III. Thematic Overview: Human Rights
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Depending on how they are defined, human rights cut across many of the other focal themes of this survey and beyond. For instance, a previous survey identified rule of law, administration of justice, law enforcement and penal reform, along with democratization, as human rights sub-themes—issues that appear in this survey under the governance umbrella. Similarly, rights related to land and the environment as well as rights of pastoralists and indigenous groups can fall as easily under environment as under human rights.
Again, issues related to refugees and forced migration and human rights in conflict situations form part of the human security agenda discussed above under the theme of peace and security. Thus it is wise to be flexible about thematic categorizations and to recognize the clear linkages between and across each theme.
The African Charter on Human and Peoples’ Rights, adopted in 1981 at a time when many states did not have citizens rights high on their agenda, nevertheless remains highly relevant today, and is often cited by AROs and CSOs concerned with human rights. It stands out for good reason—providing, among other things, for freedom of information and expression, the right to decent work, “the right to enjoy the best attainable state of mental and physical health”, the right to education, the right to economic, social and cultural development, and the right to peace and security.
Its central recognition of so-called ‘second generation’ economic and social (ECOSOC) rights was one of several innovations that distinguished the African Charter as highly progressive. ECOSOC rights are fully integrated into international as well as regional human rights law. National constitutions in a number of African countries contain binding and enforceable guarantees of these rights. However, they remain highly controversial—largely because the content of many of these rights is perceived to lack clarity, and because there is little in the way of international jurisprudence on the basis of these rights.
As such, while human rights lawyers continue to debate the justifiability of ECOSOC rights, most CSOs remains primarily concerned with advocacy around ‘first generation’ civil and political rights. Nevertheless, there is a growing belief among Africans concerned with human rights issues that, in light of the continent’s development challenges, civil and political rights are pointless unless underpinned by ECOSOC rights.
Progressive institutions
The African Charter also provides for a series of bodies and mechanisms to ensure the protection of the rights it asserts. At the center is the African Commission on Human and People’s Rights (ACHPR), set up in Banjul, the Gambia, in 1987 to consider and rule on human rights violations in AU member states and to recommend corrective action against offending state parties. In May 1999, during its 25th session, the ACHPR resolved to allow CSOs access to its sessions, nominally for opening and closing sessions only, but also to closed sessions at the discretion of the chair, on issues of interest to them.
Additionally, the chair could give observers the floor to respond to questions from member states; observers could be requested by the chair to make a statement to the Commission on issues of concern; and observers could proactively request to have an issue of concern included in the meeting agenda. The 1999 resolution also included a requirement for each accredited CSO to present an activity report to the Commission every two years, establish close relations of cooperation with the ACHPR and engage with it on an ongoing basis. At the end of 2006, to differing degrees, some 342 organizations had observer status with the ACHPR, constituting a pioneering and active grouping of CSOs—and perhaps the strongest one in Africa to date.
Considering that the ACHPR was set up under the OAU, at a time when non-state actors had little or no access to continental decision-making forums, the decision and modalities developed were ground-breaking—so much so that every subsequent advance in jurisprudence related to human rights in Africa can at least in part be attributed to the observer mechanism.
Today, the ACHPR has been absorbed into the AU system, with a few innovations. Due to a weakness in the Protocol establishing the Commission, petitioners had to exhaust local remedies in-country before taking their cases to the continental body. Now, a provision in the Constitutive Act for an African Court of Justice—now merged with an African Human Rights Court as mandated by the African Charter—intends to provide the African human rights protection system with hitherto-absent teeth.
To a greater or lesser extent, the RECs have also enshrined human rights at the sub-regional level, creating a cascading architecture of judicial institutions, including the ECOWAS Community Court, the EAC Court and the SADC Court. As with the peace and security, the division of labor among these courts remains unclear.
A wider community of CSOs has embraced the enabling environment and has sought to actualize the spirit of the African Charter by advancing rights-based approaches to a host of diverse issues. Emblematic of this new approach is the Coalition for an Effective African Court (see profile on p.132), whose mission is to strengthen the human rights protection system in Africa and provide redress for victims of rights violations. The Coalition has combined technical expertise and strategic legislative advocacy to good effect.
Other good practices include the ‘15% Now!’ Campaign run by APHRA (see profile on p.120) and the Solidarity for African Women’s Rights (SOAWR) campaign, which successfully sped the ratification of the Protocol on the Rights of Women in Africa by combining adversarial tactics with constructive partnership, both with members states and the AU itself.
The implementation challenge
A major challenge to the African human rights community at large, and to AROs and CSOs in particular, lies in the fact that rights enshrined in the African Charter are rarely actualized in a systematic way—leaving the landscape littered with a proliferation of norms and standards that are often honored more in the breach. In light of the long-run nature of efforts to change the continental and sub-regional policy agenda, the link between the continental and national is patently weak, calling into question the relevance and effectiveness of the growing array of human rights organizations working in the domain.
A case in point is the African Charter on the Rights and Welfare of the Child, adopted by OAU in July 1990. By July 2005, 39 countries had signed the Charter and 38 had ratified it. But only 3 countries—Egypt, Mauritius, and Rwanda—had submitted reports due to the African Committee of Experts on the Rights and Welfare of the Child, the body set up to ensure the Charter’s implementation. CSOs working on child rights represent an important subset of human rights actors on the continent, yet ensuring domestication of continental norms has so far escaped even the hardiest of advocates.
As with other themes, lack of capacity and financial resources makes campaigns that require long-term commitments difficult if not impossible. The same applies to implementation of the pledge by African governments to earmark 15 percent of national budgets for health-related concerns, codified in the 2001 Abuja Declaration on AIDS, Tuberculosis and Other Infectious Diseases.
Another challenge is to effectively harness important new or recent functions residing in the African human rights system. One such function, established by the ACHPR in 2004—two years after the AU’s adoption of a Declaration of Principles on Freedom of Expression—is that of the Special Rapporteur on Freedom of Expression. The role of the Special Rapporteur includes monitoring violations of the right to freedom of expression on the continent, recommending measures to address the violations, and assisting AU member countries in reviewing their national media laws and policies for compliance with the principles spelled out the ACHPR’s Declaration.
The advent of both the Declaration of Principles and the Special Rapporteur owe much to the pioneering work of sub-regional media support organizations in Africa (e.g., see profiles of MISA, PIWA, and MFWA). This work was instrumental, for instance, in the adoption of the May 1991 Windhoek Declaration on promoting a free and pluralistic media, and the more recent African Charter on Broadcasting, adopted exactly 10 years later. In the coming years, the challenge for legislative advocates working on freedom-of-expression issues will be to move beyond the narrow focus on media rights to make linkages with the broader human rights struggles in different parts of the continent—a task that can be helped by a regional approach.
Another function with a strong rights basis is the AU Special Representative for the Protection of Civilians in Armed Conflict, a position created in 2004 and funded by the Canadian government as part of its Canada Fund for Africa, which is designed to improve the AU’s conflict prevention capacity. The role of the Special Representative is to advocate on behalf of war-affected populations across Africa, speak out against attacks on civilians, and urge that violators of international humanitarian, human rights, and refugee law be held accountable for their actions. That such important human rights functions in the AU system as well as in the RECs are made possible only through the RECs—or in the case of the Special Rapporteur on Freedom of Expression, supported by an international NGO—speaks to the extent to which many continental initiatives are externally driven. An enduring challenge will therefore be to find ways to sustain such functions and their support structures, while ensuring their independence.
In the coming decade or so, there will be a growing recognition by African citizens they have the right to health and the right to work. Governments will increasingly acknowledge that they have a responsibility to meet these demands and explicitly set out to address them in policies and programs. At the same time, the emphasis among civil society will continue to be on actualizing political rights. The regional judicial architecture will be considerably stronger in 10 years’ time that it is today—with judgments handed down by the African Court establishing strong jurisprudence on the basis of which targeted legislative advocacy can take place. The African human rights field is certain to be much stronger than it currently is.
