Recently the NGO Forum which preceded the 30th Ordinary Session of the African Commission on Human and Peoples’ Rights was held in Banjul, The Gambia, from October 10 to 12, 2001. The Forum was organised by the African Centre for Democracy and Human Rights Studies (ACDHRS) in collaboration with the African Commission on Human and Peoples’ Rights (ACHPR). There were over 80 participants and observers representing 65 NGOs from 30 different African countries, as well as human rights organisations in Europe and North America. The primary objective of the Forum was to prepare human rights NGOs for their effective participation in the 30th Ordinary Session of the African Commission which was held in The Gambia from October 13 to October 27, 2001.
The Executive Director of ACDHRS, Mrs. Hannah Forster, chaired the opening ceremony. Both participants and resource persons were welcomed to the Forum and The Gambia and it was hoped that their contributions and active participation would contribute to the success of the Forum and lead to the improvement of the human rights situation in Africa.
The first day of the forum was presided over by Mrs. Hannah Forster, Executive Director of ACDHRS. The Forum’s agenda was examined, followed by its amendment and adoption. The two general themes throughout the first day of the Forum were entitled Overview of the Human Rights Situation in Africa and the Human Rights Dimension of HIV-AIDS. These topics were presented by Maître Sidiki Kaba and Dr. James Mwanzia respectively. The ensuing discussion after the presentations by both the speakers and the floor was both lively and contentious.
Day 1 – 10 October 2001
1. Overview of the Human Rights Situation in Africa
The two major events that recently took place in the world scene, the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) held in Durban August 31 – September 8, 2001 and the terrorist attacks against the United States on September 11, 2001 dominated the morning discussions. This first topic was presented by Maître Sidiki Kaba (President, FIDH).
The WCAR was an extremely significant international event and captured the attention of governments, NGOs, civil society groups, and human rights activists around the world, as well as the victims of racism throughout the world. It was organized in Durban, South Africa. Deliberations at the Conference were very contentious because of the sensitive nature of the subjects under discussion. The manner in which some of the issues were discussed at the WCAR reflected, in part, the injustice and intolerance that the Conference was meant to address. For example, the attitude of some governments towards the burning issues involving the Israeli-Palestinian conflict. With the conclusion of the WCAR, NGOs should concentrate ardently and pursue efforts for sustained follow-up activities to ensure effective and meaningful implementation of the Durban Declaration and Programme of Action.
The terrorist attacks against the USA generated mixed feelings among both the panellists and participants. On the one hand, the terrorist acts were condemned as crimes abhorrent to all norms, beliefs and cannons of civilized life and that they must be addressed with urgency. On the other hand the way in which some members of the international community decided to respond to the terrorist attacks was an issue of serious concern. In particular, with regard to the implications of the world response to the terrorist attacks and subsequent war against Afghanistan, and the effect of the situation of human rights in Africa and other regions of the world. There were also concerns over the tendency in Western media and power circles to associate the terrorist acts with certain religions while depicting other religions as reservoirs of righteousness. This tendency is especially dangerous in the case of multi-cultural and multi-religious societies, which is the situation in many African countries. Human rights and fundamental freedoms risk serious regression as a result of the militaristic policy of the ongoing International Coalition Against Terrorism. It was generally agreed that terrorism could not be eliminated permanently by military action without understanding and evaluating the root causes of terrorism. Since deprivation and poverty are some of the causal factors for people joining terrorist groups, then, the Coalition Against Terrorism could be more effective if it attempted to address the international problems of poverty and underdevelopment.
The military operations against Afghanistan continue to affect civilian targets and cause massive violations of the human rights of innocent Afghan people. Principles of international law and justice are being disregarded. The group and/or individuals responsible for these criminal acts should be dealt with by legal methods other than military operations. International human rights mechanisms including the international criminal courts and tribunals should be utilized to address international terrorism. Regression from human rights concepts was also manifested by the praise of some military rulers and dictators who were invited to join the coalition despite their poor human rights records and the fact that some of them gained power through illegal means such as General Parvez Musharraf of Pakistan.
The situation of human rights and fundamental freedoms in Africa continues to face serious challenges in many aspects. Throughout the year, massive and systematic violations of human rights continue to be committed by governmental and non-governmental actors throughout the continent and especially in African regions that face certain socio-political instability including civil strife and internal armed conflicts. In addition human rights atrocities and armed conflicts are exacerbated by globalisation, which in turn, limits and hinders African development.
An issue that aroused particular concern was the mounting trend of xenophobia and intolerance indicated by the mistreatment of non-nationals in some African countries. Xenophobic sentiments are being used for political purposes mainly to exclude some national groups and to deny them full enjoyment of their civil and political rights, which is the case in the Ivory Coast and the Democratic Republic of Congo. The situation of human rights and fundamental freedoms continues to be tenuous and precarious in the central African region including the Great Lakes Region. Large parts of the former Zaire are occupied by foreign troops who are mainly interested in the country’s natural resources and who continue to launch abhorrent military offences against the innocent people of the country.
The ‘forgotten’ civil wars in Sudan and Somalia continue to claim the lives of thousands of people and predominantly civilian populations. The discovery of large quantities of crude oil in Sudan and the commencement of its commercial exploitation in the country have further complicated the situation, such that the warring factions commit numerous atrocities and human rights violations in their attempts to control the oil rich areas. Despite a genocidal war taking place in Somalia, for the control of natural resources, the world community dramatically fails to accord the situation due attention. Moreover, most of the warring factions and militias in Somalia are being financed and supported by external powers.
Human rights also face serious challenges and difficulties in countries like Burkina Faso, Niger, Morocco, Tunisia, Ethiopia and Egypt to mention only a few examples. In each of these countries the authorities use repression, intimidation and other illegal measures to silence their political opponents as well as human rights advocates. An example was the ordeal faced by Aref Mohammed Aref a few years ago in Djibouti. Mauritania is still accused of perpetuating the institution of traditional slavery and slave-like practices. In Senegal, torture and ill treatment of detainees is rampant, particularly in the Casamance region because of the ongoing internal armed conflict which has also created a refugee population in neighbouring countries. Despite this gloomy picture it is to be admitted that civil and political rights have witnessed some steady progress in some African countries such as Benin, Senegal, Gabon, Mali and Cameroon.
One of the serious threats to human rights in Africa is the impunity that protects the perpetrators of human rights violations and other serious crimes including torture, unlawful killings and political assassinations. This problem is particularly acute in countries like Niger. Dictators that have committed serious crimes against their people such as Hussein Hebri and Idi Amin Dada should be brought to justice as a matter of urgency. Impunity becomes immunity when amnesty is granted to perpetrators of human rights violations for political considerations. The granting of selective amnesty to such groups provides them with the necessary legal protection and consequently encourages and perpetuates further human rights violations. The problems created by impunity in Africa could be better addressed through effective human rights and other legal mechanisms such as the African Court for Human and Peoples’ Rights when it comes into force. At present only six African States have ratified the Protocol establishing the African Court, namely Senegal, Burkina Faso, Gambia, Mali, Uganda and Namibia. At least some nine more signatures are required for the entry into force of this Protocol. African human rights NGOs must lobby the other African States for prompt ratification of the Protocol.
Periodic elections were acknowledged as one of the most important features in the democratic process. Likewise, it was acknowledged that the organizing of periodic elections faces serious problems in many African countries including corruption and lack of respect for electoral norms and ignoring the public vote and people’s choice. In general the principles of free, fair, and transparent elections are not being fulfilled. Evidence indicates that many countries experience great difficulty during the transfer of power or change in political leadership. It was argued that leaders must learn to accept defeat or victory.
The mass media including television, press, and radio play a powerful role in the democratization process. In Senegal the wide coverage by the press of the last presidential elections was the main factor that ensured transparency during the election process. Its timely coverage of the different polling results guaranteed that the results needed to be respected by the competing candidates. In this regard independence of the press is an essential element that should be observed to enable it to play an important monitoring and information providing role. Equally important for the attainment of human rights and fundamental freedoms is the role of education both in the formal and informal domains.
Special emphasis was placed on the importance of the full realization of economic, social and cultural rights in all African countries particularly in the wake of the accelerated trend toward globalisation, as well as economic and commercial liberalization. Globalisation is leading to acute difficulties for the situation of human rights and fundamental freedoms in Africa as it favours rich nations to the disadvantage of poor nations. Although globalisation generates some benefits to African economies, serious problems remain because the benefits are not evenly distributed and shared by all segments of African societies. The combined effects of poverty, underdevelopment and globalisation represent a serious threat to the well-being of African peoples and a violation of their fundamental rights. At present pan-African trade represents only five per cent of the continent’s economic and commercial transactions while the remaining ninety-five per cent is with the external world. Measures should be taken to reverse this situation and to encourage pan-African trade.
The situation of Africans and people of African descent in the Diaspora requires special attention from African governments and civil society organizations. They are victims of racism and racial discrimination, ill-treatment, police brutality and serious violations of their human rights and fundamental freedoms in the countries of their residence. The African Social Charter could play an important role in protecting the rights of African migrant workers. More sustained efforts should be made by African NGOs and governments to activate the Charter and ensure the protection of the rights of these vulnerable groups.
Based on the recent experience at the NGO Forum preceding the WCAR and the poor behaviour and disunity of some representatives of African civil society groups, African NGOs were called upon to be more scientific. NGOs must work together and be more objective, scientific and pragmatic in their approach and work. Civil society needs to be educated to hold government accountable and encourage governments to recognise their duties and obligations to citizens. NGOs need to be informed on the level of international, regional, sub-regional, and national human rights instruments and mechanisms. If NGOs share their information, and coordinate their activities both individual governments and the international community have less potential and ability to coerce and manipulate the NGO community. African human rights NGOs need to pursue education programs, networking and coalition building as strategies to achieve success in the promotion and improvement of the human rights situation in Africa.
2. The Human Rights Dimension of HIV/AIDS
The afternoon session of the first day of the forum was dedicated to the human rights dimension of HIV/AIDS. Dr. James Mwanzia from World Health Organization, The Gambia, presented on this topic. The presentation outlined the epidemic, proven interventions for prevention and care, the global response, stigma and discrimination, human rights concerns of HIV/AIDS, as well as, poverty and HIV/AIDs, and gender and HIV/AIDS.
HIV/AIDS was identified as one of the greatest human tragedies of our time that has already claimed the lives of millions of victims. The problem of HIV/AIDS is especially important to Africa since of the 36 million persons infected with disease worldwide, two-thirds of the victims are from Africa and from the sub-Saharan region. Despite the ongoing regional and international efforts to combat this global calamity, much more needs to be done, in particular, in the area of the provision of proper and affordable medication and the necessary material and human resources to enable scientific research in this area.
It was disturbing to note that HIV/AIDS especially affects women and that study indicates that for every 10 infected men there are more than 13 infected women in the world. Since determining accurate statistics on the number of victims of HIV/AIDS within Africa is very difficult, it is expected that the number of HIV/AIDS victims largely surpass the declared figures.
Persons infected with or presumed to be affected by HIV/AIDS face serious violations of their human rights and fundamental freedoms. They are discriminated against, stigmatized and victimized in many aspects of the public sphere including employment, education, health-care, housing, and social services etc. The situation for African women who are the victims of HIV/AIDS is especially complicated since they become subject to multiple forms of discrimination by virtue of their sex. Such discriminatory practices represent massive violations of the rights of the victims of HIV/AIDS. The effect of these discriminatory practices sometimes touches on other members of the families of the victims. These practices are prevalent in most societies despite the fact that they are incriminated and denounced by the existing international human rights instruments.
Victims of HIV/AIDS are exposed to stigmatization, isolation and discrimination. Stigma is connected with the deep feeling of shame and fear along with other social and cultural considerations prevalent in many African societies. Stigma could only be effectively addressed through advocacy information and by encouraging openness and dialogue to combat ignorance. Effective preventative measures are the main guarantee that helps curb the widespread of HIV/AIDS pandemic in Africa. Health education is among the most important preventive measures against HIV/AIDS. There needs to be a continuum of care established between home, community and institutions, to strengthen counselling efforts and support skills, as well as to enable the provision or availability of suitable foods and micro-nutrients to restore and sustain adequate nutrition to victims. Poverty and underdevelopment contribute to the spread of the pandemic. Poverty provides the fertile breeding ground for the spread of AIDS. Likewise, HIV/AIDS sets off a cascade of economic and social disintegration and impoverishment. Thus poverty and HIV/AIDS interact together. The HIV/AIDS pandemic and poverty interact in tandem making a vicious cycle as each generate one another.
It was agreed that the most effective way to combat the outbreak of HIV/AIDS in Africa is to conceptualize the pandemic as a cross-sectorial issue that affects overall human development of the African continent. The disease is not someone else’s problem, but it should be the preoccupation of each and every African. The issue needs to be discussed and the realities of the horrors of the pandemic must not be hidden. There is also the need to implement multi-sectorial national strategies to confront stigma, silence and denial. Civil society organisations, the business sector, victims of HIV/AIDS and youths must work together to prevent the spread of the disease and promote greater understanding of the pandemic.
NGOs can play an active role through advocacy, education and dissemination of information to the public. The connection between human rights and HIV/AIDS needs to be highlighted by NGOs and used to persuade governments to take necessary initiatives for the prevention of the disease and protection of the HIV/AIDS victims. It was an encouraging step that the world accorded due attention to the situation of the victims of HIV/AIDS at World Conference Against Racism and governments’ committed themselves to struggle toward eradication of the pandemic. NGOs should build on this achievement and intensify their advocacy efforts in addressing the human rights dimension of HIV/AIDS.
Day 2 – 11 October 2001
The second day of the NGO Forum began with the summary of the first day of the forum. Mr. Mohamed Moneib Genedy, the Vice-Chair of the ACDHRS, acted as chairperson and presided over the Forum. The main topic of the morning session was “The WCAR Declaration and Programme of Action and African Human Rights Organisations”. This topic was presented by Dr. Barney Pityana (Commissioner, ACHPR) and Ms. Stella Makanya. During the afternoon, there were presentations on Terrorism and its Effect on Africa, Prisons and Penal Reform in Africa, The status of Women’s Rights in Africa, the situation of Human Rights Defenders in Africa, and the situation of indigenous peoples in Africa. The day ended with participants dividing into special interest groups to discuss the afternoon topics. The following outlines the main concepts and ideas from the presentations:
3a. The WCAR Declaration and Programme of Action and African Human Rights Organisations
Commissioner Pityana began his presentation by highlighting the international significance of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. He said, the WCAR was very significant in today’s battle against racism and was both a historical and momentous occasion in a number of ways.
According to Dr. Pityana, significant outcomes of the Conference include:
- Bringing together the largest gathering to date of both government and non-government actors interested in eradicating racism and made racism a matter of priority for the international community signifying the subject’s significance and priority.
- Expanding the perspective and context for understanding the manifestations of racism in our current era and exploring the root causes of racism. The Conference examined the analysis of the intersection between racism and other forms of discrimination based on gender, religion, language, political and other opinion, social origin, ownership of property, social class, descent and other status.
- The naming of the victims of racism and providing a forum for the plight of victims to be heard and brought to the attention of the international community.
- Affirming the realization that distinctions based on race and racial discrimination are artificial, malicious and false. The Conference embraced diversity and affirmed the statement that all human beings constitute one human race.
- Providing a theoretical social scientific proclamation that all human beings are entitled to all human rights and to the protection of their dignity, and that any documentation based on racial domination must be rejected.
- Categorically stating that the question of resisting and combating racism was the primary responsibility of the State. Therefore an onus was placed on States to establish an environment that condemns and eliminates racial discrimination.
Noteworthy is that the subject of reparations for victims of slavery and the slave trade caused serious contention at the Conference. The final statement was to condemn the practices of slavery and colonialism. In the end, States conceded that slavery constitutes a crime against humanity. The notion of slavery being a crime against humanity was very contentious since this notion was viewed as anachronistic. Meaning that it was looking upon history with modern eyes and judging it with modern concepts. Nonetheless, it was finally acknowledged that these practices were a crime against humanity. According to Dr. Pityana, the reluctance of States to concede slavery as a crime against humanity was in part due to the implications of certain obligations if considered as such and their fear of redress and accountability. Due to the final acknowledgement of slavery being a crime against humanity, Dr. Pityana believed that Durban was a success and advancement for Africa. Lastly, the statement suggests that racism should best be combated through democracy in order to attain responsible government and effectively protect against racial discrimination. Checks and balances to protect against racist policies were emphasized. Dr. Pityana believes these checks are what the African continent should strive for in this era. Thus, he argued that democratisation, accountability, good governance and the rule of law are essential components if the fight against racism and racial discrimination, xenophobia, and other related intolerance is to be successful.
In recognizing that States have the responsibility to act as lead agents in the fight against racism the programme of action urges States:
- To take all necessary steps and appropriate measures, and to strengthen national mechanisms to promote and protect the human rights of victims of racism.
- To facilitate the participation of victim groups in all political, social, and cultural aspects of society in the advancement and economic development of their countries.
- To take action to eradicate poverty, especially among victims of racism and racial discrimination.
- To design policies aimed at combating racism, racial discrimination, xenophobia and related intolerance based on reliable data that recognizes the concerns identified by victim groups.
The Conference also affirmed that the benefits of globalisation are unevenly shared and the costs are unevenly distributed.
3b. A Second Perspective on the WCAR
Ms. Stella Makanya provided a second presentation and perspective on WCAR in Durban, South Africa. Ms. Makanya pointed out that although the WCAR was the third of such conferences, it was particularly significant because it marked the first World Conference where victims participated and were given an opportunity to have their voices heard.
Ms. Makanya maintained that for women the Declaration fell short of a success. Women were mentioned only as an afterthought and specific references to women were only mentioned in three articles including 67, 68 and 69. The Declaration ignores many of the intersectional issues of women and race and thereby the discrimination such women suffer. For instance, the declaration makes very little reference to the trafficking of women, the feminization of poverty, or the rights of indigenous women.
Ms. Makanya also outlined her perception of the obstacles in the Declaration. Such obstacles include a lack of political commitment by States and governments, a lack of economic support to uphold the objectives of the Declaration, and weak implementation instruments.
These obstacles have to be tackled by NGOs in their strategies so as to find appropriate ways and measures to eradicate racism. As individuals in our respective countries, we can promote strategies that can eliminate racism and racial discrimination through promoting human rights education and raising awareness of racism. Civil society must conduct research and engage in multi-faceted strategies of public education and communication at work places to promote and protect the rights of workers who are subjected to racism. We must pressure the media to be ethical and self-regulating in combating racism and to combat the proliferation of ideas of racial superiority. In addition, we must collectively urge religious and community leaders to confront racism and to promote dialogue and partnerships to bring about reconciliation, healing and harmony among societies.
These above presentations by Dr. Pityana and Ms. Makanya were followed by lively discussions regarding slavery, colonialism, neo-colonialism, reparations, and the effects of globalisation. Some participants argued that WCAR was a failure because it did not achieve much for Africa. In the end, it was evident that judging the WCAR as a success or failure is a matter of opinion. However, undoubtedly, there were significant outcomes of WCAR.
4. Terrorism and its Effects on Africa
The issue of the implications of international terrorism on Africa was then examined. Commissioner Jainaba Johm chaired this session and Maître Tahar Boumedra gave a talk and facilitated discussions.
Mr. Boumedra focused his presentation in the context of the current world situation. He addressed the issue of terrorism from a legal approach. Terrorist tactics are violent acts of terrorism used to impose a particular will on others by individuals or groups and organizations. Referring to the United Nations Charter and international instruments on human rights and humanitarian laws, Mr. Boumedra went on to inform participants that the UN Charter outlines provisions of when to resort to violence and under what conditions. Under article 51, violence is endorsed for self-defence and when authorized by the Security Council, such violence can be used to maintain peace and security. However, dialogue and peaceful solutions are the most appropriate manner to resolve conflicts. Mr. Boumedra also addressed the difficulty of comprehending terrorism. That is, a terrorist to one may be another person’s freedom fighter. Regardless, terrorism is taking a heavy toll on the human rights of citizens around the world.
For many years, African States have tried to combat terrorism. These efforts led to the drafting of the OAU Convention on Terrorism. The point is that terrorism is not a new phenomenon. Terrorism did not begin with the widely publicized attacks on September 11, 2001, against the United States.
The terrorist attacks in September and the subsequent retaliation by the U.S. led coalition indicate how States and individuals resort to violence without proof and with disregard for international law. Ultimately, to resolve grievances it is necessary to follow the due process of law and respect universal human rights.
Without any reservations, participants and observers at the Forum collectively agreed to condemn the September 11 terrorist attacks as an international crime. Likewise, Forum participants agreed that the manner with which the United States responded and retaliated was unlawful and should also be condemned. In general, the major consensus during the discussion of the topic of terrorism was such that the group was opposed to all forms of terrorism.
5. Prisons and Penal Reform in Africa
During the afternoon session there were two brief presentations by Mr. Adam Stapleton, Penal Reform International (PRI), and Mr. Ernest Ihezukwu, Prisoner Rehabilitation and Welfare Action (PRAWA), on Prisons and Penal Reform in Africa with Ms. Julia Harrington as Chairperson.
Mr. Adam Stapleton focused his discussion on the potential effects of the globalisation of the prison system in Africa. More specifically, he addressed the potential impact of prison privatisation. For instance, in Lesotho there is a proposal for the construction of a foreign-funded private prison. Thus far, government legislators have not consulted any civil society organizations. The movement toward prison privatisation, Mr. Stapleton argued, is a private solution to a public problem. With regard to the Lesotho private prison initiative, there has been no analysis of the economics or moral issues at stake. It was suggested that the current proposal reflects U.K. business interests and not the interests of Africans. Appropriate analysis by government legislators and consultation with civil society will help safeguard the economic consequences and moral issues of prison privatisation.
In general, the momentum across the continent for prison reform and prison privatisation stems from the growing realization and acknowledgement of the malfunctioning penal system. As a result, the penal reform movement is moving towards foreign privatisation. Mr. Stapleton also highlighted some of the grim conditions in prisons across the continent.
Next, Mr. Ernest Ihezukwu of PRAWA, an NGO based in Nigeria, briefly spoke on the issue of Prison and Penal Reform in Africa. Mr. Ihezukwu highlighted the activities of his organisation in the field of prisons rehabilitation including the provision of services to prisoners. In addition, he outlined some of the problems with the prison system such as over-crowded prison populations, an excessive number awaiting trial, logistical problems, inadequate health and welfare conditions, violence within the prisons, inadequacy of prison houses, and a lack of awareness facilities. Mr. Ihezukwu argued that there is a need to abolish the current penal system and proceed with any changes cautiously. He advocated that there should be support for an African transformative justice system to put an end to the retributive justice, which only punishes, rather than rehabilitates.
6. Women’s Rights in Africa
Ms. Stella Makanya led the next discussion on the situation of women’s rights in Africa. Ms. Makanya and participants at the Forum affirmed the negative situation and unequal rights that women of Africa endure. It was pointed out that even though most countries have ratified international instruments pertaining to women’s rights and have adopted national laws promoting their rights and participation in public affairs the reality is much different. Although women have made progress in their struggle, many problems and inequalities persist. For instance, gender violence and domestic violence continues unabated in many circumstances.
In addition, street violence, as well as increased violence toward women during conflict situations, continues to thrive within Africa. What is happening in the domestic sphere and in private homes is reflective of what is happening at the level of the Government and society at large. As such, gender discrimination manifests itself in a number of ways. Women continue to have a low level of participation in decision-making bodies, and face obstacles with regard to equal property and ownership rights.
In general, women bear the brunt of socio-economic problems and the face of poverty continues to be that of a black woman. Ms. Makanya noted that there is a need for civil society and all men and women of Africa to work together to improve the situation of women on the African Continent. As such effective networking and alliances will help to sensitise society about gender disparities and the violations of women’s rights.
7. Situation of Human Rights Defenders in Africa
Mr. Mohammed Genedy, Vice-Chair of ACDHRS, spoke on the situation of African Human Rights Defenders. Mr. Genedy pointed out the sensitive nature of the subject since it is not easy to discuss issues that comprise and affect the groups’ daily lives and experiences.
Human Rights Defenders are individuals and organisations whose objective is to defend the human rights of citizens. As such in attempting to improve the human rights situation, such defenders often encounter harassment and victimization by their respective governments and other groups within society.
Human Rights Defenders need to establish and maintain a strong network to be in a better situation, including more resources and a “louder” voice, to achieve desirable objectives. Likewise, a strong network will better protect defenders from government harassment. The larger the coalition, the more solidarity, and therefore, the more difficult it is for governments to victimize and manipulate the group of human rights defenders. In addition, NGOs aimed at the protection of human rights defenders need to establish and foster relationships with other international NGOs who embrace similar objectives. As well, human rights defenders need to utilize the African Commission to the fullest extent. It is also important to point out that it is worthwhile to differentiate between “real” NGOs as opposed to governmental NGOs. In turn, it is essential to empower these legitimate NGOs. All of these strategies will help improve the situation of human rights defenders in Africa.
8. The Situation of Indigenous Peoples in Africa
Commissioner Rezag-Bara of the African Commission (ACHPR) presented on the situation of indigenous peoples and minorities in Africa. Mr. Rezag-Bara began by discussing the difficulties in defining who constitutes the indigenous peoples. However, he pointed out that there are criteria and methods to enable defining who is indigenous. He discussed the lack of representation that minorities and indigenous peoples historically faced in the international community as well as their respective countries. Indigenous peoples and minorities regularly face unequal and unfair treatment. Such groups have historically fought and continue to fight for their rights and to establish their identity within the international community. In 1982, a Declaration was drawn within the UN, which affirmed the rights of minority and indigenous peoples. As such there is now a theoretical mechanism within the UN system to ensure their rights. Moreover, at its 28th Ordinary Session in Cotonou, Benin, a working group was initiated by the African Commission to reflect on the situation of minority peoples and to ensure their rights are given.
Specifically in Africa, there are three main factors which influence minority groups including ethnic, linguistic, and religious differences. These different factors contribute to a fragmented and difficult situation in many African countries.
Issues regarding the phenomenon of the treatment of indigenous and minority groups was discussed at the WCAR in Durban. In some countries, such as Cameroon, there have been significant improvements in the constitutional protection of minority groups. However, most countries of the world and within Africa still need to find an enforceable approach to fully achieve equal rights for indigenous peoples.
After these presentations, participants broke into five special interest groups to discuss all of the issues and phenomenon presented on including the effects of terrorism, prisons and penal reform, the status of women’s rights, the situation of human rights defenders and the situation of indigenous peoples within Africa. After these discussions, each group presented its conclusions during the plenary session.
Day 3 – 12 October 2001
The final day of the forum was presided over by Professor Dankwa and Mrs. Hannah Forster. The morning session was chaired by Professor Dankwa, then Chairman of the ACHPR and the afternoon session by Mrs. Forster of ACDHRS. The final day of the NGO Forum provided useful information to NGOs regarding the African Union and Organization of African Unity. The theme of the morning session was in regard to The Future of the African Commission under the African Union presented by Dr. Barney Pityana (Commissioner, ACHPR) and Mr. Aboubacry Mbodj (RADDHO). The final topic addressed during the third day of the Forum was on the Participation of Civil Society Institutions in the AU/OAU and was presented by Mr. Germain Baricako (Secretary, ACHPR). Following the presentations participants engaged in contentious debate regarding the substance of the material presented. During the afternoon session participants evaluated the forum and provided oral feedback regarding the effectiveness and achievements of the Forum.
9. The Future of the African Commission under the African Union
Dr. Pityana began his presentation by pin-pointing the main historical steps in establishing the African Court and the African Union which is to replace the OAU. In September 1999, in Libyan Arab Jamahiriya, the decision for establishing the African Union was initiated which will be based on the objectives stated in the African Charter, as well as, the Treaty of the African Economic Community. Heads of States adopted the Constitutive Act of the African Union in July, 2000. It marks one of the fastest passages of any treaty in the African system. Consequently, the African Union was born by Heads of State without consulting civil society.
There is an underlying premise of the Constitutive Act of the African Union, which constitutes a vision of political, economic, social, unity and solidarity within Africa. A vision of constructing a common cause for the continent in politics and a common vision for the continent in international affairs. In effect, the treaty came into force in May 2001, and it now exists in tandem with the OAU until the OAU comes to an end within one year.
The essence of the African Union centres on the notion that the leaders of the States of Africa need to govern effectively for the benefit of the people of Africa. The Act clearly outlines and affirms human rights principles; for instance, the preamble argues that States are determined to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and ensure good governance and the rule of law. The principles and objectives of the African Union are clear and lay the foundation for an African political and economic system where the African Commission on Human and Peoples’ Rights can find its place. Nonetheless, the African Union came into existence very quickly and discreetly. None of the African countries had substantial debate about the African Union. Governments ensured that the ratification process occurred swiftly and did not provide much information to their citizens. The lack of participation and the speed of the enactment of the Act resulted in an Act with many gaps and imperfections. The Act of the African Union has been modelled on the institutions of the European Union. The organs to be established include the Assembly of the Union (heads of States and government), an Executive Council, a Pan-African Parliament, a Court of Justice, the Commission (a Secretariat of the African Union), specialized consultative committees, economic, social & cultural councils, and financial institutions.
The implementation of the Act is going to be very expensive. However, it continues to appear that there is enough political will to see the Act of the Union implemented. The Constitutive Act does something that the Charter of the OAU did not do. The Act clearly mainstreams human rights into the African Union. It is possible to identify within the Constitutive Act human rights at the core and essence of the African Union. What it does not do is to establish organs to ensure the realization of the vision. The organs of the OAU, such as the African Commission, have been left out. The Act makes provision for an African Court of Justice, but does not suggest how this should be related to another instrument for the establishment of an African Court on Human and Peoples’ Rights, which has been adopted by the OAU and is in the process of ratification. There is recognition in the OAU, that there is no provision for human rights instruments as such. Dr. Pityana said that, “Notwithstanding the laudable efforts made so far to construct the African Union into an integrated political, economic, social, cultural and legal institution, capable of pushing African interests and agenda within the increasingly hostile world, it is more than apparent that there has been little thinking in the direction of mainstreaming the human rights system into the new entity.” Dr. Pityana believes that if this is true then there is a place for the human rights system in Africa to be much more dynamic and vibrant within the institutions of Africa. If this is the case, then the African Commission and NGOs have a lot of work to do to construct a meaningful relationship with the new African Union and its organs in a way that would ensure the effectiveness, efficiency and independence of the African human rights system.
Professor Dankwa then gave the floor to Mr. Mbodj to continue presenting on the future of the African Commission under the African Union. Mr. Mbodj highlighted the importance of realizing the objectives and the necessities of the African Commission on Human and People Rights to complete and strengthen the Court of Justice. Mr. Mbodj also spoke about the double objective of the Charter in guaranteeing the promotion of Human and Peoples’ Rights as well as the objective of protecting human rights throughout the entire continent and thereby the important role of the African Commission to help achieve these objectives. Mr. Mbodj suggested that the proposed Court of Justice and the African Commission could work together in close collaboration to play an effective role in the protection of human rights.
During the discussion period, a participant pointed out that the Assembly remains the main organ and centre of the African Union. Moreover, that the Assembly plays the dominant decision making role and that decisions are determined on consensus. However, it was argued that it is evident from the experience of the OAU that consensus is paralyzed in certain situations, and in particular, in instances of armed conflict. The consequence of this lack of consensus is that there will be no decision made, and Africa will remain divided. In addition, the role of the Parliament (the Pan-African Parliament) has been given a secondary role to that of the Executive Council (the Executive Council of Ministers of the Union), the Assembly (Assembly of Heads of State and Government of the Union) and the Commission (Secretariat of the Union). The process of ratification was done in an expedient and secretive manner such that many African Specialists did not know that the Act had come into force.
It was further noted that the African Union is probably the most ambitious pan-African project ever initiated. It has far reaching implications and is not just a change of name from OAU to African Union. In contrast, as mentioned above, it embraces political, economic, social, governmental, defence, finance and financial institutions, and both gradually and incrementally the African Union will have a major impact on all aspects of governance within African countries. This project, then, will affect the way States function to a greater degree than ever before. Commissioner Pityana conceded that African civil society should be outraged for the manner in which the Union came into existence and the lack of consultation with civil society and African citizens. Thus African civil society should not accept the process according to which governments ratified and established the African Union. State sovereignty is arguably being minimized in favour of a pan-African institution. The transitional arrangements are in place and it suggests that the first formal Assembly of the Union will occur in 2002. What is now the secretariat of the OAU will become the Commission of the African Union. The Commission then will become a vast bureaucratic structure. The protocol on the establishment of a pan-African parliament is in place and is in the process of ratification. Mr. Mbodj and Dr. Pityana insinuated that any assertion that the establishment of the African Union is a minor issue is an understatement of a major development in the continent of Africa.
10. Participation of Civil Society Institutions in the AU/OAU
Professor Dankwa opened the session by giving Mr. Germain Baricako, Secretary of the African Commission on Human and Peoples’ Rights, the floor to present on the topic of the participation of civil society institutions in the African Union and the Organization of African Unity.
Mr. Baricako posited that there is a need for a positive relationship to be established between individual governments and civil society organisations within Africa. This relationship is necessary for the effective involvement of civil society in the process of consolidation of peace. Concerning the promotion of development, cooperation and socio-economic integration, eminent experts gathered to address the socio-economic situation that prevails on the continent. A very negative picture of African economics was portrayed, full of bankruptcy, and as such African countries rethought and redrew their economic policies to ensure future sustainability.
There is a need to evaluate how organizations and individuals can be effectively involved in the process of implementing the partnerships between governments and civil society organizations and also between these organizations and the OAU or the African Union. A position has been taken at the level of the OAU Secretariat to create a unit responsible for the collaboration between civil society organizations and the OAU. Another measure, which concerned groups can utilize, is to write to the OAU and request all information required on the subject in relation to the general report, which will enable groups to be associated to these activities.
It is important for NGOs to understand the nature and structure of the OAU in order for such NGOs to understand what role they can play within the context of the OAU. A participant pointed out that there is a tendency in African institutions to encourage and to express or wish participation of civil society, but this does not necessarily mean that representatives of civil society are qualified. Theoretical issues do not always reflect African realities. However, most of civil society are in the field and experience the realities. There is a will to develop an information system regarding the African Union, such that at civil society organisations can be informed to decide whether or not to participate.
11. Evaluation and Closing
The afternoon session of the final day of the Forum consisted of administrative matters and an evaluation by participants of the Forum. In addition, the amendment and adoption of the Resolutions, Declaration and Recommendations of the Forum occurred and were accepted to be presented at the 30th Ordinary Session of the African Commission on Human and Peoples’ Rights.
During the evaluation, participants expressed appreciation that the Forum enabled them the opportunity to interact with other NGOs as well as members of the Commission. The African Centre for Democracy and Human Rights Studies and its Executive Director, Mrs. Forster, were commended for the successful organization and hosting of the Forum and for providing the opportunity to the participants. In his turn, Mr. Rezag-Bara, the Vice-Chairman of the African Commission on Human and Peoples’ Rights, thanked the African Centre and appreciated the efforts done by the Centre and other NGOs to support the promotion of human rights, particularly in Africa.
After assessing and interpreting the written evaluations that participants provided the ACDHRS secretariat, it was evident that overall the participants felt the Forum was relevant to their work and daily life. Participants indicated that their understanding on the level of international, regional, sub-regional, and national human rights instruments and mechanisms had been enhanced. With the adoption of the Declaration and Recommendations from the Forum, participants stated that they felt prepared for their coordinated participation in the 30th Session of the African Commission to follow.
It was pointed out during the closing ceremony by Mrs. Hannah Forster, the Executive Director of ACDHRS, that the tasks and responsibilities of participants had only begun. Participants have the continued responsibility to work toward achieving their respective objectives and improving the human rights situation in Africa. Participants need to outline to the African Commission, human rights issues of concern, and in so doing provide the necessary support and enable the Commission to work effectively and be responsive to the NGO community. For the sake of human rights for all, NGOs and civil society were commended for their efforts and encouraged to continue to struggle for the promotion and protection of human rights in Africa.