Welcoming The Human Rights Defenders
Next week, the African Commission on Human and Peoples Rights, ACHPR, is to start with an other of its meetings, the 49th Ordinary Session, at its headquarters in Banjul. In fact from Monday the ordinary session will be preceded by the NGO Forum on the starting from April 25th to the 27th at the Kairaba Beach Hotel in Kololi. The forum, which is expected to be officially opened by the Speaker of the National Assembly of The Gambia, will attract over one hundred human rights activists from Africa and beyond. The occasion will be a far cry from October 2009 when Gambia’s mercurial dictator, Yahya Jammeh, publicly threatened to execute any human rights activist bent on destabilizing his country. Jammeh meant foreign activists of course because there are now no active indigenous human rights activists left in the Gambia. The two or three known human rights institutions still working in the country never address issues on the ground inside the country. Jammeh’s threats came amidst loud international condemnation of his onslaught in 2009 against the private press over the case of the December 2004 murder of Gambian journalist and co-proprietor of one of the most popular newspapers in the country, Deyda Hydara. The usually very interesting forums expected to make a comprehensive overview of Human Rights Situation in Africa, focusing on ‘hot spots’ countries as well as countries whose report on the situation of human rights will be examined by the African Commission during its sitting. The session will further seek to identify strategies in addressing emerging issues in identified countries. There will be a series of presentations or panel discussions on the following issues: “Elections and instability in Africa; one hundred years of women’s rights advocacy; ‘ Prohibition of torture in Africa’; Enforced disappearances’ ‘HIV/Aids and human rights’ ; Sexual orientation and gender identity’ amongst others. The second theme which will focus on Special Interest Groups will discuss, amongst others, issues relating to torture in Africa, the situation of refugees and internally displaced persons in Africa, freedom of expression in Africa, the situation of women’s rights, prison conditions, rights of children, the death penalty in Africa, the Africa court on human and peoples’ rights, economic, social and cultural rights, sexual orientation and gender identity, amongst others.
The final theme will be on networking for human rights which will give an updated on the United Nation’s Human Rights Council. A toolkit on ‘indigenous women’ will also be launched on the last day of the forum. The toolkit which was developed by the African Commission’s Special Rapporteur on Women’s Rights in Africa in collaboration with the Forest Peoples Program (FPP) in the United Kingdom seeks to highlight the rights of indigenous women in the African human rights system.
Interesting and relevant as it is to the conditions of the host country, the event, as usual, will be a non-event to most Gambians. Gambian authorities, like most others elsewhere in Africa want to now ignore and marginalize the work of an institution established in the eighties when the continent’s political culture was more prone human and civil rights violation. After the conclusion of the Cold War and the rise of the call for more democracy, respect for human rights and good governance grew in Africa, many countries got rid of the old predator-dictators to embrace democratic rule. But for the tiny West African state of The Gambia, chosen as seat for the ACHPR for its acclaimed democratic practices, developments went counter the standard trend. Known for its practice of multi-party democracy from the sixties, the state power there was rudely seized by a group of young soldiers, taking the country back to the misrule of Africa of the sixties, seventies and eighties that many countries were abandoning. If The Gambia continues towards that trend of going towards the former African style of predator-rule in Africa, then a grim predicament awaits.
Since independence from colonialism, Africa has continued to bear witness to gross violations of human rights: from the genocide in Rwanda, leading to some 8000,000 deaths in as little as 100 days, to the continued violence and atrocities in the Democratic Republic of Congo, which has claimed more than 4 million lives. The continent is home to some 140,000 child soldiers - more than a third of the global number. Africa has more internally displaced people than the rest of the world combined, with over 13 million people forced to flee from their homes and 3.5 million crossing international borders as refugees. The impact of HIV/AIDS has devastated whole communities, while access to health and information remains limited for some of the world’s poorest people.
While the Charter of the Organization of African Unity (OAU) recognized and upheld the principles enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights (UDHR), the organization was firmly rooted in the doctrine of non-interference between states established in the liberation era when unity and solidarity against colonialism were the primary driving force for the institutionalization of pan-Africanism. The concepts of sovereignty and independence that made the OAU an effective anti-colonial body were later used to stifle human rights protection by implying political apathy toward the abuse by African states against their own people.
Following the 1963 adoption of the charter of the OAU, African leaders were invited to study the possibility of adopting an African convention on human rights. At that time, states and other perpetrators of human rights abuses on the continent often used an African exceptionalist argument to dispel criticism and resist change in policy and practice. Like President Jammeh does now, many accused human rights defenders at home and abroad as allies of Western imperialism and neo-colonialism and labeling the very concept of human rights as western values, they failed to acknowledge or be held accountable to African human rights principles and norms that had yet to be formally enshrined into a charter system.
This was soon to change due, primarily, to the efforts of the Association of African Jurists. As early as 1961, African jurists convened under the auspices of the International Commission of Jurists and formulated the concept of an African human rights charter and court. Yet, only in 1979, after repeated calls from these jurists, did the OAU under the leadership of Togolese, Edem Kodjo, finally address the issue of human rights and make clear their relationship with African development. By the end of the same year, a committee of experts met in Dakar, under the direction of the OAU, to draft a charter on human rights. The African Charter on Human and Peoples’ Rights was finally adopted in Nairobi, Kenya, in July 1981, just a week before Kukoie Samba Sanyang and his desultory men stormed the state armory, armed themselves to try to overthrow the elected government of the First Republic.
The African system of human and peoples’ rights is both universal in character and distinctively African in its scope and principles. Now under the auspices of the African Union (AU), Africa has a wealth of human rights mechanisms, laws and norms, at the centre of which lies the African Charter on Human and Peoples’ Rights. Unlike other human rights treaties, the charter uniquely recognizes collective rights, individual duties and third generation rights, while also characteristically underscoring the interdependence between political and civil rights and economic, social and cultural rights. Following its adoption in 1981, the African Charter on Human and Peoples’ Rights came into force only in 1986 but has since been ratified by all 53 states of the African Union and is widely recognized within Africa, even if only theoretically, as setting the standard for the protection of human rights.
While some in the international community question the necessity of regional protection mechanisms given the very precept of universality enshrined in the concept of human rights, it is generally accepted that the advantage of such mechanisms are the common interest of states within a regional bloc in upholding human rights, the ability of these states and civil society within them to influence one another, as well as the ability to define human rights norms based on shared values within a region. Such regional human rights mechanisms also exist in the Americas and Europe.
The charter laid the groundwork for the establishment of the African Commission on Human and Peoples' Rights, which was established in 1987. The commission has as its mission to promote and protect the rights enshrined in the charter by considering periodic state reports on national implementation and respect for the rights enshrined in the charter; contributing to the development and definition of human rights norms and principles on the continent; hearing complaints from states, civil society and individuals on human and peoples, rights violations, issuing reports containing findings on whether abuses have occurred and making recommendations to the state and other perpetrators to remedy these violations; conducting fact-finding missions and establishing special procedures, such as appointing special Rapporteur and working groups, on salient issues on the continent.
While the principles of the charter have been widely adopted throughout Africa, as has the mandate of the commission, the principle of non-interference between states seems still entrenched. To this day, the African Commission has heard only few inter-state complaints since its establishment (including the one against The Gambia by Ghana over the 2005 alleged mass killings of Ghanaians and other West African nationals by Gambian security forces). Despite the apparent lack of political will on the part of African states and governments to hold one another accountable for violations of fundamental freedoms, the success of the commission lies primarily in the engagement of civil society in its work. The Charter on Human and Peoples’ Rights does not explicitly define who is able to seize (appeal to) the commission with individual complaints but the commission itself has interpreted the charter to broadly permit individuals and NGOs to submit complaints. Additionally, at every session of the commission, an NGO forum currently organized by the African Centre for Human Rights and Democracy Studies in Africa (ACHRDS) precedes the official opening and deliberations.
The NGO forum has established itself as an important part of the commission’s work by providing reports on thematic and regional situations as well as providing a platform for joint civil society advocacy and action.
In recognition of the important contribution of civil society to the commission’s work, the final communiqué of the NGO forum is read out to representatives of states, commissioners, and civil society during the opening ceremony of each commission session. The NGO forum has been successful in putting issues of importance on the agenda of the commission and in providing alternative information for the commission to consider alongside state reports. Further, the NGO forum has proved invaluable in creating a network of steadfast African civil society organizations that effectively engage pan-African policy makers and institutions to create real change in Africa.
Holding not only the states and governments to account, the NGO forum has effectively pushed for greater emphasis on the commission’s work at the African Union, thus contributing to the furtherance of a culture of respect for rights in Africa.
Although there is a gap between the decisions made in most pan-African institutions and the people of the continent directly affected by these decisions. However, this fact is particularly detrimental when dealing with the commission since its recommendations and decisions are not binding and thus rely heavily on political will for enforcement. Yet, the states’ determination to implement the recommendations of the commission will continue to be deficient as long as there is no internal pressure for compliance and enforcement.
In order for the people of Africa to hold their heads of states and governments accountable to their obligations under the charter and the decisions of the commission, there needs to be widespread popularization and promotion of these rights and recommendations. The commission, states themselves and civil society should lead this national sensitization and institutionalization campaigns, with the media playing an essential role. So we individual citizens and our created groups also have certain responsibility for upholding our rights systems.
The current impediment to widespread publicity of the charter and the decisions of the commission has largely been the lack of a concerted multi-stakeholder effort across the continent. However, the charter itself contains a provision, unheard of in other regional human rights systems, which requires the assembly of heads of states and governments to approve the commission’s reports before they become public.
Additionally, for the mechanisms, institutions and avenues for advocacy in Africa to be effective, the system must be utilized to its fullest potential. The use of laws creates precedence, the use of advocacy forums generates accountability and the sustained use of mechanisms enhances their powers of enforceability. However, the potential impact of direct advocacy within Africa has been little tapped by international NGOs and resource-constrained national or local human rights defenders.
The under-use of this system is detrimental, with most solutions to human rights violations in Africa sought from outside the continent. While a global strategy is necessary, what is needed, to complement to the current emphasis on international protection, is a new approach that originates from the continent, embraces the existing system of protection and promotion in Africa and provides a pro-active Pan-African response to violations. We conclude by welcoming the hundreds of human rights defenders arriving in Banjul.