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The Organisation of African Unity and the Promotion of Human Rights

Published online by Cambridge University Press:  11 November 2008

Claude E. Welch Jr.
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Extract

The establishment and functioning of the African Commission on Human and Peoples' Rights challenges a basic principle of positivist international law on which the Organisation of African Unity (O.A.U.) has long based its policies: the sovereign domestic control of member-states.

Type
Articles
Information
The Journal of Modern African Studies , Volume 29 , Issue 4 , December 1991 , pp. 535 - 555
Copyright
Copyright © Cambridge University Press 1991

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References

1 Welch, Claude E. Jr., ‘The OAU and International Recognition: lessons from Uganda’, in El-Ayouty, Yassin (ed.), The Organization of African Unity After Ten Years: comparative perspectives (New York, 1975), pp. 103–17.Google Scholar

2 An obvious qualification must be added here: colonialism. European countries felt little hesitation in constantly intervening in the domestic affairs of ‘third-world’societies, before this term was popularised. A further exception arises through ‘humanitarian intervention’, in which flagrant internal disorders and denials of individual or group rights become the grounds for external military action on behalf of such persecuted persons. The rôle of India in helping to halt the Pakistani army's repression of Bengalis, leading to the independence of Bangladesh in 1971, is a noteworthy example.

3 Umozurike, U. O., ‘The Domestic Jurisdiction Clause in the OAU Charter’ in African Affairs (London), 78, 311, 04 1979, p. 202.Google Scholar

4 Amin was removed when Tanzanian forces, responding to an earlier Ugandan incursion, not only expelled the invaders, but continued all the way to the capital, Kampala, to help install a new government.

5 Bokassa, too, fell as a result of external military intervention. Extensive documentation of his human rights abuses incited and justified the French rôle in the coup d'état that removed the hated ruler.

6 A concise history of its drafting can be found in Edward Kannyo, ‘The Banjul Charter on Human and Peoples' Right: genesis and political background’in Welch, Claude E. Jr. and Meltzer, Ronald I. (eds.), Human Rights and Development in Africa (Albany, 1984), pp. 128–51.Google Scholar The text appears in ibid. pp. 317–29, and can also be found in major collections of relevant documents, such as Blaustein, Albert P.Clark, Roger S. and Sigler, Jay A. (eds.), Human Rights Sourcebook (New York, 1987), pp. 632–45.Google Scholar

7 A convenient, article-by-article comparison of the Banjul Charter with the Universal Declaration of Human Rights, the International Covenants, and the European and American Conventions of Human Rights, the International Convenants, and the European and American Conventions appears on Welch and Meltzer (eds.), op. cit. pp. 331–7.

8 Robertson, A. H., Human Rights in the World (Manchester, 3rd edn. 1989), p. 216.Google Scholar

9 Among the sharpest critics are Richard Gittleman, ‘The Banjul Charter on Human and Peoples' Rights: a legal analysis’, and Harry Scoble, ‘Human Rights Non-Governmental Organisations in Black Africa: the problems and prospects in the wake of the Banjul Charter’, in Welch and Meltzer (eds.), op. cit. pp. 152–76 and 203–177.

10 Okere, B. Okinna, ‘The Protection of Human Rights in Africa and the African Charter on Human and Peoples' Rights: a comparative analysis with the European and American systems’, in Human Rights Quarterly (Baltimore), 6, 1986, p. 158.Google Scholar

11 West Africa (London), 11–17 03 1991, p. 337.Google Scholar

12 Bello, Emmanuel, ‘The Mandate of the African Commission on Human and Peoples' Rights’, in African Journal of International Law (London), 1, 1, 1988, p. 55.Google Scholar

13 Gittleman, , loc. cit., p. 159.Google Scholar

14 Needless-to-say, numerous calls have been made for the establishment of such a Court, as witness the Judicial Colloquium on the Domestic Application of International Human Rights Norms, held in Banjul in November 1990 – for a summary, see Interrights Bulletin 5 (London), 1990, p. 39 More significantly, the most recent summit meeting of the O.A.U., held in Abuja in June 1991,Google Scholar endorsed a draft treaty establishing the African Economic Community (A.E.C.). The first three stages – respectively no more than five, eight, and ten years – would involve strengthening existing regional communities or setting up a new one where needed, initiating the removal of intra-regional tariffs and non-tariff barriers, and establishing regional free-trade areas and common external tariffs. The fourth stage would involve imposing a common continental external tariff; the fifth would result in the creation of an African common market; and the sixth would make the continent a full economic union. In terms of human rights, a Court of Justice would come into existence upon ratification of the treaty, and a Pan-African Parliament, elected by universal continental suffrage, would be established in the final stage. Court decisions would be binding on member- states of the A.E.C. West Africa, 27 May–2 June 1991, p. 846.

15 Fatsah Ouguergouz, ‘La Commission africaine des droits de l'homme et des peuples: présentation et bilan d'activités, 1988 – 1989’, Centre national de la recherche scientifique, Paris, 1990, p. 570, my translation.

16 Some participants at the 1945 San Francisco Conference that drafted the U.N. Charter suggested that it should provide directly for the protection of human rights, in addition to the clauses for their promotion. This proposal was defeated largely through American and British pressure.

17 Tolley, Howard Jr., The U.N. Commission on Human Rights (Boulder, 1987), p. 17.Google Scholar

18 Convenient summaries of the discussions and activities of the Commission and Sub-Commission appear regularly in Human Rights Quarterly. Historical details can be found in Tolley, op. cit.

19 Weston, Burns H., Lukes, Robin Ann, and Hnatt, Kelly M., ‘Regional Human Rights Regimes: a comparison and appraisal’, in Vanderbilt Journal of Transnational Law (Nashville), 20, 1987, pp. 637–585.Google Scholar

20 Robertson, , op. cit. p. 109.Google Scholar

21 Reprinted in Blaustein et al., op. cit. p. 465.

22 Council of Europe, European Commission of Human Rights. Survey of Activities and Statistics (Strasbourg, 1989), p. 16.Google Scholar

23 Ibid.

24 The companion European Social Charter, which entered into force in 1961, lacks such elaborate enforcement procedures, as is common with ‘second generation’rights. Ratifying states must submit reports every two years to an independent committee of experts.

25 A significant exception should be noted. The Council of Europe, membership of which is limited to democratic states, confronted an obvious challenge to its basic values when the Greek military junta seized control in 1967. Faced with an authoritarian government determined to brook no challenge to its domestic policies, the Council of Europe confronted the lacuna common to regional human rights institutions: the weakness of enforcement mechanisms. Greece's decision to drop its membership as the European Court was about to act on a challenge to its participation temporarily resolved the situation; but only the collapse of the junta in 1974 brought real change.

26 The entire Convention is reprinted in Blaustein et al., op. cit. pp. 551–72; the Commission's Statute and Regulations appear respectively on pp. 580–6 and 586–606.

27 For example, during a one-month on-site visit to Argentina in September 1979, the Commission received 4, 153 complaints. Robertson, op. cit. p. 194, fn. 10.

28 Ibid. p. 173.

29 No details appear about the disposition of petitions in the third and fourth activity reports from the Commission (AFR/COM/HPR/AN.RPT/3 and AHG/182 [XXVII]). However, according to the preceding report (AHG/165[XXV], p. 11), the Commission had taken decisions about the admissibility of 14 of 38 received communications: 3 were held to be inadmissible, 6 dealt with a decision taken of communication by the Commission, and 5 ‘will be considered at future sessions’.

At the conference on the African Commission held in New York, 26 June 1991, attended by the author, Umozurike indicated that 16 communication had been acted upon at the ninth ordinary session, and the thanks to Commission pressure two detainees had been released.

30 Capitalisation and spelling as in original. See Human Rights Law Journal (Arlington, VA), 9, 1988, p. 352.Google Scholar

31 O.A.U. document, ‘Guidelines for National Periodic Reports’ AFR/COM/HPR/.5(IV), 1988, Addis Ababa.

32 Ibid. HPR.1(II). A more convenient source is Human Rights Law Journal, 9, 1988, pp. 333–49.Google Scholar

33 The African Commission has published four reports: the first covered activity from its inception, 2 November 1987, to the date of the adoption of the report, 28 April 1988; the second covered the period 29 April 1988 to 14 June 1989 (O.A.U. document AHG/165[XXV]); the third covered the sixth and seventh ordinary sessions (Banjul: AFR/COM/HPR/An.Rpt/3); and the fourth covered the eighth and ninth ordinary sessions (AHG/182[XVII]). Since a quorum was not present at the ninth session, the Commission did not officially adopt the latter report before presenting it to the Assembly.

Somewhat handier sources include the minutes of the first four sessions, published in Human Rights Law Journal, 9, 1988, pp. 326–58,Google Scholar the fifth session, in ibid. 11, 1990, pp. 361–2 and the eighth and ninth sessions, in ibid. 12 1991 pp. 277–9. According to the third activity report, p. 5, ‘the Commission noted with concern that the General Secretariat [of the O.A.U.] hhas not published the first and second reports of activity of the Commission apparently because of lack of funds’.

34 U. Ojo Umozurike was himself elected to fill the unexpired term of Grace Ibingira of Uganda, thereby altering the geographical balance on which seats had been originally allocated.

35 Representatives of all three countries were present for the discussions. The reports submitted by Egypt, Nigeria, Tanzania, and Togo were postponed until the tenth regular session (Banjul, 8–17 October 1991), but were not then formally examined because their Governments had not been officially notified. Originally scheduled for discussion at the Lagos meeting, the Nigerian report was not surprisingly withdrawn by the Government for revision since the brief three pages that were stapled to the table of contents of the Nigerian constitution fell far short of the desired quality.

36 By contrast, the U.N. Committee on Human Rights, established by the International Covenant on Civil and Political Rights, has devoted a full day and a half to examining initial reports submitted by states, according to the remarks made by Gaer, Felice, executive director of the International League of Human Rights, at the New York conference in June 1991. The African Commission follows the practice of having one of its members serve as rapporteur and chief commentator on a report, meaning that an unexpected absence can cause deferral of consideration.Google Scholar

37 Benedek, Wolfgang, ‘ The 9th Session of the African Commission on Human and Peoples' Rights’, in Human Right Law Journal, 12 05 1991, p. 217.Google Scholar

38 Ibid.

39 This observation is not intended to criticise the excellent work of transnational human rights N.G.O.s such as Africa Watch, Amnesty International, or the International Commission of Jurists, but to underscore the political value of having a significantly larger number of groups active in obtaining information, publicising abuses, and working within their respective national systems for the better protection of human rights.

40 Scoble, , loc. cit. p. 177.Google Scholar

41 Wiseberg, Laurie S. and Reiner, Laura (eds.), ‘Africa: Human Rights Directory and Bibliography’, in Human Rights Internet Reporter (Washington, D.C.), 12, 4, Winter 1988–1989.Google Scholar

42 Ibid. p. 6.

43 According to Scoble, loc. cit. pp. 1986–8, the ‘obvious’ explanation for the lack of secular human rights organisations south of the Sahara – the region's poverty – is incorrect. He blames the disjuncture between ethnic identity and national frontiers.

44 Umozurike, U. O., ‘The Protection of Human Rights under The Banjul (African) Charter on Human and Peoples' Rights’, in African Journal of International Law, 1, 1, 1988, pp. 82–3.Google Scholar

45 Benedek, Wolfgang, ‘The Judiciary and Human Rights in Africa: the Banjul seminar and the training workshop for a core of human rights advocates, November 1989’, in Human Rights Law Journal, 11, 1990, p. 250.Google Scholar