CHAPTER 3 AFRICAN AND WEST AFRICAN MECHANISMS FOR THE ENFORCEMENT OF THE RIGHT TO DEVELOPMENT AND THE ROLE OF NON-GOVERNMENTAL ORGANISATIONS
The African system for the promotion and protection of human rights includes several instruments which reflect specific African values such as the concept of ubuntu (discussed in Chapter 2 above); emphasis on socio-economic and cultural rights; individual duties alongside rights; as well as group rights. The African Charter on Human and Peoples’ Rights (African Charter)1 also known as the Banjul Charter, is the primary instrument around which the African regional system has evolved over the years. The African Charter is also the first regional and legally binding instrument to recognise the RtD. At the time of writing, the African Charter has been supplemented by a variety of legal instruments, amongst others the African Charter on the Rights and Welfare of the Child;2 the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights;3 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.4 The African Charter is unique in the international law context in that it affirms the indivisibility of rights;5 and renders economic, social and cultural rights justiciable (articles 15 to 24). The African Charter allows no derogation, although it does contain a number of ‘claw-back’ clauses which permit states to suspend several fundamental rights in their municipal law. It needs to be noted that a claw-back clause is not identical to a limitation clause. The claw-back clause relates to an internal limitation within a right while a limitation clause sets the external boundaries of the right. As commented by Rautenbach, the claw-back clause ‘neutralises the protection that the constitutional definition of the right is supposed to provide’.6 Indeed, the enjoyment of certain civil and political rights is limited by terms such as ‘except for reasons and conditions previously laid down by law’,7 ‘subject to law and order’,8 or ‘within the law’9 which empty these rights of their substance. The African Charter further recognises the RtD (article 22) and imposes duties on individuals (articles 27 to 29).10
The relevance of this chapter to the present study lies in the central role played by human rights NGOs in the work of the mechanisms established to promote and protect human rights in Africa. The majority of the cases used to illustrate the enforcement of the RtD, decided by the African Commission, the African Court on Human and Peoples’ Rights, and by the Court of the Economic Community of West African States, were initiated by NGOs acting on behalf of alleged victims of human rights violations. The importance of the role played by NGOs will emerge in the next chapter when the dawn of the NGO movement and its development, nature and functions are examined specifically from the perspective of the realisation of the RtD.
The chapter begins with a brief historical overview of the African human rights system. The genesis and an examination of the socio-political factors which triggered the establishment of the African human rights system are highlighted to provide a contextual background to its original deficiencies and subsequent evolution. This is followed by a review of the mandate and the enforceability of the decisions of the African Commission on Human and Peoples’ Rights. On reviewing the work of the
Rautenbach IM Introduction to the bill of rights: trade, occupation and profession (May 2008) African Commission, a detailed discussion of the Endorois case is presented as the main occasion on which the Commission made far-reaching pronouncements on the RtD. This chapter also examines the jurisprudence of the African Court on Human and Peoples’ Rights relating to the RtD. Finally, a brief outline of the decisions of the Court of Economic Community for West African States is provided as this body affords ideal opportunities to Ivorian NGOs for human rights litigation.
Historical background to the African human rights system: An overview
The ‘Lagos Law’
Equipping Africa with mechanisms for the promotion and enforcement of human rights was a project championed by African lawyers and NGOs soon after the wave of independence of most of the African countries from colonial domination in the mid-fifties and mid-seventies.11 It was a logical consequence of socio-political events on the continent, that after hard-won political liberation, newly independent countries aspired to build their nations on core values such as respect for human rights and human dignity. For example, the Charter of the Organisation of African Unity states in its preamble that:
We, the Heads of African States and Governments assembled in the City of Addis, Ababa, Ethiopia
Conscious of the fact that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples
Persuaded that the Charter of the United Nations and the Universal Declaration of Human Rights, to the Principles of which we reaffirm our adherence, provide a solid foundation for peaceful and positive cooperation among States,
The idea of having an African regional mechanism for the protection of human rights originated from the 1961 African Conference on the Rule of Law which adopted a declaration referred to as the ‘Law of Lagos’. One of the key recommendations in the Law of Lagos was:
In order to give full effect to the Universal Declaration of Human Rights of 1948, this Conference invites the African Governments to study the possibility of adopting an African Convention of Human Rights in such a manner that the Conclusions of this Conference will be safeguarded by the creation of a court of appropriate jurisdiction and that recourse thereto be made available for all persons under the jurisdiction of the signatory States.13
In essence, the African lawyers and NGOs gathered at the Lagos Conference, called for a court on human rights, accessible to individuals as a guarantee for the effective promotion and protection of human rights as enshrined in the Universal Declaration of Human Rights (UDHR). It should be noted here that the sole reference to the UDHR is justified by the fact that it was, at that time, the only reference available in international human rights law. In 1967, the first conference of Francophone lawyers recalled the Lagos Conference and called for the creation of a regional mechanism for the protection of human rights.14 Nearly a decade after the ‘independence euphoria’, a period of deception set in in parts of the continent with the consolidation of one-party systems,15 the rise of coups d’état, and military dictatorships.16 In southern Africa the struggle for political liberation was on-going in countries such as the then Southern Rhodesia (now Zimbabwe) and South Africa where apartheid was still the guiding policy.17 In this political climate, it was inconceivable that African states would agree on a legally binding human rights treaty, especially on a court which could deliver decisions by which they would be legally bound.
The proliferation of one-party systems and military dictatorships in Africa was also facilitated by the ‘cold war’ during which the Russian Communist party leadership in the then Soviet Union, served as a model for the African one-party system.19 Naturally, the changing global political context inaugurated by the ‘reconstruction/restructuring’ program known as the Perestroika, and the period of transparency referred to as Glasnost, undertaken between 1981 and 1991 by the Russian Communist party under the leadership of Mikhail Gorbachev,20 largely contributed to the change in attitude amongst African leaders with regard to democracy and human rights. Perestroika and Glasnost were necessitated internally in the Soviet Union, as over-centralisation of the Russian economy had become an impediment to the development of the private sector, to entrepreneurship, and to economic growth. In addition, the Russian Federation had to face economic competition not only from the United States of America; but also from Japan, the then West Germany, and China. The reforms began with the revision of the Russian Constitution in 1977, in particular through the creation of the position of President and the institution of multi-party elections. Four years later, Mikhail Gorbachev’s ten-year reform programme was articulated around the following issues: land redistribution to farmers through fifty-year leases; granting of permission for individuals to set up their own businesses; liberalisation of state companies; the reduction of the dominant position occupied by the Communist party by allowing the formation and functioning of other political parties; and the adoption of a new press law in a bid to promote transparency (Glasnost).21 Whether these reforms had the expected impact in Russia is beyond the scope of this study. Suffice to observe that these reforms contributed to the creation of an enabling environment for the democratisation process and enhancement of human rights protection on the African continent. It became particularly difficult for African leaders to continue leaning on the Russian one-party-system to reject multiparty democracy. Internally, the combined effects of severe economic recession, drought and unequal trade opened the way for social uprisings and calls from NGOs for democracy and human rights reform in many parts of Africa.
The post-cold war era and the adoption of the African Charter on
Human and Peoples’ Rights
Discussions on the adoption of an African mechanism for the promotion and protection of human rights which had been dragging since the early sixties, accelerated with the support of the United Nations. The African Charter on Human and Peoples’ Rights saw the light of the day against this background in 1981. Two of its distinctive (some will say, ‘unique’) features are that the Charter expresses the African concept of human rights by placing individual rights in the context of group’s rights (articles 18 to 24); and articulates the quest for social cohesion and harmony between the individual and the group by introducing the notion of duties of the individual vis-á-vis other individuals, the family, and the group at large (articles 27 to 29). The African concept of human rights is better expressed by the concept of ubuntu discussed in Chapter 2 above. The African Charter is also distinctive in that it brings together in a single legally binding document, the recognition of the traditional civil, and political rights as well as cultural, economic, and social rights, in addition to environmental and developmental rights, thus setting an example of the complementarity and mutual reinforcement of rights – a notion that only gained global recognition years later in the 1993 Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights held in Vienna, Austria, from 14-15 June 1993.22
The African Charter creates a single enforcement mechanism, the African Commission on Human and Peoples’ Rights. To the disappointment of the promoters of the Lagos Law, the African Charter failed to establish a court. Kéba Mbaye, one of the drafters of the first proposal of the Charter, explained that the absence of a court in the final draft was based on two considerations: First, that the experts commissioned to draft the African Charter were instructed, especially by African leaders such as Leopold Sedar Senghor, then President of Senegal,23 to reflect the conciliatory nature of the African conflict resolution system in terms of which referral to a court is the exception rather than the rule. Secondly, Mbaye argued that the idea of a court was promoted against the background of the struggle against the apartheid regime in South Africa. Its proponents wanted to use the court to forestall or punish the human rights violations occurring under the apartheid regime as an additional tool in their struggle to dismantle racial discrimination. But the idea of the court did not win universal support among African leaders at that time because some of them were in favour of dialogue (and cooperation) with the South African apartheid regime, while others were strongly agree with the African scholar, Makau wa’Mutua, who maintained that having an enforcement mechanism with very limited powers and non-binding decisions was a ‘comfortable’ option for dictators – either civilian operating under a one-party regime, or military.
It was not until after the fall of the apartheid regime and the advent of the African Union that the notion of an African court on human rights gained meaningful support among African states. In the mid-to-late nineties, events on the continent, especially the genocide in Rwanda (1994), and the civil wars in Sierra Leone (1991) and Liberia (1997), prompted NGOs and other actors to push for the creation of a court in the hope that it would strengthen human rights protection in Africa. As Mutua reports, there were two polar views on the creation of the court.25 One view (to which Mutua subscribes) held that a human rights court should be established as soon as possible to salvage the entire system.26 The other saw the work of the African human rights system as evolving gradually and primarily for promotional rather than adjudicative purposes. In terms of this view, the African regional system should focus on human rights promotional activities.27
The African Commission on Human and Peoples’ Rights
Mandate and the enforceability of its decisions
As briefly indicated above, the African Commission on Human and Peoples’ Rights (African Commission) was until recently, the only African regional mechanism for the promotion and protection of human rights. This is reinforced by Part II (articles 30 to 63) of the African Charter relating to the ‘measures of safeguard’ (of the rights enshrined therein), and the establishment and functioning of the African Commission headquartered in Banjul, the Gambia. The African Commission comprises eleven members expected to be:
African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience.28
The African Commission is supported by a secretariat. It holds bi-annual ordinary sessions and an unlimited number of extraordinary sessions as the need arises.
CHAPTER 1 INTRODUCTION, AIMS, AND FRAMEWORK OF THE STUDY.
1.2 Aims and objectives of the study
1.3 Statement of the problem
1.4 Demarcation of the field of study
1.5 Methodological account.
CHAPTER 2 THE RIGHT TO DEVELOPMENT IN INTERNATIONAL HUMAN RIGHTS LAW
2.2 Origin and evolution of discussions on the right to development
2.3 The legal nature of the right to development
2.4 Content of the right to development.
2.5 Enforcement and justiciability of the right to development
CHAPTER 3 AFRICAN AND WEST AFRICAN MECHANISMS: FOR THE ENFORCEMENT OF THE RIGHT TO DEVELOPMENT AND THE ROLE OF NON-GOVERNMENTAL ORGANISATIONS
3.2 Historical background to the African human rights system: An overview
3.3 The African Commission on Human and Peoples’ Rights
3.4 Significance of the Endorois case for human rights non-governmental organisations and the realisation of the right to development
3.5 The African Court on Human and Peoples’ Rights
3.6 Human rights litigation before the Court of Justice of the Economic Community of West African States.
CHAPTER 4 THE INTENDED ROLE AND FUNCTION OF NON-GOVERNMENTAL ORGANISATIONS IN A DEMOCRATIC AFRICAN STATE.
4.2 Genesis and evolution of the concept, function, and role of non-governmental organisations
4.3 Framework for the establishment and functioning of non-governmental organisations in Africa in general and in West Africa specifically.
4.4 The intended role and function of non-governmental organisations.
4.5 Challenges faced by African non-governmental organisations
4.6 Addressing African challenges
CHAPTER 5 CÔTE D’IVOIRE: THE SOCIO-POLITICAL AND ECONOMIC SITUATION, EVOLUTION AND LEGAL REGIME FOR HUMAN RIGHTS NONGOVERNMENTAL ORGANISATIONS AND THEIR ROLE IN THE REALISATION OF THE RIGHT TO DEVELOPMENT.
5.2 Background to the Côte d’Ivoire’s geography, ethnography, economy, and political history
5.3 Evolution of and challenges to human rights activism
CHAPTER 6 CONCLUSION: SYNTHESIS AND RECOMMENDATIONS
6.4 Summary and conclusion
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