The African states and the UDHR

It is particularly noticeable that the attachment to the UDHR proclaimed in African constitutions is largely absent from African pronouncements, conference declarations or UN resolutions. Indeed, whenever reference is made to the UDHR or to human or fundamental rights, it is invariably qualified or limited in context to self-determination, apartheid or racial prejudice, or simply referenced to the UN Charter. Such a qualified endorsement first emerges in the Final Communique of the 1955 Asian-African Conference which referenced human rights in three of its seven sections. In the section on ‘Human Rights and Self-Determination’, it declared

The other references affirmed ‘that the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation’; and that one of the principles upon which international relations should be founded was: ‘Respect for fundamental human rights and for the purposes and principles of the Charter of the United Nations.’ The conference also endorsed a ‘Basic Paper on Racial Discrimination’, which was not part of the Final Communique but was ‘considered … as being part of its decisions’, in which racial segregation and discrimination were deplored as ‘a gross violation of human rights’, but no reference was made to the UDHR. At best, therefore, the references to the UDHR are a qualified nod. Moreover, in its main reference, support is only extended to ‘the fundamental principles of human rights’ which in any event are said to derive from the UN Charter not the UDHR.

Human rights were also mentioned in the opening conference address of several delegation leaders.

By 1960, only fifteen years after the UN Charter had sanctioned colonialism, twenty-two African colonial territories, with several more on the way, had successfully negotiated their independence. It was a stunning reversal. As Neale poignantly observed, this was to prove ‘no ordinary change of government; it was a change in the relationship of black nations to white nations … It called for a new representation of the relationship that had obtained up to that point’. The obsession driving this new representation is most aptly portrayed in Sartre's famous rhetorical question: ‘What would you expect to find, when the muzzle that has silenced the voices of black men is removed? That they would thunder your praise? When these heads that our fathers have forced to the very ground are risen, do you expect to read adoration in their eyes?’ Political independence would therefore merely be the first (if yet only partial) step in the process of the effective repudiation of the post-war international settlement and of the wide-ranging changes that the newly independent African states would demand and actively pursue especially at the UN. A new world had indeed come into being once again to redress the balance of the old.

As, therefore, the process of African political independence began to unfold, the full extent of repressed humiliation and resentment began to reveal itself in a gathering torrent of African revanchism of existential intensity. A revanchism in which the African political, intellectual and cultural elite aggressively sought to confront the commanding heights of the condescension and self-interest of Western universalism across the broad spectrum of political, intellectual, cultural and economic thought and praxis. A revanchism that, some twenty years later the conception and content of the ACHPR would seek to express. In its place ‘Africa’ would pursue an ‘African’ identity that expressed an ‘African’ perspective, asserted ‘African’ interests and recovered the historic loss of ‘African’ dignity.

The fulcrum of African political and economic revanchism would be the OAU, but, as an indirect consequence, it would therefore also become the forum in which an African human rights proposal would have to be considered.

In a eulogy to the UDHR on the occasion of its fiftieth anniversary, Hannum, with specific reference to Africa, triumphantly proclaimed that: ‘The Universal Declaration has served as a model or inspiration for numerous constitutional and legislative provisions … Many African constitutions in the immediate post-independence period made explicit reference to the Universal Declaration of Human Rights.’ It is a triumphalism that is widely shared within African human rights commentary. For example, Asante drew attention to the ‘Charters of Human Rights’ in the independence constitutions of the former British colonial territories and the commitment to the 1789 French Declaration of Rights in the independence constitutions of the former French colonial territories and thereby concluded that the UDHR ‘has been a powerful source of inspiration for the founding pattern of African nations … national independence in Africa … arrived in an era replete with concepts of human rights. In these circumstances entrenchment of human rights was virtually automatic.’

A similar conclusion was reached by Mahalu who argued that, although African independence was itself based on the issue of human rights, significantly, it had come about ‘at a time when the categories of human rights had expanded and internationalized. In the international atmosphere they had a compelling moral force and found legal interpretation in domestic legislation of various states’. More authoritative, in that he served on the African Court on Human and Peoples’ Rights for ten years, is the conclusion drawn by Ouguergouz that the incorporation into the independence constitutions of provisions relating to human rights, ‘with or without express reference to the Universal Declaration’, was

As described in earlier chapters, sometime around 1977, the first tentative signs that at least some African states were prepared to consider a degree of human rights oversight had begun to emerge. In 1977 and 1978, the military government of Nigeria, with support from other African states, had sponsored resolutions in the UNGA and CHR calling for states in those regions where regional arrangements for human rights did not exist to consider putting arrangements in place and requesting the Secretary-General to extend to the OAU, ‘if it so requests’, such assistance as it may require to facilitate the establishment of an African regional human rights commission. For the first time, unlike the Nigerian-sponsored 1967 CHR resolution with which these resolutions are often bracketed, the primary consideration was no longer self-determination or apartheid but domestic governance. At the same time, following M’baye's appointment as Chairman of the CHR in 1978, there had also seemed to be a modest shift in the attitude of some African states towards acceptance of criticism of one of their number thereby opening up the prospect of limited action being taken in respect of the Sub-Commission referrals against Equatorial Guinea and Uganda. Human rights, with President Amin most specifically in mind, also emerged as a major topic of discussion at the 1977 London Commonwealth Heads of Government Meeting (CHOGM).

The Commonwealth human rights initiative

Already in advance of the 1977 London CHOGM, a major point of concern for most member states, but especially the UK where political feelings ran high, was whether President Amin would, or should be allowed to, attend – and the corollary concern that, were he to attend, the Queen would be obliged to invite him to her Silver Jubilee celebrations which overlapped with the CHOGM. The British government therefore deliberated carefully on what steps it might take as it was well aware that CHOGMs, by tradition, did not address the internal affairs of member states. The options ranged from barring President Amin, but not a Ugandan delegation of acceptable standing, expelling or suspending Uganda from the Commonwealth and an African walk-out at the meeting. As the due date neared, and it was feared that President Amin would after all force himself on the UK, arrangements were also made to divert his plane to Scotland or to detain him until he agreed to leave.

How then are the origins, political, intellectual and cultural, of the ACHPR to be explained? The starting point has to be an appreciation that the ACHPR process was a project of the OAU AHSG alone and therefore, in that it was at all times subject to the absolute discretion of African political leaders, it cannot simply be explained as a manifestation of an African desire to emulate the UDHR or to establish a regional human rights regime – either on the part of African leaders or African public opinion. On the contrary, African political leaders were consistently disdainful of the UDHR and, therefore, both pre- and post-independence, ignored, dismissed or limited the application of the UDHR in relation to Africa. This antipathy would have to be overcome or accommodated if the ACHPR were to have any chance of being adopted by the OAU AHSG.

There can be no doubt that appeals by the African colonial territories to the UDHR or to human rights as the basis of their right to independence, as in the curious incident of the dog in the night-time, were conspicuous by their absence. In the case of the French colonial territories, this absence ought perhaps to be regarded as possibly not so curious as, Algeria and, pre-dating the UDHR, Madagascar in 1947 apart, there was not so much of a struggle for independence as a step-by-step creeping negotiation over many years with deferential African leaders invariably anxious to maintain a mutually beneficial close relationship with France and alive to the consequences were they to rock the boat unduly. In such circumstances, there was little scope or need for appeals to the UDHR. However, even in the North African protectorates and the British colonial territories, where by the early 1950s independence was being pressed with far greater urgency, demands were rarely expressed in terms of the UDHR or human rights. If at all, the preferred references were the Atlantic Charter and the UN Charter. As for the Portuguese colonial territories, their prolonged and violent struggle for independence served only to alienate them from the UDHR which they perceived as hypocritical, self-serving and racist, and inappropriate for the new revolutionary society they sought to create.

As described in earlier chapters, sometime around 1977, the first tentative signs that at least some African states were prepared to consider a degree of human rights oversight had begun to emerge. In 1977 and 1978, the military government of Nigeria, with support from other African states, had sponsored resolutions in the UNGA and CHR calling for states in those regions where regional arrangements for human rights did not exist to consider putting arrangements in place and requesting the Secretary-General to extend to the OAU, ‘if it so requests’, such assistance as it may require to facilitate the establishment of an African regional human rights commission. For the first time, unlike the Nigerian-sponsored 1967 CHR resolution with which these resolutions are often bracketed, the primary consideration was no longer self-determination or apartheid but domestic governance. At the same time, following M’baye's appointment as Chairman of the CHR in 1978, there had also seemed to be a modest shift in the attitude of some African states towards acceptance of criticism of one of their number thereby opening up the prospect of limited action being taken in respect of the Sub-Commission referrals against Equatorial Guinea and Uganda. 2 Human rights, with President Amin most specifically in mind, also emerged as a major topic of discussion at the 1977 London Commonwealth Heads of Government Meeting (CHOGM).

The Commonwealth human rights initiative

Already in advance of the 1977 London CHOGM, a major point of concern for most member states, but especially the UK where political feelings ran high, was whether President Amin would, or should be allowed to, attend – and the corollary concern that, were he to attend, the Queen would be obliged to invite him to her Silver Jubilee celebrations which overlapped with the CHOGM. The British government therefore deliberated carefully on what steps it might take as it was well aware that CHOGMs, by tradition, did not address the internal affairs of member states. The options ranged from barring President Amin, but not a Ugandan delegation of acceptable standing, expelling or suspending Uganda from the Commonwealth and an African walk-out at the meeting. As the due date neared, and it was feared that President Amin would after all force himself on the UK, arrangements were also made to divert his plane to Scotland or to detain him until he agreed to leave.

Just as the ‘historic necessity’ of African political and economic revanchism sought to repudiate the post-war international settlement that had accommodated the colonial system and an unfair international economic order, so the ‘historic necessity’ of African intellectual and cultural revanchism sought to confront the pretensions of Western universalism across the spectrum of intellectual and cultural thought and praxis. Still, as Soyinka would point out, both ‘necessities’ had to be understood as essentially a single symbiotic whole that aimed at the recovery of African dignity in all its forms:

As regards the individual strands of the intellectual and cultural revanchist movement, whereas they can and should be interpreted on their own particular terms, they can however also be seen collectively as responding to broadly common threads of African concern – a desire to see recognition of a difference and a distinct African identity arising out of African life and experience; an African contribution to intellectual or cultural thought as valid as an end in itself and as a contribution to the ‘universal’ (in opposition to the idea of a universal determined by and through Western categories); limitations on the penetration of Western languages, categories and concepts in discussion of the African particular; and a mediation of the conflict between the pull of African traditions and the push of Western science and modernisation.

By its very nature, African intellectual and cultural revanchism's journey of recovery was deeply existential and intense. Mafeje would describe that journey as the ‘question of the liberation of the Black man, his identity or the meaning of “being-Black-in-the-world”’. Its cri du coeur was summed up by Diop in his address to the 1959 Rome Congress of Negro Writers and Artists (1959 Rome Congress): ‘No other coloured race has played so humiliating a part in Western culture. No other has experienced to the same extent slavery, racialism and colonisation.