The Organisation of African Union (OAU) and its successor, the African Union (AU), have developed a habit over the past five decades.
Dismissing international human rights treaties as tools of imperialism (huff!), the cronies’ club drafts parallel treaties for Africa then does nothing towards their implementation. Their argument: ”We must have ‘home-grown’ systems to deal with the problem.”
This intermittent treaty-making has created what lawyers call the African human rights system. It consists of six continental treaties and their treaty-monitoring bodies. Africa’s approach may have been created to pre-empt international action, but that does not mean it is mediocre. African human rights treaties have consistently been trailblazers.
The 1969 OAU Refugee Convention was first to demand that refugees only be repatriated voluntarily, a principle known as non-refoulement. It was first to recognise refugees as groups. The United Nations High Commission for Refugees has since embraced non-refoulement, but still grapples with group refugee recognition. There is a home-grown solution, but the problem remains.
Then came the 1981 African Charter on Human and Peoples’ Rights. The Cold War had mutilated human rights. It reduced the Universal Declaration on Human Rights to two treaties, civil and political rights preferred by the West and economic and social rights preferred by the East. Africa’s human rights charter recognised these two as one, added peoples’ rights to the individual rights and also included duties. It rejected any excuse, be it national security or war or domestic laws, for ignoring human rights.
Alas, the home-grown solution again subsists harmoniously with the problem. The treaty-monitoring body, the African Commission on Human and Peoples’ Rights, cannot issue legally binding decisions, and since its creation has been starved of recognition as well as human and financial resources.
So complete was its neglect that during the OAU-AU transformation the AU Constitutive Act forgot to recognise the African Commission as an AU organ.
Despite its groundbreaking jurisprudence on cases involving Chad, Mauritania, Nigeria, Sudan and Swaziland, the commission remains largely unknown, even among African lawyers and state officials. The only African leader to have implemented an African Commission decision was Cheikh Ould Abdellahi of Mauritania, a move that was partially responsible for his 2008 ouster.
The African Children’s Charter signed in 1990 also broke new ground. It established a firm definition of who a child is, something that the UN Convention on the Rights of the Child failed to do. It also established another quasi-judicial body that could, like the African Commission, find African states guilty of violating children’s rights. The UN hasn’t such a body. But it, too, is experiencing serious neglect. Ironically, the Children’s Charter prohibits the neglect of children. If only the AU Summit would see its treaty-monitoring bodies as its offspring.
The OAU Summit did not stop here. In 1998 it established the African Court of Human and Peoples’ Rights. We rejoiced! Finally we had a court that could bind guilty countries to effective court rulings.
But wait. The court has stringent ”rules of engagement”. The African Commission accepts cases from anyone, even from those not directly aggrieved who are suing on behalf of victims so impoverished they cannot seek justice for themselves. Lawyers call this actio popularis. To approach the court, however, one must get permission from the alleged culprit state. This permission, called the Article 34 Declaration, has only been granted by Mali and Burkina Faso.
While reiterating the AU’s commitment to human rights, the 2002 Constitutive Act also forgot to recognise the African Human Rights Court. Instead it recognised another, then non-existent, African Court of Justice, to arbitrate between disputing states. Never mind the plight of the human beings who make up these states.
Trailblazing legislation continued with the 2004 Women’s Protocol which recognised key women’s rights, demanding equality so complete that women ought to be taxed as much as men, along with benefits like protection from harmful traditional practices, equal education, work, pay, and property in divorce. Even television advertisements that portray women as unequal are condemned by this brilliant law.
As they elected judges to the Human Rights Court, however, the AU Summit decided to create their African Court of Justice. Since the African Human Rights Court was already in existence, they decided in 2008 to merge the two, creating the African Court of Justice and Human Rights.
It ,too, is progressive in some respects. Bodies such as the UN are usually beholden to no court thanks to their diplomatic status. With this court, aggrieved AU staff can sue their employer. Another global advance from Africa.
But the merged court still requires the alleged aggressor’s permission to admit your case. With human rights as a division of the larger court, either human rights principles will advance all the court’s considerations, or statecraft will retard its human rights deliberations. Time will tell.
And this is Africa’s paradox. We have arguably the world’s finest human rights laws, but have done very little to implement them.
Now the back-breaking straw. In February 2009 the AU Summit resolved to add what would be a criminal division to the African Court of Justice and Human Rights. This came even before the International Criminal Court’s (ICC) arrest warrant for Sudan’s Omar Al-Bashir, and Belgium’s hauling of Senegal before the International Court of Justice (ICJ) for failing to try former Chadian dictator Hissene Habre for crimes against humanity.
African leaders were discomfited by the arrest in Europe of Rose Kabuye, an aide to Rwandan President Paul Kigame. She is accused by a French judge of involvement in the assassination of the Hutu former president Juvenal Habyarimana thus sparking the 1994 genocide of Tutsis. Received history has it that Hayarimana was in fact killed by Hutu extremists.
Europe’s behaviour, the AU said, was ”an abuse … of universal jurisdiction”, the principle under which country gives its courts powers to try crimes that were not committed in its territory. For African leaders, France’s action, and the well-publicised ICC forays into the DRC, Sudan and hopefully Kenya, are spine-chilling.
Individuals are subject to criminal law. Do African leaders earnestly want an African court that can try them as individuals if they refuse to allow actio popularis against their states?
If they must have this criminal court, then we might as well redress the weaknesses of the ICC. It is after all, Africa’s legacy to make the finest human rights laws.
The prosecutor of such a court must have full freedom to investigate any matter without having to seek permission from the accused state or from a ”pre-trial chamber”, as does the ICC Prosecutor. Failure to enforce an indictment should result in ipso facto expulsion from the union. The Peace and Security Council must not have power to suspend an arrest warrant. And maybe, just maybe, Africa could successfully define the crime of aggression, which the world failed to do with the ICC.
Most importantly, ratifying the criminal division must be obligatory for all states that wish to remain part of the union. This should not be a stretch. Every UN member state must accept ICJ jurisdiction.
The impunity with which African leaders have committed genocide, war crimes, crimes against humanity and aggression is an affront to African dignity. Commitment to the eradication of these crimes must be obligatory.
This way, repressive states will cease to hide behind the progressive elements of the sprawling 53-member club. And we would do well to be rid of those resisting progress.
Friends, countryfolk, Africans! The brilliance of the text of African human rights treaties is testament to quality home-grown legal drafters. The persistence of serious and massive rights violations testifies to the problem that is our leaders.
Humphrey Sipalla writes from Gambia