Hon. Sanji Monageng’s speech – African Human Rights, I and My Reflections
August 8, 2011 Leave a Comment
African Human Rights, I and
My Reflections
By
Hon Justice Sanji Monageng
Introduction
Honourable Attorney General of the Republic of Botswana, Honourable Judges, Your Excellencies Ambassadors Molefe and Gunter, distinguished members of the Botswana Bar, my family, distinguished ladies and gentlemen, all protocols observed.
It is humbling to be among you today and for you to have accepted the invitation to honour me through this very important event in my life.
From July 2003 to May 2009, I served Africa as one of the Commissioners and Chairperson of the African Commission on Human and Peoples’ Rights (The African Commission), an organ of the African Union (AU), and the premier body that is mandated to promote and protect human and peoples’ rights on the African continent.
When I was first approached to speak on this very abstract topic, my first reaction was to ask myself ‘what really would I say about human rights that has not been said already?’ There was also the challenge and risk of sounding presumptuous, self righteous and even prescriptive. However, I decided that what was expected of me is to try and sketch out an insight into the African human rights scene, spanning the thirty years of the African Charter on Human and Peoples’ Rights, which Charter establishes the basic framework for a human rights discourse in Africa. When I eventually agreed to deliver this paper, my first thoughts were that, contemporary African human rights discourse is marked by complex and contradictory dynamics, impacting the enjoyment of human rights on the continent in many different ways. It is a truism which needs no restating, that the study of human rights is laden with values and attitudes, and these need to be confirmed and confronted.
My presentation will take a brief look at the philosophical foundations and historical developments in the continent’s search for its place, in the post colonial human rights landscape and the key human rights issues in Africa. In the process, I will share with you some of the examples from within the African human rights system.
Restatement of Age Old Problems
During the first decade of the second millennium, many African countries have been celebrating 50 years of independence. Many of these countries gained independence during the late 1950s and early 1960s. Unfortunately, independence in some African countries did not automatically translate into respect for basic rights and fundamental freedoms for their citizenry. The 20th century, witnessed probably the worst cases of human rights violations in Africa. The 21st century also began with stark challenges for human rights enjoyment.
I have, in my life, been a witness to such violations. For instance, in my capacity as a Commissioner, in 2008, I undertook a human rights Promotion Mission to one African country. There I was confronted with the practice of Trial by Ordeal. Of course in many of the cases the victims are women. I give that example, because in Africa’s long history, only a few generations have been granted the role of defending freedom in its hour of maximum threat and danger. In a strange way, our generation, born in the 20th century, has been fortunate enough to have been entrusted with this responsibility and we should not shy away from it, because Africa has changed, and it is undergoing a positive metamorphosis. Human rights discourses and dialogues, frowned upon and violently suppressed in many autocratic African regimes in the past, now find favour in political fora across the continent. This is a tribute to the enduring struggle of African peoples, and the unfolding changes that are taking place in Africa’s human rights landscapes. I need not remind you of the popular uprisings in North Africa.
I suppose what I am saying is that, within the last quarter of the 20th century, Africa has witnessed a growing recognition of the place and relevance of human rights. It is axiomatic that this interest in human rights is rooted in our history. Slavery, colonialism, neo-colonialism and pseudo-democracy have transformed contemporary Africa into an intricate continent in which human rights, as rhetoric and reality, have never been more pronounced.
As students and practitioners of international human rights law, many of us know that human rights issues today, whether seen from the right or left of the ideological spectrum, are a fundamentally global, philosophical, moral, legal, social and political phenomenon of the 20th and 21st centuries. Not too long ago, even genocidal policies were considered the internal affairs of sovereign nation states, to which the international community could not intervene. I suppose the point I am making is conceptually that human rights are important to all humanity – even for us in Africa.
The paradox though is that, despite its universal appeal, millions of people are, on a daily basis, denied their rights – some for a right as simple as expressing an opinion. In some societies in Africa, one runs the risk of being jailed or even killed for expressing a critical opinion about their government. Many journalists have suffered for merely exercising a fundamental right enshrined in all major international and regional human rights instruments.
Simply put, human rights, for me, are what reason requires and what our conscience demands. I cannot agree more with Kofi Annan who once said that “they are us and we are them”. Human rights are rights that any person has as a human being. Since we are all human beings, we all deserve human rights. One cannot be true without the other.
Allow me to take you back to the African Charter, which ultimately is our reference guide. The concept of human rights in traditional African society was not sanctioned by a normative system, deriving its validity from a constitutional base or Grundnorm, but was rather premised on social values, positively confirmed by African beliefs in the past, and transmitted to posterity through oral history, and manifested through positive traditional practices. This is captured in the preamble of the African Charter which “takes into consideration the virtues of their [African peoples], historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights.”
In fact when one looks at the African Charter, it also gives due regard to the international body of human rights law as developed by the United Nations. In its preamble, African States commit themselves “… to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights.” The African Charter reflects the specific hopes of the African people for a fuller and better life in which African States accept to observe certain minimum standards of treatment of their citizens.
Securing Human Rights in Africa: Challenges to the African State
Please allow me to share with you some of the challenges of human rights in Africa as I see them. An AU report has attributed Africa’s poor human rights record mainly to racism, post-colonialism, poverty, ignorance, disease, religious intolerance, internal conflicts, debt, bad management, corruption, the monopoly of power, the lack of judicial and press autonomy, and border conflicts.
Furthermore, at the core of Africa’s security and human rights crises, as we are all aware and as has been found by many commentators, is a weak or failing state, whose institutions are unstable and underdeveloped. To keep the weak state going, some of our leaders have adopted a situation where the focus is the state, personified by the regime in power, and of course regime survival, where the targets of such states’ coercion are often the critics of the government.
Tied in with the dictatorial post-colonial state, human rights violations and indeed violent conflicts in Africa, have led to the worst excesses we have seen on the continent. This partly arises from lack of political participation, and equitable access to and control of resource flows, and the way in which these resources are conceived, managed and sustained.
In fact, Africa’s security and human rights challenge after independence, and following the creation of the OAU in 1963, was how to address the structural weaknesses, inadequate social infrastructure and lack of governance systems, all of which emanate from the inherited pre-colonial state.
Another challenge for human rights in Africa is the problem of colonially imposed boundaries. Rival communities were lumped together and ethnic groups split between adjacent jurisdictions, which led to inherently unstable aggregations and unnecessary competition. Under this type of arrangement, the seeds were sown for countless national and international disputes of a territorial nature leading to dozens of conflicts and secessionist movements after independence. Upon its creation in 1963, the OAU entrenched the uti possidetis juris principle of preservation of colonial boundaries. This became a key premise of African international law.
Another huge challenge of the post-colonial African state is the inability to meet the needs of its people. States inherited weak economies unable to meet the basic necessities of existence, especially since these were promised as rewards for independence. Immediately after independence the predominantly agricultural economies of the newly independent African states faced competition from the international economic system. The inability of most of these states to meet the demands made on them by their citizenry, to a large extent, has been responsible for instability and internal conflict with attendant human rights violations.
Realization of Human Rights: a Hope for the Future?
The question we need to answer today, is whether there is hope for Africa to meet the human rights challenges of the new millennium? There is no denying that today, more people enjoy more rights than ever before, but all of us are also aware of the limitations of the African states to establish a human rights regime that guarantees the enjoyment of human rights by all peoples across the continent. There has been no shortage of commitment to respect international obligations, as far as the African case is concerned. In April of 1999 the OAU held its first ever Ministerial Conference on Human Rights at Grand Bay, Mauritius, almost 15 years after the entry into force of the African Charter on Human and Peoples’ Rights. The then OAU Secretary-General Salim Ahmed Salim called for the integration of human rights in school curricula, and the strengthening of institutions responsible for promotion and respect for human rights. He emphasized that Africa “needs to inculcate in its people a culture of peace, tolerance and respect of human rights, to energetically fight poverty, illiteracy and intolerance, to strive to overcome the scourge of conflicts and ensure that human rights violations are not only condemned but also effectively opposed and eliminated.”
A cursory examination of the provisions of the AU Constitutive Act, establishing the African Union, reveals that human security forms an important policy platform, differing from the OAU on a number of respects.
The AU Constitutive Act is a novel and welcome development in African international relations, and human rights law. It is Africa’s statement of intent to promote and protect human rights and human security, and constitutes a new conceptual departure from its past, hence setting Africa on a new road towards being a continent at peace.
Commentators have observed that the rejection of unconstitutional forms of government for example, is on its way to being customary international law in Africa.
The Legacy of the African Charter: An African human rights normative framework.
At the heart of the African human rights system is the work of the African Commission on Human and Peoples’ Rights. The African Commission is a treaty-based mechanism established by (Articles 30 to 60) of the African Charter on Human and Peoples’ Rights. The adoption of the Charter in 1981, and its coming into force in 1986, anchored into the African continent, the internationally recognised individual rights, and added the newly proclaimed collective rights and duties. The African Charter recognizes both civil and political rights, social and economic rights, as well as rights and duties. This is not to say that, prior to the adoption of the African Charter; Africa was bankrupt of all moral or legal deference to human rights. There were various judicial mechanisms in existence for the dispensation of justice. The adoption of the Charter however, cemented Africa’s aspirations, determination, and desire to ‘promote and protect human and peoples’ rights and freedoms on the continent.
In July 1990, the 26th Ordinary Session of the Assembly of Heads of State and Government adopted the African Charter on the Rights and Welfare of the Child, which came into force in November 1999, to safeguard, promote and protect the rights of the African child. Two additional Protocols to the African Charter on Human and Peoples’ Rights, – the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, (1998) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, (2003) – have been added to complement the Charter.
The African Human Rights Court came into existence in 2006, with the responsibility to enhance and complement the protection mandate of the African Commission, which has been in existence since 1987.
The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (Protocol) was adopted by the Assembly of Heads of State and Government of the Organisation of African Unity (OAU) in Ouagadougou, Burkina Faso in June 1998and it entered into force on 25 January 2004. Since the adoption of the Protocol, significant advances in the human rights landscape can be discerned. The Court is up and running since July 2006, when its first judges were elected by the AU Assembly in Banjul, the Gambia. It has its seat in Arusha, Tanzania. The Court has disposed of one case, but has received several more, which means that individuals and NGOs in African states are now asserting their rights against those states parties which have ratified the Protocol and made the requisite declaration accepting the competence of the Court’s jurisdiction. I am informed that the Court now has eleven cases! That too is encouraging.
The Protocol on the rights of women, otherwise known as the Maputo Protocol, is a monumental, progressive and history making instrument, aimed at improving the situation of women across the breadth and length of Africa. It enshrines the equality of women in every respect in African society, condemning and prohibiting harmful traditional practices, among many of its very salient features. It is heartening to note that more and more states are ratifying the Protocol.
There are other important developments on the continent. Within the last decade or so, autocracies are disappearing as new rules establish term limits for presidential office, and increasingly respecting the rule of law and separation of powers principles, between the various branches of government, unlike the lip service about democracy and respect the rule of law that was made during the one party democracy era, that prevailed for most of the first forty years of African independence, albeit in those states which were not military dictatorships. It is also gratifying to note that within the last twenty years, indications of positive change in Africa have been encouraging. New democracies are taking hold in different parts of the continent. Concurrently, one-party states have opened up the political space and have embraced reforms, albeit, often reluctantly.
There are many other initiatives that have been adopted by the African Union with a view to transforming the lives of the people e.g. the establishment of the New Partnership for Africa’s Development (NEPAD). A Pan African Parliament is also one of the critical institutions that have been born. I have similarly been fortunate to witness the birth of the PAP and of course that of the African Court on Human and Peoples’ Rights.
Role of Civil Society Organisations
I need to say a few words about Non Governmental Organisations. They have expanded the scope for the enjoyment of human rights on our continent by playing a role in checking abuses of human rights in the countries in which they operate. They have spearheaded campaigns for greater respect for and observance of human rights and dignity, everywhere in the continent, by blowing whistles and raising red flags, whenever they see violations being perpetrated. They have immensely facilitated the communications procedure under the African Charter, the special mechanisms and the working program for the African Commission throughout its existence. Thus far, their activism around various human rights themes, within the framework of the African Charter, has been highly impressive. It is a general belief that without NGOS, there probably would be no African Commission, and again I bear testimony to this.
The challenge for human rights activists and NGOs is to maintain the momentum of human rights activism, in order to create, foster and nurture a culture of observance of human rights, a climate of legality and positive traditional African and moral values into their human rights advocacy.
If NGOs do not move in tandem with the views, concerns and the aspirations of the people whose rights they seek to champion and protect, there will naturally be a disconnect, and the gains that we have made over the years may well be whittled down.
At this juncture, I wish to congratulate the African Human Rights Consortium through Professor Peter Takirambudde, for its courage, resilience and commitment to the course of promotion and protection of human rights on the continent. It can never be easy, especially in terms of resources, both financial and otherwise. I pledge my support to the best of my ability Professor.
Conclusion
In this presentation I have tried to argue and show that while substantial progress is taking place in many parts of the continent in terms of the march of democracy and human rights observance, limitations to the full realization and enjoyment of human rights in Africa remain frighteningly daunting. My view is that for us to succeed, we should continue using our regional institutions as platforms for reform. In fact, I would go so far as saying that the universality of human rights, its focus on human dignity and concern for accountability make the various organs within the African Union uniquely appropriate for championing the cause of human rights on the continent. That is why I am so pleased that the Human Rights Strategy and Mapping Document on the Human Rights Landscape in Africa has now been finalized and adopted by these organs. The next few years will test our collective will and resolve as we implement this Strategy and make it work for all of Africa.
I implore African countries to support the newly established institutions, and to develop strategies to promote democracy, good governance and the rule of law.
While we strive to chart the course for our future of peace and security on the continent, it is equally important that we steadfastly face difficult choices in addressing the inexhaustible catalogue of human rights violations on various parts of the continent.
Only then can we talk about human rights, lasting peace and stability. That, in my view, is the basis on which to tackle the enormous challenges of economic development and growth facing us in Africa today.
Finally ladies and gentlemen, this journey I took with the African human rights system culminated in the Government of Botswana nominating me for, and being successfully elected to the position of Judge of the International Criminal Court, in The Hague, under List B, which a list of candidates with knowledge and competence in international human rights and humanitarian law among other competencies.
I am very happy to see so many lawyers and judges here today, and reiterate my plea for you to take advantage of the many opportunities that are available at the ICC i.e. internships and visiting professionals programmes and work opportunities. I also request female lawyers to apply to be admitted to the List of Counsel and Assistants to Counsel for you to practise at the Court. Details are available online.
As Mahatma Gandhi said, “You must be the change you wish to see in the world.”
I thank you for your attention.
