Delphine Serumaga writes that despite the impressive policy framework that state has set in place for the protection of the women's rights, South African women and the girl-child remain marginalized with regards to access to basic human rights such as justice, safety and security, housing and health.

South Africa signed, ratified, and deposited the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the African protocol) by 14th January 2005 The commitment is with reservations on article 4, specifically referring to the protection of pregnant women from execution until their child is born, and a provision that exists in South African law.

This commitment adds to numerous agreements, protocols, and legislation for the protection of human rights in South Africa. The policy framework labyrinth that exists within South Africa can be perceived as laudable.

Looking from the outside, one would assume that with numerous considerations for human rights by the State, the social environment is ideal for the enjoyment of at least one’s fundamental human rights, making South Africa’s response to human rights a model to follow.

In fact, within the SADC region, on occasion, civil society organisations look at the South African framework and advocacy approaches for law reform as possible best practices to adopt.

The general trend of South Africa’s role on the continent is that this nation can play a significant role as an arbitrator or a peace negotiator. Thus implying, to an extent, that the national situation is well cared for and managed.

It is true that South Africa has a good and comprehensive constitution, well-planned legislative framework and impressive record of regional and international commitments.

Since the State participates greatly on a wide scale in human rights discourse and commits to the protection of human rights in various arenas such as the United Nations Security Council and the DRC peace agreements, one must look closer to see if what looks good on paper or on record is a true reflection of the internal state of affairs.

From a women’s rights organisation perspective, it is clear that despite the expansive human rights acknowledgements the State makes, the condition for women’s rights remain wanting. Women and the girl-child remain marginalised with regards to access to basic human rights such as justice, safety and security, housing and health. All social aspects that impact on a woman’s vulnerability to violence, a core matter of the African Protocol

The State’s commitments and engagements in human rights promotion are widely acknowledged therefore, the inevitable questions are, why sign another protocol? What internal value does the protocol bring to the people? Is the State or even civil society taking the full opportunity of the protocol that they have ratified?

The African Protocol has limited popularity as a human rights instrument in South Africa; currently there are only 8 civil society organisations that have observer status in South Africa. Out of the 8 organisations, only 2 actively participate in the deliberations of the African Commission. One could safely deduce that the African Protocol is not widely engaged with at the civil society level and possibly within the judicial system at this juncture.

The articulation and domestication of the African Protocol has not been fully realised as with other regional and international policies due to civil society and the judicial system only working with a 13 year old progressive legislation and judicial framework that has been and is still in development since the birth of the new dispensation.

Reference to the provisions of the African Protocol in court judgements is not common place, advocacy campaigns focusing on benefits of the protocol by both government or civil society are non-existent, rights education does not include reference to the African protocol at this stage.

The irony therefore, would be that government could hold civil society accountable for not engaging with a tool they have provided in order to actively pursue the rights for our target groups

The responsibility of drawing down the relevant aspects of the African Protocol to local levels is twofold. The State should make budgetary considerations for the domestication of the protocol. Equally important, the state should ensure that the judicial framework is aware of the commitments and state responsibilities that exist within the protocol.

The second aspect of promoting the protocol is the responsibility of civil society. Mobilisation through joint ventures of interest groups to campaign and advocate for the accountability of government is an untapped priority.

The current climate civil society is operating under is the provision of community-strengthening initiatives that include rights education based on the South African constitution and legislation responding to the reduction of poverty and vulnerability to violence.

At the continental level, we as civil society should take the responsibility of promoting a collective African human rights response to the violations that are rampant in countries such as Sudan and the DRC as a parallel process to South Africa’s role in the deliberations. This would promote the utilisation of the African Protocol in substantive ways.

South African civil society has to critically challenge itself on the current levels of engagement and lack of mobilisation in the national and regional arenas.

We rightfully sight lack of sufficient funding or human capacity to participate fully. However, the true irony is that South African civil society’s failure to effectively engage with the African Protocol highlights that the State has played it’s role in setting up the arena for the fight for human rights and we can be accused of letting ourselves down in our fight for human rights.

* Delphine Serumaga is the executive director of People Opposing Women Abuse (POWA), South Africa

* Please send comments to or comment online at www.pambazuka.org

Manal Abdelhalim reflects on the Sudan's progress towards ending violence and discrimination against women, within the context of the protocol.

The Protocol to the African Charter on Human and Peoples’ Rights on Women in Africa is considered as one of the important women’s rights protection instruments at regional level. It emphasize on women in conflict, women refugees, displaced, women under severe poverty and harmful practices. This article will reflect that the ratification of the protocol is crucial for Sudanese women because it highlights on the present situation on the Sudanese women.

Education- equal opportunity: the dream of millions of the girls’ child

While the article 12 of the protocol stated that “eliminate of all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training” educational opportunities for women and girls are very limited, the rate of enrollment ranges between 86% in Khartoum state and between 21% and 30% in other states, particularly Darfur state. Dropout rates amongst girls in primary school are high. The curriculum is gender biased and does not consider the cultural diversity; it perpetrates stereotyping roles of women. The illiteracy rate amongst women is also very high.

FGM: from “prohibition” to “legislation”

Sudan is among 28 African countries which are heavily practicing the female circumcision/ FGM. It had been prohibited by Sudan’s penal code from 1946 (during colonial era) until 1983, the most sever form of female circumcision, infibulations, was prohibited by penal code. The offense was punishable by imprisonment of maximum five years and / or a fine. The law was initially enacted under British colonial rule and was ratified again in 1957 and 1974; this provision was apparently repealed with the promulgation of the 1983 penal code which included no provision on infibulations. The 1991 penal code also contains no provisions explicitly prohibiting F.C.

In 1981, a national workshop was held on F.C [1] issues and solid strategies were recommended and were set. The major achievement of the 1981 conference was the establishment of the Sudanese National Committee for the Eradication of Female Circumcision (SNCEFC); it was established by decree of the Minster of the interior and social welfare in 1984. The committee was eventually replaced by Eradication of Traditional Harmful Practices Affecting the Health of Women and Children (ETHP). However, the state has taken backward steps from its commitment. Regarding the injection of F.C. information within the educational curricula, it was meant to be introduced at primary school level (8thclass), and secondary school (1st and 2nd class). But the idea was widely resisted by the General Assembly members; accordingly, the textbook was withdrawn in 1999, and then resumed in 2000.

May conference on FGM: the wrong end of the rope

In May 2002, a large conference was held by the Women’s College of Omdurman Islamic University and sponsored by the Ministry of Guidance and Endowment. It was attended by physicians, scientists, religious leaders and NGO representatives. The main outcome of the conference was an official change of attitude towards “legalizations” of FGM as part of Islamic practice” and it was concluded that “the state [has] to encourage such a recommendation”.

Civil society and women organizations and some human rights organizations have to reorganize themselves to reshape an effective advocacy plans and to lobby the government’s concerned bodies for law initiation. Protocol articles on harmful traditional practices can be used as strong instrument in their advocacy plan.

Political participation- 2008 election can make a difference

Women’s participation in Politics is minimal and meager. Up to date the rate of women ministers at federal levels is only 6.8% compared to the male rate at states level, which stands at 8.6%.[2] The rate of women in parliament is 19.7% and until 2003 the participation of women in higher ranks of public service in different government bodies did not exceed 11%. The number of women in senior civil service posts in Khartoum was 343 out of a total of 1642 posts. In the states, the number is 3241 posts out of 10448 posts. There were only 67 female judges in Sudan, 2 ambassadors and 17 diplomats. In the public sector, women’s participation is 35% and in the private sector it is 10% in the state of Khartoum. Although women participate by 80% in agricultural operations, their calculated contribution in the national economy is only 26%. This is as well as and despite the effort they exert in performing household duties; which is not considered work [3].

The signing of the Comprehensive Peace Agreement (CPA), DPA AND EPA are providing a solid base for women to lobby the States Parties for effective representation and participation of women at all levels of decision-making. Sudanese women rights bottleneck: access to justice /access to law: The promotion of women’s legal rights is affected by the lack of legal awareness, inaccessibility and lack of availability of legal services for women. Legislation is drenched in technical language to the point that it excludes laypersons from understanding and exercising their rights. Furthermore, prevalence of discriminatory laws and Acts restricts women, cripples their status and restricts their freedom and mobility.[4] Examples of these laws include the Labor Law, Nationality Law, Criminal Act, the Public Orders Law, Land Ownership, Personal Status Law and Customary Laws, amongst others.

According to the Nationality Act, Sudanese women who have children born to a non-Sudanese father have no right to claim Sudanese nationalities for their children.[5] The Public Orders Law for Khartoum state 1996 raised controversial discussions and dialogue about its articles that control the freedom and mobility of women. Each State has its own law and there are no great differences in their contents. Article 7 forbids mixed dance and does not allow women to dance in front of men. Article 9 specifies one door and ten seats allocated for women on public transport. Article 16 sets the age at which a woman may manage her own hair dressing shop at 35 years of age. Article 18 prohibits men from practicing tailor work for women except after obtaining approval from local authorities. Although Sharia law should only apply to Muslim citizens, women belonging to other religions have to adopt an Islamic dress code. This includes the requirement for women to cover their heads with veils and prosecutions for those found brewing alcohol. Women are often convicted and their business merchandise confiscated.

Women in conflict: ending all forms of sexual violence

Sudan has been hardly attested by long civil wars and conflicts, accordingly women’s situations have been altered to cope with the war situation. They are the most affected by armed conflicts; they always end up shouldering the burden of loss of family members, displacement, fragmentation, identity crisis, insecurity and end up heading households. Also, their accessibility to food, shelter, resources, markets and income becomes increasingly limited. Sudanese women’s efforts to contribute in the Sudan Peace talks and negotiations have been largely sidelined. The prevailing situation (atrocities committed against women and girls) resulted from the latest conflict in Darfur and has created a wide spectrum of issues; yet, women are not powerless or victims to their circumstance. On the contrary, they are heads of households and community keepers; they struggle to keep their families, communities and their identity in tact to surpass any armed struggle.

It is great opportunity and it is a high time for Sudanese women to take the privileges and opportunities created by the existence of new peace settlement by the AU and the UN, particularly in Darfur to advocate for the protocol ratification.

More orientation is needed

Since the adoption of the protocol in 2003, very little efforts have taken place to diffuse the protocol’s content and lobbying for ratification. The first orientation session has been held by Mutawinat group following the adoption of the protocol. The objective of the session was to orient the civil society groups in Sudan by the existence of the protocol as well as to reveal the government attitudes towards the protocol.

Zienab Abbas (Sudanese women’s right activist participated on stages of the negotiations that the protocol has passed), according to Mrs. Zienab ‘’the protocol was exhausted extensive consultations, discussions and brainstorming, before its formulation so this why the protocol considered as a comprehensive and human rights document for African women”. “Unlike the CEDAW the protocol emphasized on harmful practices and for the first time FGM to be singled out as one of the most harmful practice in Africa. One of the most privileges of the protocol is considering the situation of women during war and conflicts, women refugee, displaced, women under severe poverty”

Mrs. Aisha Abuelgasim (Ministry of social planning Advisor) revealed the preliminary official reactions to the protocol; the government tends to make some reservations on the following articles:

Article no. 20-(b) (a widow shall automatically become the guardian and custodian of her children, after the death of her husband, unless this is contrary to the interests and the welfare of the children). The reason of conservation is that item contradicts with personal status matters law, 1991.

Article no. 7-(a) (Separation, divorce or annulment of as marriage shall…).

Article no. 14 (State parties shall ensure that the right to health of women including sexual and reproductive health is respected and promoted …..) Article no. 6 (State parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage.

According to Aisha the government did not submit a detailed justifications for such reservations but in generally the reason given is that these items are either contradicting with the prevailing laws or with Shari’a principles.

One step forward

SOAWR has played a great role to push the ratification issue in Sudan during the January 2006 summit. In collaboration with SIHA and several Sudanese organizations SOAWR hosted a well attended symposium on the Protocol addressing the Protocol’s various articles from an Islamic perspective. As an immediate outcome of the meeting, Sudan was red-carded with the Minister of Health receiving the card for President Bashir. Sudanese organizations also circulated a petition calling on the Sudanese government to deposit its instrument of ratification. SIHA also became a member of SOAWR and committed to expanding the campaign’s reach to its members in Djibouti, Eritrea, Ethiopia, Somalia, Somaliland and the Sudan. More recently, SIHA has participated on a joint SOAWR/Oxfam GB Workshop to Review the Governance and Transparency Funding Bid. As a result a country strategy (2008-2012) has been developed as one step towards advocating for ratification and making the Protocol widely popular in the Sudan. The main aim of the strategic plan is to take advantage of new political and supportive atmosphere of the first general election, by 2008, following the signing of CPA, and to secure ratification by 2009.

* Manal Abdelhalim is programme director of the Strategic Initiative for Women in the Horn of Africa (SIHA)

* Please send comments to or comment online at www.pambazuka.org

For notes, see link below.

On the second anniversary of the Protocol to the African Charter on the Rights of Women in Africa, Marren Akatsa-Bukachi reflects on the challenges faced in the past year.

It was an appealing sunny day in mid November 2005, Sarah Mukasa then of Akina Mama wa Afrika and I were geared for a higher and more important level of gender activism. I represented the Eastern African Sub Regional Support Initiative for Women (EASSI), and Sarah Akina Mama both members of the Coalition on Solidarity on African Women’s Rights (SOAWR) and were conducting a workshop in Grand Imperial Hotel in Kampala Uganda.

We had co-organized the workshop to unpack the outcome of a previous workshop that was organized by SOAWR in conjunction with the African Union in September 2005 in Addis Ababa. The workshop was called to discuss domestication and implementation strategies of the Protocol. Sarah and I both energized, were eager to share the good news with a large constituency of Uganda civil society.

The Protocol was about to come into force on November 25th following the 15th ratification by Togo. The Protocol’s significance lies in the fact that it is the only regionally generated document specifically on the rights of African women and that relates to the context specific violations of African Women’s Human Rights. Coincidentally this date would coincide with the beginning of 16th Days of Activism Against Gender Violence. I felt elated. This was prophetic. To add to the “high,” Uganda was on the verge of ratification. This confidence was buoyed by the revelation by the government representative that the Protocol had passed through all the necessary stages and was only awaiting Cabinet approval. We were assured this would take place speedily before the matter of the General Elections, scheduled to take place in February 2006 would get in the way.

With reenergized spirits, we discussed strategies for domestication and ratification as if we already had won the prize. Little did we know that dark forces were lingering in the shadows. Even as we spoke, there was a double page spread in the local dailies vilifying the Protocol. The article was sponsored by the Catholic Bishops and was specifically speaking to Article 14 on Health and Reproductive Rights. The Article states inter alia, that “Protect the rights of reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus”.

‘The Protocol for Women’s Rights in Africa supports Abortion,” screamed one headline. “Catholic Bishops decry abortion”, shrieked another. It seemed our celebration was turning into battle. We had already identified the ratification platform as a basis for deeper advocacy for the passing of the stalled Domestic Relations Bill whose content was more or less reinforced by the Articles in the Protocol, when the Bishops came up with their bombshell. In an election year everyone with power to influence a significant voting constituency becomes a darling and the Bishops had stirred a hornet’s nest. In Uganda where almost 50% of the populations (read voters) are Catholics, this constituency cannot be ignored. The Protocol was placed into cold storage and stayed there to date.

Two years after coming into force, seven more countries have ratified the Protocol, bringing the total to twenty two, twenty four countries have signed but not ratified while seven have not signed at all.

Advocacy by SOAWR

SOAWR can be credited with contributing to the respectable level of achievement of almost 50 percent ratification by the fifty three African Union Member States.

Its strategy of using the African Union Summits of Heads of States as a lobby platform has elicited tremendous levels of success.

Since January 2005 members of the SOAWR Coalition have attended the African Union (AU) Summits to ensure that the Protocol to the African Charter on the Rights of Women in Africa remains on the agenda of policy makers and to urge all African leaders to safeguard the rights of women through ratification and implementation of the Protocol. Members have consistently produced policy-briefs, launched books and held press conferences during the Summits to keep the Protocol at the forefront of policy-makers’ concerns. Members have also directly met with at least 10-15 Ministers over the last six Summits. Since January 2005, SOAWR has used the opportunity of the Summits taking place in different countries to press on the host to either ratify or move to implementation.

The latest addition to the countries that have ratified the Protocol is Ghana, host of the last AU Summit that deposited its instruments of ratification in July 2007 almost two weeks after hosting the Summit. This is a testimony to SOAWR’s. tenacity and lobbying skills. This brings ratification countries to 22.

During the Summit, a team drawn from national coalitions and the steering committee met and committed to the following:-

1. Prepared and circulated to Ministers a short policy brief on the status of the Protocol and the implications of Continental Government proposal for women’s rights and gender equality
2. Participated in CSO pre-Summit activities planned with a view to raising visibility for women’s rights and gender equality issues and participating in the Grand Debate
3. Maintained relationships with key Government delegations
4. Co-convened with Ghanaian women’s coalition, a university based seminar on the Protocol.

Amongst other pre-summit activities carried out by SOAWR was the Public Forum which was titled “Is it possible to have a United States of Africa without Women?” and What form would be meaningful for African Women? The forum provided an opportunity for governments as well as African civil society to deliberate on the Grande debate on Continental Unity and also on issues of harmful traditional practices with special focus on the Trokozi practice in relation to the Protocol. Other activities included a Press Conference, SOAWR Planning and Evaluation Meeting and Direct Advocacy with the Permanent Representatives Council of the different African Countries in the African Union (see Appendixes 1- 5).

I was among those privileged to lobby the foreign Ministers and their representatives at the Summit venue. We gave out red cards to those countries that had not signed the Protocol, yellow cards to those that had signed and not yet ratified and green cards to those that had signed and ratified. We lobbied actively amongst the delegates during tea time and any time they stepped outside the conference hall. We congratulated those that had ratified and exhorted those that needed to ratify or deposit instruments of ratification to do so. We were elated to hear that Liberia only needed to deposit the instruments and expected to see it amongst the group of green cards within two weeks of leaving Accra. To date we are still waiting. It is sad but true, what is on paper is not necessarily put in practice!

Our lobbying strategies were very interesting but also revealed at times that those sent to represent their governments at these meetings are not always up to par with regard to issues such as the Protocol. Many a time we were informed that the person dealing with this matter was left behind in the capital city and there was nothing they could do about it. I remember on one of the days when we stood outside the meeting hall, our body language must have given us away as one of the delegates asked pointedly, “whom are you waiting to pounce on next?” It elicited laughter but at the same time showed that our seriousness was visible to all. Our strategy was to demand that none “signatory countries sign up, signed up countries move to ratification as speedily as possible, the “ratifiers” domesticate and implement. We found to our surprise that there was a gap in information with quite a large number of delegates not quite aware of the Protocol but also a good number supportive and willing to take some action back in their own countries. I realized that there is an information gap here that needs to be plugged if SOAWR is to achieve 100 per cent ratification. Government officials in key ministries such as foreign affairs need to be sensitized on the Protocol.

In some countries it is considered a gender issue and embedded in the ministry of Gender or Women’s Affairs. The Coalition may need to design a program specifically targeting policy makers to make them aware of the Protocol and its benefits to the country and to women’s rights. It should not be seen as threatening existing rights but as scaling up these rights, particularly social and cultural rights. I say this because when I was on a visit to Ethiopia and enquired from one of our partners why Ethiopia has not ratified the Protocol, the response was that the Ethiopian Constitution is very gender sensitive and already touched on the very issues propounded in the Articles in the Protocol. None the less, women’s organizations are fighting patriarchy and gender based violence, amongst them female genital mutilation that would benefit from ratification, domestication and implementation of the Protocol. As for Eritrea, it is still at the red card stage and has not signed the Protocol. However, after years of lobbying by the National Union of Eritrean Women, the government outlawed FGM in May 2007.

Even as SOAWR Coalition continues to lobby for total and unreserved ratification, it does not miss an opportunity to make demands on the member states. Using the opportunity afforded by the AU Summit in Accra and the discourse around an African Union Government, SOAWR came up with the following demands:

Specifically, the African Heads of States and Government meeting in Accra should show commitment to continental unity by embracing the following:

• Incorporation of gender equality in the values underpinning the Proposal of United States of Africa
• Instituting and making public during the next Summit a performance audit of the Directorates of the African Union Commission in terms of the incorporation of gender concerns (2004-2007)
• Prioritization of the rights and entitlements of refugees and displaced populations, particularly women and girls.
• Prioritization of full citizenship status for women in terms of rights, particularly women who marry across nationalities and lose their rights.
• Guarantee to women the freedom to trade and work across states’ borders. Women small traders manage a high degree of non-formal cross border trade
• Conduct analysis into the gendered implications of macroeconomic policy with respect to the ‘convergence criteria’.
• Enable total factor mobility—the free movement of all factors of production (labour as well as capital)—by addressing questions of African citizenship, including African women’s equal citizenship rights and freedom of movement at the continental level.
• Embedding the principle of gender parity in the election and appointment of persons to the continental institutions.
• Ensuring that the principle of appointing 50% women commissioners at the African Union Commission continues to be honoured.
• Increasing the minimum threshold for women MPs elected to the African parliament to at least two per country
• Review all recommendations (in the continental government proposal) in light of deficiencies already noted by the African women’s movement with respect to ensuring the equal representation of African women at the Abu’s highest decision-making organs—for instance, the Commission’s Chair could also have a Deputy responsible for gender mainstreaming across her/his ‘Cabinet’ and all Commissioners responsible for programs and projects under the strategic focus areas should ensure that gender implications are taken into account in their elaboration and implementation;
• Publicly censuring countries that have yet to ratify the Protocol on the Rights of African Women.
• Honor their commitment to deliver on the Solemn Declaration on Gender Equality in Africa.
• Demonstrate greater commitment to the normative framework already established by the AU—particularly with respect to the promotion and protection of human rights (including women’s human rights), peace and security.

The debate on the Union Government is timely, but it will only be relevant in as far as it will recognize that the majority of the African people are women and girls; and that to win their confidence African Leaders need to seriously take up their concerns head on.

We came back full circle in Uganda on October 18th 2007; we were back in the same venue where we were in November 2005 once again with Akina Mama wa Afrika to again discuss the stalled ratification process in Uganda. This time the aim was to put in place a steering committee that over see different strategies to ensure ratification and implementation of the Protocol. The committee’s first task is to find out exactly where the protocol is stalled. Is it in the Attorney General’s Office or the Ministry of Foreign Affairs? A video documentary made by Akina Mama to popularize the Protocol had one of the Christian Bishops proposing that the Protocol should be signed with reservations on Article 14 otherwise it will be a tough battle ahead..

Is this Uganda’s desire for her future?

* Marren Akatsa-Bukachi is the executive director of the Eastern African sub Regional Support Initiative for Advancement of Women (EASSI)

* Please send comments to or comment online at www.pambazuka.org

The Kenyan situation as regards the ratification of the Protocol has become something akin to a game of ping pong. So far the position of its ratification remains unclear and efforts by different interested parties to obtain clarity on the position seem to hit a dead end, writes Anna Amadi.

The African Charter on Human and People’s Rights addresses African concerns, traditions and conditions. It provides for the enjoyment of rights and freedoms on the basis of equality and non-discrimination, the elimination of discrimination against women and the protection of the rights of women and children. The protections offered by the Charter are, however, not adequate and in 1995, the Protocol to the African Charter on Human and peoples’ Rights on the Rights of Women in Africa (hereinafter the ‘Protocol’) was adopted in Maputo by the OAU to supplement the Charter.

Kenya is a State party to many human rights treaties and declarations but has not ratified the Protocol. For a long time, the human rights discourse and the implementation of obligations outlined in the various human rights treaties and declarations have not been prioritized by Government. The implication of this has been that the human rights discourse has not been popular within Government ministries and departments. Further the human rights initiatives have not attracted adequate budgetary allocations within the Government. Noteworthy, over the years, the human rights agenda has been a preserve of civil society.

The Solidarity for African Women’s Rights (SOAWR) is a regional coalition of women’s and human rights organizations that came together to work for early ratification of the Protocol on the Rights of Women in Africa. SOAWR was formed in 2004, its members alarmed that one year after adoption, only one country (The Comoros) had ratified the Protocol. The group of organizations formed a coalition that would deliberately encourage governments to take swift action in bringing the Protocol into force and ensuring its subsequent domestication. Indeed it was through the efforts of SOAWR that the Protocol came into force in November 2005, just two years after its adoption. So far 22 countries have adopted the Protocol and sadly, Kenya is not one of them.

The Kenyan situation as regards the ratification of the Protocol has become something akin to a game of ping pong. So far the position of its ratification remains unclear and efforts by different interested parties to obtain clarity on the position seem to hit a dead end. There have been myriad challenges in pushing for the ratification of the Protocol in Kenya. These range from lack of clarity on where and from whom to get information on status of ratification of, not just the Protocol, but other international and regional human rights conventions as well. Communication channels remain unclear and undefined. There is also a general lack of awareness and education on human rights and hence no candid discussions on the implications, advantages and disadvantages of ratification of given human rights instruments. These challenges have hampered appropriate consultations on the Protocol with relevant players.

In May 2007 during the 41st Session of the African Commission on Human and Peoples’ Rights held in Accra, Ghana, the Kenya Government reported that it had ratified the Protocol. The exact words of the Minister for Justice and Constitutional Affairs, Honorable Martha Karua were “I can confidently say that the instrument will be deposited by the end of June.” We are now in mid October and nothing has come of the minister’s pronouncement. There is no evidence that any follow up has been made on the Minister’s declaration and clearly there was no commitment in stating thus- an empty promise, yet again.

The Attorney General’s office indeed confirms that the Protocol was debated and received cabinet approval for its ratification and so the AG’s role has been performed. The approval, however, is said to be subject to reservations particularly regarding the thorny issue of women’s reproductive heath rights. (The Protocol explicitly sets forth the reproductive right of women to medical abortion when pregnancy results from rape or incest or when the continuation of pregnancy endangers the health or life of the mother).

The office of the Secretary of Cabinet and Head of Civil Service also confirms that there was a cabinet approval and that this was communicated the Foreign Affairs Ministry way back in May 2006 and the latter was expected to prepare and deposit the instrument for ratification. It is frustrating that the legal office in the Ministry has been giving contradictory information, with claims that the approval was communicated but got ‘lost’, yet other sources claiming no such approval has been received .The Gender Ministry that should take the lead in the matter appears to be in darkness over the whole issue!

In 2005 the Kenya Government constituted an Advisory/Consultative Committee on International Human Rights Obligations with the function of advising the Government on measures necessary to comply with its international human right obligations. The committee works with stakeholders including relevant Ministries, Government departments, public bodies, civil society among others to coordinate the collection, documentation and updating information relevant to the Government’s obligations in order for it to meet and implement its obligations under the regional and international human rights instruments to which Kenya is a state party. FIDA Kenya which is a member of SOAWR sits on this committee, and this offers an opportunity for SOAWR to keep pushing for the ratification of the protocol. However, the committee only plays an advisory role, and cannot, for example, demand accountability from a government department when it fails to perform its duties.

So far, simply put, we are in a quagmire. Clearly there is need for us to continue seeking of audience with the various personalities charged with the responsibility of following up on ratification within government. It would also be useful to build the capacity of stakeholders on the processes and usefulness of not only ratifying but also domesticating the protocol. Women’s and human rights organizations must use of all opportunities that present themselves in different forums to make the case for early ratification of the Protocol. Regular and sustained strategy meetings amongst coalition partners need to be held to keep the agenda alive, with a vibrant communication strategy that ensures all interested parties are on the same wavelength. Media should be an integral campaign partner so that the activities around advocating for the ratification of the Protocol are were well covered for the attention of the concerned government bodies.

* Mrs Anne Amadi is deputy executive director of FIDA Kenya

* Please send comments to or comment online at www.pambazuka.org

Today, as many across the continent celebrate the 2nd Anniversary of the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, the women’s movement in Uganda is struggling to find the protocol, says Solome Nakaweesi-Kimbugwe.

Today, as many across the continent celebrate the 2nd Anniversary of the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, the women’s movement in Uganda is struggling to find the protocol; which seems to ‘have been lost’! Uganda, just like a number of other African States has to date signed but not yet ratified the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa.

Signature only is a presumption of serious interest but does not guarantee ratification, domestication and implementation. The Protocol in Uganda stalled since 2005 where, it is reported that instruments of ratification had been prepared by government but the protocol lost momentum as well as priority on the part of the government to ratify this protocol. The Protocol in Uganda seem to have got lost and many do not seem to know where it is or even the process to date.

‘We have not seen this protocol in Parliament. The Cabinet has also not ratified it. It has got lost somewhere and we do not know where it is.’ Rt. Hon Rebecca Kadaga, Deputy Speaker of Parliament of the Republic of Uganda, 6th August 2007.

With the current realities, the lives of women in Uganda have been redefined by national, regional and international occurrences. For instance, globalization has impacted on women where more increasingly women are getting poorer due to unfair trade, weaker role of the state, the war on terror, SAPs, PRSPs, etc. In addition, women’s triple roles are being increased due to the global trends like: commercialization of food crops, privatization of water, etc.

There is also a waning political will at the national level which implies that women’s issues are taking back sea due to the increasing feeling that women have had had it all but are being ungrateful yet today government is committed to less vigorous roles a far as human rights are concerned. In addition, the rise of militarism is tending to redefine women’s rights and choices, as well as institutionalizing violence against women – this is especially so in Northern and Eastern Uganda which has been affected by civil strife, displacement and political instability for last 20 years.

For the human rights and women’s movement in Uganda, the protocol is important because: it gives impetus to national laws and policies like the Domestic Relations Bill (Uganda’s family law that has not been enacted since the 1960s - for over 40 years) Land Law ownership, Sexual Offences Law, Domestic Violence Law and law on trafficking in persons. The protocol is paramount as it will help African States to exercise gender justice.

‘If anything, this Protocol should facilitate African States to pass fairer legislation’ Stella Mukasa, Feminist, AMwA, July 2007.

Similarly, a survivor of 3 conflicts in Uganda laments that:

‘If there was law to be passed or treaty to be ratified, it should prevent soldiers from assaulting women as well as protecting women from local / community instigated forms of violence. How do we even ensure that that law applies to the rebelling forces?’ Loy Adepuit Owani, Soroti District, Eastern Uganda.

The Protocol also provides a legal framework at continental level (standardized) and the monitoring of these at continental level.

‘If we can have the protocol, it gives us similar standards, frameworks against impunity across Africa’. Eva Luswata Kawuma- Advocate of the High Court of Uganda, 18/10/07

The Protocol also consolidates and protects the gains so far registered in Uganda such as: women’s education, political participation, Affirmative Action especially in political and governance sector as well as bringing to bear the regional expectations in as far as protection and promotion of women’s rights is concerned.

The Backdrop: Challenges of the Protocol

One of the biggest challenges has been the rise of fundamentalism, re-negotiation of women’s basic rights as well as the waning state commitment to women’s rights. More generally globally, there are fundamentalist forces that are re-defining women’s space ands positions in the form of economic, religious, political, ethnic and cultural fundamentalism.

In Uganda, this has not been helped by the fundamentalist forces taking hostage of the state and using it to roll back on the achievements so far registered. The most vivid backlash of fundamentalism has been experienced with work on the Protocol in Uganda as well as on work with the family law (The Domestic Relations Bill). The state has been held hostage by strong religious groups especially Christian fundamentalists (the Catholic Church and Pentecostals) who are opposed to certain articles in the Protocol especially Article 14 that deliberates on Health and Reproductive Rights. In 2005, the Catholic Church came up with a 2 page centre spread press release in the two of the leading newspaper dailies strongly opposing the Protocol, describing it as one that opens up un-African behaviour and rights especially abortion and use of contraceptives that are contrary to the doctrines of Christianity, morality, and African culture. In a similar move, in 2006/2007, the Pentecostal Churches also signed nationwide petitions opposing the Protocol. In their contestation, these groups have either openly opposed the whole protocol or even calling upon government if its to ratify, it does so with reservations on certain areas such as Article 14, which has been contested within the women’s movement as seen below.

‘We do not want government to ratify with reservations… this brings about impunity where there may have reservations on many articles … Also the process removing reservations is very tedious’. Marren Akatsa-Bukachi, EASSI Executive Director, Interview in the Protocol Video – As Time Ticks, AMwA / SOAWR 2007.

There is also waning political will and outright hostility to women’s issues and the notion of we gave you which implies that rights are granted and can be withheld at leisure by the powers that be. Due to the weak political will and half hearted reforms, gender mainstreaming has been reduced to one sentence usually appended onto policy statements. Gender distributive policies challenge peoples cherished belief, they are often addressed as technical aspects of programming but not real commitment and action is undertaken.

Most countries shy away from economic and social rights progressively because they have to allocate budgets yet, gender budgeting is still a challenge to many developing countries, Uganda inclusive. While the women’s movement managed to register a lot of achievements in the period 1986-2000, after that period, there has been waning political support to women’s emancipation and increasing fatigue. Besides, the failure to consolidate the gains so far registered as well as become independent , free of patronage from the ruling party’s has affected the leverage and power to negotiate on a number of issues.

The problem of convincing policy makers is that; social and economic rights to be understood in terms of development and wellbeing of women. This coupled with the increasing complacence and fatigue in as far as women’s rights imply that advocacy on the protocol is an uphill task.

Many actors (state and non state actors) do not understand the protocol and its provisions, hence, a lot of work has to be done to popularize and raise awareness on the protocol. For example, on 6th August 2007, Akina Mama wa Afrika (AMwA) as part of SOAWR commissioned and launched a documentary on the Protocol entitled ‘As Time Ticks’. The current Minister of Gender, Labour and Social Development – Hon. Syda Bbumba was interviewed by the press on 7th August 2007 and was reported to have confessed that she was not aware or heard about any such a Protocol. She is reported to have responded as: ‘I do not know anything about such a protocol. I would be telling a lie if I commented about it’ Hon. Syda Bbumba, Interview in August 2007

Yet, it is the same ministry that prepared a Cabinet Paper to be discussed by Cabinet in 2004/2005!

In a similar development, a number of Members of the 8th Parliament in Uganda indicated that they were not aware whether this particular Protocol is supposed to be ratified by Parliament or Cabinet and what their role should be! This is an indicator that the Protocol is not known, information is still lacking among policy makers, legislators, and foreign ministry relevant departments and if known, its not prioritized on the part of government.

De-politicizing of the women’s agenda has also implied that the women’s movement in Uganda has in the last few years tended to address issues that are that are less controversial and leave out those that redefine women’s total liberation. Issues such as: women’s bodily integrity, sexuality and sexual orientation, private lives of women, gender based violence, abortion rights, sexual, reproductive health and rights, etc have tended to be left unattended or minimally addressed. In addition, sexual and reproductive rights still remain elusive and, the failure to understand that even provisions of the protocol makes it under restricted circumstances. There is also increased bureaucracy and reduced activism among human rights stakeholders, which has led to even failure to consolidate past gains. This makes them unable to seriously and consistently engage in the human rights issues such as the Protocol.

In relation to the above, one of the biggest challenges of the Protocol in Uganda has been the inconsistency in the advocacy generally within the women’s movement and mainstream human rights and the fact that many human rights actors look at as women struggles not as human rights struggles. Hence with such a situation, advocacy on the Protocol faces stiff resistance as it pushes women’s rights to address these fundamental rights.

There are also discussions about whose struggle is it anyway? Issues about social mobilization, linkages and supporting each others work on the Protocol have been very loose and mainly left to the SOAWR Members in Uganda (Akina Mama wa Afrika and Eastern African Support Initiative for the Advancement of Women) both of which are international women’s NGOs. Hence, implying that most national women’s organizations are not actively engaged with the protocol advocacy or even relate to their mandates that they are dealing with on day to day basis. As observed by renowned feminist, ‘Activists identify with an issue as long as there is no struggle’ (Marjorie Mbilinyi, Tanzania)

Work on the protocol has been an uphill struggle, some of which pit with the core of patriarchy which seem as an added controversial burden to many in the women’s movement in Uganda who are already battling with a lot of agenda. Major issued to dialogue internally are: What kind of issues do we address and how far are we willing to go? Arent we operating within the same patriarchal framework that redefines what is good for women and what is bad? How far are we willing to address specific rights that have hitherto been labeled no go areas? Do we take on women in their diversity and orientation or are we still ‘playing safe’? How do we handle the controversy and difference within the movement as far as the Protocol is concerned?

The Lack of the Protocol Impacting on Women’s Lives in Uganda

Many should be asking why we need to ratify the Protocol in Uganda given all the various initiatives undertaken at national level to uplifting the status of women. One of the glaring impacts of the lack of ratification of the protocol is that laws, administrative, social and economic indicators that states are obliged to provide are not in place. Women’s rights in Uganda have still remained rhetoric mainly as rights enshrined in the 1995 Constitution. This explains why to date there is reluctance in enacting laws, setting up policies and programmes that operationalise women’s rights like the family law, laws on GBV, trafficking in persons, etc. To date, Uganda has failed to protect women from injustice at family and community levels in the private spaces as women are still abused in the name of cultural practices that are highly discriminatory and patriarchal.

Uganda will not be in a position to meet its PRSP (Poverty Eradication Action Plan – PEAP) & MDG targets. Failure to ratify the protocol implies that there are no measures to reach those targets. Failure to ratify also impacts on Uganda’s commitments at international level as far as protection and enforcement of women’s rights are concerned will not be met yet women are among the poorest who have very low social indicators.

A number of reviews like the Poverty Eradication Action Plan, African Peer Review Mechanism process indicated that poverty in Uganda is highly structures along gender lines and specific interventions in terms of the legislation, policy, administrative and programmes have to be undertaken to address inherent challenges that impact on women. It’s therefore no wonder that irrespective of all these, women are poorer. A number of women’s rights have still not attained like affected by conflict, poorest, sexual and reproductive rights,. MDG 3, Constitutional rights of women as provided for in Chapter 4 of the Ugandan Constitution, Pillars within the PEAP especially since gender is across cutting issue. And in terms of Uganda’s long term vision and missions of becoming a middle income country, there is also need to address the role of women in as far as attainment of economic independence as well as stimulating economic growth.

Consolidation of gains in as far as women’s rights is questionable with the failure to ratify, domesticate and implement the protocol. For instance, there are a number of national legislative and policy concerns like: the 1995 Constitution, labour laws, criminal law, National Gender Policy, National Action Plan for Women and PEAP. In addition, if we borrow some of the progressive provisions in the Protocol, it gives impetus to national level advocacy for better laws and policies.

Women’s discrimination is varied but it has at times been in the form of the absence and even existence of gender neutral / gender blind retrogressive laws and policies that are premised on patriarchal notions like citizenship rights, definition of adultery and other sexual offences, definition of a family and head of family. Access to justice continues to elude women and the administration of the law and policy has been sighted as a major hindrance to enjoyment of women’s rights. Generally in Uganda, the court system is characterized by patriarchal values upheld by legal practitioners and the institutions, generally giving more privilege to men and disadvantaging women; difficulty in physical access to magistrate courts; inability of the poor, especially women to pay court expenses; and the degree of technicalities involved, including the legal jargon. As noted,

‘Women’s rights continue to be trampled on because the current laws are inadequate’. Rt. Hon Rebecca Kadaga, Deputy Speaker of Parliament of the Republic of Uganda, 6th August 2007.

Therefore, without the ratification, domestication and implementation of the protocol, we cant quote using International and regional instruments in court cases.

The existing laws, policies and programmes in Uganda today have all failed to genuinely promote and protect the rights of women at personal level and in private spaces. This failure has down rolled the achievements made in the public lives as far as human rights are concerned. Statistics of the Uganda Demographic and Health Survey Report of 2006 indicate that, women’s bodies and sexuality is still controlled by men as such impacts on the realization of many of the fundamental human rights by women.

Its therefore no wonder that statistics indicate that the quality of life of women is reducing and the social indicators are grim like: high fertility rates of 6.9 children on average, increase in physical and sexual violence (to at least 60% experienced violence by partners or husband and at lest 2 in 5 women have been sexually abused by age 15); early marriages ( on average at 17.8 years for women aged 20-49, 55% of women aged 22-49 married by 18 years and 74% married by 20 years of age); age of first sexual intercourse at 16.6 years; polygamy at 28%, rape is on the increases and that 51% of women prefer to use injectibles as preferred method of contraception as it does not require them to negotiate with their partners. The case below justifies this by:

‘I stated from zero level after the death of my husband. My in-laws they took all my things, even my clothing… And when I refused to be inherited by my in-laws, they lit a broken jerry can and burn me all over my body’ Nancy Oluka, Widow, Lira District, Northern Uganda’.

So what next?

As a way of conclusion, there is need to re-strategize and re-launch the campaign as there is need to explore why the process that appeared to be very progressive all of a sudden lost steam and went off the radar of governments priorities. This will enable for strategizing and action on advocacy not only for the protocol but other process on women’s rights that seem to have stalled to date. In addition, there is need to raise awareness about the Protocol as well as enroll allies and human rights actors to join advocacy.

Lastly, ratifying the Protocol, domestication and implementation is actually what the operationalisation of women’s rights in Africa. The task of eliminating gender based discrimination is beyond the purview of protocols, law and human rights but not beyond the people who have experienced multiple and intersecting forms of discrimination over long periods of time. We as Africans need to change our communities so that individually and collectively we are all able to enjoy living lives grounded on equality, equity, freedom, dignity, peace, mutual respect, gender justice, non discrimination and above all respect that African women are equal in rights and dignity!

* Solome Nakaweesi-Kimbugwe is the executive director of Akina Mama wa Afrika (AMwA)

* Please send comments to or comment online at www.pambazuka.org

As we approach the 2nd anniversary of the coming into force of the Protocol,Caroline Muthoni Muriithi takes us on a retrospective of the continental successes that SOAWR has achieved so far.

The Solidarity for African Women’s Rights (SOAWR) Coalition was created in September 2004 to speed up the ratification of the African Union (AU) Protocol on the Rights of Women and subsequently push for the domestication and implementation of the Protocol at the national level. Three years after its inception, the SOAWR coalition has evolved into a 26 member coalition all working towards popularization, ratification and domestication/implementation of the AU Protocol on the Rights of Women. As we approach the 2nd anniversary of the coming into force of the Protocol let us look back on the continental successes that SOAWR has achieved so far as we intensify the momentum of the campaign and renew our efforts to ensure universal ratification and implementation of the Protocol.

Continental campaign: Using the African Union policy space

The coalition took advantage of the new advocacy opportunities that came with the newly established African Union to engage the African Union member states. The transformation of the Organization of African Unity (OAU) to the African Union in 2002 created room for civil society engagement (CSO’s) and welcomed their contributions through the African Citizens’ Directorate (CIDO) which has the responsibility of facilitation of civil society engagement [1]. Although the collaboration and engagement between CSO’s and the African Union and its institutions has been limited, SOAWR managed to work with other AU departments such as the African Union Commission Legal Counsel Office which receives the instrument of ratifications and the Women, Gender and Development Directorate (WGDD) which has worked together with civil society to discuss African Union instrument such as the Solemn Declaration on Gender Equality in Africa and the African Union Protocol on the Rights of Women as well as strategizing on promoting gender equality within the African Union Commission.

Through this fruitful collaboration with the Women, Gender and Development Directorate (WGDD) the campaign has been able to reach a wide audience both within the African Union as well as citizens across the continent. In 2005, the WGDD helped to provide a space for SOAWR to hold a press conference at the Abuja Summit in January 2005 and has continued to collaborate with SOAWR in planning and hosting various activities such as : jointly publishing a book ‘Breathing life into the African Union Protocol on the Rights of Women’ which was launched at the July 2006 African Union summit in Banjul, Gambia; organizing a joint North African Consultation on strategies for accelerating the ratification of the Protocol across North Africa in Tunis, Tunisia in April 2007 and has continued to engage in various discussion on the way forward for gender equality in Africa.

SOAWR members have also utilized the advocacy and lobbying opportunities at the African Union Summits. The African Union hosts two summits every year; January and July. Since its creation, members have used the summits as a way to make the campaign visible among government officials, African Union and the Heads of State and Government. The summits offer an opportunity to engage these leaders on the steps their governments have taken to ratify the Protocol and a chance to influence decisions made within the African Union.

During the summits, various creative strategies have been used to send the campaign message across. In January 2005, the rating cards strategy proved effective at holding governments accountable. The strategy was based on football penalty cards system: Red for countries that had not signed the Protocol; Yellow for those countries that had signed but not ratified; and Green for those countries that had ratified the Protocol. What made this strategy successful was the fact that country representatives where given the bright colored cards while either sitting in the plenary room or walking towards it making the room look colorful but at the same time arousing curiosity among the other delegates to know what the color cards were about. The color card also created competition among the countries while at the same time shaming those countries that had not ratified the Protocol. The strategy worked on the premise that most governments do not want to look bad before their peers and therefore would be pushed to sign and ratify the Protocol. It worked! On 25th November 2005 (a year after the formation of SOAWR) the African Union Protocol came into forces largely due to the pressure and all the strategic lobbying and campaigning by SOAWR members. Today many of the African Union officials as well as the country delegations are aware of the campaign and the Protocol.

The publication and distribution of policy briefs during every summit which links the Protocol to the current theme of the summit has made the Protocol relevant to all the African Union discussion and debates. These policy briefs are handed out to the African member states delegations as well as to the media. The presence of local and international media present at the Summit has enabled members to communicate the campaign agenda to heads of states and government by holding press conferences and distributing media statements and policy briefs. This has given visibility to the campaign effort in the country hosting the summit, through out the continent and beyond while popularizing the AU Protocol to the masses. To add icing to the cake, the secretariat has followed up by putting more pressure on African Union member states by writing to individual presidents urging them to honor their commitments by ratifying and implementing the Protocol.

The campaign has linked continental efforts with national campaign efforts by actively involving national SOAWR members and women’s organizations in the host country to link human rights violation of women in the country together with Protocol campaign and the Summit theme. For example at the Accra summit in July 2007, SOAWR hosted a public forum that discussed the Protocol at length; the ongoing African Union debate on Union Government and tied these discussions together with ‘trokosi’ a traditional practice in parts of Ghana where girls are enslaved for life in shrines to pay for the ‘sins/crimes’ of their relatives or family members

Women’s organizations across Africa have been mobilized and have joined the rallying call to push for the popularization, ratification and implementation of the Protocol on the Rights of Women in their respective countries. These groups have adopted the Protocol as a tool with which to champion their rights by adopting the Protocol’s provisions in their day to day activities. For example Voix de Femmes, a SOAWR member in Burkina Faso, have adopted article 5 of the Protocol as a tool to fight Female Genital Mutilation (FGM). The Protocol is the first human rights instrument to specifically call for the elimination of FGM and has become a bench mark for the Voix de Femmes campaign against FGM.

Successes

At the time SOAWR was formed, only four African countries had ratified the Protocol (The Comoros, Libya, Namibia and Rwanda), however due to the aggressive campaign today there are 22 African states that have ratified the Protocol. The Protocol came into force one year after the launch of the campaign and two and a half years after the adoption by the Heads of States and Government making it the fastest human rights instrument to enter into force within such a short time in Africa.

The concept of holding member states accountable has been elevated to a new level never seen before at the African Union Summits. It is the first time that leaders have been put to task and have been shamed for failing to honour their commitments to African women expressed in the Protocol and the Solemn Declaration for Gender Equality in Africa.

The African Union Protocol has been featured in various African Union discussions and meetings and with more government officials being more aware of the AU Protocol on women’s rights. For example during the Accra Summit in July 2007, the SOAWR team realized that many of the country delegations were aware of the Protocol as well as the SOAWR coalition that had been pushing for the ratification and implementation of the Protocol. SOAWR campaign objectives have become visible through out the continent as well as the African Union level.

Due to the wide experiences gained at lobbying at the continental level and specifically within the African Union the SOAWR campaign has become a model to be replicated by others around the continent and beyond. SOAWR has been called upon to share its strategies with other civil society organizations around African and in particular the secretariat has received request for organizations to embark on a learning visit to learn about the SOAWR campaign and meet with coalition members. In January 2007, an Iranian woman’s groups visited the Secretariat to learn about the strategies that SOAWR was using to campaign for the ratification and implementation of the Protocol. The group picked up pointers that they intended to replicate back in Iran to develop a national protocol on the rights of Iranian women. In April 2007, the Secretariat hosted lawyers from the Zimbabwe Women Lawyers Association (ZWLA) who wanted to learn more about the campaign and meet with SOAWR members in Nairobi.

Due to the success of the continental campaign, the focus has begun to shift to those countries that have ratified the Protocol to start the process of implementing the provisions of the Protocol at the domestic level. The campaign will continue to target the 31 countries that have not yet ratified the Protocol in order to achieve universal ratification and subsequent implementation of the Protocol in all these countries. It is a large task ahead but the campaign continues to grow in strength and in numbers, recruiting women’s organizations from across Africa to work toward a common goal and objective, to ensure that the AU Protocol on the Rights of Women become a reality for all women in Africa. SOAWR has earned its reputation as,‘the coalition that makes things happen’.

Notes

1 AFRODAD, AFRIMAP and OXFAM GB, ‘Towards a People-Driven African Union- Current obstacles and New opportunities, 2007, p. 5

* Caroline Muthoni Muriithi is Assistant program officer, Equality Now

* Please send comments to or comment online at www.pambazuka.org

It is two years since the protocol came into force. Time has come for it to become a reality at the level of the family argues Morissanda Kouyate.

It is two years since the Protocol came into force. Time has come for it to become a reality at the level of the family. On the 11th of July 2003, African Heads of state adopted the Protocol on the Rights of Women in Africa. This historic event was a breath of fresh air for African women’s rights. As I have stressed in a previous article, these are rights, and not privileges due to women (http://www.pambazuka.org/en/category/features/22731). In the four years since its adoption, the Protocol has been ratified by the requisite 15 countries, and has come into force as per the statutes of the African Union.

A lot has come to pass during this time: Heads of state have participated in meetings of the AU, only to return home and “forget” to ratify agreements signed on behalf of their people; attempts to water down the Protocol by expressing reservation on certain fundamental articles; but we have also seen a number of resolute political leaders committed to advancing the cause of African women and overcoming the paradox: Nothing without women, but everything for men.

Faced with this incomprehensible slothfulness on the part African governments, the question arises: What is the price of ratification? It requires neither a detailed plan of action, nor foreign aid. All that is required is a strong political will and a commitment to the rights of women. It is unacceptable for politicians to spout pro-feminist rhetoric while the protocol document gathers dust in the parliamentary drawers and ministerial archives.

Forget for a moment the speeches, conferences and workshops, and introduce the protocol to African families (men, women and children). Rather than localization, we should be talking about appropriation, as SOAWR and it global partners have endeavoured to do.

We must continue to involve all sectors of African society: political, religious and traditional leadership, parents, and youth groups. But most of all, the women and girls whose rights have been suppressed in the name of supposed cultural and traditional values.

Catchy slogans will not suffice. What is required is a door-to-door campaign to inform women that their right to protection against female genital mutilation, child-marriage , HIV/AIDS, etc, is enshrined in a document called the Protocol, signed by their own leaders.

To those who argue that the illiteracy prevents women in African villages from enjoying the full protection of the Protocol, let us make it very clear: women’s rights are acquired at birth and not in the classroom.

The work of activists is thus one of restoring innate rights that have previously been alienated. Achieving this requires the kind of innovation and assertiveness that SOAWR displayed by ‘red-carding’ countries that had not yet ratified the Protocol, at regional and international conferences.

This strategy can be further fine-tuned. I would suggest, for instance, that local women in non-ratifying countries issue these red-cards to their own leaders at meetings and rallies. This would be a clear signal to them that until and unless they ratify the Protocol, they do not deserve to participate on the local political playing field.

That the Protocol has come into force, after the required 15 signatories, is thanks to the gargantuan efforts of SOAWR and its partners. Never before in the political history of the continent has a document been ratified so rapidly. The challenge, however, still lies in exposing leaders who are yet to ratify the protocol, perhaps in the hope that it will be overtaken by events. Of equal importance is the challenge of restoring women to their rightful place in the vanguard of the continent’s development.

Future efforts must focus on the beneficiaries of the Protocol. It is only through them that the Protocol will truly come into force.

Dr. Morissanda Kouyate is Director of Operations, Inter-African Committee and Secretary-General, CPTAFE, Republic of Guinea

* Please send comments to or comment online at http://www.pambazuka.org/

The Women’s Rights Protocol arguably demonstrated the maturity of the African women’s movement, showing the power of collective agenda setting and follow through in a systematic and coherent way, says Pamela Mhlanga.

As the second anniversary of the coming into force of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Women’s Rights Protocol) dawns, we need to pause and reflect. The adoption and subsequent coming into force of the Women’s Rights Protocol was a turning point in the struggle for the rights of women on the continent. Women’s rights discourse and practice was deepened and expanded, and the Women’s Rights Protocol has proved to be a source of inspiration for keeping the momentum to achieve women of Africa’s full equality. The reflection, during this second anniversary, should thus focus on what we know, what we have learnt, and what we are carrying forward to strengthen ourselves as a women’s movement, as well as the content and practice of women’s rights, thereby solidify the gains we have made and decisively tackling the gaps remaining.

The Women’s Rights Protocol arguably demonstrated the maturity of the African women’s movement, showing the power of collective agenda setting and follow through in a systematic and coherent way. It also signaled that the experiences, voices and engagement of women of Africa with human rights matter, and these nuances wee captured in the form of the Protocol. Significantly, it marked the further institutionalization and affirmation of the rights of women on the continent; there is now a ‘homegrown’ source of women’s rights to which we can refer, underpinned by universal human rights standards.

What we know, however, is that women ‘do not eat paper’, and we face the perennial issue of promise vs delivery, and, by extension, ‘paper rights’ vs substantive rights. What we also know is that African governments ratify international human rights instruments all the time, and, dare it be said, often with impunity, as a number of them dance the ratification dance at international level, yet show little sign of domesticating or implementing their commitments. A case in point is that all 14 Southern African Development Community (SADC) countries have ratified CEWDAW, and only 3 countries have domesticated it, due in part to unique constitutional provisions providing for self-execution of ratified international obligations. Another case in point, is numerous reports replete with empirical evidence of little progress in enlarging women of Africa’s entitlements to fully engage with rights, thus denial of rights is still rampant, from violations of bodily integrity, sexuality, and socio economic rights, to outright discrimination often entrenched in national legal frameworks; the long reach of patriarchy and sexism, and increasingly backlash and rise of fundamentalisms, continue to coalesce and pose a fundamental challenge to the positive steps thus far taken to claim our rights.

This contradictory picture of progress and regression begs the question, if substantive delivery on women’s rights remains such a challenge, how are we to reframe the struggle to claim our rights, and how do we continue to creatively use the Women’s Rights Protocol as a point of reference? Certainly for the women’s movement, the struggle for rights must not only remain deeply political, but also located and articulated within broader struggles for advancing participatory democracy, people centred development and good governance. It must go further and be framed as nothing short of an agenda for transformation; radicalising the empowerment project in a way that fundamentally shifts gendered stratifications in structures, processes, cultures and political ethos in new ways.

This agenda for transformation implies a reconceptualisation of indicators of success in achieving women’s rights as a ‘live’ and dynamic process, defined by what is working or not working for women at any given time, not confined to occasional reports, and defining one or two acts or promises by governments as evidence of ‘political will’. The current poverty eradication and HIV/AIDS response frameworks, for example, are not working for women, otherwise these devastating conditions would not have our faces imprinted on them; why after so many decades do we still talk about the feminisation of poverty?

It is absolutely essential that the ‘footsteps’ of women are traced, and their voices made visible in empowering ways, in order to excavate the authentic voice that will not be erased by sophisticated frameworks for advancing rights that are, at times, so complex many of us hardly recognise ourselves in them; the project, as one activist has pointed out, is as much about going back to basics in terms of raising critical consciousness amongst women about asserting our rights and dignity, as it is about sitting on high tables negotiating complex legal instruments based on our agenda and demands. The establishment of the Solidarity for African Women’s Rights (SOAWR) is a point of departure, as the network is working towards harness this complex political agenda in the context of the Women’s Rights Protocol, in a way that aims to bridge the dichotomy between paper rights and substantive rights.

There is an understanding within the SOAWR network, made up of continental and national based women’s empowerment organizations, that the deployment of the Women’s Rights Protocol requires a deepening and broadening ownership of the content of the Protocol, achieved through mobilising a groundswell of support from all the places where women are, in order to create new opportunities for demanding accountability and delivery. Thus whilst some members are visible in key forums such as the AU and SADC Summits, others are taking the message to places where critical engagement is also essential, such as local communities. There is a recognition also that quiet diplomacy in pushing for change may be useful up to a point, so some members are working on public interest litigation cases, and using issue based advocacy such as gender based violence, to place the Women’s Rights Protocol on as many agendas as possible.

SOAWR members recognise the value of broadening the power base in order to ensure strategic influence at all levels, thus they have sought to engage both state and non state actors. In the years beyond this second anniversary of the coming into force of the Women’s Rights Protocol, there are various points of influence that will be necessary to continue to engage, not just by SOAWR but other initiatives, if the continent is to move from 22 ratifications to 53, and there is a fast and effective transition from ratification to domestication and implementation. These would include, amongst others, structured linkages with coalitions working towards an effective African Court on Human and People’s Rights, as well as groups addressing critical issues of people centred empowerment; closer ties with all Regional Economic Communities, supporting the Special Rapporteur on the Rights of Women in Africa, a more pivotal role at every point of gender mainstreaming processes in institutions, structures and processes that matter to us, including stronger ties with the AU Gender Directorate and the African Centre for Gender and Social Development in the ECA, amongst others. Equally important should be the refusal to continue to engage in spaces that no longer serve us, but deepening our own internal engagement on lessons we have learnt and how we can leverage this learning to be more effective as a women’s movement, including ensuring mutually supporting each other’s efforts. The struggle continues.

* Pamela Mhlanga is Head of Programme, Women in Development Southern Africa Awareness (WIDSAA) Programme, at the Southern African Research and Documentation Centre (SARDC)

* Please send comments to or comment online at www.pambazuka.org

Bahame Tom Mukirya Nyanduga, commissioner responsible for upholding the African Charter on Human and Peoples’ rights talks to Hakima Abbas about Africa’s commitment to protecting refugees and his belief that democratic states that tolerate diversity do not experience the conflict that generates the displacement of their citizens.

Hakima Abbas (HA): Please would you give us a brief overview of the situation of refugees and displaced people in Africa?

Bahame Tom Mukirya Nyanduga (BTMN): The situation of refugees and displaced people in Africa by and large reflects the political, economic and historical landscape of the continent. Over the last five decades many African countries have experienced instability of one kind or the other.

There are those countries which attained independence through the armed struggle. Their citizens were displaced because of colonial and racist repression and in the wars of liberation that followed. Then there are those countries which experienced military and one-party rule, which invariably suppressed civil and political rights. Opposition politicians and sections of society which expressed opposition to undemocratic rule, such as student movements, trade unionists and the general population, were subject to gross human rights violations.

For a better part of the period from the early 1960s until today, the continent has experienced civil wars based on ideological, ethnic or religious differences. The 1994 genocide in Rwanda marked the worst form of violation of human rights, the intended purpose being the extermination of the Tutsi ethnic minority. We are currently experiencing conflicts in the Darfur region of Sudan, Somalia, Central Africa Republic, Chad, and the north-east part of the DRC, causing serious human rights violations. All these conflicts have created refugees and internally displaced people (IDPs).

We cannot lose sight of the factors responsible for these situations. In fact, they should be lessons on how best to avoid conflict and therefore reduce displacement. The refugee population in Africa has gone down drastically in recent years, because many conflicts have been resolved and the respective states have adopted democratic reforms and democratic constitutions and have held successful elections. I can mention Liberia, Sierra Leone, Burundi and the DRC as examples, although there are still pockets of conflict in the DRC. The displacement of people in Northern Uganda is less of a problem now because of the peace talks between the government of Uganda and the Lord’s Resistance Army rebels. The security situation in Northern Uganda has improved so much that the government is closing some of the camps that it had established and displaced people are going back to their villages.

The same cannot be said for those countries where conflicts continue and where the numbers of IDPs continue to rise. Africa, the poorest continent of all, has the distinction of hosting the largest number of IDPs in the world, estimated at about 13 million people, or more than half the global total of 25 million people.

I must stress that these figures represent the majority of people who are displaced by conflict. There are other causes of displacement in Africa which happen regularly, such as development projects and natural disasters. Those displaced by conflict or natural disasters invariably receive humanitarian assistance, whereas those displaced by development projects receive little compensation even though their livelihoods are destroyed for good. It is high time that our governments adopted positive measures to assist all victims of displacement in order to restore their dignity and sustain development and stability.

HA: What mechanisms are in place to guarantee the rights of refugees and displaced people in Africa? Why is there a need for a regional mechanism? Are the international systems not sufficient?

BTMN: The African regional mechanism for guaranteeing the rights of refugees and IDPs is found in basic regional legal instruments and institutions. The constitutive act of the African Union reiterates the need to promote and protect respect for human rights and condemns all forms of action likely to lead to violations of human rights, such as unconstitutional access to power. The African Union has established institutions such as the African Human Rights Commission [the commission, hereafter], the African Human Rights Court, and the Peace and Security Council, all of which have mandates to protect human rights in Africa.

Speaking of refugees, we must first of all recognise the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. This was the foremost instrument which localised international refugee law in African realities. The convention was adopted at a time when Africa was experiencing the fight against colonial and racist regimes and the first wave of ethnic conflict, the two major causes of refugee outflows at that time. It expanded the definition of a refugee in Africa to include a person fleeing from external and colonial occupation and domination. It included causes other than those defined by the 1951 Geneva Convention. In other words, and in answer to the question, the regional system was established in response to particular problems and characteristics of Africa.

But secondly, and more importantly, the regional instruments do not substitute for the international system. They operate in tandem. The 1969 convention states that it complements the 1951 convention and recognises the importance of international cooperation in dealing with African refugee problems. The African Charter on Human and People’s Rights [the charter, hereafter] states specifically that it draws inspiration from international instruments.

It is in this context that the UNHCR, the United Nations agency responsible for refugees worldwide, has worked closely with affected African states to respond to refugee situations. The African Union (and the OAU before it) also works closely with the UNHCR. Through its executive council and commission (formerly the OAU Secretariat), it has established an institutional and policy framework to ensure that refugee issues are given an appropriate response.

The African Charter on Human and Peoples’ Rights established the right to seek and receive asylum, which may be enjoyed by any individual who is persecuted. It also recognises the right to return to one’s own country. The charter established the African Commission on Human and People’s Rights, which receives complaints against states and makes determination on violations of the charter, including where refugee rights are concerned. The idea of establishing these mechanisms is to develop a culture of respect and protection for all human rights, including the rights of refugees and displaced people.

The commission established the special rapporteur mechanism for refugees and IDPs in order to highlight their plight on a continuous basis and sensitise governments about the need to find durable solutions to these problems. The rights of African refugees are also recognised in other regional instruments, such as the Protocol on the Rights of Women, and the Charter on the Rights and Welfare of the Child in Africa.

As far as IDPs are concerned, I must emphasise that the responsibility to protect them rests squarely on the state of which they are citizens. IDPs are citizens who remain on a state’s territory when they flee a part of the country which is affected by conflict, natural disaster or a development project. Every state has a responsibility under international law to protect its citizens. This responsibility does not cease when a person is displaced from their village or town. It is the duty of a state to continue to ensure the human dignity, physical security and integrity of IDPs. International humanitarian assistance, as and when it is necessary, will continue to be provided to ameliorate the living conditions of IDPs during their displacement. However, this does not relieve the state of its primary responsibility to protect and assist them, and to ensure that they are safe and can return to their habitual places of residence or are resettled once the conditions which forced them into displacement improve.

In order to entrench the rights of refugees and displaced people there must be wider dissemination of information about all these instruments, because at the root of the problem is a lack of respect for the rights of these people at the community or national level.

HA: Where is the intersection and divergence between refugee law and human rights law in Africa?

BTMN: Intersection and divergence between refugee law and human rights law is not a peculiarly African issue. The analysis I have set out above is not a distinction between refugee law and human rights law. Nor am I suggesting that Africa treats these cases differently. If anything, one must speak of intersection rather than divergence. Africa recognises that refugee law is part of human rights law. The African refugee experience introduced certain concepts which until 1969 were not known to international refugee law. This was a result of historical and political conditions peculiar to Africa, which I explained earlier, as well as the conditions in which African refugees lived. These were experiences unknown at the time the international 1951 convention was drawn up.

The restatement of a number of legal principles in the 1969 convention – such as that asylum is a humanitarian act and shall not be considered an unfriendly act, that refugee camps shall be located at a reasonable distance from the border of the home state, and that refugee involvement in subversive activities is expressly prohibited – reflected very particular African situations and concerns, where armed conflicts and civil wars were conducted by liberation movements and groups from territories in states neighbouring the home countries. The legal principles and practices which have evolved through the African refugee experience, such as the principles of voluntary repatriation and those mentioned earlier, now form part of the core principles of international refugee law.

HA: What are the challenges in guaranteeing the rights of refugees and displaced people in Africa?

BTMN: In my view, the first major challenge is intolerance of diversity and inattention to the plight of the victims. African states that recognise diversity of opinion, nationality and ethnicity do not experience the same problems as those that are preoccupied by ethnicity or eschew political pluralism. Without a proper sense of nationhood, these problems will continue to occur. African states which have embraced democratic reforms and accountable forms of political and economic governance, and recognised racial and ethnic diversity as well as plurality of political views, do not experience conflicts caused by political or economic mismanagement, nor the refugee and internally displaced situations that follow.

The second challenge is the level of poverty in all African states, and the inadequate social and economic provisions within society that this entails. This may lead to the marginalisation of some sections of the population which in desperation become involved in conflict, hence creating refugees and IDPs. Lack of resources can also lead to a failure to provide for refugees’ basic needs in the countries of asylum.

The third challenge is a lack of knowledge on the part of refugees, IDPs, and the general population about their basic legal rights, such that they cannot advocate or demand them when they become refugees and IDPs.

HA: What is your role and mandate as Special Rapporteur on Refugees and IDPs in Africa?

BTMN: My mandate is outlined in a resolution adopted by the commission in December 2004 during its 36th session held in Dakar, Senegal. It requires me to study and highlight the plight of refugees, asylum seekers, internally displaced people and migrants in Africa, to engage African states and governments, the African Union and the international community, and consider strategies to reduce these problems by making recommendations through the commission. It involves work with different stakeholders, as stated above, including civil society and national human rights institutions, to address and focus attention on these problems in order to try and find lasting solutions to them.

My role is therefore one of facilitator, helping bring the human rights issues and problems encountered by these specific groups of African people to the attention of their governments and the African Union. The role of special rapporteurs is very flexible. It enables them to respond to any of the aforesaid situations depending on the access they are accorded by the organisation and states responsible, with whom they must interact in order to promote awareness about the problems facing these groups and to protect their rights.

HA: How do you feel that your role as special rapporteur, and the work of the African Commission on Human and People’s Rights more broadly, has affected the situation of refugees and displaced people in Africa?

BTMN: It is not for me to assess my role as special rapporteur. This I will leave to other observers. In any case it was one of the later mechanisms established by the commission, in 2004, unlike others which had been established a number of years earlier. I am the first person to hold it, so there was no experience to learn from. However, let me say that I feel that I have contributed, to a certain extent, to bringing visibility to human rights and to the issues facing refugees, IDPs and migrants in particular. My role has made it possible for these issues to be discussed at every commission session, since my reports are a regular part of the agenda.

In terms of the role and impact of the commission, it has made a number of decisions concerning complaints submitted on behalf of refugees, one of them concerning the mass refugee expulsion from Rwanda in the early 1990s. The commission found that Rwanda had violated the African Charter on Human and People’s Rights in expelling Burundian refugees. More recently it found Guinea in violation of rights in a complaint brought on behalf of refugees from Sierra Leone. The commission recommended that the two states find a solution to these violations.

The commission’s reports of activities are submitted to the AU summit every six months, which means that all states parties to the charter closely follow the activities of the special rapporteur and of the commission in general. I am confident therefore that, through our work, all our stakeholders recognise that much still needs to be done in protecting the rights of all these people.

HA: The recent debate around continental unity at the African Union saw many advocating for a borderless Africa. How would African citizenship affect the plight of refugees and internally displaced people in Africa? Is this an effective solution to the issue?

BTMN: Let me state that any answer that I will give to this question reflects my personal views, and is not an answer in my capacity as special rapporteur. This is because the larger question, or the ‘grand debate’, has not been raised for discussion within the commission, and therefore I cannot assume to speak on behalf of it.

Theoretically speaking, the answer to your question would be that a borderless Africa would precipitate an African citizenship, which means freedom of movement for all Africans from Cape to Cairo, and Dar es Salaam to Dakar, and therefore the absence of refugees. In other words, an African unity government would mean the absence of inter-state and intra-state conflicts. There could still be internally displaced people, because people are likely to be displaced from causes other than internal conflict.

The problem, in my view, is that in several countries on the continent the intolerance to diversity which I explained earlier makes it difficult for democratic values to thrive. The repression of opposition groups illustrates this point. Many African states, including the leading proponents of this debate, lack the kind of political and economic liberalism which gives rise to a divergence of political views and a culture of freedom of expression and opinion. Very few general elections are held on the continent without allegations of vote rigging, intimidation and outright disdain for the opposition.

Therefore, much as I am a believer in continental unity, I am not a proponent of unity at the expense of stability and the need for shared social, economic and political values. A rushed union without basic shared values, such as unequivocal respect for fundamental human rights, will create a worse situation. For me, the ultimate test of continental unity will be when the objectives and principles enshrined in the constitutive act of the African Union and the NEPAD programmes, including the African Peer Review Mechanism, become a reality for all 53 AU member states, and when the processes of the regional economic communities are implemented in good faith. If these minimum standards are hard to achieve, then it is my gut feeling that African unity is still far ahead of our time. If these programmes succeed, then a foundation will have been laid for sustainable continental unity.

HA: Under President Nyerere, Tanzania had an open policy on refugees and displaced people in Africa that provided for broad assimilation into Tanzanian society. This policy seemed to maintain stability in the country despite the flares of conflict that spread throughout the region. Present-day South Africa, on the other hand, has a very closed policy toward refugees and migrant workers, which the government justifies as a means to maintain national stability. How do national policies toward refugees and displaced people affect political stability, and what are the ideal policies that governments must adopt?

BTMN: The refugee policy of any state is informed not only by the obligations it has assumed under international and regional instruments but also by the material conditions obtaining in the country at the time the policy is adopted and implemented. In comparing the refugee policies pursued by President Nyerere’s government with those adopted by the later South African government we must recognise that they were informed by different conditions and epochs. Many of the refugees during President Nyerere’s time came from Southern and Central Africa. Members of liberation movements trained and went to fight for the freedom of their countries. The refugees from Central Africa did not fight their home states until the 1990s, and they did not do so from Tanzanian soil.

It must be said as well that, as a result of hosting refugees for the last five decades, the open door policy pursued by the Tanzanian government has changed. A number of factors may have accounted for such a shift. Assistance to refugees in Africa decreased in the early 1990s when the international donor community shifted its support and assistance to Eastern Europe after the collapse of the communist regimes there. Secondly, security issues associated with the conflicts in the Great Lakes region became problematic in areas where refugee camps were located, which was not the case in the early 1960s to the mid-1980s. The conflicts of the 1960s and 1970s did not significantly affect the people living in the Tanzanian border regions. The exceptions were a few cases of the Portuguese colonial army bombing Southern Tanzania. But since the 1990s, acts of banditry associated with the flow of small arms in the Great Lakes region have affected many communities close to the refugee camps and beyond. This has had a negative impact on the local people, some of whom have become proponents of anti-refugee policies.

On the other hand, after the democratisation of South Africa, its government had to contend with an influx of refugees and economic migrants. The fact that the democratic government had to deal with the inequities of the apartheid era, and make provision for the majority of its people who had lived in conditions of poverty for a century, must not be overlooked. It is my hope that as she faces the challenge of dealing with refugee issues, in particular the dire political and economic situation across her northern border, and since she is the leading economy in Africa, South Africa’s refugee policy will distinguish genuine refugees from economic migrants, while addressing these very serious concerns. The government must also undertake sensitisation campaigns to encourage tolerance by its people towards foreign citizens, particularly those from African countries beset by conflicts, such as Somali asylum seekers who are said to be subject to victimisation by unknown assailants.

Persistent conflict in refugees’ home country cannot foster political stability in their host country. The instability experienced in Northern Uganda for about 20 years was linked to its support for the Sudan People’s Liberation Movement, which led Sudan to support the Lord’s Resistance Army. The resolution of one conflict has created conditions for the resolution of the other. The same is true of the Darfur conflict vis-à-vis those in Chad and the Central African Republic. Resolution of the Darfur conflict is likely to lead to resolution of the others, all of which have generated major refugee and IDP situations.

Tanzania and many other African states, such as Angola, Chad, Kenya, Uganda, Sudan, Guinea and Zambia, have borne the brunt of hosting refugees despite their poor economies and to the detriment of their land and environment. This has never been quantifiable in monetary terms, yet it has not discouraged them from fulfilling their responsibilities towards refugees.

States must respect the rights of their citizens and their obligations to protect them. Where a refugee or IDP situation arises as a result of conflict, the country’s political leadership must seek peaceful solutions rather than embark on military strategies. Experience in many conflicts in Africa, such as in Burundi, DRC, Liberia, Mozambique, Sierra Leone and Southern Sudan to mention but a few, shows that military solutions do not succeed. The peace and stability we have seen in these countries is because they have been underpinned by peace agreements rather than outright military victories.

HA: Some might say that given the continuing human rights violations that plague the continent, including for instance the situation in Darfur, the African human rights system is a failure. Would you agree?

BTMN: I don’t think that the answer to this question is as simple ‘yes’ or ‘no’. The situation in Africa is more complex than that. I outlined earlier the historical and political aspects of the human rights situation in Africa. We have to recognise that Africa has made positive gains in a number of areas. For instance, the number of democratically elected governments on the continent today, compared with 10 or 15 years ago when military or one-party regimes were the norm, is far larger. This does not mean that the level of democratic governance on the continent is perfect. But there is definitely progress in developing a culture of democracy and human rights.

I stated earlier that the African Union does not recognise undemocratic means of access to power. What does this mean? It means that Africa will not have another Idi Amin or Abacha, hence the kind of violations which were perpetrated then are not likely to recur. What happens now is that, even when there is a ‘progressive coup’ in an African state, the state is immediately sanctioned and suspended from AU activities. It has to conduct elections within a very short time to restore constitutionality. It is these kinds of measures that are restoring dignity to the system. With these developments, the remnants of undemocratic tendencies and the conflicts that we are seeing in places like Darfur or Somalia are the last kicks of dying horses. Some of them are sustained by ideology or the greed of foreign economic interests. None of them serves the interests of the people.

The human rights system in Africa reflects African realities. I mentioned one of the challenges to the guarantee of human rights in Africa being lack of resources. The institutions which have been established to protect human rights on the continent cannot be condemned as failures when we know the capacity and resource limitations. I may add another challenge: political will is necessary to make them effective. The establishment of the Peace and Security Council and its proactive involvement with the Darfur and Somali conflicts should not be underestimated. The contribution of peace monitoring troops by a number of African states to assist in the resolution of these conflicts must be recognised as part of the system for dealing with these conflicts.

My analysis does not paint a picture of a continent plagued by conflict, but of one where conflicts are on the decrease. For me, the system is in evolution, not a failure. If you look at it carefully you will see successes, however small. After all, Rome was not built in a day.

HA: In November the African Commission on Human and People’s Rights will celebrate its 20th year of existence. What do you feel has been the greatest accomplishment of the commission in this time?

BTMN: The greatest accomplishment in my view is the fact that the commission has continued to exist, increased its visibility, and carried out its mandate under very difficult circumstances. The lack of resources has not diminished the commitment of the members of the commission and its staff to continue working within the limitations imposed on them by political circumstances and budgetary constraints. Human rights issues in Africa, as is the case everywhere else, are very politically emotive. They touch on the sensitivities of states and governments.

By commenting on the various human rights concerns across Africa in the form of decisions rendered on communications, or by conducting investigations during missions and publishing resolutions on the human rights situation in a number of African states, the commission has been able to influence official policies in these countries as well as opinion throughout the continent and elsewhere about what is happening.

I believe that there is still great scope for enhancing the visibility of the commission and the accomplishment of its promotion and protection mandate, resources permitting.

HA: Moving forward, what do you think would strengthen the work and impact of the commission?

BTMN: The commission cannot carry out many of its plans because of lack of resources. More resources will ensure that it recruits the best staff for the secretariat. This also requires political will from member states and the African Union Commission, both of which are responsible for ensuring that adequate resources and competent staff are put at its disposal.

Finally, the states parties to the African Charter on Human and People’s Rights must cooperate with the commission. There is no point in having a commission if it cannot point out violations of the charter, but when it does so it is labelled a tool of external interests. The yardstick to any finding of violations is the facts on the ground and how they relate to the obligations assumed by member states under the charter.

HA: How can civil society and citizens in Africa help to guarantee the rights of refugees and displaced people on the continent?

BTMN: As I stated elsewhere, dissemination of the charter as well as all other regional and international human rights instruments will enable people to know their rights. I believe that dissemination is best done by civil society because they regularly interact with people at different levels. The citizenry has a corresponding duty to learn and understand their rights and respect the rights of others. An ignorant citizenry is not good for democracy or for human rights. The introduction of human rights education must be a priority pursued by civil society and the general population. This is a long- term process which needs to be started immediately. I hope that when the culture of human rights is entrenched we shall see less and less conflict and, as a consequence, no more refugees or internally displaced people.

* Hakima Abbas is the AU Policy analyst for Fahamu Networks for Social Justice

* Please send comments to or comment online at www.pambazuka.org

Commissioner Faith Pansy Tlakula, member of the African Commission on Human and Peoples’ Rights with special responsibility for freedom of expression talks to Hakima Abbas about how the African rights system works and the challenges it faces.

Hakima Abbas (HA): Please could you provide us with a brief overview of the situation of freedom of expression in Africa.

Faith Pansy Tlakula (FPT): It’s difficult to give an overview of the situation in Africa as a whole. As I have pointed out several times since my appointment, the standards exist in principle and freedom of expression is indeed protected in Africa by different instruments. So, as far as the adoption of instruments is concerned, there doesn’t seem to be an issue. However, in practice, freedom of expression is not yet a reality for many people on the continent so the issue is implementing the existing principles. While the media in Africa has begun to act as a cornerstone of democracy and source of balanced information in some states, there is clearly still place for improvement in the right to freedom of expression.

In my reports to the African Commission on Human and Peoples’ Rights (the commission, hereafter), I have repeatedly expressed my concerns over reports of alleged violations of the right to freedom of expression in a number of African states and I am constantly receiving a considerable number of such reports.

These allegations included, but were not limited to:

• Harassment, threats and intimidation of journalists and media practitioners, undue political interference with the media, victimisation of media houses deemed critical of government policies, seizure of publications and destruction of equipment, and closure of private media establishments
• The adoption of repressive laws or amendments to existing legislation that limit freedom of expression and the free flow of information
• Reports of disappearances, arbitrary arrests and detention of journalists and media practitioners, who in some cases are held incommunicado and for extended periods of time without charges or due process of law
• The murder of journalists with impunity, torture and other forms of ill-treatment and death in custody of journalists and media practitioners.

HA: What mechanisms are in place in Africa to guarantee freedom of expression?

FPT: The African Commission on Human and Peoples’ Rights was established in 1987 by virtue of Article 30 of the African Charter on Human and Peoples’ Rights (the charter, hereafter) with the specific mandate to promote human and peoples’ rights and ensure their protection in Africa. The promotional mandate of the commission involves education and sensitisation with a view to creating a culture of respect for human rights on the continent. The protective mandate of the commission entails essentially the receipt and consideration of complaints alleging human rights violations. In addition to these two main mandates, the commission is also empowered to interpret the charter at the request of a state party, the African Union (AU), or an institution recognised by the AU.

Under Article 9, the charter guarantees every individual the right to receive information and express and disseminate their opinions within the law. Although this right is considered as a cornerstone of development, its protection under the charter could be said to have been severely watered down by the clawback clause inserted within the same article. Indeed, while the first paragraph provides for an unlimited right for every individual to receive information, the right of every individual to express and disseminate their opinions within the law, as provided for in paragraph 2, may be interpreted by some states in a manner that unreasonably limits it.

Aware of the importance of upholding respect for the right to freedom of expression to the nurturing of democracy, human rights and sustainable development, and faced with many violations of the right to freedom of expression, the commission has, throughout the years, adopted various measures to strengthen the promotion and protection of this right.

One of the first initiatives taken by the commission was through pronouncements and recommendations made in the context of individual communications. Indeed, the African Commission on Human and Peoples’ Rights has, through its communication procedure and the broad interpretation powers it enjoys under the charter, developed jurisprudence on human and peoples’ rights in general, and the right to freedom of expression in particular.

The commission has also dealt with issues of freedom of expression in Africa through resolutions and declarations and by promoting dialogue with member states when states’ reports are being considered, or when commissioners make promotional and fact-finding missions to member states.

Moreover, at its 32nd ordinary session held in Banjul, Gambia in October 2002, the commission adopted, by resolution, the Declaration on Principles of Freedom of Expression in Africa. The declaration sets out important benchmarks and elaborates on the precise meaning and scope of the guarantees of freedom of expression laid down under Article 9 of the African Charter on Human and Peoples’ Rights.

In view of the situation of the right to freedom of expression in Africa, the African Commission on Human and Peoples’ Rights initially appointed a Special Rapporteur on Freedom of Expression in Africa in December 2004. I was appointed as mandate-holder in December 2005.

The state of freedom of expression on the African continent prompted the commission to adopt a resolution in November 2006. Expressing its concerns over the current situation, the commission called on member states to:

take all necessary measures in order to uphold their obligations under the African Charter on Human and Peoples’ Rights and other international instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights providing for the right to freedom of expression

but also to:

extend their full collaboration with the mandate of the Special Rapporteur on Freedom of Expression in Africa, in order to strengthen the right to freedom of expression on the African continent and work towards the effective implementation of the principles enshrined in the Declaration of Principles on Freedom of Expression in Africa and other applicable human rights standards in the region in order to achieve this goal.

Finally, in order to ensure effective implementation of the charter, the AU established the African Court on Human and Peoples’ Rights (the court) under the Protocol to the African Charter on Human and Peoples’ Rights establishing an African Court on Human and Peoples’ Rights (the protocol). The protocol was adopted in June 1998 and entered into force in January 2004. Twenty-three states have ratified the protocol so far and the court is now operational. The court will act in an adjudicatory and advisory capacity. According to the preamble and Articles 2 and 8 of the protocol, the court complements the protection mandate of the commission under Article 45 (2) of the charter. Unlike the commission, the court’s decisions are binding and final and not subject to appeal.
Under Article 3 of the protocol:

1. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.
2. In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.
The court can therefore enforce other human rights treaties ratified by African states.
The protocol also allows the court to issue advisory opinions, in accordance with Article 4, which provides that:

1. At the request of a Member State of the OAU, the OAU, any of its organs, or any African organisation recognised by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate or dissenting decision.

Besides, the court may also ‘try to reach an amicable settlement in a case pending before it in accordance with the provisions of the Charter’.

HA: What are the challenges of guaranteeing respect for freedom of expression in Africa?

FPT: Obviously, there are many challenges but they also differ from country to country. In some cases, it could be lack of understanding of the principles, and in others, a total disregard for them, which shows the importance of adopting a country-specific approach to this issue.

As I mentioned earlier, African states are obliged to uphold the existing principles of freedom of expression. They have to ensure respect for the rights recognised by the African Charter on Human and Peoples’ Rights and to support the African Commission on Human and Peoples’ Rights in its work to guarantee the implementation of the charter. Moreover, Principle XVI of the Declaration of Principles on Freedom of Expression in Africa clearly provides that: ‘States Parties to the African Charter on Human and Peoples’ Rights should make every effort to give practical effect to these principles’.

One should not be too pessimistic, however, as the progress and achievements made over the last few decades deserve neither to be underestimated nor forgotten. These achievements, which include the adoption of the Declaration of Principles on Freedom of Expression in Africa and the appointment of a Special Rapporteur on Freedom of Expression, simply need to be seen as the ground on which we now have to build an African continent characterised by free media and the free flow of information.

HA: What is your role and mandate as Special Rapporteur on Freedom of Expression?

FPT: In a nutshell, my role as special rapporteur is to monitor freedom of expression in Africa and report to the African Commission on Human and Peoples’ Rights accordingly. My role includes monitoring violations of the right to freedom of expression on the continent, recommending to the commission measures to address the violations and assisting AU member states to review their national media laws and policies to comply with the principles set out in the declaration. Part of my mandate is also to take action on behalf of alleged victims of violations of the right to freedom of expression, including by sending appeals to member states, asking them for clarifications on reports forwarded to me by different reliable sources.

In addition to, and in conformity with, the relevant resolutions of the commission, my work reflects the provisions of the African Charter on Human and Peoples’ Rights, the Declaration of Principles on Freedom of Expression in Africa as well as other relevant international and regional human rights instruments including the Universal Declaration of Human Rights (especially Article 19), the International Covenant on Civil and Political Rights (especially Article 19), as well as other treaties, resolutions, conventions and declarations relating to the right to freedom of opinion and expression.

According to the resolution on the mandate and the appointment of a special rapporteur on freedom of expression in Africa, my mandate includes:
• Analysing national media legislation, policies and practice within member states, monitoring their compliance with freedom of expression standards in general and the Declaration of Principles on Freedom of Expression in particular, and advising member states accordingly
• Undertaking investigative missions to member states where reports of massive violations of the right to freedom of expression are made and making appropriate recommendations to the commission
• Undertaking country missions and any other promotional activity that would strengthen the full enjoyment of the right to freedom of expression in Africa
• Making public interventions where violations of the right to freedom of expression have been brought to the rapporteur’s attention. This could be in the form of issuing public statements, press releases, or urgent appeals;
• Keeping a proper record of violations of the right to freedom of expression and publishing this in reports submitted to the commission
• Submitting reports at each ordinary session of the commission on the status of the enjoyment of the right to freedom of expression in Africa.

In the conduct of this mandate, it is possible and, I believe, highly desirable for me to hold meetings with government officials to make recommendations about applying accepted standards of freedom of expression. This advisory role is crucial to the success of this mandate; I hope member states will gradually come to see it as a useful tool in helping them to comply with their obligations under international human rights law.

HA: What is the relationship between the special rapporteur and the African Commission on Human and Peoples’ Rights?

FPT: It is a very close relationship. Indeed, unlike United Nations special rapporteurs, for instance, who are independent experts, the special rapporteurs are members of the commission, actual commissioners, who are appointed to a specific mandate. This means that I am not only the Special Rapporteur on Freedom of Expression in Africa but I am also one of the 11 members who form the commission.

Besides, in view of the fact that we work part-time as commissioners, the bulk of the work is entrusted to the secretariat of the commission. The secretariat, for instance, will assist in the preparation of missions, drafting of mission reports and speeches, undertake research, hold organising workshops and seminars, raise funds for activities, etc. At the moment, there is one legal officer at the secretariat who is specifically assigned to my mandate.

HA: What impact have your role as special rapporteur, and the work of the African Commission on Human and People’s Rights more broadly, had on human rights for the people of Africa?

FPT: The work of the commission has had an impact in several ways as you can see from my responses to the previous questions. For instance, under its promotional mandate, the commission raises awareness about the existing human rights standards and can assist in elaborating on these standards. For instance, as far as the right to freedom of expression is concerned, I could mention the adoption of the Declaration of Principles of Freedom of Expression, which elaborates on Article 9 of the African Charter on Human and Peoples’ Rights. The declaration is indeed a good example of the impact of the work of the commission in general and of the mandate of the Special Rapporteur on Freedom of Expression in Africa in particular, which has been key in the elaboration of the declaration.

HA: Some might say that, given the continued human rights violations that plague the continent, the African human rights system including the commission is a failure. Would you agree?

FPT: Of course, I would disagree that the system is a failure. Obviously, huge challenges remain, but we also have to look at the achievements, even if these sometimes appear very limited compared to the challenges. Realistically, the situation on the continent will not change overnight but we have to be optimistic and use our strengths and build on our achievements to move forward instead of thinking about our past mistakes – some might say failures – unless we are looking back only to learn from these past experiences.
HA: What do you see as the challenges and strengths of the African Commission on Human and Peoples’ Rights?

FPT: I think that we all know about the challenges, including limited resources (financial and personnel), which create a lot of other difficulties. However, since we are celebrating the 20th anniversary, I would like to focus on the strengths of the commission, which include its ‘accessibility’. The commission is the forum where NGOs, individuals and other alleged victims of human rights violations can have their voices heard. It is also the place where a true dialogue can be initiated between member states and alleged victims or organisations that want to bring a situation to the attention of the public at large. It is noteworthy that since the last ordinary session, the number of NGOs enjoying observer status with the commission has reached 367 and that the number of national human rights institutions with affiliate status has also grown over the years.

HA: In November 2007, the African Commission on Human and People’s Rights will be celebrating its 20th year of existence. What do you feel has been the greatest accomplishment of the commission?

FPT: Increased sensitisation and recognition of the work done by the commission by different stakeholders. To have existed for 20 years is an achievement indeed, but at the same time, 20 years is a rather short period for an institution with a mandate as wide and far-reaching as that of the African Commission on Human and Peoples’ Rights, given all the challenges it has to face. We must look at what has been achieved so far, take stock and fix ourselves realistic objectives for the future.

HA: Moving forward what do you think would strengthen the work and impact of the ACHPR?

FPT: I have mentioned the increased recognition of the work done by the commission, but there is a need for the commission to reach a wider, grassroots audience. I believe that the better the mandate and work of the commission are understood by everyone on the continent, and abroad, the greater the legitimacy of the commission and consequently the more collaboration it will receive from AU member states. We need to build more bridges.

HA: How can civil society and citizens in Africa help to ensure freedom of expression on the continent?

FPT: There is an obvious need for civil society, NGOs and other actors including me as Special Rapporteur on Freedom of Expression in Africa, to keep raising awareness of the principles of freedom of expression in Africa, to campaign for the implementation of the relevant instruments and to call on governments to respect their obligations under international human rights law by bringing their laws in line with international standards. Civil society and the citizens of Africa can also help in collaborating with my mandate by, for instance, continuing to send in information on alleged violations of the rights.

Only collaboration between all the actors involved, including, obviously, the full participation of the states, can ultimately lead to full respect of the right to freedom of expression on the African continent, and so the real co-existence of nations based on the principles of democracy. Indeed, together we can help states implement these principles by adopting a culturally sensitive approach, taking into account the different situations prevailing in each country and region of the continent. That is where the importance of raising awareness becomes truly relevant and where the work of a mandate such as mine draws all its significance.

* Hakima Abbas is the AU Policy analyst for Fahamu Networks for Social Justice

* Please send comments to or comment online at www.pambazuka.org

Otto Saki asserts that the case of Zimbabwe has provided an excellent example of the flaws and the achievements of Africa’s own system for defending its citizens’ human rights against attacks from their own governments.

The situation in Zimbabwe has continued to degenerate and attract widespread attention.[1] The African Commission on Human and Peoples’ Rights (the commission, hereafter) is an intergovernmental organisation which has been seized with several appeals about violations of human rights over freedom of expression, torture, politically motivated violence, undermining of the judiciary and independent national mechanisms and forced evictions under the guise of clean-up campaigns. There have been interventions over breaches and affronts against the African Charter on Human and Peoples’ Rights (the charter, hereafter) to which Zimbabwe is a party.[2] The level, nature and extent of intervention by the commission have been argued over, particularly its mandate, how it is carried out and nature of its recommendations. States parties, including Zimbabwe, have abused or utilised what would be ordinarily institutional formulation of the commission and charter at the expense of the progressive development of African jurisprudence and institutions.

While Africa is perceived to have the worst human rights abuses, its human rights mechanisms either remain heavily inadequate or, as in most cases, are deliberately and overtly undermined by state actions. This undoubtedly makes a mockery of the efforts of those who provide their services as commissioners and as judges before the African Court on Human and Peoples’ Rights (the court, herafter). The commission has gone through a remarkable phase of growth and has experienced its fair share of challenges, but it is safe to say its value as an African institution is second to none. For some states it has become a ‘source of marvel’ and for others a ‘source of pain’, but one cannot at this juncture wish the commission away.

Sessions of the commission

The work of regional and sub-regional intergovernmental human rights institutions remain very closely knitted with the work of human rights organisations, and Zimbabwe is no exception. Through the granting of observer status, organisations are recognised not only by the commission but effectively by the African Union. Currently, more than seven[3] organisations with observer status before the commission have been involved in the implementation of the charter in Zimbabwe.[4] The commission’s work on Zimbabwe gained significant momentum during its 31st session, when Zimbabwe topped the agenda during the NGO forum. As a result the government of Zimbabwe agreed to accept a fact-finding mission into its human rights record.[5] The African NGO Forum met ahead of the commission and adopted the first statement on Zimbabwe. The commission was further seized of the communication from the Zimbabwe Human Rights NGO Forum, making it the first substantial communication on Zimbabwe.[6]

With the commission’s decision to send a fact-finding mission, Harare became more and more aggressive in its public stance on human rights organisations and the commission itself. This marked the beginning of increased verbal attacks on the commission and the commissioners, sadly with the African Union providing little or no defence, at least publicly, of the work of the commission.[7] This made it possible for some to assume that the attacks on the commission were justified whereas in fact they were uncalled for and completely inappropriate.
Fact-finding mission to Zimbabwe
The commission conducted its first fact-finding mission to Zimbabwe from 24 to 28 June 2002.[8] Several meetings were held with government ministries, notably home affairs and justice, members of the judiciary, human rights advocates and lawyers, as well various civil society organisations.

When the report was presented to the government of Zimbabwe, unparalleled attacks and criticisms of the commission were published: The Herald, a state-controlled newspaper, wrote on 6 July 2004: ‘According to the sources, the [African Commission] report was similar to reports produced by the British-funded Amani Trust, which is well-known for its anti-Zimbabwe stance and falsifying the situation in the country.’ An editorial in The Sunday Mail on 11 July stated: ‘Reading through the [African Commission’s] report one detects the hand of a known Zimbabwean lawyer and the Amani racists.’[9]

In another related diatribe the papers bemoaned:

Pan-Africanists who want to take seriously the Organisation of African Unity (OAU) and its successor, the AU, find the debate over the fraudulent report quite confusing and demoralising because of the failure of the African journalists, especially, to go beyond the shallow events in the story: that is, that the African Commission on Human and People’s Rights held some hearings and produced a fraudulent report with the assistance of the British, other donors and some racist (non-governmental organisations) NGOs. What is missing from the story is the fact that this report is the latest in a series of lies, especially about and against Zimbabwe.[10]

Several other statements were later made by government spin doctors, attacking the work of the commission.

The report of the fact-finding mission was adopted by the commission in its 17th Activity Report. The government of Zimbabwe created unprecedented havoc when the report was being adopted by the Executive Council of Ministers, and effectively the African Union.[11] Zimbabwe was allowed to provide additional responses to the report, which was eventually adopted by the African Union, along with Zimbabwe’s response, almost three years later.[12] The findings of the commission remain largely unimplemented and rights are being further undermined.[13]

Following the forced evictions of May 2005, the United Nations dispatched a special envoy on human settlement, while the African Union hurriedly sent in its Special Rapporteur on Internally Displaced Persons, Refugees and Asylum Seekers. The government of Zimbabwe would not allow the special rapporteur to carry out any field visits, arguing that proper procedures of the African Union had not been followed.[14] The African Union envoy spent a week in ‘solitary confinement’ in his hotel, an unfortunate development given the importance of regional institutions.

Communications and special mechanisms

The various mechanisms under the commission, including the special rapporteurs on human rights defenders[15] and on freedom of expression,[16] have responded to the apparent increase in attacks on human rights defenders, women activists and journalists. However, the problem with these mechanisms, as in similar systems, is the failure to provide adequate human and financial resources to follow through most of the appeals. Governments have to a large extent taken the urgent appeals seriously, and the Zimbabwe government seems to have responded to most of the appeals, though it is arguable whether the responses addressed the issues raised or merely created excuses for continued violations under the guise of maintaining law and order.

The commission conducted a hearing on Zimbabwe under Article 46 of the charter,[17] which allows the commission to use any mechanism to investigate human rights in a state party. In its usual display of disdain for any practical and critical work of the commission, the delegation from Zimbabwe refused to participate in the meeting, citing unfair practices and procedural irregularities. It is interesting to note that during the same session the delegation from Zimbabwe was distributing print editions of New African magazine and two reports produced by the Zimbabwe Republic Police (ZRP).[18] The credibility of the national police and in particular its intelligence gathering have been challenged.[19]

It is arguable that, after the communications submitted on Nigeria during the military regime, Zimbabwe currently has the largest number of communications before the commission. The subjects of the petitions range from freedom of expression, to forced evictions, the independence of national institutions such as the judiciary, extra judicial and summary killings, torture, and inadequate legislative and constitutional mechanisms.[20]

Victories before the commission

Working with the commission has been simultaneously challenging and rewarding. Of the communications submitted, at least one has been concluded in which the government of Zimbabwe was found to have violated provisions of the charter. In April 2006, the commission issued provisional measures in respect of the forced evictions, directing the government to take urgent and appropriate measures to obviate the general deterioration of the health of terminally ill individuals who due to forced evictions carried out under Operation Murambatsvina had no access to anti-retroviral treatment.[21] The government was also asked to ensure that school-age children were able to sit their final exams, and to provide shelter and medical treatment for the elderly and the sick.[22]

While the procedures of the commission badly need reform, it is critical to note the importance of its decisions on the admissibility of a communication. In no fewer than four separate incidents, the commission has ruled communications submitted from Zimbabwe as admissible. These decisions provide irrefutable evidence of the inadequacies of human rights protection in Zimbabwe; they also imply the absence of effective domestic remedies for the rights violations alleged in the communications. Such decisions are an indictment of the judiciary as well as an unequivocal indicator that the judiciary and the justice delivery system in Zimbabwe no longer guarantee enjoyment of universally recognised human rights and fundamental freedoms.[23]

In Communication 245/02, Zimbabwe Human Rights NGO Forum/Republic of Zimbabwe, the commission made recommendations about the election- related violence of 2000 and 2002 as well as the violence orchestrated during the chaotic land reform. In a statement the NGO Forum noted that the:

Commission found the Government of Zimbabwe in violation of articles 1 and 7 of the African Charter. This means that the Government of Zimbabwe had violated the right to protection of the law and that it failed to put in place measures to ensure the enjoyment of these rights by Zimbabweans. The endorsement of the decision by the African Union is recognition by African Heads of States that there are human rights violations in Zimbabwe.

Political interference and undermining the work of the commission

With civil society and human rights organisations recording such public success, the government of Zimbabwe has begun to pay more attention to the commission. With like-minded countries that have equally poor human rights records, it attacks, undermines and ridicules the work of the commission, through subterfuge and unfounded interpretation of the rules of procedure of the African Union and the commission. Such procedural theatrics caused the delays in the publication of the report of the fact-finding mission of 2002, as well as the decision of Communication 245/05. With the latter, the government of Zimbabwe made submissions to the commission well after the completion of all inquiries and hearings. Of concern are the African Union leadership’s acquiescence and conspicuous silence;[24] to a large extent the African Union has failed to support the commission from government attacks. The non-implementation of the commission’s recommendations remains a paramount concern.

Lessons for Africa

The commission is a creation of the African Union, with a mandate to monitor, promote and protect the rights enshrined in the charter, the same charter which makes it mandatory to implement legislative and administrative mechanisms to deliver the rights in the charter. Because signing up to the charter and similar instruments are voluntary acts, limiting a nation’s sovereignty, the commission has a unique status and neither seeks to undermine national institutions such as courts, nor replace them. Zimbabwe has regressed from a country that was hailed as the symbol of progress and development to the antithesis of every principle of development, human rights adherence, promotion and protection.

The importance of supra-national institutions in enforcing universal and regional human rights standards remains critical. The weakness inherent in these institutions is an indictment of leadership in Zimbabwe – and in Africa. It remains the prerogative of every progressive citizen of Africa to safeguard these institutions from individuals who have bestowed upon themselves powers to govern, misgovern, build and destroy. Such powers, if unchecked and curtailed by invoking celebrated universal human rights standards, will lead us to bondage and slavery under our kith and kin. That day will indeed be a sad day for humanity and Africa.

* Otto Saki is a lawyer with Zimbabwe Lawyers for Human Rights

* Please send comments to or comment online at www.pambazuka.org

For references and notes, see link below.

The African Union has established institutions and laws for safeguarding the rights of children in Africa, but African governments have yet to prove their commitment to doing more than multiplying these legal mechanisms, writes Mireille Affa’a Mindzie.

Children have the right, without discrimination, to special care and protection from their family, society and the state.[1] While practices such as child labour have a long history in Africa, and particular cultural or traditional practices have a negative impact on the health and development of thousands of children, it is nonetheless true that African children have traditionally received care and protection from their parents and care-givers.

Modernisation has brought with it a wide range of abuses endured by African children, such as economic and sexual exploitation, gender discrimination in education and access to health, and their involvement in armed conflict. It is estimated that sub-Saharan Africa has the highest child labour rate in the world, with approximately 80 million children, or 41 per cent of those under the age of 14, working.[2] These figures are influenced by factors such as migration, early marriage, differences between urban and rural areas, child-headed households, street children and poverty. Furthermore, while child mortality on the continent declined between the 1970s and early 1990s, this trend has since reversed. Endemic diseases such as malaria and tuberculosis have undermined efforts to mitigate and stall the spread of HIV/AIDS.[3] It is estimated that 19,000 African children die daily from easily curable diseases, and that 80 per cent of the world’s HIV-positive children under the age of 15 live in Africa.[4] With regard to violent conflict, up to 100,000 children, some as young as nine, were thought to be involved in armed conflict in mid-2004.[5]

To address the issue of child abuse and ensure better protection of children, member states of the Organisation of African Unity (OAU) have developed laws and institutions to monitor and advocate for child rights. In July 1990 African governments adopted the African Charter on the Rights and Welfare of the Child.[6] The African Committee of Experts on the Rights and Welfare of the Child (ACERWC), the supervising organ of the charter, is the main mechanism for promoting and protecting the rights of children in Africa. With the transformation of the OAU into the African Union (AU) and the new emphasis placed on human rights and popular participation, the continental protection of children has moved from political rhetoric to legal and judicial safeguards. This paper will look at how ACERWC can be strengthened so as to implement its mandate effectively. It will analyse the mechanisms that have been put in place to ensure better protection of children’s rights in Africa, and consider what remains to be done for this protection to be seen on the ground.
Towards effective protection of children’s rights in Africa
The African Charter on the Rights and Welfare of the Child is the first regional and comprehensive binding instrument proclaiming the human rights of children. The adoption of the charter closely followed that of the United Nations Convention on the Rights of the Child (UNCRC). The charter was justified on several grounds, including the multiple compromises that were necessary to achieve adoption of the UN convention, the limited participation of African countries in its drafting, and the consequent lack of consideration given to situations particular to Africa. The charter proclaims a series of rights encompassing civil rights and fundamental freedoms, economic, social and cultural rights, and specific rights for the protection of children in the African context.

Some of the specific features of the charter include a stronger definition of the child than in the UN convention, strict prohibition of the participation of children in armed conflicts, protection of internally displaced and refugee children, protection of imprisoned expectant mothers and mothers of infants and young children, and protection of girls who become pregnant before the end of their education. The charter reiterates the call to eliminate social and cultural practices affecting the welfare, dignity and development of children, including the use of child beggars, child marriage and the betrothal of boys and girls. Like the UNCRC, fundamental principles guiding implementation of these rights include non-discrimination, the best interests of the child, the life, survival and development of the child and child participation. Besides the rights of the child, the charter provides for the responsibilities that every child has, subject to their age and ability, towards family and society, the state and the international community.

The African Committee of Experts on the Rights and Welfare of the Child, established under the charter, is mandated to ensure the promotion and protection of the rights enshrined in the charter, to monitor their implementation, to interpret the provisions of the charter when requested to do so by AU member states, by an institution of the AU, or by any other person or institution recognised by the AU or any state party, and to undertake any other task as may be entrusted to it by the assembly of heads of state and government, the chairperson of the commission or any other organ of the AU or the UN. The ACERWC has 11 members elected by the AU Executive Council for a five-year non-renewable term; the first were elected in July 2001. The committee held its first meeting in 2002 in Addis Ababa, and has so far held nine meetings. Its current members represent Botswana, Burkina Faso, Côte d’Ivoire, Egypt, Ethiopia, Kenya, Lesotho, Mali, Nigeria, Senegal and Togo.

The committee is competent to examine periodic reports from states parties on the measures they would have adopted to give effect to the provisions of the charter, to consider individual communications or complaints on any matter covered by the charter, and to investigate any matter falling within the ambit of the charter. The committee has so far received five state reports, from Egypt, Kenya, Mauritius, Nigeria and Rwanda.[7] It is to consider two individual communications alleging the violation of child rights in Uganda and Kenya. Promotional visits and missions have been undertaken in countries such as Madagascar, Namibia, Sudan and Northern Uganda, and future missions are planned to the DRC, Liberia, São Tomé and Príncipe, Tunisia and Zambia.

Criticisms have surrounded the creation of the committee as a specific institution charged with the promotion and protection of children’s rights, alongside the existing African Commission on Human and Peoples’ Rights.[8] Inadequate funding and resources for the committee since it was established have raised further questions about the need for a separate child rights mechanism in Africa. For instance, no permanent secretary for the committee has so far been appointed according to Article 40 of the charter.[9] Since its first members were elected it has been deprived of the staff needed to implement and co-ordinate its activities. The body relies for the most part on an overloaded AU Department for Social Affairs. During its ninth meeting, the AU commissioner for social affairs suggested that the committee reduce its meetings from two to one a year until it is provided with a fully functional secretariat.[10] It also lacks sufficient funding to support its programmes and activities. For the past five years the committee has survived thanks to the generosity of international agencies such as UNICEF and international NGOs including Save the Children Sweden and Plan International. Other civil society partners, such as the Banjul-based Institute for Human Rights and Development in Africa, have been instrumental in developing legal documents necessary for the committee to implement its mandate.

For the committee to grow as an independent and effective mechanism for advocating and monitoring children’s rights in Africa, it should be taken more seriously by the AU. In other words, the committee should be provided with all the resources needed to discharge its mandate. It should also be linked to other AU human rights organs, namely the African Commission and the African Court on Human and Peoples’ Rights, as well as to the overall continental political framework.

The ACERWC within the African Union architecture

Effective protection of child rights in Africa requires harmonised interaction between different elements of the continent’s overall human rights framework. More specifically, for the committee to succeed in the short to medium-term, closer links should be forged with existing mechanisms for promoting and protecting human and child rights. The committee has started collaborating over state reporting procedure with similar organs, such as the UN Committee on the Rights of the Child, and at the regional level with the African commission and the African Court on Human and Peoples’ Rights.[11] Given the similarity of most of their functions and procedures, this collaboration should be taken further.

For instance, the committee could benefit from the court’s years of experience. The commission could inspire the committee with regard to implementing its promotional and protective mandate. The committee could further benefit from the long-standing relationship developed between the commission and civil society organisations, namely human rights NGOs. In this regard it is important to note that at its 9th meeting, the committee decided that from its 11th meeting the participation of NGOs would be linked to their preliminary application for, and granting of, observer status.[12] The committee has adopted criteria for granting observer status to civil society organisations and is encouraging the formalisation of its partnership with NGOs. However, since it relies significantly on the engagement of civil society to disseminate the charter and publicise its mandate and work, thus supporting and strengthening its overall structure, restricting participation of NGOs to those granted observer status has the potential to weaken its meetings, both in terms of their frequency and content.

Beyond the collaboration initiated and encouraged between the committee and the commission, it is proposed that the two should work towards establishing an integrated human rights body, mandated to promote and protect both general and specific human rights in Africa, including children’s rights.[13] Membership of such a combined body could be increased from 11 to 18 people. Besides rationalising the promotion and protection of human rights within the African Union, the proposed merger would help to centralise funding. It would also clarify the collaboration of both the Child Rights Committee and the commission with the court and, in future, the African Court of Justice.

The African Court on Human and Peoples’ Rights was created under the 1998 Protocol to the African Charter on Human and Peoples’ Rights, with the aim of strengthening the protective mandate of the African Commission on Human and People’s Rights. Although the protocol establishing the court was adopted before the children’s charter entered into force, the document set out the competence of the court over relevant international and regional human rights instruments ratified by African governments,[14] including the African Charter on the Rights and Welfare of the Child. However, the protocol did not specify the modalities of collaboration between the court and the committee. In July 2004, the decision of AU member states to merge the court with the proposed African Court of Justice provided an opportunity expressly to envisage the relationship of the committee (and the commission) with the court. In that sense, the draft Merger Protocol on the African Court of Justice and Human Rights expressly recognises the African Committee of Experts on the Rights and Welfare of the Child.

As with the commission, the committee will play a key role in the court’s seizing.[15] This is confirmed by Article 29 of the draft merger protocol, which specifies that the court shall have jurisdiction over all cases and legal disputes submitted with regard to the interpretation of the African Charter on Human and Peoples’ Rights, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and any other legal instrument relating to human rights that is ratified by AU member states.[16] As well as states parties to the merger protocol, African inter-governmental organisations, national human rights institutions, and individuals or relevant NGOs accredited to the AU or to its organs, the African commission and the African Committee of Experts shall be entitled to submit cases to the court on any violation of a right guaranteed by the African Charter, by the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relevant to human rights ratified by the states parties concerned. The statute also indicates that the court shall bear in mind complementarity with the African Commission on Human and Peoples’ Rights and the committee when drafting its rules of procedure.[17] The first session of the African Court of Justice, held in Banjul in July 2006, started with briefing sessions on the commission and the committee.[18] The court has since started drafting and has adopted part of its rules of procedure. Collaboration between the main regional human rights mechanisms should thus be further encouraged.

As the central judicial organ of the AU, the court will help reinforce the legal value of the recommendations adopted by the committee in relation to cases of violations of children’s rights in Africa. The court’s decisions shall be final and have a binding effect. Unlike the commission and the committee, the court may, after establishing that violations of rights have occurred, order appropriate measures to be taken to remedy the situation; this can include the granting of fair compensation.[19] Moreover, although the committee was established as part of the AU framework, the constitutive act of the AU makes no direct reference to it. By expressly stating that the AU executive council shall be notified of the court’s judgments and monitor their execution on behalf of the assembly, Article 44 of the merger protocol will help to reinforce the legal protection of human and child rights on the continent.
Political support for child protection
Beyond the collaboration of the committee with other AU human rights mechanisms, effective protection of children in Africa calls for stronger interaction of the committee with the continent’s administrative and political institutions. For instance, the AU Commission, through specific departments and commissioners’ offices, namely the Office of the Commissioner for Social Affairs, Political Affairs and Peace and Security, has a crucial role in publicising the AU’s concern for children in Africa, as well as putting the issue on the agenda of the AU’s political institutions. Moreover, the permanent representatives’ committee, the executive council, and the AU Assembly should strengthen their involvement in issues affecting children in Africa. Unambiguous support should be given to the committee when adopting its budget, electing its members, and adopting and following up its activity report. As the supreme organ of the AU,[20] and the primary enforcer of reports and recommendations from its other organs,[21] the AU Assembly of Heads of State and Government further has the power to monitor the implementation of the AU’s policies and decisions concerning children,[22] as well as ensuring compliance of all member states through peer pressure.[23]

The new AU peace and security architecture provides another opportunity to strengthen the protection of African children, specifically those affected by war. The objectives of the Peace and Security Council include the anticipation and pre-empting of armed conflicts, as well as the prevention of massive violations of human rights.[24] The council also aims to promote and encourage democratic practices, good governance, the rule of law, human rights, respect for the sanctity of human life, and international humanitarian law.[25] These objectives could support advocacy for children’s rights within the overall prevention of conflict, monitoring of the rights of children caught up in armed conflict, and supervision of child reintegration processes and promotion of child rights within regional peace-building and post-conflict reconstruction processes.[26]

Finally, monitoring institutions and mechanisms such as the Pan-African Parliament,[27] the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA),[28] and the New Partnership for Africa’s Development (NEPAD) and its related African Peer Review Mechanism (APRM),[29] can play a key role in harmonised protection of human and child rights in Africa. The CSSDCA process aims to consolidate the work of the AU in the areas of peace, security, stability, development and cooperation. It provides a forum for the elaboration and advancement of common values within the AU’s main policy organs. Through the CSSDCA’s ‘stability calabash’, which focuses on the need for democratisation, good governance and popular participation within member states, and mainly through its ‘development calabash’ that addresses the improvement of general standards of living,[30] the committee could inform the CSSDCA process and contribute to monitoring and facilitating implementation of the AU strategy in terms of these themes. Under the NEPAD initiative and its Peer Review Mechanism, the promotion and protection of the rights of the child and young people is one of the nine key objectives of the ‘Democracy and Good Political Governance’ thematic area. This aims to ensure that African constitutions reflect democratic principles and provide for demonstrably accountable governance and political participation. The African Charter on the Rights and Welfare of the Child, the UN Convention on the Rights of the Child and, in principle, the new African Youth Charter, provide standards to monitor these objectives. At the end of the APRM process, reports on countries reviewed should be tabled and publicly considered by the committee, as is intended for the African Commission on Human and Peoples’ Rights and other key regional and sub-regional structures.

In conclusion, there are clear efforts under way to protect child rights in Africa. However, much more needs to be done for children to participate effectively in the continent’s efforts to achieve sustainable peace and development. African governments are yet to prove their commitment to child rights beyond the mere multiplication of instruments and mechanisms.

* Mireille Affa'a Mindzie is a Senior Project Officer in CCR Conflict Intervention and Peacebuilding Support (CIPS) Project.

* Please send comments to or comment online at www.pambazuka.org

For references and notes, see link below.

Roselynn Musa writes that despite the promises and the mobilisations by women from all over the continent, African women still lack adequate protection of their human rights. She argues that the root of the problem is the persistent lack of political will by governments to implement commitments to gender equality.

The 21st century marks a critical juncture in the promotion and protection of a human rights culture in Africa. As the world becomes more interdependent, regional systems of cooperation are playing an increasingly important role in the promotion and establishment of a positive international human rights order.

African states have committed themselves to various international and regional policy documents. The most significant international gender mechanisms are the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Beijing Platform for Action (BPfA) of 1995, the African Charter on Human and Peoples’ Rights (the charter, hereafter), the International Conference on Population and Development’s Programme of Action (ICPD PoA), the African Union’s Solemn Declaration on Gender Equality in Africa, the New Partnership for Africa’s Development (NEPAD), the Millennium Development Goals (MDGs), and the constitutive act of the African Union. In signing up to the MDGs, 191 governments resolved to promote gender equality as a goal in its own right, but also the empowerment of women in order to combat poverty, hunger and disease and to stimulate sustainable development. NEPAD also stresses equality and enhances women’s rights through its African Peer Review Mechanism (APRM). All these conventions and policy frameworks commit governments to address gender equality, equity and women’s empowerment. They are subject to periodic reviews to measure the extent to which they have been delivered.

Over the past year these reviews have generally shown that Africa has made some progress at all levels. Most countries have developed national gender machineries and policies, but the majority of their strategies have not been implemented. Despite all these promises and first-class commitments, African women are no better off than when they started. The promises have moved a shoe size further on, if at all. The stagnation in some respects and deterioration in others are worrying, particularly given the level of mobilisation of women and advocacy by women’s rights activists from all over the continent. At the root of the problem lies the persistent lack of political will on the part of African governments to implement commitments to gender equality.

This paper explores the relationship between the international and regional policy framework on women’s human rights in Africa and its actual implementation. It discusses the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (from here onwards referred to as the protocol), compares it with other instruments and highlights what makes it unique. It concludes with the challenges encountered in promoting women’s rights and recommends accelerated implementation of gender policy commitments in Africa.
The Protocol on the Rights of Women in Africa

The protocol seeks to address the shortcomings of the international instruments that preceded it in addressing African women’s rights. It has proven to be a much-needed improvement on the way in which the AChHPR addressed the position of women in Africa. It applies CEDAW and BPfA in an African context.

The protocol has three sections. The first sets out its rationale and refers to both regional and international commitments on women’s rights. The second outlines the rights to be upheld by the protocol, and the third covers its implementation and addresses the procedures for adopting, monitoring and amending it.

The protocol is the first instrument to be developed by Africans for women in Africa. It builds on and strengthens other regionally negotiated issues that have been detrimental to women’s human rights. It challenges cultural behaviour and traditions that often violate the fundamental rights of women in Africa. The inclusion of articles concerning widows and inheritance rights is regarded as a breakthrough, for these are issues particular to African women which are normally swept under the carpet. And it gives women a line of defence on which to base their appeals in cases where they have been unsuccessful in challenging national discriminatory laws or practices.

The entry into force of the protocol reflects a growing awareness that women are equal members of society, and that they are participants and not simply beneficiaries in the development process. Prosperity on the African continent requires the promotion and protection of the rights of all African peoples, as well as adherence to the principles of gender equality and non-discrimination.

From the above it can be seen that the African Union has plans and programmes to ensure that its member states are part of the global effort to advance the principle of gender equality in Africa.

Enforcement mechanisms

At the national level, the procedure for domestication of CEDAW and the protocol is a major challenge. While several countries have acceded to CEDAW, many have not taken the extra step to domesticate it and make it part of their national laws. What this means in effect is that its provisions cannot be directly applied in national courts. States parties do not always have the political will to implement commitments made at the international level.

The challenges faced in implementing CEDAW are a good indication of those the protocol will face, from which important lessons can be drawn. The mandate of the CEDAW Committee is to monitor its implementation by the states parties which have ratified it, and this is done through periodic reports. Unfortunately this is one area that has not been taken very seriously by states parties. Many have two or more reports outstanding, while some have submitted none. This is a major challenge to the committee’s work.

While the process of reporting is thorough, to a great extent it remains in the hands of governments; NGO participation is weak. The examination of states parties’ reports is not intended to be adversarial, but should be done in a manner that promotes constructive dialogue between the states parties and the committee.

The African Court on Human and Peoples’ Rights is an approach of last resort when all other domestic remedies have failed to provide satisfactory results. Pending the full establishment of the African Court, the African Commission on Human and People’s Rights (the commission, hereafter) is seized with matters of interpretation arising from the application and interpretation of the protocol. The commission was established under Article 30 of the charter. Its primary responsibility is to promote and ensure the protection of human rights on the continent. Its four areas of mandate are: promotional activities, protective activities, the examination of state party reports and the interpretation of the African Charter on Human and Peoples’ Rights. It holds regular sessions twice a year in around April and November and can hold extraordinary sessions.

The commission has 11 part-time members. They are independent experts and act in their personal capacity rather than as representatives of their governments. The integration of the protocol into the implementation mechanism of the commission is consistent with the provisions of the charter itself. It will ensure that women whose rights under the protocol have been violated will have final recourse to the African Court to have their rights established and enforced. Furthermore, individuals other than the victims themselves, as well as human rights NGOs, can bring a complaint on behalf of the victims to the court.

One of the challenges facing domestication of the protocol is the multiplicity of legal systems in most African countries. While in a few countries international treaties, once ratified, automatically become part of national law, in most cases they have to be passed by an act of parliament to bring them into effect.

It is encouraging that the constitutive act of the reinvigorated African Union, which replaced the Organisation of African Unity, and the creation of the African Court on Human and Peoples’ Rights has emboldened women’s rights advocates to press for more vigorous enforcement of international and regional commitments.
Unique features of the protocol
The protocol was drawn up after many other treaties and therefore has the advantage of hindsight. It was able to draw on the best parts of earlier documents while also dealing with issues they omitted. The protocol is closely modelled on CEDAW; there are more similarities than differences between the two. The differences are mainly in those areas that concern African women and that CEDAW mentions in the abstract or not at all. The protocol names specific rights and defines violence against women. Its definition of a woman is comprehensive and includes the girl-child. It is culture-specific and therefore very valuable in challenging negative cultural practices. Unlike CEDAW, the protocol places explicit obligations on states to set aside resources to eliminate discrimination against women and to punish people or organisations that practise it.

There was initially stiff resistance to the protocol on the grounds that women in Africa do not need a separate provision, and that a clause on non-discrimination against women in the African Charter on Human and Peoples’ Rights would suffice to take care of the women’s rights issues that were omitted from it. The charter is perhaps distinct from other regional systems of human rights protection in that it has specific provisions that address the rights of women. This is apart from the commonplace provisions on the rights to equality and freedom from discrimination characteristic of most international instruments of this kind. With regard to the rights of women, the charter provides that ‘The state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions’ (Article 18 (3)).

However, this provision has been regarded as too general, giving no substance to the rights of women, thereby placing these rights in a situation that has been described as a ‘legal coma’. Addressing the rights of women alongside those of children is also criticised. While recognising that both women and children have been victims of enduring violence, it raises the question of why the latter are equated with the former. Nevertheless, the charter is seen as creating the bedrock for the protection of women’s rights in Africa. It provides a basis from which states have to account for the status of women and the protection of their rights within national legal systems. And it enjoins African states to take positive steps to ensure that their national laws and policies seek or result in the attainment of these two primary goals. Since then there have been significant developments towards a more comprehensive legal regime for the protection of women’s rights in Africa, resulting in the drafting of the protocol to the charter.

The protocol can be a tool that forces states to prioritise legislative measures to eliminate harmful traditional practices. It provides a foundation on which human rights acquire legality in the African context, and a basis for assertions that African women’s rights to equality are no longer contested. What is critical at this point is to see greater dynamism from domestic courts, the charter and the African Court on Human and Peoples’ Rights in giving meaning and precedence to the protocol.

The protocol attempts to invigorate the charter’s commitment to women’s equality by adding rights that it omitted and by clarifying governments’ obligations. Only one of the charter’s more than 60 articles makes specific reference to women. These are some of its shortcomings:

• Its failure to define explicitly discrimination against women
• Its lack of guarantees concerning the rights of women to consent to marriage and equality in marriage
• Its emphasis on traditional values and practices that have long impeded the advancement of women’s rights in Africa.

Some of the most serious violations of women’s rights in Africa take place in the private sphere of the family and are reinforced by traditional norms and cultural values. Article 17 (2) and (3) of the African Charter on Human and Peoples’ rights states that every individual ‘may freely take part in the cultural life of his community’, and that ‘the protection and promotion of morals and traditional values recognized by the community shall be the duty of the state’. The only specific reference to women’s rights is contained in a clause concerning the family and the upholding of tradition, thereby reproducing the tension that plagues the realisation of women’s rights in Africa. Indeed, the charter has been interpreted as protecting customary and religious laws that violate women’s rights, such as their rights to equality and non-discrimination, to life, liberty and the security of the person, and to protection from cruel and degrading treatment.

The protocol recognises women as individual human beings rather than members of communities or families. It deals with discrimination in both the public and private realms and targets both direct and indirect discrimination. It also moves equality from an abstract concept to something that states parties are expected to take concrete measures to address.

Most importantly, however, the protocol offers a real remedy for women at the regional level. It gives women victims of human rights violations somewhere to turn, providing them with practical access to bodies which will understand the implications of their experience. But this potential will only be realised if states parties ensure that they protect women’s rights in practice and work to implement the commitments they have made.

The campaign: Solidarity for African Women’s Rights (SOAWR)

While acknowledging the scale of the challenges, I also want to celebrate our achievements by recognising the efforts of Solidarity for African Women’s Rights (SOAWR), a coalition that has been working tirelessly to advance the cause of the protocol.

SOAWR is a regional network of 26 civil society organisations and development partners working towards the promotion and protection of women’s human rights in Africa.[1] Since its inauguration in 2004, SOAWR’s main focus has been to get those countries that have not yet ratified the protocol to do so urgently, while at the same time encouraging those that have ratified it to domesticate and implement it at the national level. SOAWR also works to persuade countries that have ratified the protocol with reservations to remove harmful reservations that would constitute a denial of some of the most important freedoms and rights of women recognised in the protocol.

SOAWR has been using all the instruments at its disposal and has capitalised on every opportunity to move the campaign forward: writing petitions, direct advocacy with national and regional leaders, mobile phone SMS service, publications in different languages, AU pre-summit civil society forums, public forums, press conferences, coloured rating cards, and so on. SOAWR is currently documenting the advocacy strategies it has used in its campaigning. This was an idea which came from a meeting of SOAWR members immediately after the pre-summit activities they organised in Accra, Ghana, in June 2007. They decided to document their efforts to provide a clearer understanding of what was being done to encourage ratification and domestication of the protocol, and to offer inspiration and a means of action to the Africa-wide movement for the endorsement and domestication of the protocol.

I hope that SOAWR will continue to create a platform for debate and dialogue on the disjuncture between international instruments and their national implementation in Africa and to identify strategies that researchers, activists, and government officials can apply to bridge that gap. Gender activists should also join their voices to civil society coalitions such as SOAWR to continue calling for the removal of the structural barriers that face women.

Obstacles and challenges

The domestication and further ratification of the protocol have been slowed by a lack of political will. Even though most countries have established national gender machineries, these are weak and lack adequate authority, capacity, human resources and funding. This is coupled with inadequate skills in gender analysis among planners and implementers, and limited gender awareness within communities.

The African Court on Human and Peoples’ Rights, which is an important tool in interpreting the protocol, is not yet fully functional. Even when it is, access to it by civil society organisations, which have been the main champions of the protocol, will be limited to those countries that have signed a declaration to facilitate such action.

Women’s participation in politics and decision making remains low, and this slows down their influence on governments to carry out their obligations under the protocol. Women’s access to justice is further inhibited by illiteracy and ignorance of their rights and how to access them. Some cultural and traditional practices continue to hold back progress in realising the provisions of the protocol.

Most of the human rights instruments set a ceiling and a floor as frameworks that women can use to combat discrimination in its many forms. However, these tools in themselves are not perfect. For example, the language employed in some of them is either too complicated or too broad or both; this could create problems of interpretation, especially at the national level. They also fail to address the issue of recourse in cases of non-compliance. It has been said that they can only bark because they lack the teeth they need to bite. The consequences of non-compliance and non-enforcement need to be built into them.

Another problem is the strategy of placing reservations on some key provisions. This negates the principle of women’s rights as first and foremost being inalienable, integral and indivisible.

One other obstacle that has been identified at the national level is that few lawyers are aware of the protocol and are therefore unable to cite it in support of their arguments. Not many law students take up courses in gender and the law where these are part of the curriculum, hence their ignorance about the protocol and other women’s rights instruments.
Lessons learned

Effective implementation of international human rights standards for women has depended so far on the will of individual states. Cultural and religious practices are often used to undermine the implementation of provisions concerning women’s rights. Reliance on the good will of governments to implement international agreements has not yielded positive results. CEDAW was seen as foreign, but even though the protocol is home-grown, our governments have not treated it differently as far as implementation is concerned.

Women’s empowerment requires a higher level of involvement by women in governance and decision making. Systemic and structural barriers that prevent them from participating in decision making at all levels need to be removed.

The media can play an important role in promoting equality. Women’s press and communications initiatives and the use of technology to promote women’s activities should be supported.

The proliferation of instruments has also been cited as a possible factor hindering compliance because each one requires a different reporting and accounting procedure, thereby placing a huge burden on states. There is also inadequate dissemination of information about these instruments at the local level.

A number of African states have bound themselves to international human rights instruments, but only a few have actually taken steps to make them enforceable within their countries. It seems that our governments ratify such instruments not because of a political commitment to their content, but because of political expediency and in order to maintain a good image. The failure to domesticate these commitments remains a big problem.

The multiplicity of laws in different countries is such that most countries will have to enact new legislation to domesticate the protocol after ratification. A number of countries that have ratified the protocol, such as South Africa and Mauritius, did so with harmful reservations, signifying their unwillingness completely to abandon practices that discriminate against women. The legitimacy of entering reservations on the treaties may be questionable because of the substance of such reservations.

Mainstream international human rights standards are defined in relation to men’s experiences and are stated in terms of discrete violations of rights in the public realm, whereas most violations of women’s rights take place in the private realm. The public/private dichotomy that is so detrimental to women’s rights continues to exist.

The drafters of the protocol were very much influenced by the contents of CEDAW as well as the work of the CEDAW committee. It is therefore obvious that to ensure effective implementation of the protocol, Africa should draw on the experience of the CEDAW committee.

Conclusion

It is evident from the preceding paragraphs that the adoption of the protocol is a significant development that will ensure the full integration of women’s human rights within the overall human rights framework in Africa. The protocol will allow both the African Commission and the African Court on Human and Peoples’ Rights to elaborate how the rights recognised under it should be guaranteed in real-life situations.

The role of international instruments and other initiatives cannot be underestimated. Broad legitimacy beyond the nation state has created some leverage to pursue the gender agenda. However we are faced with growing failure to translate these instruments into reality in the domestic context. The gap between the commitments and their implementation is becoming ever larger, raising the question: what needs to be done? We should consider both individually and collectively what we can do to ensure that implementation takes place.

There is no denying that it is very important to have these commitments on paper as markers of progress. What is more important though is using them to ensure actual change in the lives of women. We have to be careful that the gains won in Beijing are not turned back.

Recommendations

There needs to be a specialist body similar to the CEDAW committee to monitor implementation of the protocol. The African Commission on Human and Peoples’ Rights, in its work to monitor the charter, has not paid enough attention to the protocol. Even though it has appointed a Special Rapporteur on the Rights of Women, this office needs more human and financial resources to carry out its mandate effectively. States parties are bound by Article 26 of the protocol to report on progress in its implementation, but they are not likely to take this seriously if they are not required to report to a particular body specifically set up to monitor the protocol.

The teaching of women’s rights should be incorporated into the curriculum of law faculties as a core discipline, to ensure that lawyers leave school knowing not only national laws but also regional and international instruments that protect women’s rights.

Women’s rights organisations and coalitions such as SOAWR should be supported to monitor implementation of the protocol. They should be assisted financially to participate in commission meetings and to prepare shadow reports when country reports are being considered.

Steps should be taken to institute in full the African Court on Human and Peoples’ Rights without further delay.

Women should be encouraged to participate in political processes at all levels and in portfolios that have significant policy roles. Members of parliament also have an important role to play in passing legislation, initiating private members’ bills and demanding ministerial statements on obligations undertaken.

The media could also contribute by disseminating information on the progress of the protocol and its benefits to citizens so that they can demand implementation.

All the rights in the protocol are interrelated, interdependent and indivisible. Thus the violation of any one of them affects the enjoyment of all the others. Countries should be encouraged to ratify the protocol without registering reservations.

Our leaders and policy makers should resolve to change not only what is outside of them, but also what is inside them as far as attitudes to gender equality are concerned. With a redefined notion of power and equality we will be able to bring about change.

* Roselynn Musa is the Advocacy Officer at the African Women’s Development and Communications Network, (FEMNET) in Nairobi, Kenya

* Please send comments to or comment online at www.pambazuka.org

For references and notes, see link below.

Despite diverse stories of exile and exclusion, refugees, internally displaced persons and the stateless all have one core experience in common: they have been removed from their communities as a result of a severe breakdown in the relationship with the State authorities charged with protecting their rights. In Africa, writes Hakima Abbas, the severing of state protection and the exclusion of individuals and groups is widespread.

According to the United Nations High Commissioner for Refugees (UNHCR) 2.4 million refugees in Africa are compelled to seek protection outside their country of nationality or residence. An even greater number are also displaced from their homes but unable to cross an international border—over 11 million Africans are classified as internally displaced persons (IDPs). Quantifying those who are stateless in Africa—whether through denationalisation, expulsion, or the imposition of barriers to proving membership of the community—is a more difficult task. It is estimated that worldwide the number of stateless persons is 11 million, but many believe that this is a gross underestimation.

The Open Society Justice Initiative’s multi-year research on citizenship and discrimination in Africa found that statelessness was a complex spectrum of experience, from de jure statelessness at one end, to those who are de facto stateless, or whose citizenship is under threat, at the other. Some victims are high profile politicians or activists who have been declared individually de-nationalised, such as Zambia’s founding President Kenneth Kaunda. In other cases, entire populations have been excluded from full and equal citizenship, such as 1.5 million Zimbabweans whose parents were born elsewhere. Using this approach, at the very least, 10 million persons can be qualified as stateless in Africa.

While international law recognizes that national governments have the primary responsibility for protecting the rights of those within their borders, individuals who are unable to create a strong link with the state are often left in a vacuum. Stripped of the protection of their own governments, these groups—refugees, IDPs and the stateless—constitute a millions strong population of disenfranchised persons who are increasingly looking to regional mechanisms to address their urgent needs. As the premier human rights institution on the continent, the African Commission on Human and Peoples Rights (the Commission) has been at the forefront of the effort to carve out a new layer of protection for these African citizens.

The African Commission on Human and Peoples’ Rights

Since it first started operating in 1987 the Commission has been the principle mechanism charged with promoting and protecting the human rights of all those on the continent of Africa. In its stewardship of the African Charter on Human and Peoples Rights (the African Charter), the Commission has both a human rights monitoring role (which includes the examination of periodic State reports) and direct protection functions.

As a promoter of human rights, the Commission has identified the situation of refugees and displaced on the continent as a priority. In 2003 the Commission signed a Memorandum of Understanding with UNHCR dedicated to strengthening collaboration between the institutions and in June 2004 the Commission confirmed the appointment of a new Special Rapporteur on Refugees and Internally Displaced Persons (Special Rapporteur) .

It is perhaps, however, through the Commission’s direct protection functions that it has contributed most to the strengthening of the rights of the excluded on the continent. The Commission has the power both to launch investigations in special circumstances and, most importantly, to consider specific complaints, or ‘communications’, alleging rights violations, brought to its attention by individuals or organisations. Through a developing jurisprudence, the Commission’s consideration of the situation of the excluded has allowed for the elaboration of standards relating to their rights, a particularly vital function in a context where it is rare that that refugees or the stateless can seek protection at national level, due to practical and legal obstacles.

The role of the Commission as adjudicator: carving out a basic set of protections

The Commission confirmed early on in its decision-making history that the rights protections granted by the African Charter were not limited to nationals should be secured to “all persons” within the jurisdiction of State parties to the treaty. The case of Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO) v. Zambia concerned the detention, ill treatment and eventual mass expulsion of 517 West Africans from Zambia. Since then the non-discrimination and equality protections in Article 2 and 3 of the Charter have been used by the Commission as the foundation stones for its construction of a folder of protection for the excluded. In Organisation Mondiale Contre la Torture and Others v Rwanda the Commission later explicitly confirmed that refugees were among the categories of persons protected from discrimination on grounds of their status.

Unlike many international human rights treaties, the African Charter specifically guarantees the right of the individual “when persecuted, to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions [..]”. In Organisation Mondiale Contre la Torture (OMCT) and Others the Commission ruled that the expulsion of Burundian Hutu refugees from Rwanda constituted a violation of the right to seek and enjoy asylum, but also of the protections in the Charter against the expulsion of legally admitted persons and mass expulsion. In the same case the Commission also demonstrated how the due process provisions of the Charter could provide additional protection to the excluded, declaring that the manner of the expulsion of the refugees had violated Article 7 (1) – the right of every individual “to have his cause heard”. The Commission has yet to give guidance, however, on whether the right to have a “cause heard” could be interpreted to encompass the right of access by an asylum seeker to a fair refugee determination status procedure—in the OMCT case the persons concerned were already recognised as refugees.

The situation of the stateless has been tackled by the Commission in a number of cases, using a variety of provisions, particularly centred around extrapolating a right to protection against arbitrary denationalisation. Although the Charter does not specifically protect the right to nationality, the communitarian aspects of the rights regime established by the Charter affirm the principle of the “right to belong,” through protection of the rights of “peoples” to self-determination, development, a satisfactory environment and “existence” (Article 20).

In the Mauritania cases the Government of Mauritania was accused of harassing, detaining, and eventually forcefully expelling thousands of ‘Black’ Mauritanians, its own citizens. The Commission ruled that the expelled Mauritanians had been stripped of their citizenship in a discriminatory—and therefore illegal—way and that the government should take appropriate steps to facilitate their return. In the case of John K. Modise v. Botswana it was both the act of denationalisation and the treatment of Mr Modise that resulted which attracted the censure of the Commission. Mr Modise had been rendered stateless by the Government of Botswana and deported to South Africa. Further to his ultimate removal back to Botswana Mr Modise was confined by the authorities to a strip of no man’s land between Botswana and South Africa and rendered homeless. The Commission found that the treatment of Mr Modise taken as a whole violated his basic dignity—and Article 5 of the Charter. It will be interesting to see to what extent in the future the Commission will continue to interpret the types of conditions suffered by those forced into statelessness as amounting to a violation of Article 5.

The Charter and the findings of the Commission have also provided a context within which solutions to the breakdown of State protection can be sought. The Commission has tackled, for example, the root causes of exclusion, examining the human rights violations suffered by those who have lost the protection of their State. In the leading case of John D. Ouko v. Kenya the Commission showed itself as a forum where state responsibility for the creation of the refugee phenomenon could be analysed – an issue often neglected by refugee advocates where the focus is on the urgent need for States to provide refuge. The Ouko communication concerned a Kenyan citizen who had been recognised as a refugee in the Democratic Republic of Congo further to fleeing persecution and detention by Kenyan authorities. The Commission found that the persecution and forced flight of Mr Ouko had violated a number of articles in the Charter, including Article 12 which protected Mr Ouko’s right to leave, and return (voluntarily) to, Kenya.

The responsibility of the state which provides asylum has also come under scrutiny at the Commission. In the case of African Institute for Human Rights and Development v Guinea the communication centred on a spate of abuses, including rape, detention, and killing which were suffered by Sierra Leonean refugees, in the wake of a speech by the President of Guinea urging all foreigners “searched and arrested”. The Commission ruled that the President’s speech, as an incitement and de facto authorization for the resultant attacks and expulsions, violated article 12(5) of the Charter. The Commission also found that there had been violations of the right to life, property and dignity of the refugees in addition to noting that the targeting of Sierra Leonean refugees violated Article 4 of the OAU Refugee Convention on the Specific Problems of Refugees in Africa.

In the Mauritania cases the Commission not only focussed on the arbitrary denationalisation of the complainants’ but also on the deplorable conditions in which the deportees had been held, finding a violation of Article 16 – the right of every individual “to enjoy the best attainable state of physical and mental health”. It is hoped that this approach will be followed in future cases relating to the standards of treatment in refugee or IDP camps, especially where freedom of movement is restricted by the authorities and people are confined to the settlements in contravention of international law.

The role of NGOs

All of the key cases considered to date by the Commission which touch on extrapolating the rights of the forcibly displaced and the stateless have been brought to the attention of the Commission by human rights and civil society organizations on the continent. It is not just in the realm of moving forward the Commission’s jurisprudence, however, that NGOs have been active. At the bi-annual meetings of the Commission it is usual for one of the statements to the Commission by NGOs to be dedicated to a review of the situation of refugees and IDPs on the continent, contributing to the overall monitoring function of the Commission.

It is acknowledged also that the work of NGOs dedicated to advocacy on refugee and IDP rights was critical to encouraging the Commission to create the position of Special Rapporteur. Since his appointment, first as focal point, and then as Special Rapporteur, Commissioner Nyanduga has been very active, conducting a series of missions which have done much to highlight the plight of the displaced (see article in this issue). The work of the Special Rapporteur, however, does need to be better supported to increase its effectiveness—resources at the Commission are highly stretched. NGOs can assist through seeking observer status before the Commission to play a more active advocacy role, and helping to mobilise funds for the functioning of the Rapporteur system.

Challenges

As an independent rights arbitrar the Commission suffers from a number of defects, the greatest perhaps being the non-binding nature of its rulings. It is also fair to say that as a deliberative body of State appointed experts, the Commission can find itself subject to political pressure. Despite this, the Commission can point to a history of courageous position-taking which has belied many of the predictions of politicisation. In recent years, however, it has been suggested that, the progressive stance which marked the evolution of the Commission is suffering a backlash. Some point, for example, to the fluctuating approach of the Commission’s jurisprudence to “exhaustion of domestic remedies”—a threshold consideration for admissibility of communications. In the past the Commission demonstrated a rather liberal attitude to interpreting this concept, particularly where asylum seekers, refugees and the stateless were involved, but it is now building a more elaborate set of hurdles.

Others note the difficulties encountered by the Commission in conducting its broader monitoring functions, particularly in reaching consensus on response to the humanitarian and human rights crisis in Darfur. The official report of the Commission of its mission to Darfur, presented at the third extra-ordinary session of the Commission in Pretoria in September 2004, has still not been published. This report was the first comprehensive African Union assessment of the human rights situation in Darfur, including focussing on the plight of IDPs. Although adopted officially by the AU, publication remains hostage to political manoeuvring, as the text awaits the comments of the Government of Sudan. .

What next for the Commission and for the excluded?

The foundation of the African Union in 2002 expressed a regional commitment to creating a more effective, integrated political and economic union with human rights situated at the heart of its principles and objectives. There are a number of areas where the Commission can be encouraged to use its position in the new African Union human rights firmament to promote the rights of the excluded. The new AU institutions, from the African Court to the AU Economic, Social and Cultural Council (ECOSOC) all present opportunities for the Commission to contribute to the setting of human rights benchmarks. The Commission has already been explicitly assigned functions, for example, with respect to the peer review mechanism under NEPAD and the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA). A

The Commission, however, is the human rights touchstone, not just for the new AU frame but for other continental processes which address human rights concerns—the International Conference on the Great Lakes is just one process comprising a series of new laws relating to the rights of the excluded. The Commission can ensure complementary efforts and exchange of jurisprudence with such mechanisms. It will be essential, also, for the Commission to act as a a guide to regional courts as they are increasingly called upon to adjudicate on the rights of the excluded who may also claim rights from a sub-regional organisation—the East African Community is currently, for example, adopting a Bill of Rigths where freedom of movement and protection of the regions “citizens” will be paramount. Attention also needs to the paid to the promotion of the Charter and its jurisprudence at national level where the potential for the case law of the Commission to be cited in domestic proceedings is ripe but rarely exploited. National human rights commissions might be mobilised by the Commission in this regard.

Finally, the Commission can be a forum for the promotion of the new norms and standards which will certainly be required to respond to the changing nature of displacement and exclusion on the continent. Among the areas requiring particular elaboration include access to citizenship and the reduction of statelessness, the right of freedom of movement for IDPs and refugees, due process guarantees in asylum proceedings, rights of access to domestic courts (often restricted for refugees), the social and economic rights of the displaced and their hosts, and the implications for State responsibility of delegating protection of the excluded to international organisations. NGOs of course must play a role in identifying the strategic opportunities for litigation that will facilitate this work. They may also need to explore, alongside the Commission, where normative developments—new protocols to the Charter (such as perhaps on the right to a nationality)—may be required.

* ?????

* Please send comments to or comment online at www.pambazuka.org

Korir Sing'Oei Abraham argues that Africa’s opposition to the adoption of rights for indigenous peoples — who are often nomads or hunter gatherers — has largely been informed by misconceptions and myths. He points out that the right to self-determination sought by these marginalised groups has been recognised by the AU as being consistent with the principles of a country’s territorial integrity.

It is late July 2006. A study and information visit by the Working Group of Experts on Indigenous Populations – part of the African Commission on Human and People’s Rights (the commission, hereafter) – is under way in Uganda. Uganda is one of the few African countries whose constitution boasts an extensive human rights regime of civil and political as well as economic, social and cultural rights. The visit, designed to disseminate the findings of a report by the commission in 2004 on the status of indigenous peoples in Africa, and thereby to engage in constructive dialogue with government officials and civil society in Kampala, is confronted with an insurmountable obstacle. A leading member of the Ugandan delegation overseeing the visit – Rosette Nyirinkindi, the head of the African Union division in Uganda’s Ministry of Foreign Affairs – is of the view that the visit’s objectives are contrary to the spirit of the country’s constitution, which seeks to foster peaceful coexistence among Uganda’s communities. According to Nyirinkindi, a seasoned diplomat who had previously served in her country’s mission in New York, the Ugandan constitution identifies all 56 ethnic communities residing in the country as indigenous. Therefore to set apart and focus on some of these communities to the exclusion of others, as the commission report had done, was a flagrant breach of Uganda’s constitutional and policy commitment to equality and a short cut to ethnic strife.

This is the classic scenario that confronts advocacy of indigenous rights in Africa. To raise indigenous issues in the continent demands that one respond to the question of to whom precisely indigenous rights may be ascribed. This then invites myriad other inquiries, including the usefulness of this distinction in promoting human rights and the link with the question of national integrity. This article will address some of these issues, and I hope give voice to the millions of pastoralists and forest communities who self-identify as indigenous people in Africa.

The context

It is difficult to analyse the question of indigenous rights in Africa without engaging with the question of statehood, and it is impossible to address the latter without considering its dubious origins. The colonial enterprise in Africa, marked by domination and annexation of territory, was masterminded by Leopold, the Belgian monarch, and Bismarck, the German chancellor. It reached its peak in the Berlin conference of 1884, which was convened ostensibly to regulate trading relations between European powers but ended by legislating for the partition of Africa. The result was the dismemberment of the continent into 53 multi-ethnic and odd states with no basis in scientific or social rationality save that of resolving territorial disputes between the colonisers. This certainly lends credence to the fledgling movement for the unification of Africa.

Colonialism was based on the ethnocentric belief that the morals and values of the European coloniser were superior to those of the colonised African. It involved egregious racial discrimination linked to pseudo-scientific theories that were buttressed by the Christian religious zealotry of the 17th and 18th centuries. This form of social Darwinism, that placed white people at the top of the animal kingdom ‘naturally’ in charge of dominating non-European indigenous populations, found a strong philosophical justification in the works of the German philosopher Hegel, amongst others. He claimed that sub-Saharan Africa was an ancient utopia which had remained shut up within itself: ‘the land of childhood, which lying beyond the day of self-conscious history, is enveloped in the dark mantle of night’. Its isolated character, argued Hegel, originated not merely in its tropical nature but essentially in its geographical condition. Hegel claimed that upland negroes continued to exist in a state of consciousness which he termed ‘the infancy of humanity’, hence the juridical concept of discovery that informed colonial property relations with conquered people’s territories.

The post-colonial state in Africa, emerging from this colonial artifice, reluctant to remodel itself, and having solidified the colonial boundaries through the ancient international legal principle of uti possidetis,[1] is fraught with weaknesses which have manifested themselves in serious ethnic conflicts, poor governance, wanton inequalities and chronic poverty. Indigenous rights in Africa must be assessed and asserted from this context.

Indigenous rights and people in Africa

While it is undeniable that the West ravaged and looted the entire continent through slavery, colonialism and neo-colonialism, the disproportionate disadvantage dispensed by these forces upon some communities in Africa is vehemently denied. Why is it so hard to appreciate that the Maasai, who lost over one million acres of grazing land in Kenya’s vast Rift Valley to the British, today constitute one of the poorest communities in the country? Does it take rocket science to appreciate that the expulsion of the Batwa from the Bwindi and Mgahinga National Parks in Uganda to pave the way for the protection of the mountain gorilla, a key tourist attraction, has led to the near-decimation of this hunter-gatherer community? Does one need to ask what contributes to the penury of the Herero in Namibia, whom the Germans butchered en masse and used as guinea pigs at the turn of the 20th century?

The worst part of the nightmare is that rather than pave the way for the reconstruction of Africa’s political and economic order, the departure of the colonialists ushered in a new set of black dominators who, taking advantage of the instruments and institutions of the colonial state, proceeded to plunder and loot the continent of its resources and completely closed the door to restitutive justice.

Contemporary public policy makers in Africa ignore the shame of colonialism and make vigorous attempts to construct a reality based on the ‘national interest’ rather than communitarian pursuits, which they consider provincial and therefore sectarian. It is this subsuming of identities, and its conflation with equality for all, that is largely responsible for the denial of indigenous rights.

Indigenous rights are considered a domain of rights which seeks to dislocate national priorities for communitarian purposes and does not fit the logic of state-centred development. That some communities have refused to align their interests with national development priorities is seen as failing to take on the responsibility and demands of progress. This view is part of a classical contention that disputes the relevance of recognising diversity in divided societies, a move that hegemonises the state. A critical analysis of indigenous rights and their beneficiaries would demonstrate the fallacy of this objection.

First, indigenous rights are grounded in the general notion of the universality of rights within a multicultural context as endorsed by the Vienna Declaration of 1993. That declaration unequivocally reaffirmed the inherent dignity and unique contribution of indigenous people to the development and plurality of society, and called for their full inclusion in the life of the state. It is therefore anathema to question the place of indigenous rights in the national discourse, for the two can comfortably coexist and support each other; the substantive inclusion of marginalised groups in national processes gives the latter broader legitimacy. By reinforcing the state where it would otherwise be absent, the promotion of indigenous rights, such as self-determined local governance and development, can lead to peace.

Second, indigenous rights must be seen as enabling substantive equality, thus spreading light to a group of people previously not reached by the transformative premise of the Universal Declaration of Human Rights. While non-discrimination is held up as a jus cogens,[3] the fact that it is still difficult to achieve equality for all means that marginalised groups, be they women, children, minorities or indigenous groups, have to pursue strategies that go beyond formal equality to attain the promise of dignity for all people. Some have questioned how effective non-discrimination provisions are as a bulwark against the human rights deficiencies experienced by indigenous groups. Professor Kingsbury of New York University has argued, for instance, that the existing mechanisms have completely failed to deal adequately with the concerns of indigenous groups, and have merely served a symbolic and didactic purpose, hence the demand for more specific mechanisms.

Third, the collective conception of rights has often seemed to be a child of a lesser god within a human rights system that has historically pitted civil and political rights against economic, social and cultural rights. Collective rights, which are central to the struggle of indigenous people the world over, have suffered from being poorly articulated, which has prevented them from being regarded as the norm. Thanks to Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and the progressive jurisprudence that has flowed from the Human Rights Committee on this article, a lot of ground has been laid for the protection of group rights to land and development, among other things. The rich array of solidarity rights provided for under the African Charter on Human and Peoples’ Rights (the charter, hereafter), which lend themselves well to the cause of indigenous peoples, is thanks to Keba M’Baye, the Senegalese jurist. His appreciation of the dynamics of African society inspired the document. In his 1972 monograph on the rights to development – Le Droit du Developpement comme un Droit de l’Homme – borrowing significantly from Karel Vasak, UNESCO’s director, M’Baye articulates solidarity rights to include the right to development, the right to peace, the right to an environment, the right to ownership of the common heritage of humankind, and the right to communication.

Thus, the notion of indigenous people and rights in Africa must be understood not merely in terms of a dictionary definition that emphasises people’s origins. The modern understanding of the term ‘indigenous peoples’ focuses on the lived experience of systemic marginalisation, discrimination, cultural difference and self-identification, in line with the emerging practice of the commission. The International Work Group for Indigenous Affairs (IWGIA) and the Working Group on Indigenous Issues of the commission have argued that:…the issue of indigenous peoples revolves around the assertion that certain marginalized groups are discriminated against in particular ways because of their particular culture, mode of production and subordinate position within the state and that state legal and policy frameworks have been impotent at addressing these challenges. This is a form of discrimination which other groups within the state do not suffer from. It is legitimate for these marginalized groups to call for the protection of their rights in order to alleviate this particular form of discrimination.[4]

The notion of indigenous people in Africa also overlaps with the concept of minority rights, another problematic but less controversial term in the continent.

Africa’s opposition to the adoption of standard-setting mechanisms and norms for indigenous peoples has largely been informed by misconceptions and myths. In 2006 an assault on the Draft Declaration on the Rights of Indigenous Peoples, led by Namibia and Botswana within the African group in the UN, caused the General Assembly to postpone its decision on the declaration, thereby holding in abeyance substantive recognition of indigenous rights under international law. When the African Union’s assembly of heads of state and government met in Addis Ababa a year later, they justified the position of the African group on the grounds that indigenous rights as elaborated in the declaration would affect territorial integrity. The question that baffles many is whether the Batwa in Uganda, the Endorois in Kenya or the Bushmen in Botswana have designs to create their own separate states. Is it not obvious that the right to self-determination sought by these groups is one that can empower them and lead to their recognition and enhanced participation in public affairs? The Katanga v Zaire communication of 1976, which established that a variant of self-determination that ensures the inclusion of marginalised groups within a state is consistent with the principle of territorial integrity, was reiterated nearly 20 years later in the Ogoni v Nigeria decision by the African Commission on Human and Peoples’ Rights.

The term ‘indigenous people’ should therefore be used in a practical way, to draw attention to and alleviate the particular form of discrimination from which communities suffer. In the African context these communities are almost always nomadic or hunter gatherers. By identifying with the term, they feel that the particularities of their suffering can be better articulated and can lend themselves to the protection of international human rights law and moral standards. The adoption of a flexible bundle of rights attributable to indigenous groups, rather than a constant struggle to achieve unanimous agreement on terminology (which has been elusive over the last two decades of discussion within the UN on indigenous rights) seems to me to offer a real possibility for appreciating indigenous peoples’ rights in Africa.

A cry from the dark: living on the fringes

Groups that self-identify as indigenous live a peripheral existence. Most governments in Africa do not have disaggregated data or indicators to monitor the social, economic and political status of indigenous people. How then can they track progress towards achieving the Millennium Development Goals if the poorest of the poor are not even properly recognised? A major concern is that many states will focus on the bottom line of reaching the MDGs, rather than the matter of who reaches them or how. This risk was noted in the Human Development Report of 2003.[5]

Take the Twa in Burundi, Rwanda, DRC and Uganda, for instance. Their lifestyle and the rate of deforestation has kept them moving for decades and left them vulnerable – falling through the cracks of a modern social and legal system which would normally secure tenure on both their lands and livelihood assets. Growing pressure to preserve the few remaining rainforests in the most densely populated countries of the Great Lakes region means that they find themselves excluded from their traditional habitats. The Rwandan state has for decades been tightening its control over forest areas, driven by the need for more protective conservation policies, the growth of the tourism industry and security concerns along its borders with DRC, Burundi and Uganda. The Batwa have been the most affected by these measures, which have uprooted them from their traditional lifestyle and means of earning a living. They have been unable to make a successful transition to a sedentary life and a market economy.

Most indigenous communities, including the Twa, were never compensated when expelled from the ‘protected areas’ or ‘state reserves’ they used to live in, due to their traditional marginalisation and to flawed legal and policy frameworks. As a result, their living conditions have degenerated further. Today, most Batwa lead a shockingly impoverished existence. A recent report by a UK charity called the Forest Peoples Programme predicts that the Twa are in danger of extinction unless massive and concerted action is taken to reverse their decline.

Such is the state of many other groups of indigenous people, both pastoralists and hunter gatherers, from the Barabaig in Tanzania to the Tuareg in Mali.

The road less traveled

Indigenous rights, shunned by politicians across the continent, have found solace in an unlikely quarter: the judiciary. Reputed to be incorrigibly corrupt and inefficient, judiciaries across the continent have yet to be acknowledged as bastions of justice for the weak. It is here that the struggle for recognition and respect for indigenous rights has been most vociferously waged. From Botswana to Kenya, South Africa to Uganda, courts have become the theatre for dramatising the plight of indigenous people and the sheer scale of their destitution. In Kenya, a toothless goat was produced to persuade a court of allegations of environmental genocide perpetrated against the indigenous Il Chamus community. In Botswana, hundreds of members of the Basarwa community, clad in their colourful traditional attire, endured a 200-day hearing to demonstrate that they were indeed a recognisable group, contrary to the state’s assertion. Judicial proceedings have been used with mixed results to seek land restitution for an indigenous group in South Africa, halt state displacement of the Ogiek from the Tinet forest in the Rift Valley of Kenya, procure provision of social services for the Benet in Uganda, stop a multinational mining company from procuring a land concession in the Magadi area of Kenya for soda ash production, and secure language rights in Namibia.

Disappointingly, just as in the days of Brown v Board of Education at the height of the civil rights movement in the United States, when the Supreme Court issued judgments in favour of desegregation but racist and belligerent states refused to implement them, African governments have been reluctant to embrace with open arms the decisions of their own judiciaries. The government of Botswana, for instance, side-stepped the decision of its constitutional court and refused to allow the Basarwa to return to their hunting livelihood in the Central Kalahari Game Reserve. A year after the Kenyan constitutional court held that a constituency should be created for the Il Chamus in Baringo to ensure their participation in policy making, no action has been taken. A similar state of affairs prevails in Uganda, where two years after consent judgment was entered allowing the Benet rights to graze and farm the land they occupy, there has been no action by the administration to back up the court’s decision. In a continent that professes respect for the rule of law as a central tenet of its constitutional order, the failure to implement judicial decisions is a mocking indictment of Africa’s commitments to good governance and democratic ideals.

Undeterred, indigenous groups have seized on regional mechanisms to develop standard-setting precedents on indigenous rights, but their attempts have yet to bear fruit. In 2006 the Bakweri lands claim against the Cameroonian government was defeated when the commission declared the communication inadmissible. Indigenous people in Africa wait with bated breath for the commission’s decision with respect to the Endorois communication against the Kenyan government, which seeks the restitution of ancestral territory.

The media houses, belatedly, have taken their cue from these dramatic scenes and begun to highlight the folly of non-recognition of indigenous communities’ plight in Africa, enabling the African public and policy makers to consider their predicament. Mainstream civil society organisations such as ActionAid and CARE in Uganda have begun to demand state attention to indigenous rights as a means of attaining the Millennium Development Goals. The rise of organisations such as the Centre for Minority Rights Development in Kenya and the Indigenous Peoples of Africa Coordinating Committee (IPACC) in South Africa, dedicated solely to the struggle for indigenous rights in Africa, is also helping give visibility to these issues.

Good news, difficult to come by, is slowly emerging. Countries such as South Africa and Cameroon have taken the bold step of commencing processes to ratify ILO Convention 169, which extends a substantive regime of rights for indigenous people, including the right to free, prior and informed consent in relation to development processes on indigenous lands.

Not yet out of the woods…

Indigenous people’s struggles for recognition of their rights must be considered within the context of building multicultural societies in Africa, where diverse identities contribute towards the well-being of the whole. Without this paradigm shift, indigenous rights will continue to be perceived negatively, as instruments of parochialism and division. Yet to achieve this shift, Africa must rise up to the challenge of its own identity. Until then, it is ‘not yet uhuru’ for indigenous groups in Africa.

* Mr. Sing’Oei is the executive Director of the Centre for Minority Rights Development (Cemiride)

* Please send comments to or comment online at www.pambazuka.org

For notes, see link below.

http://www.pambazuka.org/images/authors/Lynne_Muthoni_Wanyeki.jpgA survey by the African Centre for Open Governance finds that corruption is the number one issue in the forthcoming Kenyan elections.

The people have spoken. And, unsurprisingly, what they have said is diametrically opposed to what their leaders have been saying on their behalf.

What am I talking about? Last week, the African Centre for Open Governance launched a survey it had commissioned from the opinion polling company, Infotrak, into citizens’ views about corruption, the electoral process and transitional justice.

The findings? For no less than 89 per cent of those with voters’ cards polled across the country, corruption was the foremost electoral issue. Disaggregated by age, no less than 94 per cent of 18-24 year olds — the largest voting bloc — ranked corruption as their priority concern. And even a majority of those above 55 — 56 per cent — did the same.

Disillusionment with efforts of what remains of the National Rainbow Coalition was high, with no less than 70 per cent saying they did not feel the government of President Mwai Kibaki had done enough to address corruption. Granted, awareness of the details of those efforts was low. Only 13 per cent, for instance, were aware of the National Anti-Corruption Committee headed by Mutava Musyimi. This, of course, is somewhat ironic, given that the NACC is tasked with creating public awareness about corruption. But low levels of awareness aside, citizens were quite clear about why they gave Kibaki’s government a failing grade — pointing to the fact that the highest office holders accused of corruption have either remained in office or been re-appointed to the same. No less than 92 per cent said that they want an end to ‘sacred cows’— only eight per cent said that they were concerned about the conflict that going after the ‘sacred cows’ might create.

Citizens, then, gave their thoughts on past and present “grand corruption” — listing the cases of Goldenberg, the Kroll report, the “Artur brothers,” Anglo-Leasing and sugar imports. They were unhesitant about what they want done. No less than 81 per cent want those implicated and found guilty to be jailed, with 72 per cent demanding that they be forever barred from holding public office again. And no less than 77 per cent want any properties acquired with the proceeds of corruption confiscated. They were equally clear about what they want done with recovered funds and property — invested back into public services. Only a paltry five per cent said they would be satisfied with apologies.

What this shows, as Gladwell Otieno, head of AfriCOG, pointed out during the survey’s launch, is that all presidential candidates and other aspirants should know that there exists among Kenyans “a bedrock of support for firm action” on past and present grand corruption. What the survey’s findings should tell all three is that wishy-washiness — and a flat-out refusal — to act on past and present grand corruption will be their downfall. Especially because the findings of the survey held even when disaggregated to confirm that voters already committed to a certain presidential candidate felt the same way.

As for the electoral process in general, citizens were equally clear — no less than 93 per cent of citizens polled said they would not vote for a candidate alleged or known to be corrupt. And, even though only 51 per cent said they would not accept campaign bribes — named by them as including money, food and drink, clothes and, interestingly, jobs and title deeds — 80 per cent of the same said doing so would have no influence at all on their voting. As Maina Kiai, head of the Kenya National Human Rights Commission said during the launch, this finding confirms that “bribes do not work.” And as Mwalimu Mati, head of the Media Analysis and Research Group, added, the survey’s findings are no less than a ‘wake up call’ for all aspirants who have been warning us that the ‘skies will fall’ should past and present grand corruption be dealt with. We want our money back.

This article originally appeared in the East African Standard on November 5th.

*L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC)

* Please send comments to or comment online at www.pambazuka.org

http://www.pambazuka.org/images/articles/327/44280_nigeria_niger_delta… Bassey examines the factors behind the economics of oil and conflict in the Niger Delta and concludes that the violence in the Delta is “a boom for merchants of crisis capitalism”.

Simple lessons are not necessarily easy to learn. For example: oil is a non-renewable and limited resource. The fever our planet is suffering—global warming or, more accurately, climate change-- cannot be allowed to run its course. To do so would be to allow the global transformation of this planet, with even greater inequity than now exists between North and South, rich and poor, frail and strong.

Oil and conflicts appear to be twins in today’s world. When people think of oil, in general terms, what comes to mind is ‘progress’. Thus, people speak of oiling the wheel of progress. Today, however, much is being seen of oil as greasing the wheels of conflict. And this is very much the case in the Niger Delta.

The crisis we are witnessing needs to be viewed both in economic and political terms as a major for profit venture. Understanding it through this filter is crucial to our seeing why we appear trapped in intractable murky waters and it will also help us construct bridges over which we may come out of the malaise.

In answer to a question on what the likely consequences of the continued exploration of oil in the Niger Delta by oil corporations would be I had to recall first and foremost that the lure of oil is its cheapness as well as its easy yielding in the refining processes. What we mean is that oil is a cheap source of energy. It is cheap partly because its extraction in the Niger Delta and much of the tropical world is carried out in ways that pay scant attention to environmental costs. Thus the consequence of continual exploration and exploitation of the Niger Delta is that the poor people continue to subsidize the costs of crude oil by the losses they suffer in environmental services, quality of life and extreme environmental degradation. The result is, and will continue to be, deepened conflict as opportunistic groups as well as gangs find space to extract financial gains from the system; and ultimately as the people will eventually struggle to regain their sovereignty over their environment and resources.

The Niger Delta situation, rather then being resolved, appears to be getting more intractable. Meetings, programmes, commissions and what have you are being held or set up, yet the problems are growing more legs. As we examine the economic mechanics fuelling these tensions, it is worthwhile for us to have an overview of the local and global scenario exerting influence over related events here and globally.

Profiting from Crisis: the economics of war

The path of crude oil development has been strewn with skeletons and soaked in human blood across the world. The ongoing case in Nigeria is a glaring example. The case of Angola is still fresh in memory. In 1999, as the first barrels of crude oil were shipped from Sudan, so did the war between government forces and those of the Sudanese People’s Liberation Army escalate. When we turn our eyes to the Middle East we see the raw situation of war waged for profit and resource appropriation and control.

The issue of the profitability of disasters has been expertly exposed by Naomi Klein in her new book. She states that “With resource scarcity and climate change providing a steadily increasing flow of new disasters, responding to emergencies is simply too hot an emerging market to be left to the nonprofits – why should UNICEF rebuild schools when it can be done by Bechtel, one of the largest engineering firms in the U.S.?” She also asks the question, “Why deploy UN peacekeepers to Darfur when private security companies like Blackwater are looking for new clients?” In a 2005 article with the title Allure of the Blank State she articulated the advancement of preventive war as normative behaviour by the government of President George W. Bush.

It should be instructive that at a time when oil fields have become hotbeds of conflicts and insurgency, that is precisely when oil companies are making record breaking profits. This boom is also enjoyed by those involved in weapons trade, deconstruction/reconstruction, private soldiers and the like. In the month of October 2006 when the highest Iraqi civilian casualties of 3,709 were recorded, a market analyst stated that Halliburton’s quarterly profit was “better than expected.” By the last quarter of 2006 this company had enjoyed an inflow of up to $20 billion from the Iraqi war alone.

Writing on the Niger Delta situation, a researcher declared that, “the low level of accountability is also attributed to weak electoral administration and process, and a pervasive undemocratic political culture which not only serves the interest of the political class but also encourages the personalization of state resources by those who wield political power, a bureaucratic culture of secrecy and impunity, which nurtures an already entrenched abuse of power by the political and administrative class.”

Its manifestation is ubiquitous and its pinch is directly felt by the peoples of the Niger Delta who have become nothing short of pawns on the chessboards of political manipulators. The manifestations are seen on the boardrooms of corporations, shareholder dividends, and in the proverbial excess crude funds in the case of Nigeria. The ‘excess crude’ euphemism is a concept by which the political executives in Nigeria purposely base revenue projections on estimates far below the market value of crude oil in order not to be caught off guard by a slump in price, and probably also to skim off the ‘excess’ funds that must come where there are positive differentials, as always is the case. With current price of oil pushing beyond $90 per barrel, and with the current Nigerian national budget based on a $40 per barrel benchmark, political actors at various levels are already angling to share the ‘windfall’ which often have been seen as nothing but the ‘loot’, utilized without accountability. We note that for 2005 and 2006 budgets the benchmark was $30/barrel of crude oil and for 2008 the proposal stands at $53/barrel/

The Nigerian State: trapped in the barrel

One activist posited that the Nigerian government is a victim of disaster capitalism and that the new government is caught in the web of supremacist gangs engaged in the business of kidnappings and abductors of oil workers and children and parents of politicians. In a phrase, while both the government and oil companies are the beneficiaries of the crisis raging in the oil fields through huge profits and so called windfalls, both are equally vulnerable. Both face the challenge of access to oil fields and with time, not even the offshore installations will be so secure. This will come to pass unless steps are taken to look away from short term profits and to work for security of the environment, livelihoods and the rights of the people to live in a way that is favourable to their development.

Moreover, deep seas and far off offshore locations do carry special financial risks besides the physical ones. It will get to a point where oil prices will be so high that not even the producing countries will be comfortable with it. The costs spiral may in the long run assist in the finding of alternatives to crude oil and when that happens, unprepared nations like Nigeria will be in a quandary.

It appears the only real addition to our oil resources are with regard to the bitumen deposits to the west of the Niger Delta. Bitumen has a huge environmental downside. Like tar sand, the extraction of bitumen releases much more Green House Gases than the extraction of crude oil does. It also potentially has a heavier environmental footprint. The potential of replicating a violent mineral belt here is very real.

Oil Companies

Oil corporations are huge beneficiaries, and may even be said to be instigators, of the crisis related to the industry. The surge in global awareness about peak-oil and climate change, all-time-high price of oil as a result of conflicts in Nigeria, Iraq and disturbances in Turkey, Pakistan, Iran, etc can become rather unsettling. Add to this the indication that government is likely to renegotiate the contracts with the oil companies. These are all worrisome signals to a cartel that has always had its way and that is quite happy with business as usual as long as they hold the right end of the stick. If government goes through with the renegotiations, it is hoped that at the end of the day the companies will no longer have the lame excuses by which they heap blame on the government for not putting up the money to stop gas flaring, among other things.

It can only be in a state where impunity reigns that a corporation can leave a court order unchallenged for two years, not obey it and not be sanctioned over it. This is the case with a High Court judgement delivered on 14 November 2005 in which Shell was ordered to stop gas flaring in Iwerekhan community. The judgement has not neither been challenged nor vacated and yet the flaring continues unabated. An unwillingness to accept judicial decisions is a clear case of provocation, a clear attempt to ignite a fire where there ought to be none.

January 2008 has been set as the deadline for routine gas flaring to be ended in Nigeria. The oil companies have made some efforts at compliance. Only one of the majors has announced that they would be unable to meet the set target date. That is Shell. They state in their Sustainability Report 2006 that they would end gas flaring everywhere in the world by 2008 except in the Niger Delta where they claim that some of the locations are either inaccessible or it would mean shutting down production if the gas flares are to be shut off. Another indication that the flares out date may not hold is the recent announcement by the Federal Government that a fine of N12, 700 or $100 will be imposed for every million cubic feet of gas flared after the set date.

The government stated that oil companies would only be allowed to flare gas from their oil fields after reaching an agreement with the Federal Government to pay $100/Mscf. Moreover, from January1, 2008, oil companies who make false declarations will be fined $500/Mscf. The official who made the announcement added that “no excuse will be tolerated from any oil firm flaring gas without the approval of the Federal Government. Going by the state of preparedness, experts including officials of the World Bank are looking as far off as 2011.

Apart from being human rights monstrosities, gas flares are known to cause a cocktail of diseases and untimely deaths. Diseases associated with gas flares include cancer, respiratory illnesses and blood disorders.
The ‘benefits’ of disaster capitalism to oil companies include:

• Operating behind military shields as they have always done. This way the state apparatus of coercion does the dirty job and the oil companies involved can claim they were not a party to the assault.

• Refuse to pay adequate taxes unless publicly pressured.

• Make false declaration on the amount of reserves they have in Nigeria, get punished elsewhere and stay happy and quiet in Nigeria with no questions asked. False declaration ultimately is nothing but an exercise in self delusion.

• Be found guilty of bribing Nigerian officials by investigators outside Nigeria, whereas no questions are asked in Nigeria where governments make plenty of noise about fighting corruption.

• Declare that oil spills are caused by sabotage even where there is no evidence to support such claim. And based on these spurious claims, such spills are left unattended to.

Niger Delta Communities: beaten by all sides

The usual assertion that Nigeria suffers from a resource curse may not be true because the resource that we are endowed with is a blessing rather than a curse. Resource wealth does not necessarily have to subvert development. One would agree however that the scramble for the wealth does subvert our collective ability to resolve the conflicts into which we are immersed. And this is primarily because of the privatisation of public funds generated through the exploitation of these publicly held resources.

The crisis situation can best be seen as a result of interplay of a web of interrelated factors, and not the result of a single determinant. As an analyst put it, “While most of the attention is often placed on local actors: the state/political elites, militia groups/warlords, and weak and inept bureaucracies, very little attention is paid to the role of external and transnational actors and the lack of transparency that shrouds the extent of their involvement in these conflicts.

High Tide

Let us conclude by stating that much of the violence experienced in the Niger Delta has been inflicted without any shot being fired. For example, whenever the word restiveness is mentioned images of rampaging Niger Delta youths come to mind. A cursory look at the other geopolitical zones in Nigeria will reveal that youths are just as restive in those parts as they are in the Niger Delta. Secondly, whenever there is a pipeline tragedy consequent upon a fire or an explosion, most reports jump to the conclusion that pipeline vandals were responsible. By these ingrained constructs, the region is now known as a volatile region where the unthinkable become the expected.

It is time for us to calmly re-examine ourselves and strive to uncover the truth. It is time for the Niger Delta to show the way in a collective drive to reconstruct our regional as well as national psyche. This will start by our people understanding that the violence in the Delta is a boom for merchants of crisis capitalism. The gun runners, the kidnappers, the ballot thieves and those engaged in illegal bunkering differ very little irrespective of whether some of them are tagged Excellencies or Honorable. In one short phrase, it is time for us to regain our sovereignty and to ensure that our ballots decide who holds the reigns of our government, who makes decisions and how and when we want our resources extracted. We propose here that as climate change pushes the world towards a cataclysmic brink, a major move is to tackle the trend at the root cause. It is estimated that temperatures in West Africa may rise by up to 4 degrees Celsius and that sea level rise is expected to lead to a loss of over half of the land of the Niger Delta by 2050. There will be an increase in vector-borne diseases as well as severe dislocations. With the downward march of the desert, environmental refugees from the south and from the north will put extreme pressure on the middle belt and raise new levels of crises.

We recommend that Nigeria halts all new oil field prospecting and no further auctioning of oil blocks. If we follow the example of the demands of Ecuador with regard to oil exploitation in the Yasuni national park this will not mean a reduction in our national income. Ecuador is demanding that they should be compensated for keeping the oil in the ground. The argument is that by that action the release of Green House Gases are blocked at source since the fossil fuel is not brought up for use. This is true carbon sequestration and deserves to earn carbon credits instead of the fictional approaches used to exploit an unsuspecting and at times gullible world.

In conclusion, we wish to state that keeping the oil in the ground will plug the holes of exploitation, violence and profiting from degradation and dehumanizing activities. We say NO MORE OIL BLOCKS until and unless it is with the express consent of the people. Our life and our future are in our hands.

This is an edited version of a paper delivered by Nnimmo BASSEY at the Niger Delta Roundtable held at Ibom Hall, Uyo, on Thursday, 1 November 2007

* Nnimmo Bassey is the Executive Director of the Environmental Rights Action, ERA/Friends of the Earth Nigeria with head offices in Benin City, Nigeria.

* Please send comments to [email protected] or comment online at www.pambazuka.org

Arnaud Chaltin traces the role and participation of civil society in a human rights context within the Commonwealth.

The participation of civil society within the Commonwealth is fundamental in order to ensure that it remains true to its principles. The origins of the current Commonwealth can be found enshrined in the Statute of Westminster (1931), where countries within the Commonwealth were found to be equal in status and as having a common allegiance to the Crown. Bound together by shared values, including respect for human rights, commitment to democratic forms of government, toleration and mutual respect for differences of background and belief, the Commonwealth Foundation was established in 1965. Established in the same year as the Commonwealth Secretariat, this linear development was one of the early signs of the Commonwealth’s interest in encouraging and supporting its civil-society links.

One of the first significant manifestations of civil society influence and interest in human rights context within the Commonwealth occurred during 1961, in the form of opposition to the apartheid system in South Africa. Some ten years later, with the advent of the Singapore Declaration of shared principles, Commonwealth commitments were cemented, ensuring individual liberty, freedom from racism, peace, economic and social development and international cooperation. In the 1979 Lusaka Declaration, the Commonwealth stressed its opposition towards racism and racial prejudice. In turn, leading to the 1991 Harare Declaration, which gave recognition to principles of human rights, democracy and good governance. It was this same year that the first civil society report was submitted to the Commonwealth Heads of Governments Meeting (CHOGM), calling for governments to view non-government organisations as potential allies and recommending official inclusion of non-government organisations in the procedures of any human rights protection mechanisms within the Commonwealth. In 1993, hearing this call, the Commonwealth began standardising its relationships with civil society. A desk was instituted for non-governmental organisations within the Secretariat, in order to serve as a focal point for coordinating the Commonwealth’s interactions with non-government organisations. An accreditation procedure was set up the same year, for the CHOGM in Cyprus. It was as these events unfolded that Commonwealth countries gradually began to become aware of the importance of the role of civil society.

It was during the 2002 CHOGM, in Coolum, that member states advised their desire for “[…] the many intergovernmental, professional and civil society bodies, which help to implement our Commonwealth values to join with us in building closer Commonwealth family links and strengthening consultation and collaboration”. This declaration was directly forwarded by the High Level Review Group, a Committee of 10 heads of government, stressing the need to recognise “the networks for sharing expertise, information and experience among organisations, the people-to-people links and the existence of a wider Commonwealth civil society are valuable assets that give the Commonwealth a depth and reach that is unique.” The report from the review findings provided new criteria, including the requirement that organisations must be committed to the values of the Commonwealth, represent the true diversity of the Commonwealth, and that they should be transparent in their activities and open to all Commonwealth members. This newly established accreditation criteria opened doors for official cooperation and participation within the Commonwealth, enabling organisations to call at the headquarters of the Commonwealth.

The Commonwealth Ministerial meetings are one arena where civil society can participate. Depending on the nature of the meeting, accredited non-government organisations, working in areas of direct relevance to the meeting, can be invited to access documents, make submissions, or to act as observers to the discussions. More importantly, the proceedings of these meetings often inform the CHOGM discussions or will be taken by the Ministers to other international fora. However, it is the Commonwealth Ministerial Action Group (CMAG), a rotating group of eight foreign ministers, that is the venue usually targeted by human rights organisations. Established in 1995, as a body to sanction action against “serious or persistent” violations of the principles of the Harare Declaration, CMAG accepts submissions from non-government organisations. It has the power to initiate fact-finding missions and/or to recommend the Heads of Government suspend or expel a member state. However, civil society’s ability to participate has been limited somewhat given the narrow interpretation accorded to CMAG’s mandate.

Civil society collaboration has often been far more effective in those arenas with a less political profile, such as the Coolum Committee. The Coolum Committee has operated by reuniting non-government organisations, the Commonwealth Secretariat, and other Commonwealth agencies for periodic consultations on the progress towards achieving the goals of the Coolum Declaration. This can also include discussions on the best way to ensure thorough collaboration between the official commonwealth and non-government organisations. The Expert Group on Democracy and Development (presenting its report in 2003) had also welcomed submissions from non-government organisations. However, most non-government organisations consider CHOGM as their most important advocacy target; as it provides the Commonwealth’s most visible representation of official participation at the biannual event. The CHOGM Procedures allow organisations to submit papers to the Committee of the Whole, which drafts the CHOGM agenda, as well as CHOGM itself. Interactions with government officials at CHOGM are, however, limited, not allowing specific opportunities for dialogue with officials. Such limitations, as felt by Commonwealth civil society led, in turn, to the development of an informal parallel forum, the Commonwealth People’s Forum (CPF), organised by the Commonwealth Foundation. The sessions and programmes within CPF, such as the Commonwealth Human Rights Forum (CHRF), were established in order to provide non-government organisations, and other sections of civil society, with a space to showcase their work and define advocacy goals. The conclusion of the Forum, provides the link with the Official Commonwealth, where civil society drafts and presents a written communiqué to the CHOGM.

This landscape is completed by the Commonwealth Inter-Governmental Agencies. The Commonwealth Foundation, for example, is mandated to enhance the role of civil society organisations with the official Commonwealth. Yet, if the Commonwealth Foundation is viewed as civil society’s most important partner, the Commonwealth Secretariat can be seen as an important target for advocacy. The Secretariat is an important target for human rights advocacy largely as the result of its broad mandate. Constant contacts with the Commonwealth secretariat, such as submissions and consultation procedures, in particular with sections, such as the Human Rights Unit or the Political Affairs Division, have proven to be the successful way in which to draw attention to persistent human rights issues within the Commonwealth. However, even where there is a right to make submissions, there is no obligation for the official body to consider it. In this regard, the position of the Commonwealth Secretariat Secretary General, charged with the development and delivery of the Strategic Plan – a four-year framework which sets out the Secretariat’s main goals and programmes, has a large degree of influence over the importance accorded to issues, including ensuring the actual promotion of civil society participation within the Commonwealth. In this context, it is of particular relevance for members of civil society to question and analyse the commitments of nominated candidates at up-and-coming candidacy selections, as well as their follow-through after selection.

To ensure that the future Commonwealth remains true to its values, by recognising the stake that civil society has in the transformation of the Commonwealth from its past colonial history, we must ensure that its institutions remain open to Commonwealth peoples. Where there is little space or commitment to the promotion and protection of such a space, our voices may become a little harder to hear in the future. Such a failing will lead to civil society’s disenchantment and questioning of the Commonwealth’s ability to act as an agent of democratic transformation and development.

For more information regarding CHRI or this article, contact Arnaud Chaltin or Lucy Mathieson at CHRI: Email [email][email protected] or access the CHRI website at www.humanrightsinitiative.org

The Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international NGO working for the practical realisation

* Please send comments to [email protected] or comment online at www.pambazuka.org

On 22nd October 2007, the African Commission on Human and People’s Rights marked twenty years of promotion and protection of human rights in the continent. Although Malawi ratified the charter in 1989 and it has eight outstanding state party reports to write to the African Commission, and it is yet to submit its initial report, writes Levi Mvula.

The adoption of the first post – colonial constitution in 1995 brought jubilation to many Malawians. This was so because the new constitution established a democratic system of government and included a bill of rights. This was in contrast with the 1966 Constitution, which, despite stating that Malawi would recognize the rights protected by the Universal Declaration of Human Rights, failed to include a comprehensive bill of rights. In this regard, it was difficult to understand how the state was going to achieve the fulfillment and protection of rights. Indeed for the first 23 years of its independence, Malawi did not sign up to any international human rights instruments and in practice, the government and its agents were responsible for widespread human rights violations against political or perceived opponents. However, the major turning point in Malawian constitutional history occurred in 1994, when the 1966 Constitution was replaced by a Constitution designed to create a more liberal political order. After a rigorous process of consultations, the constitution entered into force in May 1995. The new constitution, among other things included a bill of rights in chapter four that guarantees a wide range of justifiable human rights and also provided a framework in which the government can fully undertake its international obligations.

Despite the ‘gross violations of human rights occurring in the country’ during the one party state era, Malawi ratified most of the major relevant International and African human rights treaties. Such treaties include the African Charter on Human and People’s Rights, ratified on 17 November 1989, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both ratified on 22nd December 1993. Malawi is also a state party to the Convention on the Elimination of all forms of Discrimination against Women which it ratified on 22nd March 1987 and the Convention on the Rights of the Child, ratified on 2nd January 1991. Ratification or accession to these human rights instruments comes with certain obligations on the part of the ratifying state. Such obligations include giving effect to the provisions of the treaties at a national level through the process of domestication. One of the most important duties of state parties under international human rights law to these instruments is the submission of periodic reports to the treaty monitoring bodies on the steps they are undertaking to give effect to the rights contained in the treaties to their nationals.

Malawi has largely failed to discharge its reporting treaty obligations under the international treaties it is party to. To date, Malawi has only submitted some of the reports due under the CEDAW and CRC and none under the various other treaties the country signed without coercion including the reports to the African Commission on Human and People’s Rights. In June 2004, the government made some efforts to redress the situation by submitting a report which combined the second, third, fourth and fifth periodic reports on the Convention on the Elimination of Discrimination against Women. The shadow report to this particular state report was prepared by Centre for Human Rights and Rehabilitation (CHRR), Women Lawyers in Southern Africa (WLSA) and National Association for Business Women (NABW). The reports were considered by the committee on Elimination of all forms of Discrimination against Women during its 35th session from 15th May to 2nd June 2006. As required by the procedures of the committees, the committee of Elimination on all forms of Discrimination against Women made several recommendations such as appealing to the Malawi government to set a clear time frame for the adoption of the revised Citizenship Act, Immigration Act and the Wills and Inheritance Act and for the New Marriage, Divorce and Family Relations Bill, designed to eliminate discrimination against women. On the CRC state party report, the committee had recommended, among other things, that Malawi harmonize the definition of the age of a child and requested it to consider raising the age of the child up from 16 to 18. Much time has passed since then but there is still no sign on the ground that the government is undertaking steps to implement the recommendations that were made by the committee.

Recently, it was revealed that the Committee on the Elimination of Racial Discrimination (CERD) which is responsible for the convention on elimination of racial discrimination announced that it was going to consider Malawi’s country situation in August 2007 in the absence of the state party report from the Malawi Government. The committee reached that decision after Malawi ignored several reminders to comply with its reporting obligations. It is embarrassing to learn that the committee has since decided to give Malawi more time until next June 2008 to submit the report. A recent enquiry on the responsible ministry, the Ministry of Justice and Constitutional Affairs, indicated that the process of preparation of the report had not started as of first week of October 2007 and one wonders if the exercise will be carried out at all.

On 22nd October 2007, the African Commission on Human and People’s Rights marked twenty years of promotion and protection of human rights in the continent. Although Malawi ratified the charter in 1989 and it has eight outstanding state party reports to write to the African Commission, and it is yet to submit its initial report. Sources from the African Commission on Human and People’s Rights indicate that Malawi is the one of the three states in the SADC region yet to report and one of the three will be presenting its maiden report this November 2007 when the African Commission hosts its 42nd session which will sit in the Democratic Republic of Congo. Michelle Hansungule, a Human rights professor at the University of Pretoria labeled states who are never bothered with treaty obligations such as submission of state reports like Malawi as permanent defaulters. Surprisingly, states that are being accused of massive human rights violations like Zimbabwe take the reporting obligation under the African Charter very seriously by submitting its state party reports. It is important to note that all neighbouring countries have been submitting their state party reports. Tanzania and Mozambique have been reporting to the African Commission though they still have outstanding reports whilst Zambia and Zimbabwe are amongst those states that submitted all their reports and no outstanding reports. The African Commission continues to urge member states of the African Union that have not yet submitted their reports like Malawi to submit their initial and periodic reports. Of great significance to Malawi is that we can combine all the overdue reports (eight) into a single report for submission to the African Commission.

Efforts to understand the cause of this non compliance with reporting obligations under various international instruments reveals very troubling excuses. According to the Malawi Human Rights Commission, the government has attributed its current failure to fulfill its treaty reporting obligations to the lack of human and material resources to fund the process of preparing the reports and subsequent submission of the reports. The issue of lack of human resource as one of the reasons for non – compliance with the treaty monitoring bodies of various treaties is difficult to understand. This is because there are several well qualified men and women in the Ministry of Justice and Constitutional Affairs who have attended refresher courses on state party reporting and other important trainings. Besides, there are several men and women in the civil society and the academia that have the capacity to assist in the process of writing the state party report. After all, the state party report on CEDAW was done by various experts from the academia, civil society and government. It is important to note that the requirement is not necessarily that the Ministry should write the report on its own particularly where there is no enough capacity but that it should take a leading role in the report writing process.

On the other hand, it is widely rumoured that the government has finalized a state party report on the convention of the rights of the child. If this rumour is true, then the government through the ministry responsible should be applauded. I also hope that this will motivate us as a country to clear all the outstanding reports under various treaties. An appeal though to those responsible is that issues of reporting ought not to be secretive but rather open and it is my hope that the state will offer the civil society copies for them to shadow the report as encouraged by the human rights norms.

In conclusion, it is worthwhile to emphasize that submission of state party reports is very important in as far as promotion and protection of human rights is concerned. By ratifying the treaties, the country accepted to comply with the treaty obligations and it is frustrating that we are failing to do as is expected of us. Reporting needs to be taken seriously and there is need for political will since it is only the submission of these reports that can highlight the implementation of various human rights provisions as is required by these international human rights treaties since the international human rights law gives states near to total discretion to implement internationally recognized human rights within their own countries. All Malawians have noted that the situation of human rights in Malawi has tremendously improved since Malawians voted for politics of pluralism. Today, Malawians are enjoying rights that could have landed them in conflict with the law some fifteen years ago. The success stories of the human rights regime in Malawi need to be shared with other states after Malawians had lived 31 years under a regime that never recognized human rights and violated them. Reporting obligations also grant the independent experts on human rights the opportunity to offer recommendations, which may sometimes be referred to as General Comments or views on how states can ensure full realization of certain rights depending on the type of the treaty. This may well prove extremely beneficial to Malawi. It is thus wholly unheard of for Malawi to continue disregarding its reporting obligations, obligations it assumed voluntarily, as this paints an extremely depressing image of the government’s commitment to the promotion, protection and fulfillment of various human rights. The Attorney General as the chief government advisor can the nation service to remind the relevant authorities on the significance of the reporting obligations and assist where gaps exists.

* Levi Mvula is a human rights activist in Malawi working for the Centre for Human Rights and Rehabilitation (CHRR), a non-governmental organisation working in the area of human rights and governance in Malawi.

* Please send comments to or comment online at www.pambazuka.org

http://www.pambazuka.org/images/authors/Horace_Campbell.jpgSince independence in 1975, the living conditions of the working people of Mozambique have deteriorated considerably. In 2007 the quality of life of the majority of citizens remains very poor. Mozambique ranks 168th out of 190 on UNDP’s Human Development Index (HDI), the lowest in Southern Africa. At the same time, there is a new class of rich capitalists in Maputo who live in luxury, says Horace Campbell.

In the book, The Liberal Virus and the Americanization of the World (Monthly Review Press, 2004), Samir Amin endeavours to show how the US project for military and economic domination has its roots in the liberal ideas of Western Europe. Amin draws attention to the plunder of the Third World, especially Africa, and the ways in which institutions such as the International Monetary Fund, the World Bank and the World Trade Organization fostered policies that undermined the quality of life of the world’s poor. Amin predicts the loss of more than 3 billion lives if African countries continue to pursue the West’s neo-liberal agenda, especially if poor farmers emulate the agricultural practices of North America and Western Europe.

Since independence in 1975, the living conditions of the working people of Mozambique have deteriorated considerably. In 2007 the quality of life of the majority of citizens remains very poor. Mozambique ranks 168th out of 190 on UNDP’s Human Development Index (HDI), the lowest in Southern Africa. At the same time, there is a new class of rich capitalists in Maputo who live in luxury. Neo- liberalism prevails at the high levels of the society while at the grassroots the poor remember the pledges of the leaders of Frelimo to provide food, shelter and water for the poor. In 1980, Samora Machel proclaimed that Mozambique would become a developed country by 1990. Yet, 27 years later, the country is becoming poorer as local and foreign capitalists continue to plunder the country.

Mozambique achieved its independence in 1975, after a period of armed struggle led by FRELIMO. Mozambique was among the Frontline states in the struggle against apartheid and colonialism. Despite pressure from the South African apartheid and Rhodesian states the people of Mozambique made tremendous sacrifices to provide a rearguard base for the liberation of Zimbabwe and later South Africa. In the face of the successful revolution in Mozambique, the apartheid government launched a Total Strategy Campaign to destroy the Mozambican society. Through their proxy army the MNR, the South Africans and the US neo-conservatives supported terrorism against the people of Mozambique. Villages were attacked, innocent women and children were massacred, and transportation and communication lines were cut while South African commandos infiltrated Maputo to kill ANC freedom fighters.

Samora Machel and Chissano negotiated with the South African government to end apartheid support for the MNR culminating in Machel and Frelimo signing the Nkomati Peace Accord in 1984. Despite this accord, the apartheid regime intensified its support for the MNR. Samora Machel was killed in October 1986 when his plane was brought down by the apartheid regime of South Africa.
The killing of Machel was the high point of the terror war waged against the people of Mozambique by the apartheid regime with support from the neo-conservative forces in the US. Up to today, the full history of this terrorism unleashed by the MNR (called Renamo) has not been fully documented. Millions were killed and displaced in the war of destabilization. In the book, Mozambique: Who Calls the Shorts, Joseph Hanlon outlines the three forms of destabilization endured by the people of Mozambique. These were (i) Military destabilization and violence by Renamo (ii) Political destabilization brought about by the attempts to impose the band of killers on the people and (iii) Economic destabilization unleashed by the International Monetary Fund and The World Bank.

The Diplomatic Skills of Joaquim Chissano

Chissano had been one of the early leaders of FRELIMO from its days as a guerilla movement in Tanzania. Chissano developed his diplomatic skills negotiating the withdrawal of the Portuguese between 1974 to 1975. At independence, Chissano was named the foreign minister of Mozambique and became known as a skilled diplomat. As long as the party was strong, this diplomacy served the interests of the liberation project in Africa. When Machel was killed in 1986 there was a choice between Marcelino Dos Santos (considered a doctrinaire Marxist by the West) and Chissano. The party chose Chissano.

Chissano proved an adept negotiator who sought to appease the West, especially the US government. By 1990, projects for delivery of health services and clean water to the poor were abandoned and the economy was opened up to ‘market’ forces. IMF-designed Structural Adjustment Policies were adopted and the state rolled back the support for the poor. Market forces meant the opening up the economy to South African and foreign capitalist. The irony of this retreat was that the same forces that had destroyed Mozambique were now being invited to invest in its reconstruction.

Once Frelimo had capitulated before Western and apartheid capitalism, the forces of reaction sought to rein in Renamo. The Vatican (which had been the most opposed to the policies of Frelimo) offered to mediate a cease fire to end the war of destabilization. This was also an effort to give a clean image of Renamo in the face of intensified struggles against apartheid. After the defeat of the South African army at Cuito Cuanavale in 1988, the apartheid regime went on the defensive. The independence of Namibia in 1990 along with the release of Nelson Mandela created a new political dynamic in Southern Africa. The peace talks in Rome to end the war between Frelimo and Renamo were drawn out to ensure that Frelimo made concessions to the forces that terrorized the people.

The United Nations sent a team for the transition to integrate the former murderers into the state structures. Such was the process of counter revolution in Mozambique that instead of arresting those who had carried out crimes against humanity, the leaders of Renamo were given the respected title of leaders of the opposition. Frelimo won the 1994 elections and Chissano became the first President of a multi-party ‘democracy’ in Mozambique.

The second element of the destabilization had been thwarted, the West and the apartheid government failed to impose Renamo with its criminal past as legitimate leaders of the country.

The victory of neo-liberalism in Southern Africa

The third element of destabilization went into full gear in 1994. This was to promote the capitalist mode of production. Mozambique and Tanzania were being punished by the World Bank and the IMF for attempting an alternative to rapacious capitalism Faced with the organized working class and the possible cross-border links between workers in Southern Africa (calling for a Charter for Human and Peoples Rights across Southern Africa), the neo-liberal organizations inside and outside Africa poured millions of dollars into projects to discredit popular forces of the poor.

South African society embarked on a virulent xenophobic campaign against Mozambicans while the media was replete with stories about ’the failure of ujamaa’ in Tanzania and that socialism had failed in Mozambique. Workers in South Africa were mobilized to think of their brothers and sisters from Mozambique as the problem, rather than the system of exploitation and looting. After an initial project of Reconstruction and Development (RDP) with plans for housing, sanitation, clean water and education for the poor, the political leadership of South Africa opted for a World Bank style-project of Growth, Employment and Redistribution strategy (GEAR). Under this policy the social scars of apartheid were exacerbated by the emergence of a new class of black entrepreneurs who had become rich through the ‘black empowerment project.”

The reversal of the gains of self-determination (some would say the counter-revolution) was evident across the region of Southern Africa. In countries like Mozambique and Zimbabwe where the workers had formed trade unions and were in the forefront of the struggle for democratic rights, these same workers were now being oppressed by “black entrepreneurs.” Black empowerment and privatization were the buzz words for the new class of leaders who turned their backs on the struggle for a better life for all.

The tragedy is that it was in the countries where the poor had made the greatest sacrifices (Angola, Mozambique, South Africa and Zimbabwe) where the new black bourgeoisie were most callous in the sellout to international capitalists.
One of the clearest examples of this betrayal is the case of the construction of the Mozal Aluminum Smelter in Mozambique. This project is owned by an international consortium led by London-based Billiton (47%) and includes South Africa's Industrial Development Corporation (24%), Mitsubishi of Japan (25%) and the government of Mozambique (4%). The project to set up this aluminum smelter was the biggest in post-independence Mozambique. The trade union was not allowed to organize the workers to participate in this project worth over US $1.3 billion.
Chissano as a diplomat

This context of reversal of fortunes for the ordinary person in Southern Africa provides a back-drop to understanding the prize given to former President Joaquim Alberto Chissano.
Last week it was announced that the former Mozambican President has won the inaugural Mo Ibrahim award for exemplary leadership in Africa Announcing the award on Chissano’s birthday, former United Nations Secretary General (and the head of the UN Department of Humanitarian Affairs at the time of the Rwanda genocide) and Chair of the Prize Committee, Kofi Annan, said that '''President Chissano's achievements in bringing peace, reconciliation, stable democracy and economic progress to his country greatly impressed the committee.”

Mo Ibrahim is the archetypal successful African entrepreneur and has been lauded as a text-book success story for young Africans. Mr. Ibrahim provides best personifies the neo-liberal propaganda about “hard work, competition and the fairness of the market and new technologies. According to the media, “Mo Ibrahim, a Sudanese-born telecommunications entrepreneur, established the prize as a way of encouraging good governance in a continent blighted by corruption and a frequently loose adherence to democratic principles.” Not a word is mentioned about the living conditions of the people of the Sudan from where Mr. Ibrahim hails.

What is significant about the whole award process is the way in which moral imperatives of service and commitment to the poor and exploited have been overtaken by the neo-liberal discourses and the Liberal Virus. It is true that if a prize were to be given at this historical moment to a former president, none would have been more deserved that former President Chissano. After all, he had stepped down from power in 2005 and was responsible for a smooth transition to a new leader. This point was made by Kofi Annan when the prize was announced. For this Joaquim Chissano should be congratulated. Chissano is also working very hard to negotiate an end to the war in Northern Uganda between the Museveni regime and the Lord’s Resistance Army (LRA). In this regard Chissano can be distinguished from the militarists all across Africa.

But, isn’t this prize also a sign of the political retrogression in Africa? The idea of a President voluntarily stepping down is now so novel in the face of leaders such as Museveni and Mugabe that Chissano indeed stands out. Compared to Robert Mugabe and Thabo Mbeki, and their megalomanic policies, Chissano does look good.

While announcing Chissano as the winner, Kofi Annan may have gone overboard by saying, “leadership should be the ability to formulate a vision and to convince others of that vision. It should be the skill of giving courage to accept difficult changes to make possible a longer term aspiration for a better and fairer future.”

It was also said when the prize was announced that, “the mark of a good leader is one that can inspire people to a higher standard of living, unite diverse interests and ensure subjects live in harmony, despite holding different opinions.”

It is understandable if African leaders want to pat each other on the back, and of those still alive, Chissano stands heads and shoulders above his contemporaries. But, do we have to set the bar so low for African political leadership in this era?

Neo-liberalism and corruption

One of the successes of the neo-liberal project of privatization has been to increase the export of capital from Africa. Despite efforts such as the Stolen Asset Recovery (STAR) Initiative, the role of the Western financial institutions across Africa has largely been to facilitate the export of wealth. Mozambique is no exception and one of the blots on Chissano’s tenure is the privatization of Mozambique's largest bank, Banco Comercial de Moçambique.

Carlos Cardoso is among the stalwarts of the Mozambican revolution . As a fearless investigative journalist, he was committed to the principles of peace, freedom and prosperity for the people. Cardoso was looking into a US$14 million fraud connected with the privatization of Banco Comercial de Moçambique.

He was shot dead in central Maputo on 22 November 2000.

The truth about those who orchestrated and carried out the murder of this courageous journalist is still unknown. It is the hope of all who want crimes and murders to stop in Africa that those with information on criminality will assist in bringing criminals to justice. Only last week Lucky Dube was shot down while dropping off his children in Johannesburg, South Africa. Street crimes of the sort that took the life of Lucky Dube cannot be fought when crimes of theft in the banking system involving millions go unpunished. We should remember the words of Peter Tosh, “every one is talking about Crime but who are the real criminals?”
The truth is that the criminals are the leading capitalists in Africa along with their allies in the capitalist world.

The prize for the best accountant

When Chissano left office, Mozambique was seen as a country that had retreated from the old socialist model and successfully embraced neo-liberal capitalism. Social democratic ideas of providing services to the people were considered old fashioned among the young who were been fed the anti- socialist line. International non-governmental agencies now traverse the countryside in Mozambique doing the kind of work that should be done by the government. World Bank consultants are very busy ensuring that there is ‘good governance’ and ‘market reforms’. Instead of identifying the capitalists as looters and purveyors of greed, we are bombarded with the discourse on “donors.” Mo Ibrahim has elevated himself into the ranks of the “donors.”

The Mozambican workers and poor peasants remember their long struggle against colonialism. The challenge in Africa is to remember the victories of the Mozambican revolution and not to allow the World Bank discourse on ‘governance’ to erase the memories of mobilization of the people against exploitation. While the workers organize, the prize for rooting out corruption should help us to get to the truth behind the murder of Cardoso.

In the past few months, the UN established the STAR initiative to assist exploited countries recover assets stolen by corrupt leaders. The initiative was to ensure that looted assets are returned to their rightful owners,

For those who still believe in the transformation of Africa, we believe that the next prize should go to the accountant who uncovers the most money stolen from Africa by its leaders.

* Horace Campbell is Professor of Political Science at Syracuse University

* Please send comments to or comment online at www.pambazuka.org