Three Decades On, the Protection of Human Rights
in Africa Comes of Age?
(Note:
Chidi Odinkalu is a distinguished Nigerian human rights scholar and
activist. He originally posted this blog
on the site of the Africa program of the London School of Economics, where at
the time of posting he was Senior Visiting Fellow at LSE’s Centre for the Study
of Human Rights. You can read more about Chidi here: https://www.opensocietyfoundations.org/people/chidi-odinkalu
I am re-posting this article on my blog
with Chidi’s permission. I have added my own set of pictures)
 |
| Chidi Odinkalu |
When
the African Commission on Human and
Peoples’ Rights convened in Addis Ababa, Ethiopia, on 2 November
1987, as the continent’s pioneer regional human rights oversight institution,
few thought of it as anything other than a plaything of the continent’s big
men.
The
pioneer Chair of the Commission was the personal lawyer to Gabon’s long-serving
President, Omar Bongo. His Vice was a senior Egyptian Ambassador. The rest of
the Commission was made of the Interior Ministers to Congo’s President Sassou
Nguesso and Libya’s Muammar Gaddafi and Mali’s Foreign Minister; three very
senior judges from Botswana, Senegal and Tanzania respectively, a law professor
from Nigeria and two other lawyers from Uganda and Zambia. The only woman was
Mrs Esther Tchouta-Moussa, the pioneer Secretary of the Commission borrowed
from the Secretariat of the AU’s predecessor, Organisation of African Unity
(OAU), where she worked as Legal Adviser.
Many
people justifiably doubted whether this body could confront or address the
challenge of protecting human rights on the continent. While most members among
the initial composition of the Commission did not necessarily bring personal
credibility and expertise to the question of human rights, they enjoyed access
to rulers around the continent, an invaluable position for laying the
foundation for regional human rights institutions in Africa.
Recognising
the political context in which they operated, the Commissioners agreed to a
goal of building a regional system that would “stand on a solid foundation” and
for this purpose to “make slow but sure lasting progress.” With its Secretariat
in makeshift headquarters in Banjul, The Gambia, and a Secretary borrowed from
the OAU, the Commission took its first tentative steps towards fulfilling an
ambitious mandate.
No Longer a Toothless Caricature
Three
decades on, this modest beginning has spawned a regional human rights system
for Africa that now comprises a very complex network of norms, institutions and
procedures. It is hardly recognisable from its earliest incarnation. The
Commission’s membership now has a majority of women and all of its recent
Chairpersons in the past decade (including the incumbent) have all been female.
Since
the Commission was established, the continent has adopted regional treaties on
the rights and welfare of children, on the human rights of women and on
internal displacement. Seven years after they came into existence, the African
Commission persuaded the Organisation of African Unity (OAU) to authorise
negotiations for an African Court on
Human and Peoples’ Rights. In 2016, the Court, with its headquarters
in Arusha, Tanzania, marked ten years of its existence.
The
family of murdered journalist Norbert Zongo benefited from an African Court
ruling that found that the previous government may have been complicit in his
killing and in failing to find out who killed him.
This
difficult history will be lost on many who reflect on the protection of human
rights in Africa today. Around the continent now, the reality of institutions
that receive complaints from citizens and can decide against powerful governments
in cases of human rights violations is taken for granted. The African
Commission itself has received over 600 of such petitions since it began and
had decided nearly 450 by the end of 2016.
Countries
that used to be reluctant to obey decisions of these bodies now do so. For
instance, when the Commission found that Cameroon had violated human rights in
unlawfully firing Judge Abdoulaye Mazou, the government reinstated him and paid
compensation. Botswana reinstated the citizenship of opposition politician,
John Modise and his children, after it had unlawfully rendered them stateless.
The Commission saved the life of Nigerian General and diplomat Zamani Lekwot,
sentenced to death by a military tribunal without a right of appeal. Burkina
Faso has paid compensation to the family of slain journalist, Norbert Zongo, after the African Court found that the previous
government may have been complicit in his killing and in failing to find out
who killed him. The Commission now also has several special procedures patented
for diverse human rights issues, including extra-judicial killings and human
rights of women. It has issued standards and guidelines on various issues from
free expression to counter-terrorism. Its Model Law on Access to Information in
Africa has inspired the adoption of about 15 new national level laws on the
same subject across the continent.
The
record of the African Commission has made the continent’s leaders somewhat more
accepting of regional supervision of human rights in Africa. Therefore, in the
period since the Commission was established, the African Union has made human
rights a fundamental principle for regional inter-governmental relations in
Africa. Several of the continent’s economic integration bodies, including those
in west, east and central Africa, have also established regional courts of
justice, nearly all of them with jurisdiction over human rights. This could
hardly have been foreseen when the African Commission first convened in 1987.
A Mixed Record and an Unfinished Agenda
Notwithstanding
this evidence of progress, the record of Africa’s regional human rights courts
and tribunals remains mixed. Despite some progress, they have been unable to
prevent mass atrocities on the continent or to ensure firm accountability for
them. The African Commission’s mission to Sudan in 2004, helped make the case
for the international commission of inquiry that ultimately recommended the
referral of situation in Darfur, Sudan, to the International Criminal Court.
The Rwanda genocide must rank as one of the Commission’s greatest failures.
Furthermore, other situations of grave violations of human rights, including
Burundi and Central African Republic, have festered without effective regional
response.
However,
there is still a lot of room to reimagine Africa’s regional human rights
system. Poor funding suggests a lack of commitment from the governments that
should support it the most. The fact that Africans still cannot enjoy effective
protection around their continent implies an unwholesome separation of economic
from political rights. As Rwanda President Paul Kagame recently recommended in
his review of the institutions and organs of the African Union
(AU), there must be room to re-examine the multiplicity of overlapping regional
courts and tribunals in order to save costs, reduce confusion and improve
efficiency.
Above
all, the persistence of mass atrocities challenges the aptitude of the
continent’s institutions and the commitment of its governments. It is also the
ultimate major test of the efficacy of Africa’s regional courts and tribunals.
The continent cannot continue to outsource accountability to the rest of the
world but the rest of the world cannot also continue to infantilise Africa or
perpetuate the notion that the only place in which Africans who violate their
own people can be effectively held to account is outside the continent. The recent
conviction of Chad’s former President, Hissene Habre, by an AU-supported court
in Senegal is evidence that it is possible to address high-level accountability
for mass atrocities in Africa. This is why the proposal for an international
crimes complement to the African Court on Human and Peoples’ Rights should not
be dismissed lightly.
Those
11 men and one woman who met in Addis-Ababa on 2 November 1987 at the First
Ordinary Session of the African Commission may not have reflected anyone’s idea
of traditional champions of human rights. Few of that pioneering set of
commissioners would be eligible for election to the Commission today. That
demonstrates how far the system has come. But they were also true to their word
as the progress has been “slow but sure”. Whatever their flaws, the foundation
of Africa’s regional system has been “solid”, if unspectacular. All this
suggests that they were canny and, in their own way, committed to a better
continent.
