It is a sad reality of our time that human rights although codified in our constitutions, and supplemented in many international and regional instruments our governments have ratified, are honoured more in breach; our governments, including ourselves as individuals, have not fully embraced the humanity of every person, in our daily interaction with each other, even as we openly acknowledge that human rights accrue to all persons equally. Traditionally human rights were considered a shield against governments; to protect the people against governmental abuse and neglect. Today we know that even individuals and private entities can and do infringe human rights. The story of human rights in Africa is a mixed one: there have been notable achievements especially in the area of civil and political rights compared to the past era of one party state. This is not so with socio-economic and cultural rights that have suffered noticeable neglect for most of the post-independence era.
The state of human rights in Africa is closely linked, at a regional level, to the state of the African human rights system. The African human rights system was borne of the post-colonial euphoria and commitment to build a pan African union of nations that thrived on human rights and respect. The interesting tension that continues to be played out even today was the equally foundational premise of sovereignty and non-interference. When the African human rights system was forged in the late 1970s and early 1980s, the possibility of an African human rights court was raised, but rejected. Participants in the drafting process concluded that the continent was not yet ready for a judicial institution to make pronouncements on human rights violations committed by states.” It is noteworthy that the state machinery in member states often adopts this rhetoric of readiness when explaining away the failure to meet rights obligations that are owed to the citizenry, particularly when it comes to the protection and promotion of social economic and cultural rights. In this way full realization of rights is perpetually pending and postponed to a time as when the state will supposedly have the capacity, mainly financial, to meet its obligations. In more recent years this attempt to hide behind the age-old adage of empty coffers has been linked more directly with good governance principles of accountability and transparency and the human rights cost of corruption. The establishment of the regional human rights system in Africa in the mid-to-late 1980s coincided with the onset of what has been termed African Renaissance. After the first three decades of independence had failed primarily because of bad government, African peoples across the continent were determined in the late 1980s to end years of despotic, unaccountable, single party or military governance. Throughout the continent, millions of citizens started to demand a government sanctioned by the free will of the governed. This “second African liberation” sought to reverse decades of authoritarian one-party rule, unspeakable human rights abuses, and economic mismanagement. A determined cadre of middle-class moderates, mostly notably lawyers, journalists, and human rights advocates were relentlessly pressing governments throughout Africa to open up the political process to a competitive electoral process. The rallying cry for these reformers was, and remains, human rights and its inseparable twin, the rule of law.”
CRITICAL HUMAN RIGHTS CHALLENGES
Africa is littered with countless human rights challenges. They are far too many to do justice to all of them in 30 minutes that has been availed solely for setting the scene. In providing an overview of the human rights challenges in Africa I have considered it prudent not to name and shame any state. Because of limitation of time I have chosen to focus of a few thematic areas: These include issues of: (a) access to justice, (b)shrinking civic/democratic space, (c)repressive laws and practices that are inimical to freedom of freedom of expression, assembly and association, (d) rights of women and children, (e) issues of sexual and gender identity, (f) disability, (g)TB and human rights and (h) poverty.
Access to justice
Access to justice in our continent, especially by the marginalized and the poor is a major concern. For instance, sexual gender based violence, (which is costing the continent all sorts of ailments, including lack of productivity and consequent decline in economic fortunes of our countries), is one of the most prevalent crimes against women. Yet women are finding it difficult to access the courts on account of gender stereotypes, discriminatory legal provisions and cultural norms; including the requirement for corroboration in rape cases in some countries. Poverty is also one of the factors that frustrates access to the courts. When it comes to children, in the juvenile justice system, there is a disturbing trend where children are incarcerated with adults in some countries, with all the attendant problems of abuse that happens in prisons.
Shrinking civic/democratic space
There is a growing tendency in Africa for governments, usually operating outside the law, to silence dissenting voices by civil society, media, opposition parties, human rights defenders that seek to hold them accountable. In many countries, in this our continent, human rights defenders, the media are often arbitrarily arrested and detained. Quite often heavy handed administrative measures are undertaken to de register trade unions and other civil society groups, authorities sometime going so far as freezing bank accounts in order to clip the wings of some of these formations. Political intolerance and repression of political opponents has led to conflicts that have led to a serious refugee problem in Africa. In consequence of these developments, some countries end up carrying a disproportionate burden of hosting refugees. According to the UNHCR report of 2015 East Africa is the biggest contributor of the entire refugee problem in Africa.
Freedom of Expression, Assembly and Association
In many countries of Africa repressive laws have been enacted curtailing citizen’s rights to free expression, peaceful assembly and freedom of association. Increasingly counter –terrorism laws are being misused to target the legitimate work of human rights defenders. Non Governmental Organizations (NGO) and media laws are being passed with broad and vague terminology facilitating judicial proceedings against human rights organizations and media outlets under the guise of “threatening national security”. In many other countries peaceful protests calling upon governments to account are violently suppressed and space for political opposition is hardly existent and with opposition leaders jailed.
Rights of women and children
In a number of countries in Africa women and children are among the most vulnerable sections of our society. Notwithstanding progressive constitutions that proclaim such values as human dignity and equality before the law women are still treated as second class citizens in most countries. In a number of countries customary laws are still used to perpetuate discrimination against women such as customary laws that prohibit women from inheriting the estates of their deceased parents. Women’s rights in Africa are still a far cry notwithstanding strong progressive policy frameworks on women’s rights. One of the most progressive regional instruments that a majority of African States have signed is the Maputo Protocol of 2005. Article 14 of the Protocol is clear on the rights to safe abortions in cases of incest, sexual assault, rape and when the pregnancy endangers the mental and physical health of the mother or the life of the mother or foetus. However due to stigma and other factors, and notwithstanding laws to to legalize abortion consistent with the terms of the Maputo Protocol, countries are still faced with far too many cases of unsafe abortion. The sooner countries appreciate that having good laws on its own is not good enough the better. To make a positive difference in peoples lives good laws must be implemented. In some jurisdictions women are still regarded as minors in the eyes of the law. Children are another group whose rights are wantonly breached – such as their rights to sexual reproductive health rights; denial to education during times of conflict.
Sexual and gender identity
The right not to be discriminated on the basis of sexual orientation and freedom to express one’s gender identity are heavily contested and denied in Africa. The myth that there are only two genders: male and female still holds sway. And all though most of our constitutions entrench the values of human dignity and equality we are still a long way from fully complying with our constitutions. In terms of the UDHR human beings are all born free and equal. We all have our own different identities and thoughts and the fact that I may be different from you or from the majority does not mean I am less human.
In Africa the disabled persons usually receive a raw deal from their governments and society. They are stigmatized and denied opportunities that are availed to other members of society. Governments tend to adopt a charity model than a human rights model; and disabled persons are not sufficiently accommodated in public spaces.
Discrimination based on health status
Discrimination based on health status is rampant in our continent. Persons who are living with HIV or are perceived to be HIV positive are discriminated against and stigmatized. Discrimination against people with TB is also quite widespread. According to the most recent WHO Global TB report there are more than one million reported TB cases in Africa. In Kenya, one of the 30 high burden countries in Africa, there are 169 000 people with TB, out of which 22000 are children.
TB is one of the leading causes of death in Africa. Many people with TB do not know their rights and their rights are routinely violated. For example, putting people into isolation when they can be treated in the community, dismissing people at work who have TB is a violation of human rights which is all too common in this continent.
Poverty in Africa is endemic. It is a disconcerting fact that far too many of our people wallow in poverty, when in actual fact there are sufficient resources for all of us in the continent. What has gotten on the way of realizing the socio-economic rights of our people is rampant and unmitigated greed, pervasive corruption and debilitating inefficiency or sheer incompetence in matters of governance and service delivery. As judges and jurists gathered here today, I am certain that none of us can credibly contest the view that there is no point in guaranteeing to me 'the right to life' without guaranteeing me the complementary right to the means of sustaining the life you are guaranteeing (i.e. economic means, a job, a decent income, etc.). The absolute poverty under which the majority of the people of this continent live is the greatest violation of their rights as human beings. The greatest challenge facing Africa today is the triple burden of inequality, unemployment and poverty. It is clear from the above narrative that Africa is beleaguered by “gaps” – gender gaps, learning gaps, accessibility gaps, service delivery gaps, economic gaps, sexuality gaps, rights gaps and age gaps. The question is whether the human rights system can adequately address these gaps, bridging them to bring human rights down to the level of even the most far-flung and almost forgotten rural citizen.
THE AFRICA CHARTER
The linchpin of the human rights system in Africa is the African Charter on Human and People’s Rights. Normatively, the African Charter is an innovative human rights document. It significantly departs from the narrow formulations of other regional and universal human rights instruments: It weaves a tapestry which includes the three “generations” of rights: civil and political rights; economic, social, and cultural rights; and group and peoples’ rights. Its most controversial provisions impose duties on individual members of African societies. The Charter links the concepts of human rights, peoples’ rights, and duties on individuals. Without making any false distinctions between the various categories of rights; civil and political rights are included next to socio-economic rights
The major problem of the African human rights mechanism is the weak human rights institutions that do not have any power to make any meaningful difference. The other problem is the weak enforcement mechanism.
Contribution to international human rights law
Despite the weaknesses identified above it is generally agreed that the African Charter has been pivotal in influencing the development of regional standards on human rights on the continent. Some scholars have argued that the African Human Rights System has significantly contributed to and shaped the international human rights system on account of the fact that the African Charter makes a clear break with numerous dichotomies that prevailed in international law. For instance, in areas such as refugees, the environment and children are concerned, African states responded to defects or omissions in UN Treaties. The UN Refugee Convention of 1951(and the 1967 Protocol thereto) was supplemented by the OAU Refugee Convention of 1969 providing, amongst other things, for an extended definition of 'refugee'. In respect of the environment, the Basel Convention (1989) was taken a step further with the adoption of the Bamako Convention (1991). As far as children's rights are concerned, the African Children's Charter (1990) followed on the heels of the CRC (1989), elevating the protection of children in important respects of particular relevance to Africa.
Claw back clauses, duties and women
According to Prof Hansungule, the most notable shortcoming in the African Charter is the imprecise and incomplete formulation of the system of human rights. Most human rights standards in the Charter are couched in the form of ‘clawback’ clauses. No doubt, ‘claw-back’ clauses stand as the lowest point in the Charter. Even though the Commission has somehow found a way around this problem, the fact is that claw-back clauses constitute a significant source of concern. It must be understood that while the rights regime is not self-sufficient, a lot more can be done to try and minimize opportunities for abuses taking advantage of deliberate inadequacies.
As most African Charter rights stand at the moment, there is ample ground for suggesting that States are permitted greater latitude and extraordinary flexibility in trying to identify the extent of their obligations. Even more worrying, claw-back clauses constitute a form of a permit for the already unwilling State to engage in wanton and routine breach of the Charter obligations using the reasons of public utility or national security, etc.
The African State as a violator of human rights
The painful reality in Africa is that generally, with a few exceptions, the new regimes are largely reincarnations of the old colonial masters. The reality is that the African state has been such an egregious human rights violator that skepticism about its ability to create an effective regional human rights system is appropriate. This calls for civil society to be active and vigilant in safe guarding the rights contained in the constitution.
Cultural relevance and cultural relativism
One of the critical aspects of the African human rights system is that its documents are drawn up with a strong cultural contextualization as a foundation. The tension arises when culture and realization of rights are pitted against each other, also described as cultural relativism. The cultural context – taking into account “African” cultural view of the community as being the main unit and not just the individual. This is the unique African contribution to international human rights discourse that has been most widely recognized. Although the African conceptualization of human rights is more expansive compared to the Western conceptualization of human rights, culture has often been used to deny rights to women, and marginalized sections of our community such as sexual minorities.
In Africa the gap between the bill of rights in our constitutions say and the reality is huge. Our institutions set up to support democracy are weak and beholden to the executive. The big man syndrome still reigns supreme. Elections have become rituals in which the oppressed return to power a new set of oppressors to oppress them. We have a problem of ratified treaties that are not domesticated; and or implemented. Under human rights treaties, a ratifying state's overarching obligation is to "give effect to" the rights provided for in each of the treaties. What is required, is domestication or incorporation (making international law part of national law); institutionalisation and operationalisation (establishing national institutions and processes to provide for specific channels of responsibility); and internalisation (changed conduct based on the acceptance of international norms). It s important that the legal fraternity plays its part in ensuring that obligations arising out of international treaties are operationalized in practice to benefit common person on the ground. African countries must ensure the protection of human rights defenders by observing the letter and spirit of the African Charter on Human and People’s rights and other human rights treaties to which most of our countries are signatories. There is also an urgent need for the AU to call a halt to violent suppression of dissent that is common amongst many African countries. AU must not allow violations of human rights with impunity and must set up appropriate structures to bring offenders to book. In particular, the AU must quicken the process of establishing a hybrid court in South Sudan to deliver first steps towards accountability for the numerous violations of human rights committed since December, 2013. It is also important that the AU should call upon those member states who have not done so, to deposit the declaration under article 34(6) of the Protocol on the the African Court on Human and Peoples Rights to allow individuals and NGO’s to directly submit their cases to court; and to recognize that the rights in the African Charter apply to all people without discrimination on any grounds including sexual orientation and gender identity. Poverty is one of the gravest concerns that is diminishing the dignity of our people. It is imperative that African governments manage the resources of our countries prudently and efficiently in order to build up sufficient resources to meet the socio-economic rights of the people. This means amongst others, that corruption and waste must be completely eliminated.
*Hon Justice Professor OBK Dingake delivered this speech at the 2017 Annual Jurists Conference on theme: “State of Human Rights in Africa: Bridging the gap between Aspirations, Implementation and Enforcement” in Mombasa, Kenya (November 21 -25, 2017)