rights is not an accident, the consequence of a collective misunderstanding of how liberalism might be incongruent with Africa’s peculiar needs; rather it is the outcome of calculated deliberate scheme to make certain that Africa’s human rights agenda is brought und kept under the control of interests that represent states with an orientation toward liberal conceptions of human rights. After all, as Mutua alleges, the international human rights project would have failed if its advocates had tried to embed it in any particular cultural, historical,

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and ideological context. Mutua thus brands the world human rights movements’ crucial embryonic stages as being devoid of any African contributions and containing a very minimal Latin American input that was limited to representatives of its European settler class. For Mutua, these Latin American elites represented a class that saw human rights from the Eurocentric standpoint of view.11 Postcolonial Africa and its conceptions of human rights were forged in this liberal view of human rights. However, as African states wrestled with the problems of economic development, political stability, and nation building, it became increasingly palpable that their polities had been shoe-horned into Western liberalism with disastrous effects. Mutua’s supposition then is that the assimilation of liberalism created a class of elites set on clinging to state power at all costs. To achieve this goal they dismantled the constitutional orders bequeathed to them by the departing colonial powers and in their place instituted authoritarian political systems that had very little truck with human rights. Thus within the first decade of the postcolonial era in Africa, the liberal project was abandoned as being unsuited to Africa’s situation.12 As a consequence Mutua is concerned with the return to liberalism that started in the 1990s. He sees the entire corpus of human rights as being geared more toward preventing the excesses of the postcolonial state without any real concern for collective rights. The gap in this human rights architecture however, is that it fails to acknowledge the human beings can suffer at the hands of forces other than the state and thus there is the need for protection in this vein as well. Power disparities between, for instance, individuals and multinational corporations demand that the human rights movement put in place a mechanism to protect Africans from the excesses of unbridled liberalism and individualism. So far a system to countervail the shortcomings of the liberal project, Mutua believes, has not been created.13

African Commission: 2nd & 3rd generation Rights 65 Mutua is very skeptical of efforts to ground non-liberal rights in treaties such as the ICESCR or the collective rights provisions of the African Charter. He repeats the usual refrain that these treaties never really clarify the grant of collective rights, using language that is vague when compared to the language used in treaties that protect civil and political rights.14 Mutua’s work is of particular relevance for Africa where people still cling to the concept of community and group rights and where, he alleges, liberalism is yet to embraced by the mass of the people on account of the perception that the liberal project has failed to improve human welfare.15 Other scholars have focused on the role that the respect for collective rights plays. For instance, enforceable collective rights enable the wider society to challenge government priorities.16 A robust regime of collective rights will enable citizens and civil society to hold government account for any wasteful expenditure and thus strengthen good governance in Africa.17 The logic in this is that the lack of accountability that comes within the wake of unenforceable collective rights frees the state from the obligation to explain its socioeconomic policies and priorities and therefore allows for the misguided expenditure and corruption that serves to worsen the plight of the majority of Africans.18 Another role of collective rights is that enforcing them has an impact on the citizens and their relationship with the state. The argument in this regard is that the postcolonial state in Africa displaced precolonial systems that provided for the collective welfare of the people. In the past, Africans had identified closely with their precolonial traditional systems of government. Decolonisation saw the modern state replace traditional systems for providing communal welfare. However, there is the view that modern systems are inadequate for this purpose, they produce a distant state to which many Africans feel they have very little attachment. State cohesion and stability will thus be enhanced if collective rights are respected and enforced thus making the

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state an acceptable replacement for the displaced precolonial traditional systems.19 The problem with the collective rights in the Charter is compounded by recent developments in world political economy. Philip Cerny has articulated the argument that globalization has consequences for the logic of collective action.20 The crux of Cerny’s argument is that with globalization we are witnessing a challenge to the state’s supply of public goods. He argues that transnational and multinational political and economic structures are freeing actors from the control of the state. Thus there is what he refers to as decisional autonomy and these processes and developments have pushed the state across a critical threshold that has undermined its capacity to supply public goods in the common interest.21 Africa in particular has had to abandon this traditional role of the state with serious implications for its ability to protect the collective rights of its citizens.22 Civil society in Africa has resisted this line of action, calling on the state to reclaim its traditional role.23 Its resistance, as we shall see below, is carried out in part through the use of the African Commission to clarify the meaning of collective rights. The Charter’s provisions on the right to health are typical of the vagueness that critics mention. On the one hand the right to health can be described as open-ended and unlimited; on the other hand, the provision’s vagueness allows states to avoid this interpretation. Thus for both the individual and the state, the provision provides little guidance as to the state’s obligation and the individual’s expectations.24 Similar criticisms have been raised the on the meaning of the right of selfdetermination in the African Charter. There is the dilemma over whether only the state is entitled to this right and that with decolonization the right virtually comes to an end or whether the right of self-determination continues with decolonization and this can be exercised by minorities and other subgroups within the state.

African Commission: 2nd & 3rd generation Rights 67 Below, however, we argue the following: Notwithstanding the attack on state provision of public goods, the assertion on the problems underpinning the enforcement of collective rights and their supposed unclear formulation in the African Charter, the African Commission has clarified the meaning of collective rights and has found new ones where they are not expressly mentioned in the Charter. The Case Law of the African Commission on Economic, Social, and Cultural Rights In its case law the African Commission has started to focus on collective rights. Chidi Odinkalu asserts that the Commission through its practice, its evolving procedures, and its jurisprudence, has so far managed to address the Charter’s collective rights deficiencies.25 The Commission has done this largely by supplying default rules to clarify the meaning of collective rights. Treaties are hardly ever complete; it is for this reason that courts and tribunals exist. Incompleteness is on account of the costs that arise when parties to a bargain have to expend human and financial capital on thinking about, bargaining over, and drafting for future contingencies. Furthermore, the parties to a bargain may in some instances deliberately leave contracts incomplete either because one or both of the parties withholds information necessary to complete the contract, or because the parties have agreed to agree on key issues at a later date.26 Incomplete treaties result in the parties failing to fully commit themselves to their treaty obligation because of lack of specification of their obligations. As compliance with obligations entails economic and political costs, opportunistic states will tend to exploit any opening to defect from their previously agreed commitments.27 Following on from this, notwithstanding the deference paid by the parties to collective rights in the seminars and conferences that led to the adoption of the

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Charter, we allege here the probability that the wording of these rights was deliberately left incomplete, keeping out key rights such as the right to food, and the right to housing, and also leaving the language on inserted rights, such as the right to health, unclear on purpose. Greater and more detailed specification of treaty obligations makes such obligations more costly. Specifying the exact content or terms entails close scrutiny and analysis of bargaining partners’ proposals, it means more detailed and lengthier negotiations and this requires more staff with higher legal and diplomatic skills and knowledge. Specific to the African Charter, two explanations can be advanced for why the drafters acted in this way: either the parties to the African Charter either did not have the human and financial capital to invest in more detailed treaty negotiation or drafting or, second, the parties deliberately underinvested in this commitment, seeking to escape from binding commitments regarding collective rights in particular. The first line of action is less plausible than the second. The numerous meetings and seminars were organized by the UN; this is indicative of that body’s willingness to assume the burden of collective action and the subsequent effort required to draft the Charter.28 On the other hand, we saw in chapter one that the ideational assumptions underpinning the adoption of the Charter must be challenged using available evidence that questions the state’s motives for its adoption. The civil and political rights were restricted by clawback clauses and this erodes the Charter as an ideational instrument. The exclusion of core collective rights, coupled with their unclear nature only serve to reinforce our argument in this regard. Just as the wording of the civil political rights was restricted by clawback clauses, so too was the formulation of collective rights left vague (and in the case of the right to organize restricted by a clawback clause) or some key collective rights were completely left out. However, and notwithstanding the accuracy of these two explanations on the limits to collective rights in the Charter,

African Commission: 2nd & 3rd generation Rights 69 in the face of uncertainty and normative shortcomings, the role of the Commission is to supply default rules that define the parties’ obligations. If the African Commission failed to do so, then the human rights system would be paralyzed unable to grow in response to demands from citizens and NGOs for protection, and stuck in the iron cage constructed by the state parties. Thus the provision of default rules on human rights in general, and in particular on collective rights, is in response to demands from those NGOs and individuals that have coalesced around the African Charter. But first before we examine its treatment of collective rights, we should stress here how the Commission has sought to develop a constituency that will support it in its role. Recall that earlier in our study we drew attention to the fact that organizations are inclined to expand the scope of their powers. In its approach to collective rights the Commission has seen it prudent to embrace NGOs. In its early years the majority of NGOs with observer status at the Commission were non-African international NGOs. As a consequence the Commission adopted a policy that allowed for as many NGOs as possible to acquire observer status with it. This, we argue, was to allow for as many African NGOs as possible to become part of the NGO constituency. Hence the grant of observer status by the Commission was done without a detailed examination of the information submitted by the NGO requesting observer status. All that was required was for the NGO to submit proof it its existence to the Commission and this sufficed to meet the Commission’s conditions.29 In pursuing its strategy of widening the pool of observers, the Commission was inclined to consider and accept applications for observer status without a representative being present to answer to respond to queries or provide further information about the NGO’s status. There were some occasions where the Commissioners did not involve the Commission’s secretariat in the processing of requests for observer status with

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Commissioners themselves accepting documentation.30 A further explanation for the Commission’s action lies in the argument that a tight regulation of entry requirements into the observer system, assuming the lack of funds African NGOs normally encounter, would have harmed the Commission’s relevance and damaged its authority and symbolism, as we shall see below. There would probably have been very few African NGOs with observer status given their shortcomings. Thus making space for a large number of NGOs allowed for the build up of a constituency that would play a constructive role in the development of the Commission’s mandate. Legislative transfers to interest groups have occupied centre stage in the literature on how decisions are made and also how organizations function.31 This interpretation of policy outcomes is connected to the public choice school and is also part of the institutionalist theories we outlined in chapter one. In a study of environmental interest groups, Todd Zywicki established that civil society actors are just as likely to lobby for the supply of law and policies from legislative assemblies and bureaucracies as private business groups are.32 While the results of their activities are beneficial to, for example communities affected by environmental damage, according to Zywicki, we cannot rule out the pursuit of power, and personal gratification as explanations for NGO activity. This particular view of NGOs is a plausible explanation for the transformation of the African Charter’s provisions on collective rights. However, we are not limited to rational choice theories to explain the Commission’s behavior. We argue that sociological institutionalism also explains the actions of the African Commission. The presence of only non-African NGOs, presumably with a larger pool of finances and stronger organizational capabilities than African NGOs, would have projected the Commission as being disconnected from the constituents it was supposed to serve. Sociological institutionalism places decisionmakers in their cultural context and marks them out as being

African Commission: 2nd & 3rd generation Rights 71 influenced by other factors than utility-maximization. We assert here then that the African Commission has gravitated away from its supposed original principal, the AHSG, toward a set of constituents to whom it supplies human rights laws in the form of decisions construing the provisions of the African Charter. The relationship between NGOs and the Commission is beneficial to both parties. Note that if the Commission had relied on the states parties to the Charter as demanders of judgemade human rights law, this would have certainly ensured the Commission’s irrelevance.33 Thus the vindication of collective rights are more likely to be pursued by NGOs as they tend to have the wherewithal to overcome the free rider problems that individual petitioners would invariably face. The free rider problem bedevils collective action. Whilst the benefits of, for example, a favorable ruling on environmental degradation in violation of Article 24 of the Charter will accrue to the community where the degradation has taken place, should an individual assume responsibility for the petition before the Commission she will shoulder the financial and other burdens that arise. Thus the benefits will be distributed across the affected community but the costs will be concentrated on a single individual.34 Of course this does not mean individuals will not seek to champion collective rights, but what it does suggest is that is this organizational advantage that makes NGOs more likely to act in cases of collective rights.35 Central to the Commission’s jurisprudence has been the clarification of what the collective rights provisions of the African Charter mean. Clarification is essential to enhance compliance with the law and thus obviate the problem of justiciability. Governments and their officials are more likely to obey the law when the texts that are supposed to bind them are determinate. Thomas Franck has argued that rules are more likely to be obeyed when they are legitimate.36 Legitimacy is essential because there is no global police force to compel compliance with treaty obligations.

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Franck states that legitimacy has four attributes: determinacy, symbolic validation, coherence, and adherence (to a normative hierarchy). For Franck, these attributes make for a strong compliance pull in international law. Thus when states purport to adopt a new treaty or protocol for example, and these elements are absent it is easier for states to avoid their obligations and pursue their own parochial short-term interests instead. For the purposes of our analysis of collective rights under the African Charter we explore the implications of determinacy for the Commission’s approach toward collective rights. Our claim is that as the Commission clarifies the meaning of collective rights thus making the law more determinate this creates the conditions for the parties to fulfill their obligations. Franck poses and answers the question what determines the degree of legitimacy of any particular rule or rule-making process? Or, to ask the same question another way: what noticeable traits of a rule or of a rule-creating body determine whether its dictates will be obeyed? Franck posits that what is self-evident about legitimacy as a determinant of compliance is the textual determinacy of a rule. Textual determinacy is the ability of a rule to communicate an unambiguous message to the persons to whom it is addressed. This is because of the supposition that as a rule becomes clearer to its addressee, the greater its compliance pull.37 There is a difficulty in comprehending indeterminate rules and this difficulty makes for noncompliance as the targets of such a rule can argue that their obligations are unclear. In addition, indeterminate rules allow for strategic manipulation by self-seeking states that seek to avoid their agreed international obligations.38 Clarifying the Right to Health under the African Charter The African Commission has dealt with the right to health in various communications brought before it alleging violations of

African Commission: 2nd & 3rd generation Rights 73 the right to health under the African Charter.39 In its decisions the Commission has progressively clarified the meaning of the provisions relating to collective rights. This, following Franck’s arguments on the role of textual determinacy, has moved the provisions from their supposedly vague formulations toward a clearer specification of what the African Charter really means. In Media Rights Agenda & Others v Nigeria40 the plaintiffs stated that the government of Nigeria had among other things arrested and detained the editor of a banned newspaper and denied him access to medical care at a time when his health was deteriorating. In finding the Nigerian government to be in violation of the Charter, the Commission referred to Article 16 of the Charter and held that the Nigerian government’s responsibility is heightened in cases where the individual is in its government custody and his well-being depends entirely on the activities of the authorities. This action, the Commission ruled, was a violation of Article 16. Thus the Commission specified obligations that a government must bear in respect of the health of persons it has in custody.41 In International Pen, Constitutional Rights Project, Interrights on Behalf of Ken Saro Wiwa Jr and Civil Liberties Organisation v Nigeria42 in which it was alleged among other things that Saro Wiwa had been detained and denied medical treatment by the Nigerian government, the Commission referred to Article 16 of the Charter and restated its interpretation of the right to health. The Commission noted that the burden governments had to carry in respect of persons it had in its custody was a particularly heavy burden. Despite requests for hospital treatment, the Nigerian government had failed to act causing Saro Wiwa’s health to suffer to the point where his life was endangered. This amounted to a violation of Article 16.43 The Commission used Malawi African Association & Others v Mauritania44 to state that Article 16 should be construed to mean that there is an obligation on governments to act urgently in particular circumstances even though this was not contained in the African Charter. In this communication it was alleged

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that the Mauritanian government had detained various individuals in horrible conditions and denied them food and medical care. The African Commission after referring to Article 16 of the Charter held that the state’s obligations toward its detainees are more burdensome as detention centers are in its exclusive preserve. The Commission noted that Mauritania is directly responsible for this state of affairs and the government has not denied these facts. Consequently, the Commission considers that there was a violation of Article 16.45 In Purohit and Moore v The Gambia46 the complainants alleged that Gambian legislation governing mental health was outdated as it failed to provide safeguards during the diagnosis, certification, and detention of persons under the Lunatics Detention Act (LDA). The complainants also alleged that patients detained under the LDA were being held in abysmal conditions and that this was a violation of, among other Articles, of Charter Article 16.47 The Commission used Purohit and Moore to underscore the especially heavy burden states parties have in meeting the health needs of its citizens with mental handicaps. First, however, it linked the right to health to other rights by observing that the human right to health is crucial to the realization of all other fundamental human rights and freedoms.48 Turning its attention to the essence of the communication, the Commission stated that the right to health under the African Charter includes the right to health facilities, and access to goods and services to be guaranteed to all without discrimination of any kind.49 The Commission also stressed that persons with mental health disabilities have the right to special treatment which would enable them not only attain but also sustain their optimum level of independence and performance in keeping with Article 18 (4) of the Charter.50 In the submission before it, the Commission noted, the scheme to implement the LDA lacked therapeutic objectives as well as provision of matching resources that would enable patients detained under the LDA

African Commission: 2nd & 3rd generation Rights 75 to enjoy their Article 16 rights.51 Thus the Commission urged the Gambia to repeal the LDA and replace it with legislation more compatible with the African Charter and other international standards and norms for the protection of mentally ill or disabled persons.52 Purohit and Moore is indicative of the Commission’s willingness to analyze in detail the health legislation and policies of the contracting parties, exposing f laws and inadequacies. The Commission also pointed out shortcomings in resources the government of the Gambia provided for the care and rehabilitation of mentally ill persons. These detailed comments clarify obligations state parties have under the Charter and thus help ensure compliance with obligations. The Right of Self-Determination The right of self-determination is one of the most important and perhaps also the most controversial right enshrined in the Charter because it is the vehicle through which many of the states parties achieved their independence from colonialism.53 However, many ethnic groups in Africa continue to use selfdetermination to make claims for self-rule.54 These postcolonial claims of self-determination have put pressure on the Commission to refine the scope of this right. The Commission has not resisted this pressure; it has shed light on the meaning of this right in the Charter demonstrating, in our opinion, a willingness to confront some of the more vexing legal and political issues facing the parties to the African Charter. Arguably the most troubling issue with respect to peoples’ rights of the African Charter concerns the meaning of the concept “peoples” and the content of the rights that they have. The Charter provides for peoples’ rights without a definition of the term “peoples”. This has thus made the term open to different interpretations. There seems to be two competing conceptions

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of the term “peoples” that are entitled to the right to of selfdetermination. On the one hand there is the orthodox or conservative view that the word “peoples” applies to all the people in the state, i.e. the entire population of the country with no distinction between the ethnic groups that comprise it.55 On the other hand, a former Chairman of the African Commission has asserted that the right of self-determination is not the preserve of states; rather, part of a state’s population or its individuals can enjoy this right as well.56 This second interpretation is on all fours with the view held by some scholars that the right of self-determination is not stuck in the colonial context, restricted to states struggling to free themselves from colonial rule. Such a narrow construction of the self-determination, it is argued, is inconsistent with the language used in drafting the various international instruments on self-determination.57 What has been the approach of the African Commission to the rights of self-determination? If we were to see the Commission as being constrained by fealty to the drafters original wording of the Charter we should conclude that the Commission would adhere to the narrow, statist construction of the right to selfdetermination as seen by African states as a whole: the right ends with decolonization or the end of minority rule in Africa. However, the Commission has not strictly followed what was presumably the expected line of interpretation. In addressing communications on the right of selfdetermination the Commission has indicated that this right does not come to a standstill after independence from colonial rule is attained. In the Katangese Peoples’ Congress vs Zaire58 case, the complainant, the president of the Katangese Peoples Congress requested the Commission to recognize, inter alia, the independence of Katanga by virtue of Article 20 (1) of the Charter. Although the Commission rejected the communication on the grounds that there was no evidence of a violation of the rights in the African Charter it did make some comments that cast light on its Commission’s interpretation of the

African Commission: 2nd & 3rd generation Rights 77 right of self-determination. The Commission identified two versions of self-determination. The first is self-determination for all Zarieans as a people, which it said was not the issue involved in the case.59 The second is self-determination for a section of the population of a state, i.e., the Katangese, which was central to the communication. As regards the latter, the Commission has stressed the relationship between selfdetermination and the principles of sovereignty and territorial integrity of states.60 According to the Commission, although the right to self-determination may be exercised in different ways including independence, it must be fully cognizant of other recognized principles such as sovereignty and territorial integrity. In affirming that territorial integrity takes priority over the right to self-determination, the Commission declared that it is obliged to uphold the sovereignty and territorial integrity of Zaire.61 Consequently, the Commission held that in the absence of violations of human rights to the point that the territorial integrity of Zaire should be called into question and in the absence of evidence that the people of Katanga are denied the right to participate in government as guaranteed by Article 13 of the Charter, it was of the opinion that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.62 Implicit in the Commission’s decision then is that in some instances, where there is clear evidence of mass human rights violations against a subgroup of people of a state, and where there are no avenues for redress, then that group could have the right to selfdetermination in the form of secession from the state.

The SERAC Case The question of enforceability of collective rights was an issue when the Commission broke new ground in the communication

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in Social and Economic Rights Action Centre and the Centre for Economic and Social Rights vs. Nigeria, (SERAC case).63 This communication, filed by two NGOs,64 alleged that the military government of Nigeria had been directly involved in oil production through the state oil company, the Nigerian National Petroleum Company, the majority shareholder in a consortium with Shell Petroleum Development Corporation, and these operations have caused environmental degradation and health problems resulting from the contamination of the environment of the Ogoni people.65 The communication further alleged that the oil reserves were being exploited with no regard for the health or environment of the local communities66 and that the Nigerian government had condoned these violations by placing the state apparatus, both legal and military, at the disposal of the oil companies.67 The African Commission used this case to state the position that collective rights are enforceable.68 Noting that collective rights are essential elements of human rights in Africa, the Commission affirmed the position that that the violation of peoples rights are enforceable in a manner akin to individual rights. The Commission opined that its position was derived from what it claimed was the distinct nature of the African situation and the special qualities that the African Charter imposed on it. Human rights, the Commission asserted, must respond to African circumstances and that clearly, collective rights are essential to human rights in Africa.69 The finding of a violation of environmental degradation and its threat to, and the destruction of, Ogoni sources of livelihood was a positive step forward by the African Commission in the purposive interpretation of the right to life. It marked a departure from earlier decisions in which violations of the right to life were based on executions, assassinations, arrests, and detentions without trial, torture and other acts that either threatened or actually harmed the individuals concerned.70 The right to life and respect for the dignity and integrity of all

African Commission: 2nd & 3rd generation Rights 79 human beings, if expansively interpreted, will give an effective content to all guaranteed rights under the Charter. The Commission noted the fact that the Charter contained no right to housing. However, it chose to read this right into the Charter. The basis for this was that the right to housing could be used to reinforce the property rights provisions of the Charter, the right to health and the duty on the state to protect the family.71 Given that this was the first instance of affirming a right to housing, the Commission elaborated on the minimum content of this right in the African context. At the very minimum, the Commission stated, this right obliges the Nigerian government to avoid the destruction of housing of its citizens and to also avoid measures that would prevent individuals and communities from rebuilding lost homes.72 The state’s obligation does not end with preventing its agents from violating the right to shelter; in the opinion of the Commission the state also has an obligation to prevent nonstate actors from violating the right to shelter. Stretched further, the right to shelter in the Commission’s views can be exercised even if shelter in the strict sense of a roof over the individual’s head, does not exist.73 A house or shelter then receives a very expansive definition by the Commission: it is where a person dwells. The Charter also does not contain any provision guaranteeing the right to food. However, the Commission has not allowed this to prevent it from conjuring up the right to food from a variety of rights in the Charter. The Communication had argued that Articles 4, 16 and 22, stitched together, meant the Charter included a right to food and that Nigeria’s violation of these rights amounted to a violation of the right to food.74 The Commission asserted that the right to food was linked to human dignity and is therefore essential for the enjoyment and fulfillment of other rights including the right to health, education, work, and popular participation. Nigeria was bound by the Charter to improve existing food sources and to ensure

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access to adequate food for all citizens. The core of this right is the Nigerian government should not destroy or contaminate food sources. It should also prevent private parties from destroying or contaminating food sources, and prevent peoples’ efforts to feed themselves.75 Conclusion One of the key features of the evolution of the African human rights system is in how the provisions on collective rights in the African Charter have been made effective. From a position where the Commission had not heard any cases under this category of rights, collective rights have been placed at the centre of the African human rights system. The Commission has removed any doubt about the enforceability of collective rights; through its decisions it has elaborated on the content of existing collective rights in the Charter and it has virtually rewritten the Charter to add new collective rights to it. We pointed out in the previous chapter how an interplay of factors and ideas has enabled the African Commission to attack and destroy the African Charter’s clawback clauses. Arguably, the same factors and belief in the import of collective rights have enabled it to rewrite the Charter provisions on the same.

CH A P T E R

FOU R

System Evolution through the African Commission’s Rules of Procedure

Introduction The Importance of Rules of Procedure The rules of procedure of an international organization have been assigned the status of international law and are therefore legally binding on the member states of the organization. In this line of thought then, rules of procedure of the organs of international organizations have the same legal standing as the norms of international treaty law. Other observers see rules of procedure as the internal law of an international organization. Still others see in the procedural rules of international organizations a new body of legal rules, independent of either the international public law or the internal law of states.1 The Commission’s rules of procedure are similar to what Hart has described as secondary rules: Secondary rules in Hart’s conception are those rules used to make primary rules. Secondary rules are needed to deal with uncertainty as to what the primary rules are or what their precise scope is; secondary rules also allow for us to overcome the static character of primary rules which include no means of deliberately adapting primary rules to changing circumstances, either by eliminating

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old rules or introducing new ones. Secondary rules also enable us to overcome inefficiency as they set out procedures and institutions for the resolution of disputes.2 Secondary rules become increasingly important as legal systems expand in size and objective. Prior to the institutionalization of the African Charter, there were no regional secondary rules to govern the process for making primary human rights rules. It was as the system began with the adoption of the Charter that secondary rules became important. The African Commission adopted its first rules of procedure in 1988.3 These rules were in force until the eighteenth session of the Commission in 1995 when a new set of rules of procedure was adopted.4 There is very little in the literature on the Commission’s rules of procedure and how they can impact on the evolution of the African human rights system. The main work of note is Chidi Odinkalu’s paper describing the first rules of procedure and the need for their reform.5 Rachel Murray has also touched on the Commission’s rules of procedure as part of her analysis of the Commission’s decisions.6 So too has Vincent Nmehielle paid some attention to the rules or procedure in his research on how the African human rights system functions.7 However, as we shall see in this chapter, rules of procedure can be of immense import in subtly transforming human rights systems by empowering parties with an interest in advancing an agenda that is different from that of their principals. While the members of the OAU did not declare the African Commission to be a committee, we assert that the way the Commission has functioned gives it the appearance of a committee, charged with the specialised duty of making regional human rights law. Theories of legislative organization portray committees as institutions for enforcing bargains, advancing partisan agendas, or sharing expertise. The African Commission fits this model. It hears communications and when it does rule in

Rules of Procedure and System Evolution 83 favor of petitioners it upholds the human rights bargain that states entered into under the African Charter. The African Commission also advances a human rights agenda in its promotional role.8 Onsite visits,9 the role of special rapporteurs,10 the adoption of resolutions11 and the hearing of communications all come together to advance the Commission’s human rights agenda. The Commission also serves as a site for the sharing of human rights expertise; its members are highly knowledgeable in the field of human rights,12 and it draws on information from NGOs to enable it pursue its agenda.13 Another feature of committees that applies to the African Commission is that the Commission has a dominant position over the setting of the human rights agenda within the African system.14 Whilst there are other African human rights bodies such as the African Committee on the Rights and Welfare of the Child15, the African Commission is so far the more dominant body in the sense that its focus is on an extremely broad set of rights that apply across the continent, unlike other narrowly focused human rights bodies or any of the subregional bodies with jurisdiction applying solely to their subregions. Rules of procedure evolve to solve specific difficulties in institutional decision-making. They specify how business will proceed and thus they affect outcomes of committees. Procedures also constitute institutional bargains agreed by actors who seek to adopt laws and create organizations. They also attempt to guarantee against post-agreement opportunistic behavior, thereby facilitating collective action that might otherwise occur with less frequency if there were no rules of procedure.16 The Evolution of the African Commission’s Rules of Procedure Arguably, preventing immediate post-agreement opportunism is the role we can infer from the Commission’s 1988 rules of

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procedure. This set of rules was adopted when the Commission was in its infancy. It had not begun to assert itself, leading in turn to the kind of behavior we outlined in chapter two. Thus the first rules of procedure, compared to the 1995 rules, were essentially restrictive, pinning down the African Commission to an expected pattern of behavior and thus preventing the Commission from asserting itself. The 1995 rules can therefore be construed as an arrangement to advance human rights as conceived in the current human rights setting in which a multiplicity of civil society actors are important players, and also in which the idea of respect for human rights is spreading across the continent. This setting differs fundamentally from that of the 1970s which was dominated by state interests and the belief that clawback clauses were an acceptable part of the African Charter. As one scholar has observed, at the Eighteenth Session of the Commission the 1988 rules of Procedure were amended, ref lecting the new light in which the Commission appears to see itself.17 Not surprisingly therefore, the new rules, as we shall see shortly, permit the Commission to advance the rights-maximising agenda we highlighted in chapter two. The 1995 rules seek to enhance the Commission’s efficiency through the decentralisation of the administration of the human rights agenda and the Article 55 communications process. Treaty secretariats are vital to the workings of an international agreement. They have been described as the organizational glue that holds the actors and the parts of a treaty system together.18 The ability to access data, and to acquire skills and resources is what is needed to enable stakeholders understand how treaty systems work and to also encourage the participation of nonparties. A secretariat can play this role: serving as both a forum for discussions and also providing direct and indirect assistance to stakeholders to enhance their participation in, and thus the ultimate effectiveness of, the treaty.19

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The 1995 rules of procedures make very profound changes to the way the Commission operates on a daily basis. We identify key changes in a number of procedural areas. We should note here however that the changes to the rules of procedure have not been completely dramatic and sudden. Instead, they have changed gradually from the 1988 rules with the Commission adopting new rules just that have been codified in the 1995 rules. This approach to meaningful change is consistent with the patterns of how institutions evolve over time. The first significant change instituted by the Commission under the umbrella of its new rules of procedures to enable it break from the constraints of the African Charter and the OAU was when at its third ordinary session it empowered itself to accept communications from individuals who allege a violation of one of the Charter rights by a state. The utility of the rules for the African Commission was made obvious when it construed them to mean it could receive individual communications and so give effect to Article 55 of the African Charter. The failure of the African Charter to expressly specify that other communications under Article 55 meant the Commission could receive communications from private persons was seen as a serious shortcoming of the Charter and a further indication that it was essentially a state-centric human rights instrument.20 However, when the Commission adopted the 1988 rules it did settle the meaning of Article 55 by clearly stating that other communications meant the same being received from an individual or organization.21 Following on from this the Commission has emboldened itself, and it has rewritten and manipulated the rules of procedure to its advantage and, as a consequence, to the advantage of the non-state actors that continue to rely on it to protect their rights. Notwithstanding the AU’s fairly enthusiastic embrace of civil and political rights, among other rights, there are still serious issues regarding the protection of the same across a number of

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African countries. The AU is the body that is made up of these countries. Thus despite the adoption of liberal constitutions to replace the authoritarian ones that were prevalent in Africa for more than three decades after decolonization, the AU still has problems respecting the rights of Africans.22 Thus neutralizing the role of the AU Chairperson in the individual communications process is a measure designed to free the Commission from any constraints this person could impose of their actions. Under 1988 rule 101, the AU Chairperson was to transmit to the African Commission the Article 55 communications it had received for consideration by the Commission.23 Under rule 102 of the 1995 rules this power is now vested in the Secretary to the Commission.24 In addition, rule 103 of the 1988 rules allowed for the AU Chairperson to request, if he so chose, that the author of a communication furnish the Commission with clarifications on the applicability of the African Charter to the communication he has filed. This could include clarifying the provision or provisions of the Charter alleged to be violated, measures taken by the author to exhaust local remedies and the extent to which the communication is being considered by another international body.25 These are issues that if not clarified, could render the communication inadmissible. Thus the success or failure of a communication could be inf luenced by the person representing the interests of the very states alleged to have violated individual human rights. The AU Chairperson also had control over the time-limit for the submission of communications so as to avoid undue delays.26 Requests for clarification are also now under the control of the Secretary to the Commission.27 The Secretary General in the 1995 rules of procedure loses control over the issues he could bring to the attention of the members of the Commission. This important power of agenda control is now assigned to the Secretary to the Commission so that the power shifts from the actor who is under the control of what is now the AU, the members of which are being


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investigated by the Commission for human rights abuses, to a lower-level, less visible functionary who is more closely connected to the Commission.28 The 1995 rules of procedure aim to make the secretariat to the Commission more effective and they do this by diluting the power of the now Chairperson of the AU Commission 29 Under the 1988 rules, the OAU Secretary-General was allowed to attend the meetings of the Commission although he had no power to participate in the deliberations or in the voting. He did, however, have the power to make written or oral statements at the Commission’s sittings.30 The OAU Secretary General could also appoint the Secretary of the Commission, provide the Commission with the staff and material it needed to carry out its functions, take all necessary steps for the meetings of the Commission and bring to the knowledge of the members of the Commission all the issues that would be submitted to it for consideration.31 As a consequence of these rules, the Secretary to the African Commission had very little autonomy in his relations with the OAU Secretary General. However under the 1995 rules agenda control is wrested somewhat from the AU where the 1995 rules entrust provisional agenda control to the Secretary and the Chairman of the Commission. Under the 1988 rules the provisional agenda for each ordinary session was to be drawn up by the Secretary-General in consultation with the Chairman of the Commission.32 Under the 1995 rules the Secretary to the African Commission is now entrusted with drawing up the provisional agenda.33 Certain items on the provisional agenda are also to be submitted to the Secretary of the Commission instead of the Chairperson of the AU Commission. Furthermore, the African Commission’s Secretary and not the Chairperson of the AU Commission is to submit a draft provisional agenda for consideration at the next session of the Commission.34 The 1995 rules also attempt to improve the working methods of the Commission. Under these new rules, the African

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Commission is no longer required to consult with the Chairperson of the AU Commission to determine whether or not it should establish a committee or working group to aid in the exercise of its functions.35 In addition, under the 1988 rules, the prior consent of the Chairperson of the AU Commission had to be sought before a committee or working group could continue to sit even when the African Commission was not in session. However, the 1995 rules do away with the obligation to obtain this prior approval and replace this with the obligation to only consult with the Chairperson of the AU Commission. Not only does this revision reduce possible central control over the composition of working groups, it also can be used to ensure greater continuity of the work of the Commission as well as its technical efficiency. Working groups are to assist the Commission in its functions and have the power to consider any agenda item for consideration and support if submitted by the Commission. When it is not sitting, the African Commission can now authorize a working group to sit, the proviso here being that this decision must be taken in consultation with the Chairperson instead of with the prior consent as provided for under the 1988 rules.36 On its face therefore, the Commission has greater power to inf luence the continuity of its functions if it is only obliged to consult the Chairperson of the AU in these circumstances. The consequence of the above is that in adopting new rules of procedure, the African Commission has asserted itself as an increasingly autonomous body. Just as it has subtly and strategically severed the control that the AU has over it, as we explored in chapter two, it has continued with this break, using a new yet equally powerful set of laws; its own rules of procedure. The African Commission can now hold public sittings. This is provided for in the 1995 rules37 and this is another change to the 1988 rules. The 1988 rules expressly stated that sittings of the Commission and of its subsidiary bodies shall be private and shall be held in camera.38 The 1995 rules provide that the


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Commission’s sittings and those of its subsidiary bodies are now to be public instead of private sessions. The Commission however does, firstly, have the discretion to continue to hold such meetings in camera. Moreover public sessions can be held in private if it appears “from the relevant provisions of the Charter that the meeting should be held in private,” or if “it appears from the relevant provisions of the Charter that the meeting shall be held in private.” Article 59 of the Charter imposed a confidentiality obligation on the Commission. Article 59 stated expressly that all measures taken within the provisions of the present Charter shall remain confidential until the AHSG shall otherwise decide. The report shall be published by the Chairman of the Commission upon the decision of the AHSG. The report on the activities of the Commission shall be published by its Chairman after it has been considered by the AHSG.39 The 1988 rules of procedure did seem to reinforce this confidentiality clause. Rule 105 expressly stated that non-state communications should be heard in private sessions by the Commission or any of its subsidiary bodies.40 The 1988 rules further provided that the sittings of the Commission and of its subsidiary bodies shall be in private and shall be held in camera.41 These rules also stated that that the periodical reports submitted pursuant to the promotional mandate of the Commission under Article 45 of the Charter shall be for general distribution, it allows the states to restrict or refuse such circulation.42 Whether by accident or whether this was an early effort to break out of the confidentiality trap, the 1988 rules did include provisions that enabled the Commission to circumvent the problem created by Article 59. This is because the 1988 rules of procedure contain provisions that, interpreted on their face, give the Commission the needed authority to publicise virtually all of its work. First, rule 73 allowed national liberation movements recognized by the then OAU, or by virtue of resolutions adopted by

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the OAU’s AHSG, to participate, without voting rights, in the discussion of any issue which shall be of particular interest to the movement.43 The same entitlement to participate in hearings was extended to specialised institutions that had concluded agreements with the OAU. Any such specialised institution could be represented in public sessions of the Commission and any of its subsidiary bodies44 and had the right of participation in an issue of interest to it.45 Second, any intergovernmental organization to which the OAU had granted permanent observer status and other intergovernmental organizations permanently designated by the OAU or invited by the Commission could also participate in deliberations of the Commission on issues that fell within the scope of their activities, but they did not have voting rights.46 Third, under 1988 rule 76, NGOs were also given some opportunity to participate in the Commission’s public sessions or those of its subsidiary bodies.47 The interpretation of this particular rule is that one can reasonably argue that any other interested person may, like, the accredited NGOs, also attend the public sessions of the Commission, which has indeed been the practice.48 In support of this, rule 77 provided that the Commission could consult with NGOs either directly or through one or several committees set up for this purpose. Consultations were to be held at either the invitation of the Commission or the request of the NGO.49 However it is unclear when this consultation was to take place. Was it supposed to be during sessions of the Commission or before the same? It is a bit difficult to form a definitive conclusion although, as noted above, the interpretation of rule 76 could be clarified by reading it together with rule 77. If there were any reservations about whether an interested NGO under rule 76 could participate in the discussion of any issue before the Commission, this doubt has been removed under 1995 rule 72. This rule now allows for the Commission to invite any organization or persons capable of enlightening it,

Rules of Procedure and System Evolution 50

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to participate in deliberations. Moreover, under 1988 rule 76, it was for NGOs to appoint observers to Commission hearings. In the 1995 rules, the Commission can now act on its own initiative and extend an invitation to NGOs.51 Thus not only is the confidentiality clause undermined by the power of the Commission to invite NGOs to participate in its work, but also derived from this provision is the beneficial outcome of the Commission building up its own intellectual capital to enable it overcome any information problems it may encounter in pursuance of its mandate. What is a further erosion of the confidentiality clause is that rule 108 of the 1995 rules permits the African Commission to issue releases to the press and the public about activities in its private sessions without the previous requirement that the releases first go through the OAU Secretary-General.52 Under the 1988 rules not only was there this requirement, but nothing prevented the Secretary-General from refusing to forward the release to the media as intended or editing it beforehand.53 The provisions on oral representations before the Commission when it considered communications were also f lawed to the extent that they did not permit for effective representation of non-state interests under Article 55 hearings to do with nonstate communications. Rule 99 of the 1988 rules of procedure allows only the state parties the right to be represented during the consideration of a communication before it and to submit observations orally and in writing.54 Also, there are no provisions in the 1988 rules of procedure that allow non-state actors to make oral representations before the Commission. Furthermore, there does not seem to be any provision in the 1988 rules empowering the African Commission to seek expert or other testimony to enable it to conduct enlightened deliberations. This is derived from the provisions of Article 51 of the Charter which permits the states, when the Commission is considering communications affecting them, to be represented before it and submit written or oral

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representations.55 Furthermore, in the view of one scholar the Commission was empowered, under Article 46 of the Charter, to rely on any method of investigation and it may hear from the OAU Secretary-General or any other person capable of enlightening it.56 Thus the Charter, on its face, allows for anyone to make an oral presentation before it. Moreover, states parties to the Charter have the capacity to defend themselves against complaints by individuals. They have the ability to marshal human and logistical sources to defend allegations made against them. Thus denying individuals this right makes for an unfair hearing before the Commission. What is also paradoxical about this provision is that the provisions of the Charter on the right to a fair hearing would seem to be inconsistent with the Commission’s own bar to oral submissions by non-state parties under the 1988 rules of procedure. Again, the Commission addressed this shortcoming at its Sixteenth Ordinary Session when it permitted lawyers to represent aggrieved parties in hearings.57 The 1988 rules of procedure on admissibility were rather long when compared to the 1995 rules. First an alleged victim had to submit the communication himself unless it appears that he was unable to do so.58 The inability to do so was always open to the Commission to decide with no guarantee, for example, that financial constraints would be covered by this rule. Second the communication had to allege a violation of one or more of the rights set out in the Charter.59 Second, under the 1988 rules of procedure, the Commission bound itself to consider complaints only if they established a prima facie violation of the Charter.60 The 1995 rules do not specify this condition. Rule 116 states, simply, that the Commission shall determine questions of admissibility pursuant to Article 56 of the Charter.61 Article 56 states that non-state communications shall be considered if, inter alia, they are compatible with the Charter of the OAU or the African Charter. Arguably therefore, by amending the rules to allow for the probability


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of communications not based specifically on violations of the Charter enables the transformation of the Charter to take place in three ways: First it allows the Commission to continue to build up its case load and so give added relevance to it as an organ for the protection of rights. With the possibility of competition from subregional courts, as we shall explain later in this study, the Commission needs to continue to underscore its relevance. It can do this by serving as a site for more communications that would otherwise have been rejected. Second, ambiguous communications will enable the Commission to continue with the kind of activism we have seen in chapters two and three. At this juncture we can only speculate as to what cases the Commission will now deem admissible. How will the Commission interpret the words “compatible with the Charter of the OAU or African Charter”? For instance the AU Constitutive Act,62 states that one of its objectives is the accelerated political and socioeconomic integration of Africa, and the promotion of good governance. Can or will the Commission thus deem admissible communications that allege breach of the right to trade, this being one of the primary means by which integration of the continent can be propelled? Assuming a communication alleging this breach is brought before the Commission, it will probably exploit this opportunity to expand the area of its competence, bringing it into contact with a wider set of jurisprudential issues with, again, implications for its status and impact. The 1995 rules allow for the Commission to draw on extra sources of information as a basis to entertain communications. The 1988 rules stated that that communications cannot be based exclusively on news disseminated through the mass media.63 Notwithstanding this, the Commission during its Seventh Session did express its concern and anxiety about the violation of human rights in Liberia. This concern was premised on media reports. The Commission however did request

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that the government of Liberia allow it to visit although there had been no communication on the matter.64 The 1995 rules of procedure have confronted this issue and they do not state that communications based exclusively on media reports will be inadmissible.65 Over the years the Commission has elaborated the meaning of the exhaustion of local remedies law in the Charter. The Commission has declared many communications admissible on the basis of what it subsequently called the principle of constructive exhaustion of local remedies.66 Some scholars have pointed out that the African Charter, on its face, is restrictive of the international standards in requiring exhaustion of domestic remedies only where the procedures for domestic remedies is unduly prolonged. The argument in this regard is that the Charter does not appear to provide relief in situations where domestic remedies, though not unduly prolonged, would be inadequate or where local laws do not ensure due process. This reasoning is informed by the emphasis that the 1988 rules of procedure placed on the unduly prolonged criterion as the only exception to the requirement of exhaustion of domestic remedies under the Charter. This inf luenced early admissibility decisions of the Commission and it deviates from the generally accepted standard, the requirement of exhaustion of domestic remedies “in accordance with generally recognized principles of international law.” With the adoption of the 1995 rules of procedure it appears that the Commission is willing to follow other systems in subjecting the requirement for exhaustion of domestic remedies to the standard of generally recognized principles of international law. Rule 116 of the 1995 rules simply provides that the Commission shall determine the questions of admissibility pursuant to Article 56 of the Charter. There is no further reference to the requirement contained in the 1988 rules, rule 114 (3) (f ). In other words the 1995 rules (104) (1) (g) now only requires a communication’s author to furnish clarifications on


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the applicability of the Charter to his or her communication, and to specify in particular the extent to which the same issue has been settled by another international investigation or settlement body. It would thus appear that the Commission would do this, taking into consideration Articles 60 and 61 of the Charter which requires the Commission to apply principles recognized in international law in carrying out its mandates.67 The sum impact therefore of the amendments to the rules on admissibility is that the Commission has immense leeway to decide on admissibility and so cement its current moves toward bringing the African system into line with standards applicable in international law.68 It is hoped the Commission will utilise this change as liberally as provided by the African Charter, unlike other mechanisms. In construing 56(7) with regard to such international procedures that are envisaged by the Charter, the Commission has ruled that a complaint to an NGO or an intergovernmental organization such as the European Union or Amnesty International does not render a communication inadmissible on the basis of the Article.69 The rules relating to the distribution of the minutes of both public and private sessions have also been changed but they seem to strengthen the confidentiality rule of Article 59 of the Charter. The 1988 rules now remove the provisions which state that the Commission could refuse to release the summary of its final minutes only in “exceptional circumstances.” Now, the Commission’s discretion is not confined to exceptional instances but has been broadened to just when it, i.e. the Commission, for no stated reason, “decides otherwise.” Furthermore, under the 1995 rules the distribution of the sum of the minutes of both public and private sessions is now limited to the members of the Commission and thus eliminates the obligation to provide minutes to any other participants of the sessions.70 Notwithstanding this plausible interpretation a further reading

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or the 1995 rules seems to indicate that it is their intention to pierce the confidentiality principle. First, 1995 rule, rule 79 (2) does not make any changes to rule 80 of the 1988 rules and thus still permits the Chairman of the Commission to publish the report on its activities after consideration by the AHSG. The emphasis here is on the word after and this suggests publication of the report by the Commission does not depend on if the AHSG permits this. Moreover, under revised 1995 rule 103 (1), the list of Communications to the Commission that the Secretary is supposed to compile is now to be made public. As each communication is to have attached to it a brief summary of its contents, this further erodes the confidentiality of the contents of state or non-state communications. Provisional measures that the Commission can adopt have also been revised so as to give the Commission greater scope for their application. Under the 1988 rules, interim measures could only be taken by the Commission. In rule 109 before making its final views known to the AHSG on the communication, the Commission may inform the state party concerned of its views on the appropriateness of taking provisional measures to avoid irreparable prejudice being caused to the victim of the alleged violation. In so doing, the Commission shall inform the state party that the expression of its views on the adoption of those provisional measures does not imply a decision on the substance of the communication.71 The 1995 rules however, give the Commission and the Chairman greater means to apply provisional measure to prevent irreparable damage being caused to a person alleging a violation of his rights. The 1995 rules now permit the Commission or the Chairman of the Commission in consultation with the other members to take provisional measures not only before the Commission makes its final views on a communication known to the AHSG, but also when the Commission is not in session.72 Presumably the aim of this is


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to provide additional protection of persons submitting communications to the Commission. Conclusion The Commission has been rather shrewd in its challenge to the hegemony that the OAU asserted over the African human rights system. The Commission is aware of the fact that it remains an arm of what is now the AU and thus strictly speaking, the AU could adopt measures to reverse the gains that the Commission has made. Arguably, the use of rules of procedures makes this challenge more subtle and thus, probably, more effective. First, the Commission has a monopoly over the amendment of the rules of procedure.73 Its members are not bound to draw on the advice or consult with the AU. However, it is not far-fetched to presume that the revisions as captured in the 1995 rules were inf luenced by the NGOs. We saw in the previous chapter in particular, how NGOs and the Commission have developed a fruitful relationship; each benefiting from the activism of the other. Second, rules of procedure are more f lexible to amend, hence their greater utility for the Commission and the NGOs. We saw in chapter two what is required if the Charter is to be amended and we also noted the likely consequences arising, making reform to the Charter by the AU in response to the activism of the Commission, a costly endeavor. It is this that reinforces the effectiveness of the Commission and the utility of the rules of procedure as a whole. Third, rules of procedure tend to be more detailed and more complex than treaty rules. Treaties set out the broad objectives of the parties whilst the rules of procedure describe how the treaty objectives should be implemented. Treaty rules exhibit this trait, we argue, because they are the outcome of a bargain between a variety of international actors with different

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objectives, thus making negotiation rather complex and lengthy. The African Charter saw all the members of the then OAU play a role in its drafting. The OAU system had no hegemonic power that was keen to compel the rest of the members to embrace its view of what shape the Charter should take. Thus there was a multiplicity of actors each with equal power. Given the OAU’s preference for consensus decision-making this reinforced the failure to draft a Charter that was clearly defined on a hegemonic power’s preferences. Treaties tend to be incomplete bargains: we argued and demonstrated this in chapter three. It is this incompleteness that allows for opportunistic decision-makers to craft rules of procedure to advance a specific agenda to ref lect their preferences.

CH A P T E R

F I V E

The Fragmentation of the African Human Rights System

Introduction Until now in describing and explaining the evolution of the African human rights system our focus has been on developments within the framework of the African Charter on Human and Peoples’ Rights. However, as we noted earlier on the African Charter is only the primary instrument in the African system; in effect there are other human rights instruments that, together with the African Charter make up the system’s entire body. It is the proliferation of these post–African Charter laws that amount to the start of what we call the fragmentation of the African human rights system. In this regard we examine the African Charter for Popular Participation in Development and Transformation, the Charter on Democracy, Elections, and Governance in Africa and the OAU Grand Bay Declaration and Plan of Action. Parallel to post-Charter human rights laws at the regional level, system fragmentation is also found in the realm of subregional economic integration. There is a profusion of human rights provisions in treaties that are designed primarily to achieve economic integration and thus we explore this process, relying on developments within the Economic Community of West African States

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(ECOWAS), the Southern African Development Community (SADC), and the East African Community (EAC). The fragmentation of the African human rights system is a dynamic process that is reflected in the adoption of new laws to give stronger effect to the promotion and protection of human rights in Africa. And, as we shall see, the actors in the fragmentation process are states or, international organizations or NGOs. Explaining System Fragmentation How do we explain system fragmentation? Drawing on literature describing regime shifting in international relations,1 we argue that states, usually powerful ones, create new sites for international law-making. The rational for this is that states seek to advance their interests in international law and relations. They do this through pressing for the creation of forums that they can dominate or manipulate to achieve their preferred policy goals. Following on from this, the fragmentation of the African human rights system should see the more powerful states such as Nigeria and South Africa pressing for the creation of new regional human rights law. However, as we saw in our first chapter, there is very little evidence of a hegemonic state, herding members of the OAU toward adoption of the African Charter. In the absence of an African hegemonic power it is difficult to argue that the role of hegemonic powers in regime fragmentation is true for our analysis in this chapter. Furthermore, power, although important, is not the sole determinant of how and why systems fragment over time. This observation supports one of the outcomes of our inquiry in this chapter that the process of fragmentation has been the result of states acting collectively without the insistence of a powerful state. We also note that fragmentation has been inf luenced by non-state actors.

Fragmentation of the African HR System 101 Although there is no evidence of a continent wide hegemon, we can identify some evidence of hegemonic inf luences at the subregional level. South Africa in SADC and Nigeria in ECOWAS have played a role in these two bodies2 shifting them from organizations rooted in the paradigm of the old regionalism into the new regionalism. Whilst the old regionalism in regional integration placed primary stress on economic and financial integration, the new regionalism is a multidimensional process with a wider set of objectives including the incorporation of human rights objectives into treaty texts.3 However, international relations theory does not limit regime fragmentation to powerful and dominant states inf luencing developments: another possible explanation for regime fragmentation is in the role that civil society and international organizations can play in breaking up monolithic systems. Public choice theorists in their explanation of the dynamics of legal and organizational orders tell us that regime fragmentation may also be advanced by government officials themselves, expanding the number of venues where international lawmaking takes place as this government gives officials greater access to the perquisites of their jobs.4 We drew attention to this in our examination of the dynamism of the African Commission. The secretariats and staff of international organizations can affect regime fragmentation by shaping agendas and inf luencing the calculation of state preferences. Also, once established, it is possible that international organizations begin to develop their own preferences.5 The above explanations for fragmentation rely on the strategic calculus of the actors and would thus seem to comport with the rational choice models we examined in the earlier parts of our study. However, explanations for fragmentation can be expanded beyond the rationality assumptions. In a pluralist world whilst there is a process of homogenization of global

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cultures, law and politics, there is also a process of differentiation.6 Differentiation compels us to question if not discard completely the notion of harmony within Africa’s continental order and thus system fragmentation could be due to the fact that any idea of harmony across Africa, and thus consensus when it comes to the shape human rights systems should take, requires further research.7 Thus, fragmentation exposes a disconnect and local and transnational communities affected by this disconnection seek to satisfy their parochial demands through the construction of new law-making systems in which they have a more important role than the state-dominated ones of the past. In sum, human rights norms in the formative years of the African system were consolidated under the umbrella of the then OAU at a time when subregional bodies made no space for human rights in their objectives. Thus human rights standard-setting was a coordinated game by states that had virtually identical positions on human rights, save episodes of liberalism. This was not surprising since the OAU sought to create the African system as a means to reinforce regime legitimacy and survival and thus a single system with what was expected to be a docile Commission ensured control over the development of human rights norms. However, subregional bodies have embraced the new regionalism paradigm with their own and rival human rights systems.8 To some extent and as we shall see below, the African Charter for Popular Participation in Development and Transformation9 (the Charter for Popular Participation) is a partial ref lection of this process.

The Consequences of System Fragmentation The process of system fragmentation triggers a consequent process where actors move law-making initiatives from one distinct regime to another. Actors utilize new forums of law-making

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to introduce and develop issues that were hitherto denied to them on account of limitations of the existing forums for lawmaking, or the fact that existing forums were under the control of powerful actors or, the issue areas within the competence of existing forums did not include matters of immediate concern to a particular set of actors. These developments produce a set of new relationships among the variety of actors and law-making, forums and also permit for the redefinition the boundaries within which new forums can operate. System fragmentation also produces a race to the top. In a race to the top, discrete law-making sites adopt comparable valueenhancing human rights standards and norms. This race to the top can also be the result of result of interforum competition; as the resort to regional and subregional bodies for protection of rights continues, there is the probability that petitioners will be attracted to the forum that is more likely to protect their rights thus rendering ineffective forums redundant.10 To prevent their redundancy, human rights tribunals in particular will compete with each other to supply high-quality human rights protection and this will produce a value-enhancing dynamic within the African human rights system.11 System fragmentation also demonstrates an acute awareness by government officials, international secretariats, and non-state actors of law-making processes, and exposes these actors ability to gauge which forum provides them with the best setting to attain their objectives. The pursuit of policy objectives can also add value to the human rights laws in Africa. Interorganizational competition can lead to a convergence toward rules beneficial to human rights in Africa. Thus as systems fragment, it is possible that there will be a multiplicity of moves across bodies, whether judicial or law-making bodies designed to make and mold international law. Another implication of system fragmentation is that it makes it possible for human rights activists to exclude those forces that are resistant to the deepening of human rights in Africa.

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In its formative years, the African human rights system at the regional level was devoid of competition with the supply of regional human rights law being within the sole preserve of the African Charter and the African Commission. Before the process of dynamic treaty interpretation that we explored and explained in previous chapters began,12 states that violated their citizens rights had very little to fear from the norms and standards set by the actors in the human rights system. In the wake of fragmentation the AU has lost the complete control it had over the making of regional human rights law. On the one hand, fragmented structures provide strategic options which could be lost if standardization was monopolized. System fragmentation thus opens up the possibility for actors to overcome paralysis that tends to be marked by delay, excessive haggling, and waste of resources.13 In effect fragmentation’s merit is that the process of interstate human rights law-making is decentralized as to exclude a large group of actors from participation. Thus standard setting would clearly be easier than in the conglomerate that is the AU. System fragmentation minimizes obstruction, haggling, delay whilst at the same time producing competing standards of human rights. Fragmentation need not be restricted to demands by non-state actors for a dismembering of the regional human rights system. The paradox of the African fragmentation process is that states within the AU system are also demanding and driving this development; they seek to dismember the very human rights edifice they created. The reason why we advance this point is that it is questionable whether the OAU and its successor the AU, whilst presented as a cohesive regional block committed to advancing an agenda for Africa’s development, has ever been as unified and harmonious as its early proponents wanted it to be. Since decolonization, there have always been tensions and conf licts between the members of the OAU. These differences are ref lected in the pace of the development of human rights

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law. The fragmenting of law could thus be explained as the outcome of interstate differences across the continent. Specific to Africa, two features of new regimes make them potentially powerful venues to negotiate and advance human rights. First the multiple treaties are sites that promote African aspirations of economic and political development and, in particular the long-cherished ideal of pan-Africanism. The forging of treaty systems in Africa since decolonization has been marked by the repeated assertion that the role of treaties is to advance the cause of pan-Africanism. The preamble of treaties adopted by the OAU and later the AU asserts the spirit of pan-Africanism and African unity.15 This is not surprising as preambles to treaties generally set out political ideals that the parties seek to attain. The African Charter on its part sees pan-Africanism as an ideal to be championed.16 Thus, there is an overarching function that African treaties play and that is to repeat and so remind Africans of the goal of pan-Africanism, and to serve as sites where representatives of governments and non-state actors converge in the spirit of pan-Africanist endeavors.17 Also, regime fragmentation allows for non-state actors to develop new norms that existing regimes have ignored.18 For instance, as we shall see below the African Charter for Popular Participation is a human rights document that non-state actors have used to elaborate on norms about popular participation and to also generate new norms about the role of popular participation. Thus regime fragmentation can provide states and nonstate actors with a way to experiment with alternative ways to achieve human rights objectives especially those that have been ignored or marginalized in other international regimes. Incorporating an issue area from one regime into another capitalizes on the advantages that the second regime offers for obtaining such outcomes—such as different institutions, different decision-making procedures, and different compositions

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of actors with different types of subject matter or functional expertise especially those shut out of a forum by state-only access rules. Fragmentation also offers the obvious advantage of greater access to law-making processes. By attending meetings, submitting documents to expert and working groups, and interacting with government officials inside and outside of negotiating halls, NGOs can shape debates over principles, norms, and rules in ways that are foreclosed to them within more state-centric regimes.

The Proliferation of New Regional Human Rights Texts The African Charter for Popular Participation in Development for Transformation The African Charter for Popular Participation in Development for Transformation (Charter for Popular Participation) was the outcome of a conference held in Arusha, Tanzania. This conference was organized by the Economic Commission for Africa in collaboration with the United Nations.19 The Arusha Charter provides us with a good case to unpack the process of fragmentation. It involves state and non-state actors coming together outside the umbrella of the African Charter, and developing a human rights Charter that seek to elaborate on the meaning of the right of popular participation. The Arusha Charter gives two meanings to the definition of popular participation. Popular participation is the empowerment of ordinary people to effectively involve themselves in creating the structures and designing policies and programs that serve the interests of all. At the same time, popular participation is taken to mean a process through which ordinary people can effectively contribute to the development process and share equally in its benefits. Thus in one interpretation of


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popular participation ordinary people carry out a public interest role and in the other interpretation, ordinary people use the right of popular participation to their own advantage.20 The Charter for Popular Participation sees the state as a violator of human rights. It asserts that the postcolonial African state is responsible for narrowing the social base of power and decision-making is too narrow. To give effect to popular participation therefore, the state must open up participatory processes to its citizens.21 The Charter for Popular Participation also focused attention on participation in economic processes. Here too the allegations or assertion is that it has concentrated too much economic power in itself. This was probably a consequence of the statist economic policies that the large number of African countries followed just after decolonization.22 The Charter for Popular Participation therefore contains provisions on economic power. It exhorts governments to create more economic opportunities for their people through the “equitable distribution of income, and support for peoples’ productive capacity through enhanced access to productive inputs such as land, credit and technology” 23 Prior to the adoption of this Charter, no African human rights instruments had mentioned state violations of citizens’ rights. The Charter for Popular Participation is also an improvement on the African Charter, which does not refer to the violation of human rights abuses by the state. How can we understand this identification of the state as a barrier to citizen enjoyment of the benefits of the right to participate in government? Arguably, we can assign this to the fact that the Charter for Popular Participation was adopted when orthodox notions of state sovereignty were being challenged.24 One consequence of this development is that individuals have begun to participate, actively, in international law making. Second, coupled non-state activism in international law with the emergence of individuals as participants in the law-making was mirrored in

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the large number of private actors that participated in drafting the Charter for Popular Participation. The majority of participants were non-state actors. There were only 73 representatives of African governments at the Conference that adopted the Charter, and there were 205 representatives of NGOs. Furthermore, state representatives had very little control over the discussions and inputs made at the Conference. Of the four Plenary Sessions, only one state representative chaired a session.25 As far as the Working Groups or Workshops were concerned only two state representatives out of a possible 15 chaired them. Moreover, none of the rapporteurs, presenters, and discussants in the Plenary Groups and Workshops/Working Groups represented states. Thus, in sum, the outcome of the Charter for Popular Participation and the general indictment of the state for violating the right of popular participation is a ref lection of the leverage that NGOs and individuals exercised.26 Another interesting aspect of the Charter for Popular Participation is that it does not follow the African Charter on the individual and his or her duties in society. Under the African Charter, the Preamble states that the enjoyment of human rights is linked to the performance of duties.27 Furthermore, the text of the African Charter also sets out a list of duties that the citizens have to fulfill. It has been argued that these provisions have the potential to allow the state to violate human rights by imposing huge duty-related burdens on Africans.28 This position on the obligations of individuals under the African Charter is grounded in the conception that the idea of an atomistic individual with no obligation toward his or her community is valid only within the urbanized, industrial, and postindustrial Western societies. Thus, it is argued that radical individualism with its deference to the idea that the citizen has virtually no duties to wider society cannot be transplanted to Africa. This is because African society is still fundamentally different from Western society, and the conditions that


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gave birth to the Western human rights movement. Hence, African states have asserted that there is a rights-duty link. It is therefore interesting to note that although the Charter for Popular Participation contains provisions on duties, the language it uses leads to the conclusions that the duties delineated in it are designed to protect and promote the right of popular participation. The Charter’s provisions on culture are also a break from the provisions of the African Charter. Specifically, the Charter for Popular Participation proclaims that women’s participation in development should be ensured. It also entreats individuals to discard traditional beliefs that are impediments to development, laying particular focus on cultural practices that undermine the status of women in society.29 Furthermore, the Charter for Popular Participation affirms the need for families to develop participatory processes as the home is the foundation for development.30 Therefore, at the heart of the duties and culture concept is that these two concepts notions should not be used to prevent the individual from participating in decision making. What explains this development? The drafting of the Charter saw a large number of women’s groups play a meaningful role in shaping it. Another explanation is that this standpoint of view can also be seen as the outcome of the processes of socioeconomic transformation taking place in Africa. Urbanization and economic transformation set in motion the vital factors that led to the civil and political rights revolutions of seventeenthand eighteenth-century Europe. Arguably, therefore, if similar developments occur in Africa, insistence on redefining human rights to reconceptualize traditional African conceptions of culture will find its way into emerging human rights systems. There is evidence to support this hypothesis. A close examination of Africa today reveals rapid rates of urbanization and these processes can have consequences for individual civil and political rights on the continent. In addition, while African economies are yet to undergo a radical transformation from

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agrarian to industrialized ones and as a result reach current levels of Western industrialization, it is difficult to establish at which point these forces come together to shift thinking away from communalism toward individualism in human rights protection.31 Thus, it is doubtful if industrialization and urbanization have to arrive at Western levels; the start of the process alone suffices to suggest that communal bonds are being loosened if not completely broken. I argue therefore, that at the turn of the twenty-first century this process has moved far enough for there to be reservations about linking rights and duties and this was ref lected in the Charter for Popular Participation.32 The Charter for Elections, Governance, and Democracy in Africa In two cases brought before the African Commission on Human and Peoples’ Rights, the Commission stated that unconstitutional changes of government violate the right of individuals to participate in government.33 As part of this right to participate in government, the then OAU adopted a declaration on unconstitutional changes in government and this guides it in fencing-off the AU from governments that have come to power through unconstitutional means.34 This push toward embedding elections, democracy, and constitutionalism in Africa has resulted in the AU adopting the Charter for Elections, Democracy, and Governance in Africa (CEDGA). The CEDGA’s human rights objectives include promoting universal values and principles of democracy and respect for human rights.35 CEDGA also aims to ensure the promotion and holding of regular free and fair elections in Africa so as to institutionalize representative governments.36 Other objectives with human rights implications are inculcating political pluralism,37 promoting sustainable development,38 and promoting the establishment of the conditions required to further citizen participation and freedom of the press.39 The parties are


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required to implement the CEDGA taking in accordance with the respect for human rights and democratic principles,40 promotion of a system of governance that is representative,41 the holding of regular, transparent, free, and fair elections,42 and the strengthening of political pluralism.43 In addition to obligations toward their citizens, the state parties under the CEDGA are under an obligation to guarantee the development and strengthening of national structures to protect human rights. The parties are to establish and strengthen independent and impartial national electoral bodies responsible for the management of elections.44 They are also under an obligation to establish and strengthen national mechanisms that redress election-related disputes in a timely manner.45 The parties must also ensure fair and equitable access by contesting parties and candidates to state controlled media during elections.46 There is also the duty to draft a binding code of conduct governing legally recognized political stakeholders, government and other political actors, prior, during, and after elections. The code shall include a commitment by political stakeholders to accept the results of the election or challenge them in through exclusively legal channels.47 The CEDGA encourages the parties to interact with the AU Commission through the AU’s Democracy and Electoral Assistance Unit and the Democracy and Electoral Assistance Fund to provide advisory services or assistance for strengthening and developing their electoral institutions and processes.48 Binding on the parties to the CEDGA is the obligation to inform the Commission of scheduled elections and invite it to send an electoral observer mission. Acting on its own initiative, it would seem the Chairperson of the African Commission is under an obligation to first send an exploratory mission during the period prior to elections. This mission shall obtain any useful information and documentation, and brief the Chairperson, stating whether the necessary conditions have been established and if the environment is conducive to the holding of

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transparent, free, and fair elections in conformity with the principles of the AU governing democratic elections. The role of CEDGA is that it asserts and repeats particular commitments which the states parties have previously undertaken. It is a reaffirmation of the shift in Africa toward more liberal notions of the right of individuals to participate in government and decision making. OAU Grand Bay Declaration System fragmentation is also found in soft law declarations adopted by the OAU. The OAU Grand Bay (Mauritius) Declaration and Plan of Action49 was a development in the growth of a body of post-Charter regional human rights law. The Grand Bay Declaration reasserts the importance of human rights in Africa and stresses the role of African governments in human rights violations. Its significance is that it adds to the number of human rights instruments that the Commission can draw upon under the authority of Article 60 of the Charter. The Grand Bay Declaration reinforces some of the traditional perspectives held by the OAU on human rights. For instance it continues the OAU’s ritual of according importance to third generation rights. The Grand Bay Declaration affirms that the right to development, the right to a satisfactory healthy environment and the right to national and international peace and security form an integral part of fundamental human rights.50 Furthermore, the Declaration links Africa’s human rights crises to the perceived unfairness of the international economic system. Thus the Declaration contains provisions on neocolonialism, social dislocations that may arise from the implementation of structural adjustment programs and the debt crisis.51 The Declaration also bears cultural traits. It recognizes that integrating positive, traditional, and cultural values into the human rights debate will be useful in their transmission to future generations.52


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What is interesting about Grand Bay Declaration is that it contains provisions on human rights that were rarely or never found in human rights treaties and declarations adopted by the OAU. First the preamble states that African NGOs have made a significant contribution to the promotion and protection of human rights. The Declaration also states that the development and strengthening of civil society is vital to the process of creating an environment conducive to human rights in Africa.53 The Declaration also recognizes the importance of promoting an African civil society and calls on African governments to offer their constructive assistance to civil society so as to consolidate democracy. What accounts for this thinking by the drafters of the Declaration? The importance of this question lies in the fact that in the origin of the African human rights system, NGOs were marginalised by the members of the OAU. Under the Banjul Charter for instance, the only reference to NGOs is limited, by implication, to Articles 45, 46 and 55. This view on NGOs was repeated in the Protocol establishing the African human rights court. The Court’s protocol denies non-state actors automatic access to it. Instead, in exceptional circumstances, the Court may allow NGOs with observer status before the African Commission to institute petitions before it.54 We should note here that the Charter for Popular Participation contains provisions expressly supportive of the role of NGOs but, however, this is probably explained by the fact that this Charter was drafted with a large NGO input. Another important provision of the Grand Bay Declaration is that the OAU’s members, acting on their own volition, have conceded that the state is the primary violator of human rights in Africa. The Declaration lists a range of factors linked directly to state action as being responsible for human rights violations in Africa.55 The essence of this is that it is a distinct departure from the human rights paradigm in Africa. Neither the African Charter, nor the African Charter on the Rights and Welfare

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of the Child makes any mention of the state’s role in human rights abuses. While the Charter for Popular Participation does affirm the state’s monopoly over decision making and its concentration of economic power within itself again, as recounted above, the drafting of this Charter was not left solely to the Members of the OAU. Therefore what makes the Grand Bay Declaration significant is that although its drafting was the sole responsibility of the OAU’s members, it still accuses them of human rights violations. We have no definite explanation for this self-criticism. Thus, we can only offer a number of suppositions on the matter. First, we argue that though there are still persistent human rights violations in Africa, a small group of democratic states with fairly durable constitutional orders is emerging and expanding. Countries such as Benin, Botswana, Ghana, Mauritius, Senegal, and South Africa are strengthening their commitment to respecting and protecting the rights of their citizens. As a result the AU is no longer a body that is overwhelmingly made up of authoritarian states with the tendency to conveniently ignore or excuse state-sponsored human rights violations. Another possible explanation is the fact that the Declaration was adopted in Mauritius, a state with a comparably better record of respect for democracy and human rights. Hosting a meeting of the OAU can give the host state advantages in shaping meeting outcomes.56 There is also the possibility that because the Declaration is only soft law it does not impose binding obligations on its members. Therefore, this made it easy for it to contain any kind of language. However, this explanation is moot. This is because there is the view that one important characteristic of soft law is that it can crystallize into binding obligations on states. Another interesting provision in the Grand Bay Declaration is the affirmation that human rights are universal, indivisible, interdependent, and interrelated. In this vein the Declaration


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urges African governments to give parity to all generations of rights. This is another move away from the position in the African human rights system. Under the African Charter, for instance, the preamble stresses the importance of economic, social, and cultural rights, claiming that their satisfaction is a guarantee for the enjoyment of civil and political rights.57 This would seem to mean that the drafters of the African Charter gave preference to economic and social rights over civil and political rights. Thus by affirming the indivisibility and interdependence of rights, the Grand Bay Declaration , on its part, does not prioritize one set of rights over the other. Subregional Integration Treaties and Human Rights Subregional integration has always been an important feature of postindependence political economy in Africa. The classical purpose of subregional integration was to enhance economic relations Thus treaty provisions focused on removing barriers to trade in goods and the movement of people within the integration area. In the embryonic stages of these integration endeavors, very little attention was paid to the role of judicial arms of the various treaty systems. Whilst the treaties did create courts and tribunals, very little was done by the various state parties to actually constitute such organs of these treaties.58 However, in recent times there has been the rebirth of the judicial arms of the various integration treaty systems. One would assume that this would be for the purpose of making treaty-based claims on the right of citizens in the member countries to engage in cross-border commerce. However, one development has been the use of regional courts to argue for the protection of human rights. Also, these subregional integration systems have adopted a range of human rights charters

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and have enunciated a number of principles, designed to affirm their commitment to human rights. In practice then, bodies such as ECOWAS and SADC are intersecting human rights issues with economic integration. The founding legal text of ECOWAS, its 1975 treaty, virtually made no mention of human rights. If there was any implication for human rights it was in the Protocol on Free Movement of Persons which gave ECOWAS citizens some rights to move freely across borders of the members without the need for visas and to reside in a member country for 90 days.59 However, in 1991 ECOWAS adopted the ECOWAS Political Principles.60 Agitation for a return to constitutional rule after years of military dictatorship with very little respect for individual liberties was underway in member countries such as Nigeria, Ghana, and Benin. In addition, the region-wide instability that was traced to the Liberian conf lict and the economic dislocation caused due to mismanagement, corruption and the selection of inappropriate economic policies.61 The members of ECOWAS began to contemplate a complete revision of the regional treaty system with a view to reconfiguring subregional relations.62 It was as part of these developments that ECOWAS adopted its Political Principles. The preamble to these Principles asserts that the members of ECOWAS are determined to concert their efforts to promote democracy in the subregion on the basis of political pluralism and respect for fundamental human rights as embodied in universally recognized human rights and in the African Charter.63 To attain their objectives, the members declared that they will respect human rights and fundamental freedoms. The members also agree to promote and encourage the full enjoyment by their citizens of their basic rights. The members therefore are to encourage and promote in their respective countries, political pluralism, representative institutions, and guarantees for personal safety and freedom under the law.64

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In the Revised ECOWAS Treaty , ECOWAS restated its faith in human rights as a critical component of its efforts to integrate the subregion. Its preamble states that the desire to adopt the Revised Treaty was done with the African Charter on Human and Peoples’ Rights in mind.66The Revised Treaty’s fundamental principles now state that the members declare their adherence to the recognition, promotion, and protection of human rights as set out in the African Charter on Human and Peoples’ Rights.67 The embrace of human rights by subregional integration treaty systems has not been limited to civil and political rights. SADC, for instance, has adopted the Charter of Fundamental Rights in SADC.68 This Charter with its focus on social rights is understandable. This is because it is virtually impossible to conceive of subregional integration without reference to the objectives of the concept of trade liberalization which forms the cornerstone of subregional integration. Trade liberalization is supposed to be wealth-maximizing in that it is aimed at providing individuals with access to cheaper goods through the removal or reduction of barriers to trade. There are consequences to this process entailing social and economic dislocation which tends to impact on the poorer sections of society. Thus critics of trade liberalization in general and subregionalism in particular insist that workers and women in particular, the poor be afforded shelter from the shocks that trade liberalization can cause. The role of the SADC Charter therefore is to mitigate the erosion of social standards that follow in the wake of globalization. The Charter of Fundamental Social Rights in SADC embodies the recognition by governments, employers, and workers of the universality and indivisibility of basic human rights proclaimed in the UDHR and the African Charter, the constitution of the International Labour Organization and the Philadelphia Declaration.

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The rights in the SADC Charter include freedom of association and collective bargaining. Here the Charter acknowledges the right of employers and workers freedom of association and collective bargaining69 Members also have an obligation to ensure equality of treatment for men and women70; the protection of children and young people, the creation of an enabling environment for elderly persons, persons with disabilities, social protection, improvement of working and living conditions and the protection of health, safety and environment. The SADC Charter states that it embodies the recognition by governments, employers and workers in the SADC region of the universality and indivisibility of basic human rights as proclaimed in, for example, the UDHR and the African Charter.71 For instance, the SADC Charter asserts the right of both employers and worker to form trade unions.72 Employers and workers have the freedom to join or refuse to join employers or trade unions;73 both employers and workers have the right to negotiate and conclude collective agreements;74 and the right to resort to collective action.75 Workers also have the right to strike and to traditional collective bargaining.76 Past subregional integration treaties had virtually no conditions for membership; all that was required was that an applicant state be a member of the geographical region which the organization purported to cover, and as defined by the then OAU. One feature of the impact of human rights on subregionalism is that this is open access to treaty membership is no longer the case.77 So, for example, the EAC78 now demands that future applicants meet certain standards before being granted entry. One of these preconditions is respect for human rights.79 Subregional Case Law The new regionalism in Africa has given rise to the role of the courts and tribunals established under these treaty regimes.


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Past integration treaties under the old regionalism saw provision made for judicial and quasi-judicial bodies but there was very little use of them to resolve disputes. However, the new regionalism has seen an embrace of legalism in general and use of courts and tribunals as venues for dispute resolution has been part of this trend. Some cases that have been heard by the subregional courts and tribunals have stressed the import of the human rights provisions in the various regional integration treaties. For instance, in the Ugandan Case of Katabazi and 21 Others v Attorney General of Uganda,80 the applicants who were tried for treason, were granted bail by the Uganda High Court. However armed security agents surrounded the court premises and prevented the execution of bail. They rearrested the applicants, reincarcerated them and recharged them before a Court Martial. They were not released even after the Constitutional Court of Uganda so ordered. This conduct was held to be a violation of the rule of law enshrined in Article 6 (d) of the East African Community Treaty.81 So too did the ECOWAS Court of Justice in Essien v the Gambia and Another,82 reaffirm its competence in human rights violations by noting that Article 10 (d) of the Supplementary Protocol of the Court states that access is open to, individuals on application for relief for violation of their human rights.83 Also, the ECOWAS Court referred to Article 4 (g) of the Revised ECOWAS Treaty which states that the high contracting parties affirm and declare their adherence to the recognition, promotion, and protection of human and peoples’ rights in accordance with the African Charter.84 In Mike Campbell (pvt) Ltd and Others vs. Republic of Zimbabwe85 the SADC Tribunal ruled that the seizure of the applicants land by the respondent was done in manner that violated their rights. Thus, we can see a new trend emerging that reinforces the fragmentation of the African human rights system: Not to be left out as an organ that is of value to Africans, subregional

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courts are gradually, entertaining human rights petitions from aggrieved citizens who are gradually aware of the fact that their rights can be afforded protection under subregional human rights systems. Conclusion This chapter has drawn attention to the dis-aggregation of the African human rights system. System origin began with the construction of the African Charter. Although there were pressures from within the jurisdictions of the African Charter’s states parties, the final design of the Charter was a continentwide instrument that covered all of Africa. However, progressively, this monolithic edifice has been unbundled and, relying on a variety of explanations, we have sought to explain the causes of this unbundling and we have also tried to identify some of the consequences as well.

CH A P T E R

SI X

The Future Direction of the African Human Rights System

It was that leading Ordoliberal scholar1 Wilhelm Ropke who, commenting on why measures to tackle the Great Depression of the 1930s failed, noted that although the problem was cast as a failure of international trade, the solution lay in the opening of markets at the national level. It was only when this was done that the numerous international conferences organized by the leading statesmen and bankers at the time would have any meaningful impact on the lives of people.2 Ropke and other Ordoliberals did not mean to denigrate internationalism; what they did set out to achieve however was to underscore the point that international efforts alone to revive the world economy without similar national measures would achieve nothing. The national and international were connected, welded together as one whole and any international measures to end the Depression were bound to fail. Thus liberalism that began from below was the solution to durable liberalism above. This brief venture outside the bounds of international human rights helps us understand the role of the national level in the structural design of the African human rights system: we cannot separate the national from the regional and subregional part of the system. Thus we state that the subregional and regional

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systems are really embedded in national human rights struggles. Thus in our analysis of the African human rights system we do not limit ourselves to developments between states; we also focus on developments within states, identifying a process of what we term system deepening, by delineating the reception of the African system’s principles, standards, and norms in the human rights and constitutional jurisprudence of the members of the AU. Our line of inquiry in this regard is in consonance with our statement in the introduction to this book that the African human rights system operates on a number of levels, one of these being the national level. In our examination of developments at the national level, we go down three paths: first, we look at compliance with the recommendations of the African Commission. Second, we look at the how courts and constitutions have embraced the norms emanating from the African system at the regional level. Third, we examine the embrace within national jurisdictions of Article 263 and Article 454 recommendations issued by the African Commission. Before the African human rights system began to crystallize at the regional and later the subregional level, the struggle for human rights, especially after decolonization, was partly won when the departing colonial powers left behind liberal constitutions with bills of rights that they thought would entrench European notions of liberalism in their ex-possessions.5 As soon as independence was achieved however, the new governments began dismantling these liberal constitutions proclaiming, with special reference to the rights that they guaranteed and protected, that these rights were a drag on national development and political cohesion. Notions of labor rights, free speech, the right to form political parties or that the right of self-determination applied to subgroups within a state would prevent leaders from taking the speedy decisions needed to accelerate the pace of development, or as in the case of selfdetermination, would be the basis for attempts at the violent dismembering of states.6

The Future Direction 123 Thus at the base of the African human rights system, there was a wholesale clawing back of the liberal rights in the various national constitutions, assuming those constitutions had not been completely overthrown. However, long before the African Commission laid siege to the clawback clauses, national courts were arguing that the rights granted under constitutional orders remained in force, even when the constitutional orders had been overthrown. For example, this was the position espoused by the High Court in Ghana in The Republic vs. Akosah.7 The Court held the view that the rules of law protecting fundamental freedoms of the individual as embodied in the 1969 constitution were not abrogated by the coup d’etat that ended the constitutional order. The Court stressed that those rules derived from the common law which is part of the laws of Ghana, and thus could not have been swept away by the suspension of the Constitution. Again in Labone Weavers Enterprises Ltd v Bank of Ghana,8 the Court pronounced on the existence of civil and political rights guaranteed under the suspended 1969 Constitution. The Court held the position that the fundamental human rights provisions continued in existence notwithstanding the demise of the constitutional order. Thus it was at this level that resistance to clawback clauses began and this process is now reinforced by national courts embracing the anticlawback norms articulated by the African Commission. The lack of a continent-wide coercive power and the reluctance of subregional powers to impose respect for human rights in areas within which they have considerable inf luence,9 makes for reservations about compliance with the rules emanating from the African human rights system. Yet research on compliance with the recommendations of the African Commission recommendations indicates that the lack of enforcement powers might not be the huge problem observers have made it out to be.10 Frans Viljoen and Lirette Louw argue that it is only

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in a minority of cases that there are instances of blatant noncompliance with Commission recommendations. Thus in the majority of cases the state parties are inclined to either comply fully with the Commission’s recommendations, comply partially, or comply after their domestic political situations have changed.11 Viljoen and Louw describe full compliance as occurring when a state party, after it has been found to be in breach of the Charter, acts in a manner so as to leave no room for doubt that is has decided to abide by the Commission’s decision. In this instance, implementation of the decision by the state is exact and to the point. Then there is partial compliance with decisions of the Commission and in such an instance the state party has implemented some, but not all of the Commission’s recommendations.12 Situational compliance takes place when there are changes at the domestic level in a state party that leads to a new regime assuming power.13 This new regime is keen to signal that is embraces human rights, and thus seeks to reverse decisions taken by its predecessors in this regard, and, in its enthusiasm agrees to comply with any decisions its predecessor government had completely ignored. What normally happens here is that there is a transition from a nondemocratic government to a democratic one with implications for human rights.14 Moreover, even in instances of noncompliance, some of the reasons given were that the state parties involved did not accept the Commission’s findings, and thus based their challenges on factual or legal grounds while indicating that they would not have implement the Commissions recommendations for those reasons.15 Plausible explanations for compliance with Commission decisions can be on account of the rationality of decision makers, that is decision-makers at the national level see noncompliance as bearing significant consequences such as harm to their international reputation,16 or compliance is on account of bottom-up pressures from domestic interest groups that the

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state purports to represent in international relations. It is possible also that compliance can be traced to the point that state decision-makers have faith in international law in general and international human rights in particular and thus compliance is based on the fact that it is the right thing to do.18 Notwithstanding motives for compliance, what we can pull out of the analysis by Viljoen and Louw is that the African human rights system is gradually filtering down into the domestic legal and political orders of the state parties.19 There is evidence of a growing acceptance of the system as an actor in the law making process. The growing stature of the African Commission in the eyes of officials of the executive branches of government within African states is also evident from the number of states that are represented at its sessions, as well as deducible from the high status of such state representatives.20 Since states parties are not really bound to attend most of these sessions or to send officials of a high status, especially when their state reports are not considered, their increasing presence at these sessions is in itself remarkable given the time and expense involved. Given that the presence of eight countries at the Commission’s Sixteenth Ordinary Session was seen as a remarkable improvement in attendance, the fact that attendance is now in the mid to high twenties should be seen as a phenomenal increase.21 We can therefore infer from this increase the fact that governments are beginning to treat the Commission rather seriously. Also the Commission’s impact at the national level in terms of its ability to inf luence the organizational landscape is further evidence of the growing importance or internalisation of the African human rights system. Stemming from Articles 26 and 45 of the African Charter, both of which call for and encourage national and local human rights institutions the African Commission has allowed such institutions, to play constructive roles in its work.22 By opening its doors to national human rights bodies, the Commission has allowed for and benefited

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from their reciprocity. For instance, it has been pointed out that the Kenyan National Commission on Human Rights has expressly affirmed its obligation to protect the collective rights guaranteed by the African Charter, but not in the Kenyan Constitution, and it has also declared that it is committed to supporting the work of the African Commission and the African Court on Human and People’s Rights. Some human rights bodies from the member states have gone as far as to seek and obtain observer status with the Commission while others have been granted affiliate status.23 The system has thus helped foster an appreciable and significant level of correspondence between its norms and behavior of the courts and human rights bodies of the relevant states. Benin, Botswana, and Nigeria as Instances of the Domestic Impact of the African Charter Benin provides evidence of the impact that the African Charter has had on a domestic legal and political order. Benin went through fundamental political change in the 1990s culminating in the end of its one-party state system, and the opening up of its political system to multiple parties. A national conference set in motion measures that led to a new Constitution and the Conference recommended that the new order should emphasize the defense and the promotion of human rights as proclaimed and guaranteed by the African Charter. The preamble to the Benin Constitution states that the people reaffirm their fundamental opposition to any political regime founded on arbitrariness, dictatorship, injustice, corruption, and attachment to the principles of democracy and human rights as they have been defined by the African Charter.24 By ratifying the Charter, and as a monist country, Benin has incorporated the Charter into its national law and made it superior to its domestic laws.25 Apart from ratification, the preamble to


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the Constitution states that the people reaffirm attachment to human rights as they have been defined by the African Charter whose principles make up an integral part of the present constitution and of Benin’s law and have a value superior to the internal law.26 The preamble makes the African Charter constitutional law by virtue of the constitutional value of the preamble. Further, Article 7 of the Constitution provides that the rights and duties proclaimed and guaranteed by the African Charter shall be an integral art of the constitution of and of Benin’s law.27 The Constitutional Court, Benin’s paramount court in constitutional matters has also relied on the African Charter as a source for rights invoked before it.28 In Botswana, in the case of Dow v Attorney General29 allowed the Court of Appeal to opine on the place and impact of the African Charter on Botswana’s constitutional order. In dismissing an appeal against a lower court’s decision that the Citizenship Act contravened the rights and freedoms in the Botswana Constitution, the Court of Appeal noted that Botswana is a signatory to the African Charter and it would seem that Botswana was actually one of the prime movers behind the Charter’s adoption. Thus even if it is accepted that the Charter does not confer enforceable rights on individuals within Botswana until Parliament has legislated its provisions into the law of the land the Charter can still be relied on as an aid to the construction of enactments, including the national Constitution.30 Nigeria also provides evidence of the impact of the Charter on domestic legal orders. Nigeria has incorporated the African Charter into its national law. It has done this through the enactment of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. In Inspector General of Police vs. All Nigeria Peoples Party31 the Court of Appeal held that on the strength of this Act, the African Charter is now part of the domestic laws of Nigeria and like all other laws, the courts must uphold it. These rights are already enshrined

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in our constitution. Moreover, in the opinion of the Court the Act is a statute with international f lavor: as such, if there is a conf lict between it and another statute, the Act’s provisions will prevail over that other statute. The reason for this paramountcy of the Act over national law was, in the Court’s view, to ensure that the legislature does not breach Nigeria’s international obligations.32 Cosmopolitanism, and the African Human Rights System We assert that the African human rights system will continue to evolve shaped on the lines of cosmopolitanism models of law making. The OAU was fashioned on a mix of the Westphalia and liberal international models of international relations. Under the Westphalia model, states asserted and defended their sovereignty and thus in the international arena, politics was largely about state representatives making laws across borders.33 Under the Westphalia model, there was virtually no room for democracy in international relations. Thus even though parallel to the emergence and consolidation of the Westphalia system, there emerged, especially in Europe, demands for democratic representation at the national level, international politics did not allow for the incorporation of such ideas. Observers have stressed that Hobbesian political thought inf luenced this model. In international relations the state of nature was probably more profound and evident than what pertained within the borders of states. In the state of nature there is “war against all,” and each state is free to act to advance its objectives without any constraints placed on it. A social contract was the way out of this state, with citizens agreeing to some form of civil government. The application of the Hobbesian state of nature to the international arena is in the point that the absence of an international government is what explains the

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anarchical nature of international society. The African state identified with the Westphalia model of international relations. The African state claimed virtually absolute sovereignty35 demanding respect for its borders and freedom of internal action. Liberal internationalism too, like the Westphalia system, gave very little room for non-state actors to shape international legal relations. Thus those domestic human rights forces that could have played a role in shaping the human rights system at the regional and subregional levels found it hard to find space in the decision-making process.36 The contradictions in the liberal and Westphalia models of international law-making have been exposed and we are witnessing a shift away from the Westphalia model toward cosmopolitanism. The progressive evolution of the African human rights system will do so, we argue, on lines of cosmopolitanism; however, there will an intersection with what has been termed particularism, producing beneficial outcomes in some instances, and suboptimal outcomes in other instances. In recent times however, the Westphalia and liberal international models have been challenged and/or complemented by the cosmopolitan model of global governance. The post–World War II era began with an explosion of global institutions that excluded non-state actors from their terrain. While the supporters of global organizations insisted that these bodies were essentially established to pursue the public interest, they were careful to ensure that these forums were essentially sites for decision-making by states. However, this liberal international model has come under strain. Globalization and the accompanying rise of non-state actors, has led to the re-configuration of international organizations to include space for non-state actors in deliberation processes. This transformation has produced the cosmopolitan model of global governance. 37 Thus the cosmopolitan model of democracy and law-making empowers actors within and across networks of power. Together these networks form the bedrock of a new legal order that empowers

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the hitherto marginalized non-state actors: international law and organisations are democratized through the creation and reshaping of a body of subregional, regional and international courts to constrain the use of political power in interstate relations. Furthermore, legal principles are adopted which allow for direct representation and participation by non-state actors in the deliberations of the of international organizations. Thus if an individual makes a human rights claim in an African country today, for instance in East Africa she has access to her national courts, the EAC Court and the African Commission. She can also have access to the African Court on Human and Peoples’ Rights.38

Examples of Cosmopolitanism in the Gay Rights Struggle Gay Rights The current emerging pressures for a right to sexual orientation to be recognized as existing under the African Charter are indicative of cosmopolitanism. In recent times, the right to sexual orientation is gradually finding its way onto the African human rights agenda although these claims are being resisted as being “un-African.” As at writing, only South Africa recognizes individual right of sexual orientation and has entrenched this right in its Constitution which specifically states that the state may not unfairly discriminate against an individual on the basis of their sexual orientation.39 Thus African countries generally still criminalize consensual homosexual activities and, in response to pressures for a right to sexual orientation, some countries are actually drafting new laws to clarify their positions on this matter.40 African countries thus seem to be resisting the interpretation of a right to privacy, non-discrimination and expression to mean that there is a right of sexual orientation.41


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Despite resistance to homosexual rights, there is an emerging lobby that is pressing for the right to sexual orientation to be recognized as a right that although the Charter does not expressly protect, does actually exist based on an expansive reading of the rights akin to inserting the right to food into the Charter in the SERAC case. This lobby is increasingly active at the regional level, seeking to use the African Charter to have its members rights acknowledged and protected.42 That the African Charter omits the right to sexual orientation was most probably deliberate, the product of the sociocultural context of the 1970s when the Charter was drafted. However, the African Charter was not the only human rights charter that took this position. Neither the ECHR, or the ICCPR specifically include a right to sexual orientation.43 It is the expansive interpretation of a right to privacy in these human rights Charters that has been used to assert that there is a right to sexual orientation. The import of the liberal interpretation of privacy clauses is underscored when we acknowledge that the African Charter is a living document to be construed by taking into account changing politics, economics and culture as and when necessary and, as a matter of fact, the analysis in chapters two and three of this book point to this development. The current pressure from domestic groups determined to assert their right to sexual orientation is manifested in their ability to develop a relationship with the African Commission. There is evidence that they are exploiting the African Commission’s openness to civil society groups to build constructive and fruitful relationships with the same. The basis for the struggle for a right to sexual orientation can be construed from the Charter itself. If it is accepted that persons regard their sexual attraction to persons of the same sex as integral to their personality, it would follow that an encroachment of that aspect of their person would constitute an infringement of their integrity as a person and to their inherent human dignity. Respect for this integrity and dignity requires that the

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individual be left free of state interference in the most intimate domain of sexual choice, thus implying the right to privacy.44 Moreover, the African Charter guarantees equality, asserting that individuals are entitled to the rights under the Charter without any distinction. The list in this provision is only illustrative of the basis on which there can be no discrimination; thus the list is not exhaustive. The Charter also asserts that all persons shall be equal before the law. In effect, the Charter, could be interpreted to mean that individuals have their right to sexual orientation protected under the Charter.45 Also, there is Charter Article 60 which calls on the African Commission to be guided by other principles of international. Thus the case law of the ECHR in particular, could be drawn on to guarantee and protect this right. NGOs have pressed the issue of right to sexual orientation and the response by the Commission indicates that it might not necessarily reject out of hand, claims for this right to be respected. At the NGO Forum at the Forty-third Ordinary Session of the Commission, the thematic special interest groups included Lesbian, Gay, Bi-Sexual, Transgendered, and Intersex Peoples were included in this group.46 In 2009, at the Fortyfifth Ordinary Session of the African Commission, the right of sexual orientation was once again on the agenda. The highlight of the forum was a panel on Lesbian, Bi-Sexual, Transgender, and Intersex persons with thematic groups also covering these issues. The Commission adopted a resolution on this issue as well.47Furthermore sexual rights activists have participated from throughout Africa at the Commission’s sessions. Gay rights issues were formally introduced at the Commission’s Thirty-ninth Session. They immediately began to inf luence the issues when they submitted a shadow report with Sexual Minorities of Uganda which was used by the Commission to explore Uganda’s human rights record. Private individuals have also recognized the value of the African Commission’s complaints procedures to press claims


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for the right of sexual orientation. In Courson v Zimbabwe,48 the communication concerned the legal status of homosexuals in Zimbabwe. The complainant claimed that the respondent state, Zimbabwe, had criminalized sexual contact between consenting adult homosexual men in private. The complaint also asserted that the political statements made by government officials added to this criminalization and made for a country that was hostile to the right of sexual orientation. The communication thus averred that the laws of Zimbabwe violated Articles 18, 20, 22, and 24 of the Charter. As a consequence, the complainant argued, and to vindicate his rights, the African Commission should find Zimbabwe to be in violation of the Charter. In doing this, the Commission should be guided by Article 60 of the Charter.49 Although the communication was withdrawn by the author, the fact still remains that the African Commission could be used to press claims for the sexual orientation to be protected.

Friendly Settlements Another emerging development that might have an impact on the trajectory of the African human rights system is the move by the African Commission toward friendly settlements of disputes. Again, the Commission’s practice here is evidence of its broad interpretation of its mandate. The African Charter limits friendly settlements to interstate communications. Notwithstanding this injunction limiting friendly settlements to inter-state communications, gradually, as is the case with the clawback clauses, for example, the Commission has again started to show some dynamism. The prediction is that this dynamism will continue. In Free Legal Assistance Group vs Zaire 50 the African Commission considered the purpose of the communications procedure as initiating a positive dialogue, resulting in amicable solution resolution between the complainant

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and the state concerned which remedies the prejudice complained of. A prerequisite for amicably remedying violations of the Charter is the good faith of the parties concerned, including their willingness to participate in a dialogue.51 In its practice in this regard, the Commission has started to develop certain ground rules. It demands that friendly settlements should be resolved such that both parties should be satisfied with the outcome. Thus the Commission seeks to avoid power disparities impacting friendly settlements. The Commission has already had the opportunity to set out the parameters of its friendly settlement practice. In Kalenga vs. Zambia52 the complainant filed a communication alleging that he had been falsely imprisoned in violation of Article 6 of the Charter. According to the report by the African Commission the author was released after a member of the Commission had effected an amicable settlement. The normal procedure for communications was discontinued and the file closed. In Civil Liberties vs. Nigeria53 too, the file was closed after the information obtained by the Commission suggested that the issue had been amicably settled. In both cases however, the African Commission apparently did not consult that complainant, failed to ascertain compliance with the Charter’s provisions, and did not bother to ascertain whether the complainant consented to the amicable settlement.54 These could be issues for the future. The concept of friendly settlement has its advantages that could be of benefit to the system’s evolution. Friendly settlements allow for expeditious resolution of disputes. If a petitioner alleges that his rights are being violated because, for instance, he is detained without trial or he has suffered loss of property without continued compensation, then speedy resolution of procedures will be beneficial to such a person. Instead of having to wait for the Commission to sit on a petition, and assuming compliance is forthcoming even after the complainants rights have been vindicated, a friendly settlement can eliminate any delays in the system.55


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States also benefit from friendly settlements. States can be resistant to respecting the rights of their citizens because, publicizing allegations of human rights violations, can lead to hardening of already entrenched positions, thus making for continued violations of human rights.56 To avoid complete embarrassment as a consequence of an open human rights hearing, a respondent state can opt for a friendly settlement with the details of the issue at stake kept confidential whilst committing itself to correcting the violation it is accused of. Friendly settlements also help circumvent problems of implementation of the Commission’s decisions. In the absence of enforcement powers, human rights bodies seek a variety of ways to have their recommendations carried out. The African Commission in particular still faces implementation problems, notwithstanding the progress with compliance we have noted above. Therefore, a friendly settlement that is reached with the full cooperation of the respondent state removes problems of monitoring and enforcement if the state had been found to be in violation of its human rights obligations. This is because the friendly settlement is more likely to be reached in a less acrimonious and contentious atmosphere and this removes any resistance to compliance and implementation by government officials. The whole procedure also cultivates a sense of ownership of the solution given the participation of all the parties concerned during negotiations and reneging from the undertakings made is less likely. Furthermore, friendly settlements give complainants a sense of empowerment in proceedings. Applicants have an opportunity to be heard, to shape the course of proceedings and confront the respondent state on an equal level. The tense and formal atmosphere of hearings is overcome and this gives the aggrieved party greater confidence in the system. In court-like proceedings before a body, the state with its resources and power tends to “threaten” the complaining party and this makes for the probability that an unfair outcome will be the result.57

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In this wise, the African Commission and other dispute settlement bodies that make up the African human rights system can (or will) draw inspiration from the ECHR58 and from ACHR.59 Both systems have developed procedures that interpret and f lesh out the jurisprudence of the friendly settlement provisions of their respective human rights conventions. The sum impact of their jurisprudence is that friendly settlements should not be skewed to the advantage of the more powerful party to a dispute, the sate accused of violating human rights. Specifically, ECHR friendly settlement law is aimed at granting parties the option of resolving a dispute before a full hearing is carried out. The ground for friendly settlements is found in Article 38 of the ECHR. If the European Court on Human Rights declares an application admissible, it is under an obligation to place itself at the disposal of the parties concerned. The friendly settlement must seek to resolve the matter on the basis of respect for human rights as defined in the ECHR and its protocols and all proceedings shall be confidential.60 The ECHR further provides that if a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.61 Whilst the European Court can only place itself at the disposal of the parties after there is an affirmative decision on admissibility62 this does not prevent the parties making proposals on a friendly settlement at earlier stages of the European Court’s proceedings. Indeed the European Court has the power at any stage of the proceedings to strike an application out of its list of cases on the basis of a friendly settlement.63 After a friendly settlement has been reached, there are still some obligations on the respondent state. These obligations may include an expression of regret for the actions complained of by the applicant. For example in Saki v Turkey,64 Turkey stated in its declaration that it regretted the ill-treatment by the authorities of persons it had detained in custody. Also it accepted that recourse to the ill-treatment of detainees was a


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violation of Article 3 of the ECHR and it undertook to issue appropriate instructions and take all necessary measures to avoid such violations in the future. Under the ACHR, a case is closed if a friendly settlement is reached between the parties.65 The language of the ACHR is mandatory in that it states that the Inter-American Commission shall place itself at the disposal of the parties concerned.66 However, the friendly settlement must be reached on the basis of respect for human rights recognized in the ACHR. If the parties agree to a friendly settlement the role of the Commission is to draw up a report on the matter which is then transmitted to the parties and communicated to the SecretaryGeneral of the Organization of American States for publication. The report must contain a brief statement of the facts and of the solution reached.67 The Inter-American Court of Human Rights has held that the friendly settlement procedures cannot be used to frustrate a complaint. It is of the view that that although friendly settlements are mandatory, the Commission still retains some discretion when calling for them. For instance if there are special circumstances that frustrate the working of the friendly settlement procedures, such as for instance the refusal of a respondent government to furnish the Commission with information, then in the Court’s opinion this amounts to the respondent government waiving the procedure. Thus procedures under both systems seek to overcome some of the issues that, in the view of observers, can be used to sabotage human rights petitions. If, as suggested, the African Commission continues down the path of friendly settlements, it can be guided by the practice of the European and InterAmerican systems. As more human rights petitions are filed, judicial decisionmaking becomes increasingly important. This is on account of the information dissemination role that international tribunals play. Information dissemination may assist the parties in reaching a common understanding regarding the relevant facts or

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law and thereby assist in early settlement. While the conventional hearings process is not to be ignored, as tribunals assert themselves and interpret their mandates more expansively they can help facilitate early settlements of human rights issues. This will reduce the costs of filing complaints, eliminate any delays in the process, and serve to guide parties to resolve issues in the “shadow of the law.”68 The problem with this path however is that it could cause undue and irreversible harm to petitioners who could see their human rights claims delayed in a tangled web of prior settlement procedures. The Temptations of Supranationalism It is possible that the African system will begin to develop the features of a supranational model.69 African activism in the cause of viable and effective regional organizations tends to draw on, European approaches and models. From regional integration to continental defense, since decolonization the merits of the European system for regional cooperation and integration have been advocated by governments and to some extent by civil society. In addition, in the subregional integration process, in its shift from the old regionalism to the new regionalism, African states have produced a number of treaties that have assigned supranational authority to a multiplicity of organs.70 Hence, Africa’s political economy is wrapped in a shroud of various supranational treaties and, thus it is possible that the race to the top in any competition with its rivals, at some time in the future, the African Commission, will begin to assert that its decisions and the Charter have a binding effect on the members. Most probably, civil society will welcome this development as it will reinforce its collective’ efforts to protect human rights. Supranationalism is defined as by Joseph Weiler as having two dimensions: Normative supranationalism and Decisional


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supranationalism. Normative suprantionalism is when there is a relationship and hierarchy between an international organization’s policies on the one hand and the legal measures adopted by the members of the organization on the other.71 Decisional supranationalism is supranationalism that exists in the process of decision making. Both variants have implications for state sovereignty. As international organizations assume supranational powers or have them conferred upon them, they invariably compromise the independence of decision making that states had in international and domestic affairs. The European Union demonstrates this tension between the members and its organs. The European Court of justice has played a major role in this development in its landmark cases of Van Gend en Loos vs. Nederlandse Administraitie and Costa vs ENEL.72 On its face this temptation is enticing as, mentioned above such a development would enhance the Commission’s authority. However, supranationalism can provoke a backlash as it has certain disadvantages which perhaps, states with brittle political and legal orders of the kind dotted across Africa will find hard to withstand. As the African Commission stands, its recommendations are nonbinding. The issue, if not the problem for the development of the African system, will be with the binding force of judgments handed down by the subregional courts. This is because the majority of them have shifted from intergovernmental systems where decisions were nonbinding on the members to harder treaty forms in which decisions of the treaty organs are actually binding on the members. Arguably, this can pose problems for the development of the African human rights system. While considerable advancements have been made, the consensus is still that a large number of African governments still routinely violate their citizens’ rights. Impervious to international human rights obligations and criticisms made when those obligations are ignored, external pressure in the form of court decisions compelling governments to respect their treaty obligations and thus the rights of their citizens can be

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met with an unfavorable backlash that could derail the struggle for human rights on the continent.73 In states where respect for human rights is not entrenched, decisions of we must hold reservations about the automatic implementation of supranational courts in particular especially when these decisions can have a profound impact by demanding that governments commit even more scarce resources in response to human rights violations. Thus it will not be surprising if supranational courts fail to effect change, being resisted by the domestic forces they seek to implicate in human rights abuses. Rather, the primary actors who provoke supranational improvements are generally the social movements, human rights activists and others carrying on long-term advocacy campaigns or pushing for better policies on a given issue. We therefore maintain that supranational authorities and tribunals are more likely to be effective when their procedures and jurisprudence are relevant to such actors’ long-term efforts to advance human rights.74 Enthusiasts of supranationalism as a whole should move cautiously, exploiting opportunities that emerge when there are decisive moments in subregional or regional politics in Africa. It is this approach that is most likely to make the organs of the African system far more effective in protecting human rights than if there is an attempt at imposing decisions from above.75 The African Commission should note that in spite of proclamations of a new supranational era in ECOWAS and other subregional integration systems, nothing indicates that the members of these bodies actually act in automatic response to the edicts of organs created thereunder. Thus instead of being seduced by supranationalism, for now, what the various African courts can do is to follow the reference procedure path developed by the European Court of Justice (ECJ). The general consensus among scholars of European integration is that arguably the entire integration process would not have been the success that it is had the ECJ not developed constructive relationships with national courts


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under then Article 177 and now Article 234 of the Treaty. By referring to the ECJ questions of interpretation of Community law, the national courts have played major roles in facilitating critical judgments of the ECJ. Whilst this preliminary reference procedure enhanced the role of the ECJ, it made for effective implementation of its judgments as the national courts acted, collectively, as its subaltern. Noncompliance with the judgment of the ECJ thus became virtually impossible and this was a vital landmark on the road toward supranationalism.76 In particular judges at the lower level of national judicial hierarchies, acting strategically, sent reference requests to circumvent the constraints of national judicial systems. It seems that this is a more realistic approach to enhancing the impact of the system. For all the assertions about pan-Africanism, African governments are still sensitive about integration and the ultimate collapse of their polities into some sort of supranational system. For instance, recent efforts at reviving the plans for continental governance have ground to a halt with very little prospect of any success being attained.77

The Increasing Importance of Subregional Courts A point to note for the future is that the subregional courts have an advantage over the African Commission. At their level of operation, subregional courts were called upon to protect human rights but, although the treaties which created them did have this as their goals, they had very little by way of express human rights provision. For sure SADC adopted its fundamental social rights provisions, and ECOWAS also adopted its political principles, but these documents and their parent treaties were lacking in detail when compared to the African Charter, and its 1988 and later, 1995 rules of procedure. On the face of it, this seems to render the subregional systems as weak and thus very unlikely to contribute meaningfully to the development of the

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African system. Non-state Actors, more comfortable with the African Commission could, understandably, prefer to use it as an arena for the protection and promotion of human rights. Yet, this organizational and institutional underdevelopment, if one can call it that, can actually be an advantage. A near institution-free setting will create the conditions for subregional courts to be more expansive and liberal in protecting human rights. Less constrained by a restrictive Charter with clawback clauses, the subregional courts need not move slowly, waiting for a decisive opportunity to begin to rewrite these clauses in the manner taken by the African Commission. They can thus rival if not surpass the African Commission and the African Court as bodies that protect human rights.78

The Increased Trend toward Legalization An interesting development that started with the Commission’s dynamism and continued with the rise of NGOs and the relationship between the two is the characterization of the African system as one that is characterized by legalism.79 Legalism or legalization ref lects a growing shift in international law and organization that ref lects organizations and systems in which they are embedded, developing particular characteristics, namely: obligation, precision, and delegation. Obligation means that states or other actors are bound by a rule or commitment or by a set of rules or commitments in the sense that their behavior is subject to scrutiny under the general rules, procedures, and discourse of international law. Precision means that rules unambiguously define the conduct they require, authorize, or proscribe, whilst delegation means that third parties have been granted authority to implement, interpret, and apply rules; to resolve disputes; and (possibly) to make further rules.80 As the African human rights system fragments and deepens, states are being held to accountable for the protection of


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human rights in an increasing number of regional and subregional settings. Also, at the national level, the inexorable tide of demands for human rights increases pressure on governments. Thus although as pointed out above compliance with the recommendations of the Commission indicates that there are still problems, our contention is that this is still significant evidence of the system’s growing legalization. The system is also becoming more precise. At the national level, a large number of states have lost the power, usually monopolized by the executive arm of government to pass very general laws that restrict human rights, giving the executive sweeping leeway to roll back their citizen’s rights on grounds such as “protection of the public good” or “in the interests of the state.” The end of the executive’s monopoly over power is ref lected in the advances made in judicial review of executive and legislative action in Africa; no longer are national courts mere bystanders in Africa’s human rights drama; now they have the power in a number of countries to pronounce on whether laws or policies are consistent with the national constitution or not. In effect, no longer is parliament or the president supreme. The struggle for human rights has resulted in constitutions with their entrenched bills of rights emerging as supreme. Similar developments are taking place under the canopy of the African Commission. In most areas of international relations, judicial, quasi-judicial, and administrative authorities are less highly developed and infrequently used. In this thin institutional context, imprecise norms are, in practice, most often interpreted and applied by the very actors whose conduct they are intended to govern. In addition, since most international norms are created through the direct consent or practice of states, there is no centralized legislature to overturn inappropriate, self-serving interpretations. Thus, precision and elaboration are especially significant hallmarks of legalization at the international level.81 We saw in Chapter three how the Commission continues to seek to clarify the law by making

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the Charter’s provisions on collective rights more determinate and thus enhance their enforceability. The third dimension of legalization is the extent to which states and other actors delegate authority to designated third parties—including courts, arbitrators, and administrative organizations—to implement agreements. The characteristic form of legal delegation is third-party dispute settlement mechanisms authorized to interpret rules and apply them to particular facts (and therefore in effect to make new rules, at least interstitially) under established doctrines of international law. Dispute settlement mechanisms are most highly legalized when the parties agree to binding third-party decisions on the basis of clear and generally applicable rules; they are least legalized when the process involves political bargaining between parties who can accept or reject proposals without legal justification.82 Like domestic administrative agencies, international organizations are often authorized to elaborate agreed norms (though almost always in softer ways than their domestic counterparts), especially where it is infeasible to draft precise rules in advance and where expertise is required. The grant of rulemaking authority typically contains the rule of recognition; the governing bodies or secretariats of international organization may subsequently develop rules of change.83 Again the African Commission has shown the way, developing rules of its own that have practically rewritten the African Charter. Our instinct tells us that the rule of procedures of other bodies will go down this path if the decision-makers deem it necessary to do so. They will be motivated by the success of the African Commission and their own desire to expand their powers. Another feature of delegation, especially in its harder forms, is that it opens up space for new actors and new forms of politics in interstate relations. The building of transnational coalitions tends to be a feature of this process. The early initiatives for the development of the African human rights system began with such coalition-building. From the Law of Lagos asserted


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by the International Commission of Jurists, at all stages of the discussions there civil society actors had a meaningful presence. Similar processes developed at the national level too as noted in chapter one, there was pressure from civil society on a number of African governments.

Conclusion That the African human rights system has undergone some degree of change is patently obvious from our analysis in the preceding chapters of this book. With hindsight, it was always going to be the case that the human rights system as created in 1981 was never going to remain static, trapped in the state-centric jailhouse created by the authoritarian governments of that period. Legal systems change; they are buffeted by a variety of currents including ideological beliefs, actor preferences, and technology. These are some of the forces that have dis-embedded the system from its original moorings. Throughout this book we have drawn on some social science disciplines to try and explain these changes. We believe that this approach will enrich the study of human rights in African and at the same time provide new lines of intellectual inquiry into the African human rights system. We must note here, however, that if this book has triggered any hopes in the minds of its readers for a swift change in the human rights practices of members of the African human rights regime, given the dynamic interpretation of the Charter and the explosion in the number of forums where rights can be vindicated, then any such person is bound to be disappointed. Institutional change is glacial. Granted, there are brief moments when there is a f lurry of activity resulting in the sweeping away of old institutions and their replacement with seemingly more radical ones but, generally, institutions tend to be resistant to the forces of revolution. Perhaps national and international human rights institutions are the most resistant.

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Thus institutions change but they normally do so very gradually, inexorably, responding to the world view of those actors who create and transform institutions. In a few instances, there is a sudden jolt in the glacial process and there is a radical transformation with old institutions being destroyed very quickly and replaced with a fresh set of fundamentally different institutions. In the case of human rights systems, given that human rights challenge the governments, especially authoritarian ones and the privileges they enjoy, these systems, arguably, change at the slowest of all paces. Moreover, it is easier to change formal institutions: those paper representations of decision-makers’ views and aspirations. What is more difficult to change are those informal institutions—the norms, values, conventions that tend to be firmly fixed in the minds of men and women. It is here, when national decision-makers are aware of their roles in protecting the variety of rights in the African system that real progress can be made. Another concluding observation is that the African human rights system emerged without the pressures of a hegemonic power; we outlined the received scholarship on the supposed role and impact of the United States as the hegemonic actor in the system’s origins and we were able to present credible evidence that this assumed role does not comport with the facts. The import of this for system transformation is that even in the absence of a hegemonic power, there will be the continued development of the human rights system.84 Finally, we are aware that we have left out of our study some of the more recent developments in the African human rights system such as the Protocol on Women’s Rights and the African Court on Human and Peoples’ Rights. This is not because we do not deem them to be important developments in the mutation of the system: far from this and the wealth of research on these additional blocks to the edifice that is the African human rights system attests to their importance.

NOT E S

Introduction 1. Charter of the Organization of African Unity (March 25, 1963). 2. See Constitutive Act of the African Union (adopted July 11, 2000 and entered into force May 26, 2001), Article 33 (1). 3. See, U. Oji Umozurike, The African Charter on Human and Peoples’ Rights (1997), Martinus Nijhoff Publishers: The Hague; Boston, p.24. 4. See The Law of Lagos, reprinted in African Conference on the Rule of Law, Lagos, Nigeria January 3–7 1961: A Report of the Proceedings of the Conference, International Commission of Jurists, Geneva (1961), p.6. Nnamdi Azikiwe addressed this conference and impressed upon the delegates to adopt an African human rights charter. See Umozurike, The African Charter, supra, p.24. 5. The major conferences are reprinted in Claude E. Welch Jr. and Ronald Meltzer (eds.), Human Rights and Development in Africa (1984) State University of New York Press: Albany, New York, p.338. 6. See African Charter on Human and Peoples’ Rights (adopted June 27, 1981) and entered into force October 21, 1986). 7. For example, see Olusola Ojo and Amadu Sesay, “The O.A.U and Human Rights: Prospects for the 1980s and Beyond” 8 Human Rights Quarterly (1986), pp.89–103, especially pp.96–103. 8. See Peter A. Hall and Rosemary Taylor, Political Science and the Three New Institutionalisms (1996) copy on file with the author, p.11–12. 9. Ibid. 10. Ibid., pp.13–15. 11. See Anne-Marie Slaughter Burley, “International Law and International Relations Theory: a Dual Agenda” 87 American Journal of International Law (1993), pp.205–239, p.206. 12. Stephen D. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables” 36 International Organization (1982), pp.1–21 13. On realist theory and the role of power in international relations Jack Donnelly, Realism and International Relations (2000) Cambridge University Press: Cambridge, especially Chapter 1. 14. For example, see Martha Finnemore, “International Organizations as Teachers of Norms: The United Nations Education, Scientific and Cultural Organization Science Policy,” 47 International Organization (1993), p.565, and Michael N. Barnett & Martha

148 15. 16. 17. 18. 19.

Notes

Finnemore, “The Politics, Power and Pathologies of International Relations” 53 International Organization, pp.699–732. See, African Charter on the Rights and Welfare of the Child (adopted 1990) (entered into force November 29, 1999). See, African Charter for Popular Participation in Development and Transformation (adopted February 16, 1990). See, Grand Bay (Mauritius) Declaration and Plan of Action (adopted April 16, 1999). See, African Charter on Elections, Democracy, and Governance (adopted January 30, 2007). See African Charter, supra, preamble.

One The Origin of the African Human Rights System 1. See Adamantia Pollis, “Human Rights: A Western Construct with Limited Applicability” in Adamantia Pollis and Peter Schwab (eds.) Human Rights: Cultural and Ideological Perspectives (1979), Praeger: New York, pp.1–18. 2. See Jack Donnelly, “International Human Rights: A Regime Analysis” 40 International Organization (1986), pp.599–642. 3. Realists believe states would never cede to supranational institutions the strong enforcement capacities necessary to overcome international anarchy. Consequently, international organizations and similar institutions are of little interest; they merely ref lect national interests and power and do not constrain powerful states. Yet realists underestimate the utility of international organizations even to the powerful. We argue that powerful states structure such organizations to further their own interests but must do so in a way that induces weaker states to participate. This interplay is embedded in international organizations’ structure and operations. 4. See Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,” 54 International Organization (2000), pp.217–252, p.225. 5. Ibid., p.223. 6. See Stephen P. Croley, “Public Interested Regulation,” 28 Florida State University Law Review (2000), p.7. For the public interest rationale behind international law and organizations, see the following, Sir Arthur Watts, “The Importance of International Law” in Michael Byers (ed.) International Politics: Essays in International Relations and International Law (2001) Oxford University Press: Oxford, pp.5–16; and Kenneth W. Abbott, “The Trading Nation’s Dilemma: the Functions of the Law of International Trade” 26 Harvard International Law Journal (1985), pp.501–525. Analysing the world trading system, Abbott sets out how international law restrains governments from acting unilaterally, providing commonly agreed rules as well as a forum for the resolution of disputes according to previously agreed rules. 7. See Moravcsik, “The Origins of Human Rights Regimes” supra,” p.226. 8. See J.M. Buchanan, and G. Tullock, The Calculus of Consent: the Logical Foundations of Constitutional Democracy (1962) University of Michigan Press: Ann Arbor. 9. See generally Peter L. Lindseth, “Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community” 99 Columbia Law Review (1999), p.628. 10. See Chidi Anselm Odinkalu, “Back to the Future: The Imperative of Prioritizing for the Protection of Human Rights in Africa,” 47 Journal of African Law (2003), pp.1–37, p.19.

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11. On the OAU and the protection of its members’ sovereignty see Gino J. Naldi, The Organization of African Unity: an Analysis of its Role (2000), Mansell: New York, p.5. 12. Ibid., p.6. Before the adoption of the Charter, in the view of the OAU’s members, human rights instruments were for the sole purpose of promoting peaceful and positive international co-operation. See Olusola Ojo and Amadu Sesay, “The OAU and Human Rights: Prospects for the 1980s and Beyond,” supra, pp.91–92. Ebow BondziSimpson argues that there are four main reasons for the OAU’s disinterest in human rights before its adoption of the Charter. These were the African interpretation of the principle of self-determination, the principle of non-interference in the internal affairs of the OAU’s members, the principle of African unity and solidarity, and the fact that Africa was economically underdeveloped. See, Ebow Bondzie-Simpson, “A Critique of the African Charter on Human and Peoples’ Rights” 31 Howard Law Journal (1988), pp.643–665, pp.644–645. The view that civil and political rights were a luxury that Africa could not afford is discussed in Rhoda Howard, “The Full-Belly Thesis: Should Economic Rights Take Priority over Civil and Political Rights? Evidence from SubSaharan Africa” 5 Human Rights Quarterly (1983), pp.467–490. 13. This is the essence of realism as an explanation for the evolution and adoption of human rights treaties. 14. See Evelyn A. Ankumah, The African Commission on Human and Peoples’ Rights: Practices and Procedures (1996), Martinus Nijhoff: Dordrecht, p.4. 15. See, 16th Summit Conference: Ugandan Invasion Issue and its Implications, 16 Africa Research Bulletin: Political Social and Cultural Series (1979). 16. For instance, Nigeria argued that while Amin’s tyranny was reprehensible the use of force to overthrow him as a response to this was not the responsibility of any OAU member. Ibid., p.5329. 17. See Edward Kannyo, “The Banjul Charter on Human and Peoples’ Rights: Genesis and Political Background” in Claude Welch jr. and Ronald Meltzer (eds.) Human Rights and Development in Africa (1984) State University of New York Press: Albany, New York, pp.128–151. 18. Ibid., p.129. 19. Ibid. 20. For example, see, Hugh Davis Graham, “Civil Rights Policy in the Carter Presidency,” in Gary M. Fink and Hugh Davis Graham (eds.) The Carter Presidency: Policy Choices in the Post–New Deal Era (1998), Lawrence: University of Kansas Press, pp.202–223; Gary M. Fink, Prelude to Presidency (1980), Greenwood Press: Westport, Connecticut; and Sunny Thomas, Jimmy Carter: From Peanuts to Presidency (1978) Vesta Publications: Ontario, Canada. In 2002 Carter was awarded a Nobel Peace prize for his work to advance, inter alia, human rights and democracy. See http://www.nobel.no/eng_peace_2002.html 21. After his election, Carter initiated measures to give effect to his human rights and foreign policy link. See Jerel A. Rosati, The Carter Administration’s Quest for Global Community (1987), University of South Carolina: Columbia, South Carolina, pp.134–135, p.146. 22. See Joshua Muravchik, The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights Policy (1986), Hamilton Press: Lanham, Maryland, pp.40–42.The head of BHRHA had the rank of assistant secretary of state with direct access to the secretary of state and could participate in top-level staff meetings. 23. See Howard, “The Full-Belly Thesis” supra, for an analysis of this view. 24. See Meeting of Experts, Dakar (November 25–December 2, 1979), OAU.Doc.CAB/ LEG/67/3.Rev.3 (1979). 25. See Foreign Assistance Act 1961, P.L. 87–195. 26. Ibid. Section 116 (a). 27. See 1973 Foreign Assistance Act, P.L. No. 93–189. 28. Ibid., Section 32.

150 29. 30. 31. 32.

Notes

See 1974 Foreign Assistance Act, Public Law. No.93–559. See International Development and Food Assistance Act 1973, Public Law No.94–161. Ibid., Section 310. See International Security Assistance and Arms Export Control Act 1976, Public Law 94–329, Section 301 (a). 33. There are copious volumes of work on U.S. foreign policy. For example See John Spanier and Steven W. Hook, American Foreign Policy since World War II (15th ed. 2000) CQ Press: Washington, DC. 34. For a discussion of post-Carter shifts in the link between human rights and U.S. foreign policy see, David Carleton and Michael Stohl, “The Foreign Policy of Human Rights: Rhetoric and Reality from Jimmy Carter to Ronald Reagan” 7 Human Rights Quarterly (1985), pp.205–229. 35. See Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa (September 2–15, 1969) UN Document ST/TAO/HR/38, Cairo, Egypt; Seminar on the Study of New Ways and Means for Promotion of Human Rights with Special Attention to Problems and Needs of Africa, Dar es Salaam, Tanzania (October 23– November 5, 1975) UN Document ST/TAO/HR/48; and Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa, UN Document ST/HR/SER.A/4 (September 10–21, 1979), Monrovia: Liberia. 36. See Report of the Conference of African Jurists on the African Legal Process and the Individual, UN Document E/CN/14/521 Addis Ababa, Ethiopia April 19–23, 1971. 37. Ibid., pp.24–25. 38. For instance, in 1967 Nigeria initiated measures culminating in the creation of a United Nations that proposed serious consideration be given to the idea of regional human rights commissions. See Emmanuel G. Bello, “The African Charter on Human and Peoples’ Rights: A Legal Analysis,” 194 Recueil des Cours de l’ Academic de Droit International (1985), pp.9–268, p.24. Also the Gambia had tried to raise the issue of human rights in Africa at a meeting of Commonwealth Law Ministers in 1975–76. However, this did not receive an enthusiastic response. Ibid., p.29. 39. See Donelly, “International Human Rights,” supra, p.628. 40. Ibid. 41. See American Declaration of the Rights and Duties of Man (adopted April 1948) Organization of American States Res. XXX. The duties in the Declaration are set out in Articles XXIX to XXXVIII. 42. See Donnelly, “International Human Rights,” supra. 43. Ibid. 44 See Muravchik, The Uncertain Crusade, supra. 45. See Clair Apodaca, Understanding U.S. Human Rights Policy: A Paradoxical Legacy (2006), Routledge: New York. 46. See Bello “The African Charter on Human and Peoples’ Rights” supra, p.30. 47. See R.J. Rummel, Statistics of Democide: Genocide and Mass Murder since 1900 (1998) Munster: LIT Verlag, p.259. For Amin’s tyrannical rule see George Ivan Smith, Ghosts of Kampala (1980) Weidenfield & Nicolson: London. 48. See Rummel, Statistics of Democide, supra, p.292. For a study of repression in Equatorial Guinea under Macias Nguema, see, I.K. Sundiata, Equatorial Guinea: Colonialism, State Terror, and the Search for Stability (1990) Westview Press: Boulder, Colorado. 49. See Rummel, Statistics of Democide, supra, p.280. For insights into Bokassa’s regime, see Brian Tilley, Dark Age: the Political Odyssey of Emperor Bokassa (1997), McGill-Queen’s University Press: Montreal. 50. See “Organization of African Unity,” 12 Africa Research Bulletin: Political Social and Cultural Series, no.8 (1979), p.3712. 51. See Rummel, Statistics of Democide, supra, p.326.

Notes 52. 53. 54. 55.

56. 57. 58. 59. 60. 61. 62. 63.

64. 65.

66.

67. 68. 69.

70.

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Ibid., p.219. See 16th Summit Conference, supra, p.5330. Ibid., p.5329. Notwithstanding the serious human rights violations by its members, the OAU had repeatedly cloaked its attack on the racist regimes of Rhodesia and South Africa in human rights terms. The contention in this regard was that the minority regimes in these two governments, through their policies of racial separateness, violated the rights of their African populations. See 16th Summit Conference, supra, p.5329. Ibid., p.5328. Ibid., p.5329. Ibid. Ibid. Ibid. Ibid. See Amadu Sesay, “The OAU and Regime Recognition: Politics of Discord and Collaboration in Africa” 4 Scandinavian Journal of Development Alternatives (1985), pp.25–41, p.28. Jon Woronoff outlines the division within the OAU. One camp, the radical camp wanted force to be used in the struggle for African liberation. States in this group played a very active role in international affairs, they stressed the need for nonalignment in world politics, and they championed the cause of a stronger OAU as part of a stronger form of African political and economic integration. The moderate camp, on the other hand, were less enthusiastic about decolonization through the use of force; they stressed respect for the sovereignty of the OAU’s members, they focused more on economic development over political confrontation, and they still had strong ties with their former colonial rulers. See Jon Woronoff, Organizing African Unity (1970) Scarecrow Press: Metuchen, New Jersey, pp.597–601. See Okwudiba Ndoli, Self-Reliance and Foreign Policy in Tanzania: The Dynamics of the Diplomacy of a New State 1961 to 1971 (1978) NOK Publishers: New York. See David Martin, General Amin (1974) Faber and Faber: London, p.53. Tanzania’s delegation argued that Amin’s new military junta was not in complete control of Uganda and thus was not even the de facto government. See Kofi Oteng Kufuor, “The OAU and the Recognition of Governments in Africa: Analyzing its Practice and Proposals for the Future” 17 American University International Law Review (2002), pp.369–401, pp.378–379. See, Tanzania and the War against Amin’s Uganda (1979) Government of Tanzania: Dar es Salaam, Tanzania, p.2 (noting that “no independent state had the right to act as Africa’s policeman.”). Ibid., pp.1–2. Ibid., p.16. These were Algeria (signed in 1968); Democratic Republic of the Congo/Zaire (acceded in 1976); Egypt (signed in 1967); Guinea (signed in 1967 and ratified in 1978); Kenya (acceded in 1972); Liberia (signed in 1967); Libya (acceded in 1970) Madagascar (signed in 1969 and acceded in 1971); Mali (acceded in 1974); Mauritius (acceded in 1973); Morocco (signed in 1977 and acceded in 1979); Rwanda (acceded 1975), Senegal (signed in 1970 and ratified in 1978); Tunisia (signed in 1968 and ratified in 1969); and Tanzania (acceded in 1976). See www.unhchr.ch/html/menu3/b/a_ccpr.htm/ (last visited July 17, 2009). Cameroon (acceded 1984); Central African Republic (acceded 1981); Congo (acceded 1983); Egypt (signed 1982); Gabon (acceded 1983); Niger (acceded 1986); Sudan (acceded 1986); Togo (acceded 1984); Zambia (acceded 1984). Ibid.

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Notes

71. Algeria (signed in 1968); Democratic Republic of the Congo/Zaire (acceded in 1976); Egypt (acceded in 1967); Gambia (acceded in 1978); Guinea (signed in 1967 and ratified in 1978); Kenya (acceded in 1972); Liberia (signed in 1967); Libya (acceded in 1970); Madagascar (signed in 1970 and ratified in 1971); Mali (acceded in 1974); Mauritius (acceded in 1973); Morocco (signed in 1977 and ratified in 1979); Senegal (signed in 1970 and ratified in 1978) Tunisia (signed in 1968 and ratified in 1969); and Tanzania (acceded in 1976). See www/unhchr.ch/html.menu3/b/a_cescr.htm/ (last visited July 17, 2009). 72. Central African Republic (acceded in 1981). Ibid. 73. Benin (acceded in 1982); Cameroon (acceded in1984) Congo (acceded in 1983); Egypt (ratified in 1982) Gabon (acceded in1983); Niger (acceded in 1986); Sudan (acceded in 1986); Togo (acceded in 1984); and Zambia (acceded in 1984), ibid. 74. Article 59 of the Charter contains the confidentiality provisions. Here, all measures taken by the commission in fulfillment of its mandate are to remain confidential until the AHSG decides otherwise. 75. See, African Charter, supra, Articles 27–29. 76. See Richard Gittleman, “The Banjul Charter on Human and Peoples’ Rights: A Legal Analysis in Welch and Meltzer, Human Rights and Development in Africa, supra, pp.152–176, pp.155–156. 77. See C.O.C. Amate, Inside the OAU: Pan-Africanism in Practice (1986), Macmillan: Basingstoke, Chapters 14 and 15. 78. See, OAU Charter, supra, Article 2 (1) (b) & (c). 79. See William I. Zartman, Ripe for Resolution (1989) Oxford University Press: Oxford, p.282. 80. Ibid. Other analyses of the OAU’s failings at dispute resolution include, Gino J. Naldi, “Peace-Keeping Attempts by the Organization of African Unity” 34 International and Comparative Law Quarterly (1985), pp.593–601. 81. See Woronoff, Organizing African Unity, supra, p.441. 82. See Amare Tekle, “The OAU: Conf lict Prevention, Management and Resolution,” in Howard Adelman and Astri Suhrke (eds.) The Path of Genocide: the Rwandan Crisis from Uganda to Zaire (1999) Transaction Publishers: New Brunswick, New Jersey, pp.111–130, p.111. 83. See Elenga M’buyinga, Pan-Africanism or Neo-Colonialism? The Bankruptcy of the O.A.U. (1982) (translated by Michael Pallis), Zed Press: London. 84. It did send a peacekeeping force to Chad. However, the mission was abandoned and the force was withdrawn in 1982. See, Terry M. Mays, Africa’s First Peacekeeping Operation: the OAU in Chad, 1981–1982 (2002) Praeger: Westport, Connecticut. 85. See Woronoff, Organizing African Unity, supra, p.174. 86. See Seymour Martin Lipset, Political Man: The Social Bases of Politics (2nd ed., 1983), London: Heinemann, p.64 87. See Earl Conteh-Morgan, Democratization in Africa: Theories and Dynamics of Political Transitions (1997) Praeger: Westport, Connecticut p.54. 88. Ibid. 89. See Issa G. Shivji, The Concept of Human Rights in Africa (1989) London: Codesria; and Herbert Ekwe-Ekwe, The State, Human Rights and the People (1993) International Institute for Black Research: Reading, UK. 90. See Michael G. Schatzberg, Political Legitimacy in Middle Africa: Father, Family, Food (2001) Indiana University Press: Bloomington, Indiana, pp.145–173; and Rainer Tetzlaff, “The Social Basis of Political Rule in Africa: Problems of Legitimacy and Prospects for Democracy,” in Democracy and the One-Party-State (1989), Peter Meyns and Dani Wadada Nbudure (eds.) Institut Fur Afrika-Kunde: Hamburg, pp.25–42, p.38.

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91. A good exposition of this is in George B.N. Ayittey, Africa in Chaos (1998) St. Martin’s: New York. 92. See Pat McGowan and Thomas H. Johnson, “African Military Coups d’Etat and Underdevelopment: A Quantitative Historical Analysis” 22 Journal of Modern African Studies (1984), pp.632–666. 93. Ibid., pp.652–660. 94. See “Algeria-President Ben Bella Deposed by Colonel Boumedienne,” 2 Africa Research Bulletin: Political, Social and Cultural Series ( June 1–30, 1965), p.314; “Congo (DR)—Coup d’Etat” 2 Africa Research Bulletin: Political, Social and Cultural Series (November 1–30, 1965), p.397; and “Dahomey—President Deposed,” Africa Research Bulletin: Political, Social and Cultural Series (November 1–30, 1965), p.398. 95. See “Upper Volta-Provisional Government Formed,” 3 Africa Research Bulletin: Political, Social and Cultural Series ( January 1–31, 1966), p.445; “Nigeria-Military Rule Following Army Revolt and Political Assassination” 3 Africa Research Bulletin: Political, Social and Cultural Series ( January 1–31, 1966), p.446; “Central African Republic— Coup d’Etat,” 3 Africa Research Bulletin: Political, Social and Cultural Series (1–31 January, 1966), p.446; “Ghana: President Nkrumah Deposed by the Armed Forces” 3 Africa Research Bulletin: Political, Social and Cultural Series (February 1–28, 1966), p.465; “Nigeria: Army Revolt and Change in Leadership” 3 Africa Research Bulletin: Political, Social and Cultural Series ( July 1–31, 1966), p.571; “Burundi—Crown Prince Assumes Power” 3 Africa Research Bulletin: Political, Social and Cultural Series ( July 1–31, 1966), p.570; “Burundi-Change of Government” 3 Africa Research Bulletin: Political, Social and Cultural Series (November 1–30, 1965), p.658. 96. See “Togo-Change of Government” 4 Africa Research Bulletin: Political, Social and Cultural Series ( January 1–31, 1967), p.697 “Sierra Leone-Army Assumes Power” 4 Africa Research Bulletin: Political, Social and Cultural Series (March 1–31, 1967), p.738; “Dahomey’s New Coup,” West Africa (December 23, 1967), p.1635. 97. See “Sierra Leone: Military Government Overthrown,” 5 Africa Research Bulletin: Political, Social and Cultural Series (April 1–30, 1968), p.1035; “Congo Republic: Army Assumes Power Following Disturbances” 5 Africa Research Bulletin: Political, Social and Cultural Series (November 1–30, 1968), p.1180; and “Mali-Military Coup,” 5 Africa Research Bulletin: Political, Social and Cultural Series (November 1–30, 1968). 98. See “Sudan: Coup d’Etat” 6 Africa Research Bulletin: Political, Social and Cultural Series (1–31 May, 1969), p.1404; “Libya-Coup d’Etat” 6 Africa Research Bulletin: Political, Social and Cultural Series (September 1–30, 1969), p.1522; “Somali Democratic Republic: President’s Assassination Followed by a Coup” 6 Africa Research Bulletin: Political, Social and Cultural Series (October 1–31, 1969), p.1548; and “Dahomey Coup d’Etat” 6 Africa Research Bulletin: Political, Social and Cultural Series (December 1–31, 1969), p.1607. 99. See “Uganda: Coup d ‘Etat” 8 Africa Research Bulletin: Political, Social and Cultural Series ( January 1–31, 1971), p.1993. 100. See “Ghana: Military Coup,” 9 Africa Research Bulletin: Political, Social and Cultural Series ( January 1–31, 1972), p.2347; and “Dahomey: Military Coup” 9 Africa Research Bulletin: Political, Social and Cultural Series (October 1–31, 1972), p.2637. 101. See “Rwanda: Military Coup” 10 Africa Research Bulletin: Political, Social and Cultural Series ( July 1–31, 1973), p.2922. 102. See, “Burundi: Military Coup” 13 Africa Research Bulletin: Political, Social and Cultural Series (November 1–30, 1976), p.4229. 103. See “Upper Volta: Army Assumes Power” 11 Africa Research Bulletin: Political, Social and Cultural Series (February 1–28, 1974), p.3131; “Niger: Military Coup” 11 Africa Research Bulletin: Political, Social and Cultural Series (April 1–30, 1974), p.3204; and

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“Ethiopia: Emperor Deposed” 11 Africa Research Bulletin: Political, Social and Cultural Series (September 1–30, 1974), p.3360. 104. See “Madagascar: Change of Government and Political Assassination” 12 Africa Research Bulletin: Political, Social and Cultural Series ( January 1–31, 1975), p.3532; “Chad: Military Coup” 12 Africa Research Bulletin: Political, Social and Cultural Series (April 1–30, 1975), p.3593; and “Nigeria: Change in Leadership” 12 Africa Research Bulletin: Political, Social and Cultural Series ( July 1–31, 1975), p.3695. 105. See “Seychelles: Government Overthrown” 14 Africa Research Bulletin: Political, Social and Cultural Series ( June 1–30, 1977), p.4465; and “Ethiopia: Head of State Assassinated” 14 Africa Research Bulletin: Political, Social and Cultural Series (February 1–28, 1977), p.4323. 106. See “Comoro Islands: President Overthrown” 15 Africa Research Bulletin: Political, Social and Cultural Series (May 1–31, 1978), p.4849; “Ghana: Acheampong Ousted” 15 Africa Research Bulletin: Political, Social and Cultural Series ( July 1–31, 1978), p.4926; and “Mauritania: Bloodless Coup” 15 Africa Research Bulletin: Political, Social and Cultural Series ( July 1–31, 1978), p.4928. 107. See Uganda- “UR Tanzania: Amin Overthrown,” 16 Africa Research Bulletin: Political, Social and Cultural Series (April 1–30, 1979), p.5220; “Ghana: Junior Officers Seize Power” 16 Africa Research Bulletin: Political, Social and Cultural Series ( June 1–30, 1979), p.5306; “Equatorial Guinea: Military Coup” 16 Africa Research Bulletin: Political, Social and Cultural Series (August 1–31, 1979), p.5375; and “Central African Empire: Emperor Bokassa Deposed” 16 Africa Research Bulletin: Political, Social and Cultural Series (September 1–30, 1979), p.5405. 108. See “Mauritania: Palace Coup” 17 Africa Research Bulletin: Political, Social and Cultural Series ( January 1–31, 1980), p.5535; “Liberia: Military Coup” 17 Africa Research Bulletin: Political, Social and Cultural Series (April 1–30, 1980), p.5645; “Uganda: Army Takes Over” 17 Africa Research Bulletin (May 1–31, 1980), p.5682; “Guinea-Bissau: Military Coup” 17 Africa Research Bulletin (November 1–30, 1980), p.5861; and Upper Volta: Military Coup” 17 Africa Research Bulletin (November 1–30, 1980), p.5868. 109 See Douglass North, “Five Propositions about Institutional Change” in Jack Knight and Itai Sened (eds.) Explaining Social Institutions (1995) University of Michigan Press: Ann Arbor, pp.15–26, especially pp.15–21. 110. See Harry M. Scoble, “Human Rights Non-Governmental Organizations in Black Africa: Their Problems and Prospects in the Wake of the Banjul Charter” in Welch and Meltzer (eds.), Human Rights and Development in Africa, supra, pp.177–203. 111. Ibid., pp.183–189. 112. See Bello, “The African Charter on Human and Peoples’ Rights” supra, pp.24–26. 113. See Chris Allen, “Benin” in Chris Allen, Michael S. Radu, Keith Somerville and Joan Baxter (eds.) Benin, the Congo, Burkina Faso: Economics, Politics and Society (1989) Pinter: London pp.1–144, pp.34–37. 114. For civil society’s role in bringing removing General Ignatius Acheampong from office in Ghana in 1978 see Kenneth Ingham, Politics in Modern Africa: the Uneven Tribal Dimension (1990) Routledge: London, pp.54–56. 115. The Movement for Justice in Africa organized resistance to the True Whig Party that had ruled Liberia since the 1840s and this culminated in the coup d’etat in 1980. See Tukumbi Lumumba-Kasongo, “Social Movements and the Quest for Democracy in Liberia: MOJA and its Transformation into a Political Party” in Mahmood Mamdami and Ernest Wamba-dia-Wamba (eds.) African Studies in Social Movements and Democracy (1995) CODESRIA: Dakar, Senegal, pp.409–461. 116. The overthrow of Hamani Diouri in 1974 was a consequence of being the rapid economic decline in that country and the failure of the Diori regime to pacify Niger’s

Notes

117.

118. 119. 120. 121.

122.

123.

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politically active communities at the time. See Richard Higgott, “The 1974 Coup D’Etat in Niger: Towards an Explanation” 13 Journal of Modern African Studies (1975), pp.383–398, pp.388–393. Popular pressures from a range of social actors explain the “recivilianisation” of Niger in the late 1970s. See William D. Graf, The Nigerian State: Political Economy, State Class and Political System in the Post-Colonial Era (1988), James Currey & Heinmann: London and Portsmouth, New Hampshire, pp.53–63. See Roland Vaubel, “A Public Choice Approach to International Organization” 51 Public Choice (1986), pp.39–57, pp.48–49. Ibid., p.43. Ibid., p.45. Andrew Moravcsik, “Taking Preferences Seriously: A Liberal Theory of International Politics” 51 International Organization (1997), pp.513–553, pp.516–520; and Anne Marie Slaughter Burley, “International Law and International Relations: A Dual Agenda” 87 American Journal of International Law (1993) pp.205–239, at pp.226–237. This rationale for why international institutions emerge has been applied to the analysis of the OAU. One scholar has observed that the OAU was never really a public interest undertaking designed to benefit all Africans. Rather, the OAU, by design, was supposed to be weak at birth because of the softness of the postcolonial African state. It thus served as a cover for bad governance and the political banalities of the vast majority of African governments as well as a disguise for close links with extra-African powers. See Tekle, “The OAU” supra, p.11. See Douglass C. North, Institutions, Institutional Change and Economic Performance (1990) Cambridge University Press: New York, p.3.

Two The African Commission and the Rewriting of the African Charter 1. This is consistent with the public choice thesis we referred to in chapter one. Public choice theorists see no distinction between bureaucrats in non-market settings and private economic actors seeking to make a profit in their business transactions. Both sets of actors, public choice theorists argue, are motivated by self-interest. As far as bureaucrats are concerned this self interest is manifested, inter alia, in the expansion of their turf as they seek to justify their existence. 2. See Takele Suboka Bulto, “Beyond the Promises: Resuscitating the State Reporting Procedure under the African Charter on Human and Peoples’ Rights” 12 Buffalo Human Rights Law Review (2006), pp.57–92, pp.62–63. 3. The African Commission has construed the provisions of the African Charter to free itself of constraints on its ability to protect human rights. In doing so it has sought to free itself from the constraints imposed by the Charter on the sources of its information. Noteworthy is its attack on the provision in the African Charter which states that communications should not be based exclusively on news disseminated through the media. In Sir Dawda K. Jawara v The Gambia the Commission reinforced its role as a redrafter of the Charter. The government of the Gambia in its response to the plaintiff ’s submission argued that the petition relied on information sourced exclusively from the news media and that this was contrary to Article 56 (4) of the African Charter. The Commission refused to be constrained by this argument stating that this would be an appropriate source of information in certain circumstances such as the genocide in Rwanda, and

156

4.

5. 6.

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20.

21. 22. 23. 24. 25. 26. 27. 28. 29.

Notes

human rights abuses in Burundi, the Congo, and Zaire. See Sir Dawda K. Jawara v The Gambia (2000) African Commission on Human Rights Communication Nos.147/95 and 149/96. Prior to its decision in Jawara, the Commission received at its 7th Session, media reports of violation of human and peoples’ rights in Liberia and this prompted the body to express its concern and anxiety over the matter. The Commission also asked the government if it could visit the state even though no communication had been received. This suggests that the Commission was already indicating that it was not going to place too much a restrictive interpretation on the provision in question. See Rachel Murray, “Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights” 46 International and Comparative Law Quarterly (1997), pp.412–434, pp.421–422. The leading texts spanning the Commission’s activities since it was constituted include Rachel Murray, The African Commission on Human and Peoples’ Rights and International Law (2000) Hart Publishing: Oxford; Ankumah, The African Commission on Human and Peoples’ Rights, supra Martinus Nijhoff: Dordrecht:; and Fatsah Ouguergouz, The African Charter of Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (2003). Kluwer Law International: The Hague. See Michael P. Van Alstine “Dynamic Treaty Interpretation” 146 University of Pennsylvania Law Review (1998), pp.687–793, p.692. On the cultural underpinnings of the African Charter, see Makau wa Mutua, “The Banjul Charter and the African Cultural Fingerprint: an Evaluation of the Language of Duties” 35 Virginia Journal of International Law (1995), pp.339–380. For an introduction to formalist jurisprudence, see Neil Duxbury, Patterns of American Jurisprudence (1995) Oxford University Press: Oxford, Chapter 1. Most probably, formalism would be the tool used to decide admissibility of cases. On realism see Duxbury, Patterns of American Jurisprudence, supra, chapter 2. See Rosalyn Higgins, “Derogations under Human Rights Treaties” 48 British Yearbook of International Law (1976/77), pp.281–320, p.281. Ibid. Ibid., p.282 See ICCPR General Comment No.29 States of Emergency (August 31, 2001). Ibid., para. 2 Ibid., para. 1 Ibid., para. 2. Ibid., para. 3 Ibid., para. 17. See Richard Gittleman, The Banjul Charter on Human and Peoples’ Rights: A Legal Analysis” in Claude Welch and Ronald Meltzer (eds.) Human Rights and Development in Africa, supra pp.152–176. See Constitutional Rights Project, Civil Liberties and Media Rights Agenda v Nigeria, African Commission on Human and Peoples’ Rights, Communication Nos. 140/94, 141/94, 145/95 (1999). Ibid., para. 4. Ibid., para. 40. Ibid. Ibid., para. 41. Ibid., para. 42. Ibid., para. 43. Ibid., para. 44. See Amnesty International vrs Zambia, African Commission on Human and Peoples’ Rights Communication No. 212/98 (1999). Ibid., paras 3–4.

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30. Ibid., para. 50 31. See Civil Liberties Organisation vrs Nigeria African Commission on Human and Peoples’ Rights Communication (1995) No.129/94. 32. Ibid., para. 14. 33. Ibid. 34. See Commission Nationale des Droits l’ Homme et des Libertes v Chad, African Commission on Human and Peoples’ Rights Communication No.74/92 (1995). 35. Ibid., para. 21. 36. See John W. Meyer, John Boli, George M. Thomas and Francisco O. Ramirez, “World Society and the Nation-State” 103 The American Journal of Sociology (1997), pp.144–181, p.148. 37. Ibid., pp.170–171. 38. Ibid., p.170. 39. See Antoine Bissangou v Republic of Congo, African Commission on Human and Peoples’ Rights, Communication No.253/2002 (2006). 40. Ibid. 41. See Article 19 vrs The State of Eritrea, African Commission on Human and Peoples’ Rights, Communication No. 275/2003 (2007). 42. Ibid. 43. See The Social and Economic Rights Action Centre and Centre for Economic and Social Rights vs. Nigeria, African Commission on Human and Peoples’ Rights Communication No.155/96 (2001), para. 57. 44. Ibid., para. 63. 45. We assert here that it is rare for sociological theories to be employed in the study of international law pertaining to human rights in Africa. Our use of sociological institutionalism, hopefully, sheds fresh light on the African human rights system as a whole. See Moshe Hirsch, “The Sociology of International Law: Invitation to Study International Rules in their Social Context” 55 University of Toronto Law Journal (2005), pp.891–939. 46. See Vaubel, “Principal-Agent Problems in International Organizations,” supra, pp.126–127. 47. For an introduction to principal-agent theory see Joseph Stiglitz, “Principal and Agent” The New Palgrave: A Dictionary of Economics, Vol.3 (1987), pp.966–971. In its application to international relations see Roland Vaubel, “Principal-Agent Problems in International Organizations,” 1 Review of International Organizations (2006), pp.125–138; and H. Kasim and A. Menon, “The Principal-Agent Approach and the Study of the European Union: promise unfulfilled?” 10 European Journal of Public Policy (2003), pp.121–139 48. This does not mean that other problems do not compound principal—agent relations. 49. This behavior is thus on all fours with the model of the public choice bureaucrat we alluded to before. 50. For a general introduction to rational ignorance, see Viktor J. Vanberg and James M. Buchanan, “Constitutional Choice, Rational Ignorance and the Limits of Reason, in Karol Edward Soltan and Stephen L. Elkin (eds.) The Constitution of Good Societies (1996.) Pennsylvania State University Press: University Park, pp.39–56. 51. See African Charter, supra, Article 68. 52. On stability of the law see Kenneth A. Shepsle and Barry R. Weingast, “Structureinduced Equilibrium and Legislative Choice” 37 Public Choice (1981), pp.503–519. 53. See Vaubel, “Principal-Agent Problems in International Organizations,” supra, p.128. 54. The only instance of a dissenting opinion that this author knows of is in Bah Ould Rabah v Mauritania, Decision of the African Commission on Human and Peoples’ Rights No. 197/97 (2004). The basis for the dissenting opinion was that the other Commissioners who heard

158 55.

56.

57.

58.

59. 60.

61.

62. 63. 64. 65. 66.

67. 68. 69. 70.

71. 72.

Notes

this communication had relied on a short summary of the facts and that these facts were inaccurate. See Dissenting Opinion by Yasir Sid Ahmad El Hassan, ibid., para. 2. See Laurence R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes” 102 Columbia Law Review (2002), pp.1832–1911, pp.1852–1853. Members cannot leave the African Charter; treaty exit would have to be through leaving the OAU/AU system. See OAU Charter, supra, Article XXXI, and Constitutive Act of the African Union, Article 31. The AU has been trying to build up its reputation as a more relevant organization than its predecessor, the OAU. It has a wider range of competences and it is hoped it will be more effective in issues such as peacekeeping. All African countries have either signed, acceded ratified or succeeded to the ICCPR. See ICCPR Status as at July 17, 2009, available at http://treaties.un.org/Pages/ ViewDetails (last visited July 17, 2009). See generally Andrew Guzman, “A Compliance Based Theory of International Law” 90 California Law Review (2002), pp.1823–1887. For example respect for Article 13(1) rights of the Charter on the right to participate in government can result in support for governments that are removed by unconstitutional means. President Tejan Kabbah of Sierra Leone was restored to power by the Economic Community of West African States after being overthrown by the army. The main reason for this was that his administration was a constitutionally elected one. The overthrow of the government of Madagascar in 2009 has also met with condemnation by the AU and efforts to restore the deposed president to power on the grounds that his administration was a democratically elected one. See Frans Viljoen and Livette Louw, “State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights” 101 American Journal of International Law (2007), pp.1–34. Ibid., p.5 Ibid., p.6. Ibid. Ibid., p.5. For example, see Wolfgang Kasper, The Political Economy of Global Warming, Rent Seeking and Freedom (2007) International Policy Network: London; and Jonathan Baert Wiener, “On the Political Economy of Global Environmental Regulation” 87 Georgetown Law Journal (1999), pp.749–794. On this, see Paul Rubin, “Why Is the Common Law Efficient?” 6 Journal of Legal Studies (1977), pp.51–63. Richard Posner, “What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)” 3 Supreme Court Economic Review (1993), pp.1–41. See Jean d’Aspremont, Contemporary International Rule-Making and the Public Character of International Law NYU Global Law Working Paper Series (2006). See Christine Jolls, Cass R. Sunstein, and Richard Thaler, “A Behavioural Approach to Law and Economics” 50 Stanford Law Review (1998) 1471–1550. Jolls, Sunstein, and Thaler argue that while utility-maximization is a good tool to understand human decision-making, what constitutes utility-maximization should go beyond the narrow confines of rational choice theory to embrace the concept of people as having bounded self-interest in that they take decisions with wider society in mind and not just their own narrow preferences. Posner, “What Do Judges and Justices Maximize?” pp.1–41. Dunstan Wai has challenged the view that liberal conceptions of human rights were alien to Africa prior to the birth and export of the western human rights movement Wai’s

Notes

73.

74.

75. 76. 77.

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assertion is that authoritarianism of the immediate postcolonial era in Africa was inconsistent with the spirit and practice of traditional African political systems and that rather, authoritarian rule is traced to the colonial legacies and reinforced by underdevelopment. See Dunstan M. Wai, “Human Rights in Sub-Saharan Africa” in Adamantia Pollis and Peter Schwab (eds.), Human Rights: Cultural and Ideological Perspectives (1979), pp.115–146. Wai describes process for the exercise of civil and political rights in pre-colonial society including constraints on the abuse of executive power and the right to participate in decision making. This position thus challenges the conception touted by some scholars that notions of civil and political liberties were alien to traditional African society. See Howard Gillman, “What’s Law Got to Do With It? Judicial Behaviouralists Test the ‘Legal Model’ of Judicial Decision Making” 26 Journal of Law and Social Inquiry (2001), pp.478–504. See George E. Downs, Kyle W. Danish, and Peter N. Barsoom, “The Transformational Model of International Regime Design: Triumph of Hope or Experience?” 38 Columbia Journal of Transnational Law (1999–2000), pp.465–514. Ibid., p.472. Ibid., p.477. Ibid., pp.482–488.

Three The African Commission and Its Treatment of Economic, Social, and Cultural Rights 1. See, African Charter on Human and Peoples’ Rights, preamble. 2. For a discussion of the issues arising in respect of the justiciability or not of collective rights, see Eric C. Christiansen, “Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court,” 38 Columbia Human Rights Law Review (2007), pp.321–386. For an introduction to economic, social and cultural rights see Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development in International Law (1998), Oxford University Press: Oxford; and Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (2009), Hart Publishing: Oxford. 3. See Issa G. Shivji, The Concept of Human Rights in Africa (1989) London: Codesria. 4. See generally, ibid., Chapter 3. 5. When broken down, Shivji sees the right of self-determination as containing the following: equality of all peoples and nations; the right of colonized peoples to independence and formation of their own sovereign states; the right of oppressed nations to self-determination up to and including the right to secession; right of all peoples to culture; freedom of all peoples from alien subjugation domination and exploitation; and the right of all peoples to determine democratically their own socioeconomic and political system of governance and government. Ibid., p.80. 6. Ibid., p.83. 7. Shivji notes that even in the number of articles devoted to collective rights there is a bias, when compared with civil and political rights. He states that points out that the Charter has only six articles on peoples’ rights out of a total of twenty-six articles on rights as a whole and even here half of the peoples’ rights are mere expressions or statements of principle such as the right to equality, the right to existence and the right to

160 8. 9. 10. 11.

12. 13. 14. 15. 16.

17. 18. 19. 20.

21. 22. 23. 24.

Notes

national and international peace and security. The other three articles grant rights to people but make them exercisable by the State. Ibid., pp.95–95. See Makau Mutua, “Human Rights in Africa: the Limited Promise of Liberalism,” 51 African Studies Review (2008), pp.17–39. Ibid., p.22. Ibid., pp.22–23. Ibid., p.23. However, see Mary Ann Glendon, “The Forgotten Crucible: the Latin American Inf luence on the Universal Human Rights Idea,” 16 Harvard Human Rights Journal (2003), pp.27–39. Glendon has a position opposite to Mutua. She avers that Latin American inf luences prevented the UDHR from turning into an excessively individualistic human rights document that would have ref lected the preferences of just the individualistic and libertarian forces that were determined to shape the UDHR. The Latin American countries were the largest single bloc in the United Nations (UN) conference and they had been oppressing for an international human rights treaty in 1938, in between the collapse of the League of Nations and the creation of the UN. Thus they did not come to the drafting and negotiating table as naïve novices in international diplomacy and negotiations. After the UN was formally established the Latin American delegates continued to articulate and press their agenda in the Human Rights Commission. They did have some success as they managed to have the preamble to the UDHR affirm that all rights it contained applied to women as well as men. They also managed to have Article 23 written to state that the needs of families were a part of the right to just and favorable compensation. See Mutua, “Human Rights in Africa: The Limited Problem of Liberalism,” supra, pp.28–29. Ibid., p.30 Ibid. Ibid., p.34. See Shedrack C. Agbakwa, “Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights” 5 Yale Journal on Human Rights and Development Law Journal (2002), pp.177–216, p.190. Ibid. Ibid., p.191. Ibid., p.204. See Philip Cerny, “Globalization and the Changing Logic of Collective Action” 49 International Organization (1995), pp.595–625. Neoliberalism has complicated the provision of public goods. Stemming from the so-called Washington Consensus, neoliberalism implied a retreat by the state from its traditional function of providing public goods. Africa in particular, was drawn into this current of economic and political thought and the adoption of the African Charter coincided with this period in global political economy when the provision of public goods by governments was under severe attack if not completely circumscribed. See John Williamson, “What Should the World Bank Think about the Washington Consensus?” 15 World Bank Research Observer (2000), pp.251–264. See Cerny, “Globalization and the Changing Logic of Collective Action,” supra, pp.597–598. For a research on this issue, see Joseph Mensah (ed.) Neoliberalism and Globalization in Africa: Contestations on the Embattled Continent (2009) Palgrave Macmillan: Basingstoke. For example, see E. Osei Kwadwo Prempeh, “Anti-Globalization Forces, the Politics of Resistance, and Africa” 34 Journal of Black Studies (2004), pp.580–598. See Agbakwa, “Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights” supra, p.193.

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25. See Chidi Anselm Odinkalu, “Analysis of Paralysis or Paralysis by Analysis?: Implementing Economic, Social and Cultural Rights under the African Charter on Human and People’s Rights,” 23 Human Rights Quarterly (2001), pp.327–369, especially at pp.358–362. 26. On incomplete contracts in international law see the following Alex Stone Sweet, The Judicial Construction of Europe (2004) Oxford University Press: Oxford, pp.24–25; Joel P. Trachtman, “The Domain of WTO Dispute Resolution” 40 Harvard International Law Journal (1999), pp.333–377; and Alexander Keck and Simon Schropp, Indisputably Essential: The Economics of Dispute Settlement Institutions in Trade Agreements (2007), World Trade Organization Staff Working Paper (available at http://www.wto.org/english/ res_e/reser_e/ersd200702_e.pdf ) last visited July 23, 2009. 27. On the possibility of defection from obligations in international law, see Kenneth W. Abbot, “The Trading Nation’s Dilemma: The Functions of the Law of International Trade,” 26 Harvard International Law Journal (1985), pp.501–525. 28. See the following: A Study of New Ways and Means of Promoting Human Rights with Special Attention to the Problems and Needs of Africa, October 23–November 5, 1973; UN Doc. ST/TAO/HR/48 (1973); Seminar on the Establishment of Regional Human Rights Commissions on Human Rights with Special Reference to Africa, UN Doc. ST/HR/ SER.A/4, 1979; Seminar Series on the Creation of Regional Human Commissions on Human Rights with Regard to Africa UN Doc.ST/TAO/38 (1970). Seminar Series on Human Rights in Countries in Process of Development, Dakar, Senegal, February 8–22, 1966, UN.Doc. ST/TAO/HR/25 (1966); and Report of the African Conference of African Jurists on The African Legal Process and the Individual, Addis Ababa, Ethiopia, 19–April 23, 1971, UN Doc. E/CN.14/521, June 28, 1971. 29. See Ahmed Motola, “Non-Governmental Organizations in the African System” in Malcolm Evans and Rachel Murray (eds.), The African Charter on Human and Peoples’ Rights (2002), Cambridge University Press: Cambridge, pp.246–279, p.249. 30. Ibid. 31. This kind of activity is called rent-seeking and in essence it takes place when basic thesis of rent-seeking behavior is that people acting individually, or together, seek to manipulate legal and political processes with the objective of creating an environment which enables them to extract transfers of wealth outside the normal process of voluntary market exchange. See G. Tullock, “The Welfare Costs of Tariffs, Monopolies and Theft,” 5 Western Economic Journal (1967), pp.224–232; and A.O. Krueger, “The Political Economy of the Rent-Seeking Society” 64 American Economic Review (1974), pp.291–303. 32. See Todd Zywicki, “Baptists? The Political Economy of Environmental Interest Groups” 53 Case Western Reserve Law Review (2002), p.315. 33. For example, under the ECHR, there have been only 21 inter-state applications have been filed in 13 cases regarding 7 situations complaints in more than 50 years of the Convention’s existence. See David Weissbrodt and Connie de la Vega, International Human Rights Law: an Introduction (2007), University of Pennsylvania Press: University Park, p.316. The African Charter is yet to see any inter-state complaints at all. 34. See Mancur Olson Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (2nd ed. 1971) Harvard University Press: Cambridge, Massachusetts. To date, in respect of collective rights, only two communications have been from a private individual, the case of Annette Pagoulle (on behalf of Aboulaye Mazou) vs. Cameroon African Commission on Human and Peoples’ Rights Communication No.30/90 (1997), and Aturu vs. Nigeria, African Commission on Human and Peoples’ Rights Communication No. 72/92 (1994). 35. In some instances, individuals will act “irrationally” and so defeat the theory underpinning collective action. See Frank B. Cross, “In Praise of Irrational Plaintiffs,” 86 Cornell

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36. 37.

38. 39. 40. 41. 42.

43. 44.

45. 46. 47. 48. 49. 50. 51. 52.

53.

54.

55.

Notes

Law Review (2000), pp.1–32. We have argued elsewhere how this sort of public interest action can animate treaty systems that are not operating to the satisfaction of the parties. See Kofi Oteng Kufuor, The Institutional Transformation of the Economic Community of West African States (2006) Ashgate: Aldershot, Chapter 5. Also, the organizational advantages that large groups lack are minimized somewhat on account of modern technology. See Arthur Lupia and Gisela Sin, “Which Public Goods Are Endangered?: How Evolving Communication Technologies Affect the Logic of Collective Action,” 117 Public Choice (2003), pp.315–331. See Thomas Franck, “Legitimacy in the International System” 82 American Journal of International Law (1988), pp.706–759. Ibid., p.713. There is the view that states do not deliberately avoid their international commitments. Noncompliance is thus not always the consequence of a disregard for international law. Instead, states fail to comply with their obligations because they are uncertain about their obligations. See Abram Chayes and Antonia Chandler Chayes, “On Compliance” 47 International Organization (1993), pp.175–205. See Franck, “Legitimacy in the International System,” supra, pp.713–714. See African Charter, supra Article 16. See Media Rights Agenda & Others vs Nigeria, African Commission on Human and Peoples’ Rights Communication Nos. 105/93,128/94, 130/94, and 152/96 (1998). Ibid., paras 90–91. See International Pen, Constitutional Rights Project, Interrights on Behalf of Ken Saro Wiwa Jr and Civil Liberties Organization vs Nigeria, African Commission on Human and Peoples’ Rights Communication Nos. 137/94, 139/94, 154/96 and 161/97 (1998). Ibid., para. 112. See Malawi African Association & Others vs. Mauritania, African Commission on Human and Peoples’ Rights, Communication Nos. 54/91, 61/91, 98/93, 164/97, and 210/98 (2000). Ibid., para. 122. See Purohit and Moore vs. The Gambia, African Commission on Human and Peoples’ Rights, Communication No. 241/2001 (2003). See generally ibid., paras 3–9. Ibid., para. 80. Ibid., Ibid., para. 81. Ibid., para. 83. See findings of the African Commission, ibid. In its defense, the Gambia drew to the Commission’s attention that it was aware of the problems with the LDA and had already taken administrative measures to complement and reform its outdated aspects. The Commission, however, was of the view that measures already taken were insufficient as individual rights and freedoms were at stake. Ibid., para. 85. For a general introduction to the right of self-determination, see the following: Allen Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (2007) Oxford University Press: Oxford; and Hurst Hannum, Autonomy, Sovereignty and Self-Determination: the Accommodation of Conflicting Rights (1996), University of Pennsylvania Press. Notable in the ongoing quest for self-determination in Africa include the following: the armed struggles in the Cabinda enclave which seeks independence from Angola, the Casamance Region which seeks independence from Senegal, and Somaliland which seeks recognition as an independent state after it broke away from Somalia. See comments by Commissioner Isaac Nguema in The African Commission on Human and Peoples’ Rights, Examination of State Reports, Libya-Tunisia-Rwanda, 9th Session,

Notes

56.

57.

58. 59. 60. 61. 62. 63.

64.

65. 66. 67. 68. 69. 70.

71.

163

March 1991, available at http://www1.umn.edu/humanrts/africa/communiques.html (last visited July 23, 2009). There is also the opinion that even if self-determination applies to peoples after decolonization, said rights in the Charter are not legal rights at all; instead they are just statements of aspirations of peoples. See the following, Ebow Bondzie-Simpson, “A Critique of the African Charter on Human and Peoples’ Rights” 31 Howard Law Journal (1988), pp.643–665; p.657; and Thio Li-Ann, “Battling Balkanization: Regional Approaches toward Minority Protection Beyond Europe” 43 Harvard International Law Journal (2002), pp.409–468. See U. Oji Umozurike, The African Charter on Human and Peoples’ Rights (1997) Martinus Nijhoff: The Hague; Boston; London, Chapter 5. Umozurike was Chairman of the African Commission at the Commission’s 9th Ordinary Session in 1989. See Robert McCorquodale, “Self-Determination beyond the Colonial Context and its Potential Impact on African” 4 African Journal of International and Comparative Law (1992), pp.592–608. See Katangese Peoples’ Congress vs Zaire African Commission on Human and Peoples’ Rights Communication No. 75/92 (1995). Ibid., para. 3. Ibid., para. 4. Ibid. Ibid., paras 5–6. See Social and Economic Rights Action Centre and the Centre for Economic and Social Rights vs Nigeria, African Commission on Human and Peoples’ Rights Communication No. 155/96 (2001). For a good piece of research on this case, expanding on its implications, see Justice C. Nwobike, “The African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter: Social and Economic Rights Action Centre (SERAC) and Centre for Social and Economic Rights v Nigeria,” 1 Journal of African Legal Studies (2005), pp.129–146. The Commission noted this and used this opportunity to stress the significant role played by NGOs in filing complaints alleging violation of the Charter’s rights. The Commission pointed out that the complainants are not in any way linked to the people on whose behalf they are alleging a violation of the Charter. Thus the SERAC case reaffirms the crucial role of NGOs in driving the Charter. See Social and Economic Rights Action Centre and the Centre for Economic, Social and Cultural Rights vs. Nigeria, supra, para. 49. Ibid., para. 1. Ibid., para. 2. Ibid., para. 3. Ibid., para. 68. Ibid. See the following: Malawi African Association and Others vs Mauritania, African Commission on Human and Peoples’ Rights Communication Nos. 54/91, 61/91, 98/93, 164/97, 196/97 and 210/98 (2000); Kazeem Aminu vs. Nigeria, African Commission on Human and Peoples’ Rights Communication No.205/97 (2000); Forum of Conscience vs. Sierra Leone, African Commission on Human and Peoples’ Rights Communication No. 223/98 (2000); Mouvement Burkinabe des Droits de l’ Homme et des Peuples vs. Burkina Faso, African Commission on Human and Peoples’ Rights Communication No. 204/97 (2001); Achuthan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, African Commission on Human and Peoples’ Rights Communication Nos. 64/92, 68/92 and 78/92 (1995). Ibid., See Social and Economic Rights Action Centre and Centre for Economic, Social and Cultural Rights vs. Nigeria, supra, para. 60.

164 72. 73. 74. 75.

Notes

Ibid., para. 61. Ibid. Ibid., para. 64. Ibid., para. 65.

Four System Evolution through the African Commission’s Rules of Procedure 1. For a study of these perspectives on rules of procedure see Jan Kolasa, Rules of Procedure of the United Nations General Assembly: A Legal Analysis (1967) Wroclad: Zaklaw Narodowy im. Ossolinskich. 2. See H.L.A. Hart, The Concept of Law (1961) Clarendon Press: Oxford, pp.91–92. 3. See Rules of Procedure of the African Commission on Human and Peoples Rights (adopted Dakar, Senegal February 13, 1988), in First Annual Activity Report of the African Commission November 1987–April 1988, Annex IV, p.13. Under the Charter the Commission shall lay down its rules of procedure. See African Charter, supra, Article 42 (2). 4. See, Rules of Procedure of the African Commission on Human and Peoples Rights (adopted October 6, 1995), available at http://hrlibrary.ngo.ru/africa/rules.htm (last visited July 25, 2009). 5. See, Anselm Chidi Odinkalu, “Proposals for Review of the Rules of Procedure of the African Commission of Human and Peoples’ Rights” 15 Human Rights Quarterly (1993), pp.533–548. 6. See Rachel Murray, “Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights” 46 International and Comparative Law Quarterly (1997), pp.412–434. 7. See Vincent Nmehielle, The African Human Rights System: Its Laws, Practices and Institutions (2001) Kluwer Academic: The Hague, pp.220–222. 8. On its promotional role and the impact of the same, see Victor Dankwa, “The Promotional Role of the African Commission on Human and Peoples’ Rights,” in Malcolm D. Evans and Rachel Murray, The African Charter on Human and Peoples’ Rights: the System in Practice 1986–2000,(2002) Cambridge University Press: Cambridge, pp.335–352. 9. On site visits can raise the profile of human rights issues. By making people, national and internationally, aware of a particular human rights situation, the onsite visit can help mobilize resistance to human rights abuses. See Joan Fitzpatrick, “States of Emergency in the Inter-American Human Rights System,” in David J. Harris and Stephen Livingston (eds.) The Inter-American System of Human Rights (1998) Clarendon Press: Oxford, pp.371–394, 379–380. 10. See Julia Harrington, “Special Rapporteurs of the African Commission on Human and Peoples’ Rights” and Malcolm Evans and Rachel Murray, “The Special Rapporteurs in the African System” in Evans and Murray, The African Charter on Human and Peoples Rights, pp.280–304. 11. It is a normal practice of the Commission to adopt resolutions at the end of its sessions. A collection can be found in Rachel Murray and Malcolm D. Evans (eds.) Documents of the African Commission on Human and Peoples’ Rights (2009) Hart Publishing: Oxford. 12. The African Charter mandates that Commissioners should be chosen for, inter alia, their competence in human rights with a particular preference for those with legal experience. See African Charter, supra, Article 31 (1).

Notes

165

13. See Ahmad Motola “Non-Governmental Organizations in the African System” in Malcolm Evans and Rachel Murray (eds.) The African Charter on Human and Peoples’ Rights, supra, pp.246–279, 14. See Kenneth A. Shepsle and Barry R. Weingast, “Positive Theories of Congressional Institutions” 19 Legislative Studies Quarterly (1994), pp.149–179; and Arthur Denzau and Robert Mackay, “Gatekeeping and Monopoly Power of Committees” 27 American Journal of Political Science (1983), pp.740–762. 15. This Committee is established under the African Charter on the Rights and Welfare of the Child, (adopted July 1990, entered into force November 29, 1999); See Article 32. 16. See Kenneth A. Shepsle and Barry R. Weingast, “When Do Rules of Procedure Matter?” 46 Journal of Politics (1984), pp.206–221. 17. See Murray, “Decisions of the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights,” supra, p.416. 18. See Rosemary Sandford, “International Environmental Treaty Secretariats: Stage Hands or Actors?” in Green Globe Yearbook of International Co-operation on Environment and Development (1994), pp.17–29, p.17. See also generally, Abram Chayes, Antonia Handler Chayes and Ronald B. Mitchell, “Managing Compliance: A Comparative Perspective” in Edith Brown Weiss and Harald Karan Jacobson (eds.) Engaging Countries: Strengthening Compliance with International Environmental Accords (1998) MIT Press: Cambridge, Massachusetts, pp.36–62 19. See Sandford, “International Environmental Treaty Secretariats,” supra, pp.17–18. 20. The ECHR, for example, made explicit that the European Commission could entertain communications from individuals. See ECHR, supra Article 34. 21. Se 1988 rules of procedure, supra, rule 114 (2). 22. Controversies about the AU’s failure to fully censure governments of Sudan and Zimbabwe, for example, are indications of this. 23. See 1988 rules of procedure, supra, rule 101 (1). 24. See 1995 rules of procedure, supra, rule 102. 25. See 1988 rules of procedure, supra, rule 103 (1) (d, f, and g). 26. Ibid., para. 2. 27. See 1995 rules of procedure, supra, rule 104. 28. See 1995 rules of procedure, supra, rule 23 (d). 29. See Constitutive Act of the African Union, Article 30 (1) and (2). The Chairperson of the African Union Commission replaces the Secretary-General of the OAU. In the opinion of some observers the interpretation of the rules and the realization that there is a the domination of the secretariat by the OAU implied that there was not going to be a separate secretariat for the Commission and that the OAU, as part of its state-centric treaty objectives, intended to keep the Commission under tight control by refusing to allow it a separate secretariat. See Odinkalu, “Proposals for Review of the Rules of Procedure of the African Commission on Human and Peoples’ Rights,” supra. 30. See 1988 rules of procedure, supra, Rule 22 (1). 31. Ibid., paras 2–5. 32. Ibid., rule 6. 33. See 1995 rules of procedure, supra, rule 6. 34. Ibid., rule 10. 35. See 1988 rules 28 (1) and (2). 36. Ibid., rule 28 (2). 37. Ibid., rule 32. 38. See 1988 rules, supra, rule 32. 39. See African Charter, supra, Article 59. The 1988 rules coupled with Article 59 did not just undermine the work of the Commission, but also violated the spirit of Article 45 of the

166

40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

61. 62. 63. 64.

65.

Notes

Charter by preventing the efficient performance of the Commission’s functions. The confidentiality rule works against the Commission’s ability to secure expert assistance for the performance of its functions. It also works against the use of amicus briefs. See Odinkalu, “Proposals for Review of the Rules of Procedure of the African Commission,” supra, See 1988 rules, supra, rule 105. Ibid., rule 32. Ibid., rule 79. See 1998 rules, supra, rule 73. Ibid., rule 74 (1) (a). Ibid., para. (b). Ibid., rule 75. Ibid., rule 76. See Odinkalu, “Proposals for Review of the Rules of Procedure of the African Commission on Human and Peoples’ Rights,” supra. Ibid., 1988 rules, supra, rule 77. See 1995 rules of procedure, supra, rule 72. Ibid. Ibid., rule 108 See 1988 rules of procedure, supra, rule 106. Ibid., rule 99. See African Charter, supra, Article 51 (2). Ibid., Article 46. See Nmehielle, The African Human Rights System, supra, p.232. See 1988 rules of procedure, supra, rule 114 (1) (b). Ibid., para. 3 (b). See 1988 rules of procedure 14 (3) (b). Also see African Charter, supra, Article 47 which states that inter-state communications should be based on a belief that provisions of the Charter have been violated; by inference, the same applies to Article 55 communications. See 1995 rules of procedure, supra, rule 116. See AU Constitutive Act, supra, Article 3 (1) (c). See 1998 rules of procedure, supra, rule 114 (3) (e). The Charter also had the same position. See African Charter, supra, Article 56 (4). See Murray, “Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights,” supra, pp.421–422. In Sir Dawda K. Jawara v The Gambia the Commission reinforced its role as a redrafter of the Charter. In this communication, and in its response to the plaintiff ’s submission, the defendant state argued that the petition relied on information sourced exclusively from the news media and that this was contrary to Article 56 (4) of the African Charter. The Commission refused to be constrained by this argument. And it argued that while it did, generally, have reservations about ignoring Article 56 (4) it did stress the important role that the media played in exposing genocide in Rwanda, and human rights abuses in Burundi, the Congo, and Zaire. The Commission thus stated that the burden that the complainant is required to discharge can be lightened if the information from the mass media can be verified. In effect, we can claim here that the “exclusively” barrier of 56 (4) has been lowered if not removed completely and plaintiffs can submit petitions based solely on mass media reports and that the Commission will not reject them out of hand. See Sir Dawda K. Jawara v The Gambia (2000) African Commission on Human Rights Communication Nos.147/95 and 149/96. Before the 1995 rules of procedure were adopted, the African Commission, the Association of Tunisian Journalists, International Organisation of Journalists and the

Notes

66. 67. 68. 69. 70. 71. 72. 73.

167

UN Centre for Human Rights organized a conference on the theme “the Journalist and Human Rights in Africa” and here the participants acknowledged the role of the media in publicizing large scale human rights violations and thus called for international support for the African Commission to implement a durable and large scale information strategy allowing the African media to publicize the African Charter. The conference also appealed to journalists and the media to monitor international action in the area of human rights and ensure that these rights are respected and that the regimes in place comply with them as pledged in ratifying the relevant international conventions and the African Charter. See Final Report of the African Conference on the “Journalist and Human Rights in Africa,” (October 31–November 1, 1992) reprinted in the Sixth Annual Activity Report of the African Commission 1992–1993, available at http//www.chr.up.ac.za/hr_docs/African/docs/other/other14.doc (last visited July 27, 2009). See John D. Ouko v Kenya, African Commission on Human and Peoples’ Rights Communication No.232/99, para. 19. See Nmehielle, The African Human Rights System: its Laws, Practices and Institutions, supra, p.222. Ibid. Ibid. See 1995 rules of procedure, supra, rule 40 (1) and (2). See 1998 rules of procedure, supra, rule 109. Ibid., rule 111. See 1995 rules of procedure, supra, rule 121.

Five The Fragmentation of the African Human Rights System 1. See Laurence R. Helfer, “Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Law Making” 29 Yale Journal of International Law (2004), pp.1–83. 2. For an introduction to new regionalism and how it is distinct from old regionalism, see Fredrik Soderbaum, “Introduction: Theories of New Regionalism” in Fredrik Soderbaum and Timothy M. Shaw (eds.) Theories of New Regionalism: a Palgrave Reader (2003) Palgrave Macmillan: New York, pp.1–21. 3. Regional integration within SADC and ECOWAS has been led by these two countries respectively. They have provided the incentives to integrate, through their large markets, and they have given these bodies an added purpose through, for instance military action in civil conf licts. On South Africa’s role, see Chris Alden and Mills Soko, “South Africa’s Economic Relations with Africa: Hegemony and Its Discontents,” 43 Journal of Modern African Studies (2005), pp.367–392. For a study of Nigeria in West Africa see Katharina Pitcher Coleman, International Organisations and Peace Enforcement: The Politics of International Legitimacy (2007) Cambridge University Press: Cambridge, especially Chapter 3. 4. See Helfer, “Regime Shifting,” supra, p.54. 5. We saw this in chapters two and four in particular of this book. 6. See Gunther Teubner and Andreas Fischer-Lescano, “Regime Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law” 25 Michigan Journal of International Law (2004), pp.999–1046, pp.1004–1005.

168

Notes

7. This lack of harmony is not a new development. In the negotiations leading up to the adoption of the OAU Charter. See generally. Jon Woronoff, Organizing African Unity, supra. The tensions between members of this group were such that the overthrow of a government in one camp caused much satisfaction among the members in the other camp. See Kufuor, “The OAU and the Recognition of Governments in Africa: Analyzing its Practice and Proposals for the Future,” supra. Adjacent to this process was what has been called the contest for organizational supremacy as the OAU struggled with OCAM for domination as the over-arching regional entity committed to representing the hopes and objectives of Africa. 8. The only members of the OAU that had maintained consistent respect for individual liberties were Botswana and Mauritius. All the other members, at some time in their political development, had authoritarian, in some instances tyrannical, regimes. However, Botswana and Mauritius were never powerful in terms of shaping the AU’s agenda and thus their preferences were never expressed in the African Charter. 9. See African Charter for Popular Participation in Development and Transformation (adopted February 16, 1990, Arusha, Tanzania) 10. Competition generally, as globalization draws together political and economic systems, can produce a race to the top, instead of the much feared race to the bottom that tends to be main argument advanced by interests scared of increasing global competition. Enthusiasts of globalization, while claiming that there is very little evidence of a race to the bottom, do insist that competitive process can add value to the life chances of the poor and less-privileged. See generally, Jagdish Bhagwati, In Defense of Globalization (2005) Oxford University Press: New York. 11. A race to the top is not always going to be the outcome of regime fragmentation. Sometimes fragmentation can set in motion rivalries that will breed inefficiencies. See Helfer, “Regime Shifting.” 12. We do not have a decisive date or period for when the Commission asserted itself and began to break from the constraints of the African Charter as drafted by the states parties. However, the gradual reform of the rules of procedure must have been a decisive moment The first significant change instituted by the Commission under the umbrella of its rules of procedures to enable it break from the constraints of the African Charter and the OAU was when at its third ordinary session it empowered itself to accept communications from individuals who allege a violation of one of the Charter rights by a State. See chapter four. 13. The larger the number of players each with the power to paralyze decision making, the greater the likelihood of the failure to reach consensus on the development of regional human rights laws and norms. Decision making under the OAU’s umbrella then easily came to resemble the dilemmas arising in an anti-commons system. An anti-commons is the opposite of a common system of property ownership. While in a commons system, as popularized by Garret Hardin, there are no owners to a given property and this causes overuse, in an anti-commons there are too many owners each with the power to paralyze decision-making and thus prevent the optimal use of the property. As the rule on decision-making in an anti-commons require unanimity, this leads to suboptimal outcomes. See Michael Heller, The Tragedy of the Anti-Commons: Property in the Transition from Marx to Markets”; 111 Harvard Law Review (1998), pp.621–688; See also Kofi Oteng Kufuor, “The Collapse of the Organization of African Unity: Lessons from Economics and History” 49 Journal of African Law (2005), p.132–144, especially pp.138–142. 14. For example, West Africa has a stronger tradition of human rights than North Africa. We can identify episodes of liberalism with respect for bills of rights at the national level in West Africa. For example, Ghana in 1957 to 1960, from 1969 to 1972, 1979 to 1981,

Notes

15.

16. 17.

18. 19.

20. 21. 22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

169

and from 1992 to date has had a fairly robust system in place for the respect of human rights. The Gambia and Nigeria also have such episodes in the past. The same cannot be said for North African countries which, just after independence did away with the liberal systems bequeathed to them and have remained virtually authoritarian to date. The preamble to the OAU Charter asserts that the parties are, “Desirous that all African States should henceforth unite so that the welfare and well-being of their peoples can be assured.” The AU Constitutive Act states that the states parties are “Inspired by the noble ideals which guided the founding fathers of our Continental Organization and generations of Pan Africanists in their determination to promote unity, solidarity, cohesion, and cooperation among the peoples of Africa and African States.” See OAU Charter, supra and Constitutive Act of the AU, supra respectively. The African Charter reaffirms the pan-Africanist objectives of the OAU Charter. See African Charter, supra, preamble. Not only will repeated meetings enable the cross-fertilization of ideas on the panAfrican agenda, such repeated interactions will also facilitate compliance with the various human rights instruments that African countries have drafted and adopted. Repetitive interactions help decision-makers’ overcome the International Prisoners’ Dilemma that tends to compound compliance with international obligations. See Kenneth W. Abbot, “The Trading Nations Dilemma,” supra pp.506–507. See Helfer, “Regime Shifting,” pp.58–59. The Conference aimed at contributing to the implementation of the UN Programme of Action for African Recovery and Development. In particular, the Arusha Conference was convened out of concern for the collapse of African economies in the 1980s, the lack of progress in realizing meaningful popular participation, and the allegation that there was ignorance about the importance of citizen participation for economic recovery and development. For an analysis of the Arusha Charter see, Kofi Oteng Kufuor, “The African Charter for Popular Participation in Development for Transformation: A Critical Review,” 18 Netherlands Quarterly of Human Rights, no.1 (2000), pp.7–22. See African Charter for Popular Participation in Development and Transformation, supra, Article 11. Ibid., Article 16. Africa’s postcolonial reservation about allowing for open markets stemmed largely form their experiences as colonies of countries that had open market systems. See Arusha Charter, supra. Whether this role of the state entails it being more intrusive in economic life to achieve a specific end or whether it implies the state itself stepping back from economic activity and allowing its citizens to fill in any gap it creates is unclear. See Kufuor, “The African Charter for Popular Participation,” supra, pp.15–16. Ibid. Ibid. See African Charter, supra, preamble. Ibid., Articles 27–29 See Arusha Charter, supra; and see Kufuor, “The African Charter for Popular Participation in Development and Transformation,” supra. See Arusha Charter, supra. See Kufuor, “The African Charter for Popular Participation,” pp.17–18. Ibid. See Sir Dauda K. Jawara v The Gambia, African Commission on Human and Peoples’ Rights Communication Nos. 147/95 and 149/95 (2000). See Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government AHG/Decl.5 (XXXVI) 2000. This has served as the cornerstone of

170

35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

50. 51. 52. 53. 54. 55. 56.

57. 58.

59. 60.

61.

Notes

the AU’s new approach to the overthrow of governments. While in the past the OAU did have some concern for the overthrow of governments and, on occasion refused to recognize governments that came to power through unconstitutional means, generally speaking the OAU avoided internal changes of government by unconstitutional means, declaring them to be internal matters that it had no jurisdiction over. It has since changed its position and has suspended Madagascar and Mauritania on the grounds that incumbent governments had been overthrown by unconstitutional means. See CEDGA, supra Article 2 (1). Ibid., para. 3. Ibid., para. 6. Ibid., para. 8. Ibid., para. 10. Ibid., Article 3 (1) Ibid., para.3 Ibid., para. 4 Ibid., para. 11. Ibid., Article 17 (1). Ibid., para. 2. Ibid., para. 3. Ibid., para. 4. Ibid., Article 18 (1). Adopted at the first Ministerial Conference on Human Rights in Africa April 12–16, 1999 and reprinted in 11 African Journal of International and Comparative Law (1999), pp.352–357. Ibid., Article 2 Ibid., Article 8 (b). Ibid., Article 8 (e) Ibid., Article 23 (13). See Protocol on the Establishment of an African Court on Human and Peoples’ Rights, Article 6 (1). Ibid., Article 8. See Kufuor, “The OAU and the Recognition of Governments in Africa,” supra, pp.369–401 (pointing out that Nigeria’s hosting of a meeting allowed it to inf luence the recognition of the Liberia’s interim government under President Amos Sawyer. This was consistent with Nigeria’s support for Sawyer during the Liberian conf lict.). See African Charter, supra, preamble. In Africa, until the 1990s and the rise of new regionalism as a conceptual model, we only have a record of the Tribunal of the Common Market of East Africa sitting in on any cases. This tribunal of course was short-lived as the East African Community collapsed in 1977 after only ten years of existence. We have no evidence to indicate that it had jurisdiction over human rights issues and, even if it did, any were submitted to it at all. See Protocol Relating to Free Movement of Persons, Residence and Establishment, A/P/1/5/79, Articles 2&3. See Economic Community of West African States, Declaration A/DCL/.1/7/91 of Political Principles of the Economic Community of West African States (adopted July 6, 1991). ECOWAS had actually premised its intervention in the Liberian conf lict on the grounds that it had to prevent an armed seizure of power in that country. See Abiodun Alao, The Burden of Collective Goodwill: the International Involvement in the Liberian Civil War (1998) Ashgate: Aldershot. ECOWAS stressed the need for good governance and respect for human rights as part of its efforts at reconstructing postwar ECOWAS society. See Kofi

Notes

62.

63. 64. 65. 66. 67. 68.

69. 70. 71. 72. 73. 74. 75. 76. 77.

78. 79.

80. 81. 82. 83. 84. 85.

171

Oteng Kufuor, “Developments in the Resolution of the Liberian Conf lict” 10 American University Journal of International Law and Policy (1994), pp.373–396. Similar sentiments were expressed in ECOWAS restoration of constitutional rule in Sierra Leone. ECOWAS adopted a Revised Treaty in 1993 to replace its founding 1975 Treaty. For analysis of these developments see Kofi Oteng Kufuor, The Institutional Transformation of the Economic Community of West African States (2006) Ashgate: Aldershot. See ECOWAS Political Principles, supra, preamble. Ibid., paras 4–6. See Economic Community of West African States, Revised Treaty (adopted Cotonou, Benin, July 24, 1993) Ibid., preamble. Ibid., Article 4 (1) (g). See Charter of Fundamental Social Rights in SADC (adopted Dar-es-Salaam, Tanzania, August 26, 2003). For an analysis see Zolomphi Nkowani, “When Elephants Dance, the SADC Charter of Fundamental Social Rights, a Beacon of Hope of Confusion Compounded,” 33 Commonwealth Law Bulletin (2007), pp.41–57. Article 4, paras a–i Article 6 See Charter of Fundamental Social Rights, supra, Article 3. Ibid., Article 4 (1) (a). Ibid., para. (b). Ibid., para. (c). Ibid., para. (e). Ibid., para. (i). This was one of the main reasons why the OAU was weak and eventually collapse. See Kufuor, “The Collapse of the Organization of African Unity” supra, pp.138–139. It would seem that with the introduction of rules on unconstitutional change, new governments are not guaranteed the right of entry to the AU. See Treaty Establishing the East African Community (adopted at Arusha, Tanzania, 1999) Ibid., Article 3 (3) (b). This does not apply to the founding members, Kenya, Tanzania and Uganda. However, membership of subregional bodies tends to be f luid and other African states can apply to join provided they meet the geographical criteria and the conditions in Article 3 as well. See Katabazi and 21 Others vs. Secretary General of the East African Community and Another (November 1, 2007), East African Court of Justice. Ibid. See Essien v Gambia and Another (2007) African Human Rights Law Reports 131 Ibid., para. 9. Ibid. See Mike Campbell (pvt) Ltd and Others vs Republic of Zimbabwe, SADC Case (T) Case No.2/2007.

Six The Future Direction of the African Human Rights System 1. The Ordoliberals were a group of intellectuals who came to prominence in the 1930s. With some of their early proponents based at Freiburg University in Germany, the Ordoliberals argued for the constitutionalization of economies as a vital ingredient for

172 2.

3.

4. 5.

6.

7. 8. 9.

10.

11.

12.

Notes

economic development and prosperity. The early intellectuals who shaped the tradition included Walter Eucken, Franz Bohm, and Wilhelm Ropke. See Wilhelm Ropke, International Economic Order and Disintegration (1960) Dordrecht: Reidel Publishing Co. (translated by Gwen Trinks, Joyce Taylor, and Cicely Kaufer), pp.74–75. Under Article 26, states parties have an obligation to allow the establishment and improvement of national human rights institutions. See African Charter on Human and Peoples Rights, Article 26. Here the African Commission is charged with the responsibility of encouraging national and local institutions concerned with human and peoples’ rights. Ibid., Article 45 (1) (a). Michael Crowder has questioned the true ideological commitment of the nationalist leaders to liberal conceptions of human rights. Thus just after independence it was not surprising that the postcolonial constitutions were dropped and replaced with models that allowed for legitimate authoritarian rule. The commitment to liberal democracy thereafter became the concern of opposition parties yet; the only party that managed to come to power as a consequence of the exercise of peoples’ right to change their governments through the ballot box promptly became an authoritarian one. See Michael Crowder, “Whose Dream was it Anyway?: Twenty-Five Years of African Independence” 86 African Affairs (1987), pp.7–24, especially pp.18–20. See, for example, H. Kwesi Prempeh, “Africa’s Constitutionalism Revival: False Start or New Dawn?” 5 International Journal of Constitutional Law (2007), pp.469–506 (explaining the collapse of liberal democracy and effort to revive the same in the 1990s). See The Republic vs. Akosah (1975) Ghana Law Reports, p.406. See Labone Weavers Enterprise Ltd vs. Bank of Ghana (1977) 2 Ghana Law Reports, p.156. For instance, in the view of some observers, South Africa has not been that insistent in tackling human rights abuses in neighboring Zimbabwe. Despite the view that it is the only country in the subregion capable of imposing sanctions on Zimbabwe as a means of coercing it to respect the rights of its citizens, in the wake of election violence and the seizure of land belonging to white farmers. See Miriam Prys, Regions, Power and Hegemony: South Africa’s role in Southern Africa, paper presented at the Sixth PanEuropean International Relations Conference, Turin September 12–15, 2007 (copy on file with the author), pp.6–7. While the point that the African Charter has no teeth is a valid point, it is perhaps a bit unjust to single it out for this regular attack as if it was (or still is) then only human rights treaty, or international treaty, that has this supposed defect. International law generally, tends not to assign enforcement powers to its treaties. Compliance is usually based on persuasion. This is not strange, as the international legal system is seen by leading scholars as a primitive system with no central government. See, for example, Hersch Lauterpacht, The Function of Law in the International Community (1933) Oxford University Press: Oxford, p.405. However, the absence of a central government does not mean there was no compliance with the law. For law without government in primitive societies see “Bruce Benson, Enforcement of Private Property Rights in Primitive Societies: Law without Government” 9 Journal of Libertarian Studies, pp.1–26. See Frans Viljoen and Lirette Louw, “State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights, 1994–2004” 101 American Journal of International (2007), pp.1–34. Partial compliance is not necessarily a ref lection of the disagreement with a decision and thus a lackadaisical approach to compliance. Perhaps the order was ambiguous and thus the state genuinely felt it had complied with the decision. See Abram Chayes and Antonia Handler Chayes, “On Compliance” 47 International Organization (1993),

Notes

13. 14. 15. 16. 17.

18.

19. 20. 21. 22. 23. 24. 25.

26. 27. 28.

29. 30. 31. 32. 33.

173

pp.175–20, p.188. They argue that language often failed to expressly convey meaning and that drafters of treaties do not foresee many of its possible applications. We assert that this can be extended to court and tribunal decisions. This plausible explanation for noncompliance thus, most probably, explains the World Trade Organization Dispute Settlement provision on implementation of its Panel and Appellate Body Decisions. See World Trade Organization, Understanding on Rules and Procedures Governing the Settlement of Disputes (1995), Article 21 allows for the Dispute Settlement Body to monitor and keep under surveillance implementation of recommendations and rulings. Paragraph 5 acknowledges that there can be a disagreement over measures taken to comply with a ruling or recommendation. See Viljoen and Louw, “State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights,” supra. Ibid., pp.4–7. Ibid. On this see Andrew T Guzman, “A Compliance-Based Theory of International Law” 90 California Law Review (2002), pp.1826–1887, especially pp.1860–1872. See, Janet Koven Levit, “Bottom-Up International Lawmaking; Ref lections on the New Haven School of International Law” 32 Yale Journal of International Law (2007), pp.393–420. This interpretation of why states comply with decisions of international tribunals takes us back to the concept of the logic of appropriateness that we saw in chapter three. Although we drew on it to explain the constitution of international orders, it can be used to explain compliance with their decisions. On the importance of this see Harold Hongju Koh, “Why Do Nations Obey International Law” 106 Yale Law Journal 91997), pp.2599–2659, especially p p.2643–2658. See Obiora Chinedu Okafor, The African Human Rights System: Activist Forces and International Institutions (2007) Cambridge University Press: Cambridge. Ibid. p.232. See Okafor, The African Human Rights System, supra, p.232. Ibid., pp.233–234. See Constitution of the Republic of Benin (adopted December 2, 1990 [1991]) Cotonou: Onepi. Monist legal systems make no distinction between national and international law. Unlike dualist systems when a monist state accepts and ratifies a treaty, that treaty does not have to be incorporated into its national laws by way of an act of the legislature. Upon ratification at the international level, automatic incorporation is assumed. See Constitution of the Republic of Benin, supra, preamble. Ibid., Article 7. See Anna Rotman, Benin’s Constitutional Court: An Institutional Model for Enforcing Human Rights (2003) bepress Legal Series Paper 104. The Constitutional Court, Benin’s paramount court on constitutional matters has relied on the African Charter as a source for rights invoked before it, p.7, note 26. See Dow vs. Attorney General (1992) Law Reports of the Commonwealth (Constitutional and Administrative Law), p.623. Ibid., p.656 See Inspector General of Police vs. All Nigeria Peoples Party (2007) Africa Human Right Law Reports), p.179. Ibid., p.187. This position was the result of a number of factors. See Kofi Oteng Kufuor, The Institutional Transformation of the Economic Community of West African States (2006) Ashgate: Aldershot.

174

Notes

34. See generally, Hedley Bull, The Anarchical Society: A Study of Order in World Politics (2002, 3rd ed.) Basingstoke: Palgrave Macmillan. 35. This was based on their view that after decades of colonial rule, they held dear their new found independence. Also, the international system was dominated by ex-colonial and imperial powers and thus engaging with this system required basic preconditions paramount of which was that African states were sovereign and would not compromise on this principle. Whether in practice this actually happened is open to discussion as repeatedly, African government protested their powerlessness in international relations and how more powerful states continued to meddle in their domestic affairs. 36. If non-state actors found any room it was to do with the tail-end of decolonization and the struggle against minority rule in the Southern part of the continent. The only time Africa came together on human rights issues on the continent was to deal with independence from colonial rule and on issues regarding South Africa and what was then Rhodesia. Thus although with decolonization came some degree of cooperation yet this still respected state sovereignty. 37. See David Held, “Democracy: From City-States to a Cosmopolitan Order?” supplementary chapter to David Held, Models of Democracy (2006), p.37. 38. The possible availability of these avenues is referenced for points raised by Cinneide; see Cinneide, “Human Rights and within Multi-Layered Systems of Constitutional Governance: Rights Cosmopolitanism and Domestic Pluralistic Tensions,” supra. See also Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights ( June 9, 1998). 39. See Constitution of the Republic of South Africa, Act 108 (1996), Article 9 (3). For how this was possible see Carl F. Stychin, “Constituting Sexuality: the Struggle for Sexual Orientation in the South African Bill of Rights” 23 Journal of Law and Society (1996), pp.455–483; and Eric C. Christiansen, “Ending the Apartheid of the Closet: Sexual Orientation in the South African Constitutional Process” 32 New York University Journal of International Law and Policy (2000), p.997–1058. 40. For instance, in 2008 Burundi outlawed homosexual acts between consenting adults. See International Gay and Lesbian Human Rights Commission, “Burundi: Government Moves to Criminalize Homosexuality; Activist Groups Express Outrage” available at http://www.iglhrc.org/cgi-bin/iowa/article/pressroom/pressrelease (last visited August 3, 2009). Nigeria has also moved to criminalize the right to sexual orientation. It is proposing to adopt legislation which will have serious implications for homosexuals. A Bill placed before the National Assembly aims to forbid same-sex marriages whether civil or religious. The Bill also seeks to extend its scope to cover anyone who aids, assists, presides over, witnesses, or even caters for a same-sex marriage. In addition, the law will not recognize same-sex marriages contracted outside Nigeria and any such marriages will become null and void in Nigeria. Furthermore, homosexuals will be prevented from organization or forming associations to publicize or defend their lives. The right of organization is further forbidden as the law seeks to criminalize any organization that works on gay and lesbian issues, even if it does not do so overtly. Public displays that include homosexuals in them, even if the display is not organized primarily to advance the right to sexual orientation, becomes a criminal act. Homosexual literature that is published in anyway will also be a criminal act. Anyone who exercises his or her right to associate and work collectively with people to write and express ideas, to witness for and advocate on behalf of others, whether those others are actually gay, will have committed a crime. And finally, whether Nigerian citizens do these things in public or in private, they will be legally liable for them. See Uhuru-Wazobia, Criminalizing Homosexuality the Nigerian Way (February 12, 2008) available at http//www/awid. org/eng/layout/set/print (last visited August 3, 2009).

Notes

175

41. See Murray and Viljoen, “Towards Non-Discrimination on the Basis of Sexual Orientation,” supra. 42. See the work of national homosexual organizations that we point out below. 43. See Murray and Viljoen, “Towards Non-Discrimination on the Basis of Sexual Orientation,” supra. 44. See Murray and Viljoen, “Towards Non-Discrimination on the Basis of Sexual Orientation,” supra. 45. Ibid. 46. See 43rd Ordinary Session: African Commission on Human and Peoples’ Rights (ACHPR) Ezulwini, Kingdom of Swaziland, May 3–5, 3008 (copy on file with the author). 47. See 45th Ordinary Session of the Commission, Summary report on the NGO Forum held from May 9 to May 11, 2009, Gambia. 58. See African Commission on Human and Peoples’ Rights, Communication No. 136/94 (1995). The communication was withdrawn by the author. 49. Ibid. 50. See Free Legal Assistance Group v Zaire, African Commission on Human and Peoples’ Rights Communication No.25/89. 51. Ibid. 52. See Kalenga vs. Zambia African Commission on Human and Peoples’ Rights Communication No.11/88. 53. See Civil Liberties Organization v Nigeria, African Commission on Human and Peoples’ Rights, Communication No.67/92 (1994). 54. Other friendly settlement cases include Peoples’ Democratic Organization for Independence and Socialism (PDOIS) vs. Gambia African Commission on Human and Peoples’ Rights Communication No. 44/90; Modise vs. Botswana African Communication on Human and Peoples’ Rights Communication No. 97/93. 55. See Lloyd Kuveya, The Effectiveness and Propriety of Friendly Settlements in the African Regional System: a Comparative Analysis with the Inter-American and European Regional Systems” (2006 unpublished LLM Dissertation submitted to the University of Pretoria), p.23. 56. There is the opinion that hardliners in countries where massive human rights abuses take place tend to hide behind nationalism to defend their positions. 57. Ibid. We should mention here that in instances of extremely egregious human rights violations, exposure is crucial and thus friendly settlements can help sweep such abuses under the carpet. There might be the pacification of the complainants but the longterm problems will persist. This is indeed a real fear especially when one considers atrocities perpetrated in countries such as the Sudan, ibid. Furthermore, no matter the commitment to broker friendly settlements on lines consistent with a given Charter, there is always the probability that power of the respondent party will skew the path of the settlement. Thus we could have a situation where the rules do not shape the final decision. See John H. Jackson, “The Crumbling Institutions of the Liberal Trade System” 12 Journal of World Trade Law (1978), pp.93–106 (where he delineates the differences between and implications of a rules-oriented adjudication of disputes and poweroriented adjudication of disputes). 58. See ECHR, supra Article 38. 59. See ACHR. 60. See ECHR, supra Article 38 (1) (b). 61. Ibid., Article 39. 62. Ibid., Article 38 (1) (a). 63. Ibid., Article 37 (1) (b).

176

Notes

64. See Case of Saki v. Turkey, European Court of Human Rights (Application No. 29359/95). 65. See ACHR supra, Article 48 (1) (f ) 66. See Christina Cerna, “Commission Organizations and Petitions” in David Harris and Livingstone (eds.) The Inter-American System of Human Rights (1998) Oxford University Press: Oxford, p.65. 67. See ACHR, supra, Article 49. 68. Friendly settlements are an established practice in international dispute resolution. For example, this is the case under the World Trade Organization’s Dispute Settlement Understanding and its predecessor the GATT. See WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (1995), Article 4. The Torture Convention also provides for friendly settlements. The Convention establishes the Committee against Torture to mediate between disputing states. Parties are to negotiate with one another prior to either party referring the matter to the Committee. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984) Article 21 (1). 69. As noted in the previous chapter, African countries have largely seen the value of a supranational system for the continent, be it either a quick move towards this system (as mooted at independence) or a gradual process suggested by some estates also at independence. Whether they want this in regard to the protection of human rights is another question. 70. See for example, Treaty Establishing the East African Community, Articles 8 (2) and also Economic Community of West African States (Revised Treaty) Article 9 (4). 71. See Joseph Weiler, “The Community System: The Dual Character of Supranationalism,” 1 Yearbook of European Law (1981), pp.267–306 72. We referred to the import of these cases in chapter one of our book. 73. See for instance, Laurence R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes” 102 Columbia Law Review (2002), pp.1832–1911. Helfer sets out how the Commonwealth Caribbean countries have denounced their international human rights obligations and withdrawn for their treaty commitments all on the back of decisions by international treaty bodies that they viewed as unfavorable to their preferences. Eric Posner and John Yoo point out that independent tribunals or courts with supranational powers such as that of the European Court of Justice are actually bad and that the evidence supports their contention that dependent courts and tribunals, subject to the control of their principals tend to produce the best judgments and rulings. See Eric A. Posner and John C. Yoo,” Judicial Independence in International Tribunals” 93 California Law Review (2005), pp.1–74. 74. See Helfer, “Overlegalizing Human Rights,” supra. 75. Ibid. 76. See, for example, Renaud Dehousse, The European Court of Justice: The Politics of Judicial Integration (1998), Basingstoke: Macmillan, pp.135–141. 77. The most recent effort is captured in the Sirte Declaration (adopted in Libya, September 9, 1999). 78. The ability of decision-makers to take bold steps when unencumbered by social pressures generated by special interest groups is at the heart of the institutionalist theory we drew attention to in chapter one of this book. See Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stag flation and Social Rigidities (1982) Yale University Press: New Haven and London. Olson applies this theory to the transformation of postwar Germany and Japan. He posits that their rapid redevelopment was down to the fact that their societies had been so destroyed by the ravages of the war that in government efforts at rebuilding, there were no social forces capable of organizing and pressuring

Notes 79.

80. 81. 82. 83. 84.

177

government to adopt policies suitable for them but, most probably inimical to society at large. Our view on subregional courts stems from this. See Kenneth W. Abbot, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal, “The Concept of Legalization” (2000) 54 International Organization, pp.401–420. Ibid., p.401. Ibid., p.414. Ibid., p.415. Ibid., p.417. The absence of a regional hegemon allows us to use the argument in chapter one to challenge the presumption that a hegemonic power is needed to jump-start the adoption of an international treaty and the creation of an organization as part and parcel of it. For general questions on the role of hegemonic powers see, Isabelle Grunberg, “Exploring the “Myth” of Hegemonic Stability,” 44 International Organization (1990), pp.431–477.


I N DE X

African Charter for Popular Participation in Development and Transformation, 7, 99, 102, 114 And fragmentation of the African human rights system, 106–110 African Charter on Human and Peoples’ Rights And Africa’s tyrannical regimes, 16–17, 24–25 Impact of Uganda-Tanzania War, 17, 25–28 Origin of, 11–12, 16–18 Strategic role of, 35–36 And U.S. Foreign Policy, 18–24 see also Clawback Clauses, Collective Rights African Commission on Human and Peoples’ Rights, 2, 4, 5, 6, 7, 9, 12, 122, 123 And Clawback Clauses, 38, 40–57 And Collective Rights, 61, 67–80 Competition with rivals, 138 And Formalism, 39 And Friendly settlements, 133–138 And Gay Rights, 131–133 Growing stature of, 125 And Principal-Agent Model, 48–51 And Realism, 40 And Rules of Procedure, 82, 83–98 Secretary of, 86–87 And Supranationalism, 138–141

African Court on Human and Peoples’ Rights, 5, 126, 142, 146 African human rights system Definition of, 1 Fragmentation of, 99–100, 106–120 Increasing trend towards legalisation, 142–145 And subregional courts, 141–142 African Union, 1, 45, 49–52, 97 Chairperson of, 86, 87, 88 And Charter for Elections, Governance and Democracy in Africa, 110–112 Constitutive Act of, 93 Democracy and Electoral Assistance Fund, 111 Democracy and Electoral Assistance Unit, 111 Exit from, 52–53 And fragmentation of African human rights system, 104–105 And principal-agent model, 49–51 And rules of procedure, 86–88 American Declaration on the Rights and Duties of Man, 21–22 Amnesty International v. Zambia, 44

180

Index

Antoine Bissangou v. Republic of Congo, 47 Article 19 v. Eritrea, 47 Bello, Emmanuel, 23 Benin, 34, 114, 116 Impact of African Charter on, 126–127 Botswana, 114 Impact of African Charter on, 127 Carter, Jimmy, 16 And U.S Foreign policy, 18–19 Impact on the African Charter, 20–24 Cerny Phillip, 66 Chad, 29 Charter on Elections, Democracy and Governance in Africa, 7, 99 And collegiality in decisionmaking, 51 And fragmentation of the African human rights system, 110–112 Impact at the national level, 125–126 And maximisation of justice, 55 Civil Liberties Organisation v. Nigeria, 45 Civil Liberties v. Nigeria, 134 Clawback Clauses, 7, 9, 28, 38, 51–52, 57–58, 60 Definition of, 40 Impact of, 41–42 Interpretation of by African Commission, 42–48 And Transformational Model of Regime Design, 57–60 Collective Rights, 61 Commission Nationale des Droits l’Homme et des Libertes v. Chad, 45 Congress, U.S., 19 Foreign Assistance Act 1961, 19 Foreign Assistance Act 1973, 19–20

Foreign Assistance Act Amendment 1974, 20 International Development and Food Assistance Act 1975, 20 International Security Assistance and Arms Export Control Act 1976, 20 Public Law 480, 23 Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, 43–44 Cosmopolitanism, 128–130 And Gay Rights in Africa, 130 Courson v. Zimbabwe, 133 Democratic Republic of the Congo, 29 Derogation Clauses, 40–41 Absence of in African Charter, 45 Donnelly, Jack, 13, 21 Dow v. Attorney General, 127 Economic Community of West African States, 140–141 Court of Justice, 119 Political Principles, 116 Protocol on Free Movement of Persons, 116 Revised Treaty, 117 And supranationalism, 140 Economic, Social and Cultural Rights, 7, 9, 28, 61 see also Collective Rights Essien v. The Gambia and Another, 119 European Convention of Human Rights, 147 Friendly settlements under, 136–137 As a guide for African Commission on Human and Peoples’ Rights, 47, 136 And right of sexual orientation, 131–132 European Court of Justice, 140–141

Index Formalism, 39 Franck, Thomas, 71 And legitimacy, 72 Free Legal Assistance Group v. Zaire, 133 Ghana, 34 Higgins, Rosalyn, 40 Human Rights Committee, 40–41, 52 Ideationalism, 13–14 Inspector General of Police v. All Nigeria Peoples Party, 127–128 Institutionalism, 3 Historical, 3, 5, 32 Rational Choice, 3–4, 56 Sociological, 3–4, 47–48 And Utility-Maximisation, 56 Inter-American Commission on Human Rights, 21 International Covenant on Civil and Political Rights, 22, 27–28, 40, 52, 131 And Derogation clauses, 40–41 International Covenant on Economic, Social and Cultural Rights, 22, 28, 65 International Pen, Constitutional Rights Project, Interrights on Behalf Of Ken-Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, 73 Kalenga v. Zambia, 134 Kannyo, Edward, 17 Katabazi & 21 Others v. Attorney General of Uganda, 119 Katangese Peoples Congress v. Zaire, 76–77 Labone Weavers Enterprises Ltd v. Bank of Ghana, 123 Law of Lagos, 2, 20 Liberal Internationalism, 129 Liberal Republicanism, 14–15

181

Liberia, 26, 34 Louw Lirette and Viljoen Frans, 54, 123–125 Malawi African Association & Others v. Mauritania, 73 Mauritius, 114 McGowan-Johnson Thesis, 31–32 As explanation for origin of African Charter, 33 Media Rights Agenda & Others v. Nigeria, 73 Mike Campbell (pvt) Ltd and Others v. Republic of Zimbabwe, 119 Moravcsik, Andrew, 13–14 Murray, Rachel, 82 Mutua, Makau, 63 And liberal conceptions of human rights in Africa, 63–66 New Regionalism, 8 see also Subregional Economic Integration Niger, 35 Nigeria, 26, 29, 35 And impact of African Charter, 127–128 Nigerian Government, 73, 78–80 Nmehielle, Vincent, 82 Non-Governmental Organisations, 78, 95, 97, 100, 106, 132, 143 And African Charter for Popular Participation, 108 And OAU Grand Bay Declaration, 118 And Observer Status with the African Commission, 69–71, 89–91 And origin of African Charter, 21, 30, 33–35 North, Douglass, 32

182

Index

OAU Grand Bay Declaration (Mauritius) and Plan of Action, 7, 99 And fragmentation of African human rights system, 112–115 Odinakalu, Chidi, 67, 82 Ordoliberalism, 121 Organisation of African Unity, 1, 45, 58, 82, 85, 105, 114 African Charter, decision to adopt, 12, 16–18, 24–28, 29–30, 30–35 Assembly of Heads of State and Government, 37, 38, 50, 89–90, 96 As a forum for the resolution of inter-African disputes, 29–30 And individual human rights, 29–30 Secretary-General, 86–87, 91–92 And seizure of the African Charter process, 55 Public Choice Theory, 15–16, 37, 70 Public Choice Theorists, 101 Purohit and Moore v. The Gambia, 74–75 Realism, 39–40 Regime Theory, 6–7, 101 Regionalism New, 101 Old, 101 The Republic v. Akosah, 123 Saki v. Turkey, 136–137 Scoble, Harry, 34 Shivji, Issa, 62 And liberal conceptions of rights, 62–63

And the right of self-determination, 62–63 Social and Economic Rights Action Centre and the Centre for Social and Economic Rights v. Nigeria, 78–80 Southern African Development Community, 101 Charter on Fundamental Rights, 117–118 Subregional Economic Integration, 7–8, 10, 115–120 Sudan, 26, 29 Supranationalism, 136 And development of African human rights system, 138–141 Dimensions of, 136–137 United Nations Secretary-General of, 41 United States, 13 Bureau of Human Rights and Humanitarian Affairs, 22–23 Universal Declaration on Human Rights, 22, 117–118 Utility-Maximisation, 56 Vaubel, Roland Dirty work hypothesis, 35–36 Viljoen, Frans and Louw, Lirette, 54, 123–125 Westphalia Model, 128–129 World Systems Theory, 46 And Clawback Clauses, 46–47 Zaire, 77

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