12 Minority Rights in Africa

Dr. J. M. Moosa

Learning Outcome

1. This extensive module will be taking the students through an enlightening journey of African history on human rights.
2. Students will be learning about concepts like Pan Africanism, about the political turmoil, formation of African Union, human rights and minority rights in Africa.

Introduction to Africa

Africa is the second largest continent consisting of 55 countries and populated by more than a billion people with multitude of languages and cultures. It is a very diverse continent with climate varying from mild Mediterranean weather to hottest place on earth near Behral Gazala to dense tropical forests of Congo basin. Apart from Egyptian civilisation, there is archaeological evidence of many other highly developed civilizations possessing advance knowledge of metallurgy, state craft and social organisation. The ascendance of Europe following Reformation resulted in Portuguese seafarers navigating and establishing themselves along the coast of Africa in search of an alternative route to India. The discovery of gold in South America and the cotton plantations in North America created an enormous demand for labour that was filled by African Slaves. As consequence of the Trans-Atlantic slave trade an estimated 12.5 million were captured and sold as slaves between from 1525 and 1866 from Africa. This disrupted many African societies.

The advent of industrialisation and the consequent abolition of slave trade necessitated new forms of extraction to be developed. This included cash crop cultivation and extraction of other raw materials. This required direct political control for securing access to raw materials and future markets from other competing powers. As a resulted of this completion, Africa was partitioned at the Berlin Conference of 1884 and the ensuing scramble used very harsh coercive means to establish control. Though this control remained notional till WWI when due to the war effort, state control became stronger and deeper. They also recruited more than a million troops and carriers from the continent. More than 2.5 million or about one percent of the population was involved in the war effort. During WWII too, Africa was extensively entangled in the war. Ethiopia faced Italian aggression (1935–36) and was occupied despite the Emperor Haile Selassie making a plea to the League of Nations for support. Ethiopia’s defeat demonstrated the ineffectiveness of the League of Nations when decisions were not supported by the great powers.

The WWII, however, facilitated African political liberation struggle by undermining European capacity to control their empires. Britain was exhausted and almost impoverished while France had been humiliated by Germany. It also destroyed the myth of European invincibility and the myth of Africans being children while Europeans were super adults due to the role played by African soldiers during the war. Lastly there was a power shift from Europe to US and USSR. Fearing socialist and hard-line factions gaining power the colonisers handed power to the moderate native leadership. Also African development trajectory was distorted with cash crops getting precedence over food corps, urban areas over rural and certain regions over others.

There were three main colonial powers whose legacies have persisted till today. The French followed a policy of assimilation in their colonies, nevertheless very few Africans qualified for French citizenship and play an active political role. At the time of decolonisation most colonies voted against independence. However De Gaul changed this policy and independence was granted while maintaining fiscal and monetary union, popularly called franc zone and also called France’s domain reserve.

The British practised indirect rule where local chiefs were free to administer native areas using native or customary laws. But in most cases, the local native political institutions had been destroyed during pacification. Accordingly loyal natives were foisted as chiefs. Similarly the customary laws were not codified giving the local chief arbitrary power to exploit the people. However decolonisation was preceded by a short nationalist struggle and transfer of power was peaceful.

The Portuguese who were the first to arrive but did not develop economic or political institutions and merely viewed the possession of colonises as some form of prestige. As a consequence the regime in Lisbon resisted negotiations and this led to a long drawn violent military liberation struggles. The losses in the colonies eventually resulted in a coup and change of regime in Portugal itself. However these colonise even after achieving independence remained ravaged and strife torn.

Pan Africanism

The idea of Pan Africanism had a strong influence in the development of African liberation struggle and on the post independence continental politics. Historically, Pan-Africanism took shape of a political or cultural movement that envisioned a unified African nation where all people of the African diaspora can live. The father of modern Pan-Africanism W.E.B. Du Bois stated that “the problem of the twentieth century is the problem of the colour line”. Another important thinker Marcus Garvey after WWI, championed the cause of African independence, emphasising the positive attributes of black people’s collective past. Léopold Senghor (Senegal) and Aimé Césaire (Martinique) and Jomo Kenyatta (Kenya) were some of the important figures in Pan-Africanist thought in the continent. Kwame Nkrumah of Ghana believed that European colonial rule of Africa could be extinguished if Africans could unite politically and economically. In 1958, he called a meeting of all the independent African states – Egypt, Sudan, Libya, Tunisia, Liberia, Morocco and Ethiopia – to support independence effort in rest of the Continent.

OAU

In 1963, political turmoil was rampant in Africa. The struggle for independence from colonial rule and the desire for African independence and self-determination began to manifest itself politically. The ideal of Pan-African unity gave rise to different political groupings of free African states. There were two of predominant groups. The Casablanca Group advocated the formation of a “United States of Africa” under a centralised authority and power. While the Monrovia Group stressed on the importance of the independence, integrity, and sovereignty of different African states and advocated a loose association of states. The two groups eventually agreed on the formation of the Organisation of African Union (OAU). The OAU Charter was signed in Addis Ababa, Ethiopia, on 25 May 1963, at the closing of the Conference of the Heads of State and Government.

The OAU Charter tried to do justice to the radical-unionist Pan-African spirit of the Casablanca Group, while maintaining the independence and sovereignty of states as the Monrovia Group advocated. The goals of the OAU were to promote decolonisation and independent self-government; to guarantee respect for territorial boundaries of the states; and to promote social, political, and economic development on the African continent. Article 2 provides for purposes that reflect some aspirations of the Casablanca Group in terms of African unity, along with some of those of the Monrovia group. Additionally Article 3 was a codification of the principles of sovereign and territorial integrity of the individual African states. State sovereignty, territorial inviolability, and non-interference in the internal affairs of Member State were foundations on which OAU evolved since its inception. Most African countries and their leadership were reluctant to cede hard-won power and authority to a new organisation.

The OAU Charter explicitly endorsed the principles of the U.N. Charter and the Universal Declaration of Human Rights. The inviolability of territorial boundaries was considered so important that the Charter went further than its U.N. counterpart, by tacitly prohibiting any action that might undermine territorial integrity. This also led them to accept the principle of uti possidetis with regard to frontiers that were determined by colonial powers prior to independence were not to be altered. Its inclusion in the OAU Charter was also practical as many states had ongoing internal conflicts.

African Union

The Constitutive Act of the AU was adopted on 11 July 2000, in Lome, Togo by the Assembly of Heads of Government of the OAU. This Act came into effect on 26 May 2001. Thereafter the OAU ceased to exist as a legal entity and the AU emerged in its place. The AU became operationally effective on 10 July 2002, and the Constitutive Act has currently been ratified by all fifty-four African nations baring Morocco.

African leaders viewed the formation of the AU as a process of reforming the OAU and create institutional structures to address some of its shortcomings like its inability to deal effectively with deadly conflicts. Also as many of the initial goals of the OAU had been accomplished, African leaders sought to create an entity that would be more effective in dealing with the current problems.

The Preamble explicitly recognises the problems Africa faces in terms of armed conflict and the effect that these conflicts have on human rights. The objectives of the AU according to Article 3 include to ‘promote peace, security, and stability on the continent’ and to ‘promote and protect human and peoples’ rights’. The principles of Article 4 reflect a major shift in thinking from the OAU Charter. While the OAU Charter adheres to sovereign equality States, the Constitutive Act rephrases this to respect for the sovereign equality and interdependence among Member States.

The most drastic difference is with regard to intervention. The OAU Charter had a rigid policy of ‘non-interference in the internal affairs of States’. While the Constitutive Act provides for ‘non-interference of any Member State in the internal affairs of another,’ but it allows for ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide, and crimes against humanity.’ It also adopted a policy to refuse recognition to government that take power using illegal means in African countries.

It also created institutional structures such as African Peer Review Mechanism to address problems of governance. External reviewers from different countries make suggestion for improvement of economic and political governance of the country under review and later monitor the steps taken for its compliance.

Human rights in Africa

Human rights protections mechanisms in Africa are less extensive than those in Latin America and Europe. Although the Charter of OAU (1963) made specific reference to the Universal Declaration of Human Rights, calling on member states to ‘have regard’ to promote international cooperation, protection of human rights was not a goal of organisation. The explicit incorporation of human rights principles within the OAU did not come until 1981 with the signing of the African Charter on Human and People’s Rights (Banjul Charter).

Banjul Charter

The Banjul Charter entered into force 21 October 1986 and has been ratified by all African states except Morocco and South Sudan. The Charter includes a wide range of rights, similar to the Helsinki Accords and the American Convention on Human Rights. The Banjul Charter includes first generation rights (civil and political) and second generation rights (economic, social, and cultural) but it also includes third generation rights (rights of the ‘peoples’). These third generation rights include the right of all people to self-determination (Article 20) and the right of all people to freely dispose of their wealth and natural resources (Article 21).

Despite the inclusion of so many rights, the Banjul Charter has several significant weaknesses. First, there are a number of clauses that permit exceptions and restrictions to declared human rights. Second weakness is lack of a non-derogation clause. The African Charter does have a non-derogation clause with a relatively large number of non-derogable rights that are protected, but it has quite a few justifications that allow for derogation of these rights. Another weakness is the language of duties. Article 27 states that every individual shall ‘have duties toward his family and society, the State and other legally recognised communities and the international community.’ These duties are further elaborated in article 29, that an individual has the duty to ‘serve his national community by placing his physical and intellectual abilities at its service’ and not to compromise the security of the State.

African Commission on Human Rights

Another weakness that limited the effectiveness was the failure to establish a Court of Human Rights in the Banjul Charter. Protection of human rights according to the Banjul Charter is to be carried out by the African Commission on Human Rights. The Commission (established in 1987) has endeavoured to promote human rights in the region but it has faced a number of institutional and political challenges. Articles 30 through 62 establish five broad functions for the Commission. These functions include the protection and promotion of human rights, the reception of state reports and other ‘communications’ regarding human rights conditions and the interpretation of international human rights law.

Member states have to submit a report every other year on legislative or other national measures taken to protect human rights. The Commission also receives communications regarding violations of human rights. A major strength of the Commission is that it can act on both interstate complaints and individual allegations. It nearly all communications it has received are from non-state actors. The Commission may request all relevant information from the states to find an amicable settlement after its fact-finding efforts and then makes recommendations.

The final function of the Commission is to interpret the Charter at the request of a state party, the OAU, or other recognised regional organisation. This authority under Article 60 is uniquely wide ranging as it can draw inspiration from not only the Banjul Charter but also the UN Charter, the Universal Declaration of Human Rights, and other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights. In spite of many positive assessments, African leaders acknowledged in the mid-1990s that the protection of human rights needed to go a step further and initiated the formation of an African Court of Human Rights.

Creation of the African Court

In 1998, at the OAU Meeting of the Heads of State, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court of Human Rights was adopted. The Protocol entered into force on 25 January 2004. The Protocol lays out a Court with features similar to the Inter-American Court and the European Court of Human Rights. The Court was to have the authority to offer advisory opinions as well as rule on alleged violations of the Banjul Charter brought before it by states party, the Commission, NGOs, and individuals (Article 5) and it proceedings were to be public (Article 10) with the Court able to issue orders to remedy violations, including payment of fair compensation (Article 26).

The actual creation of the Court of Human Rights was complicated by the formation of the AU. AU leaders in July 2003 drafted a Protocol to the Constitutive Act to establish the jurisdiction of a second court, the African Court of Justice. The initial plan was for these two courts to remain separate and distinct. In July 2004, the Assembly of the Heads of State issued a resolution calling on the integration. By January 2005, a new Draft Protocol (the third one) was circulated that would clarify the separate and overlapping functions and jurisdictions of these two courts. However at the African Union Assembly meeting in January 2006, members appointed eleven judges based on elections conducted by the Executive Council to the newly created African Court on Human and Peoples Rights.

The Court began its work in Addis Ababa, Ethiopia in November 2006 then moved temporarily to Arusha in Tanzania. In 2008, during the Court’s Ninth Ordinary Session, it provisionally adopted the Interim Rules of the Court pending consultation for harmonisation with the African Commission on Human and Peoples’ Rights, based in Banjul, the Gambia. This harmonisation process was completed in April 2010 and in June 2010, the Court adopted its final Rules of Court.

Minority rights in Africa

The African Charter is a regional human rights instrument designed to reflect the history, values, traditions, and development of Africa. The Charter combines African values with international norms by not only promoting internationally recognized individual rights, but by also proclaiming collective rights and individual duties. The OAU also convened a Ministerial Conference on Human Rights in 1999, putting human rights on its agenda for the first time.

The African Charter on Human and Peoples’ Rights, also called the Banjul Charter, was adopted by the OAU in 1981 and entered into force five years later. It covers a wider range of rights than either the European Convention on Human Rights or the American Convention on Human Rights. It includes both individual and collective rights. While the African Charter makes no reference to ‘minorities’ nevertheless advocates the principle of non-discrimination. In 1994, the OAU Assembly of Heads of State and Government also called for ‘the protection of the ethnic, cultural, linguistic and religious identity of all our people, including national minorities, and the creation of conditions conducive to the promotion of this identity’. (Declaration on a Code of Conduct for Inter- African Relations).

In 1999, the African Commission on Human and Peoples’ Rights asked three of its members to undertake research on the situation of minorities in the continent. Also a resolution on the rights of the indigenous peoples/communities of Africa was adopted, establishing a Working Group composed of two Commission members and several African experts on issues of indigenous peoples’. It had a mandate to examine the concept of indigenous peoples and community and to study, among other issues, the implications for the African Charter regarding the promotion of cultural development and identity and self-determination.

As with other human rights instruments, there are a number of provisions in the Charter that have particular significance to members of minority groups. Article 2, for instance, is the basic provision on non-discrimination. It states that rights under the Charter must be guaranteed ‘without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.’ In the only case dealing specifically with minority rights the African Commission elaborated the significance of Article 2:

‘Article 2 of the Charter lays down a principle that is essential to the spirit of this Convention, one of whose goals is the elimination of all forms of discrimination and to ensure equality among all human beings. The same objective underpins the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the General Assembly of the United Nations…Consequently, for a country to subject its own indigenes to discriminatory treatment only because of the colour of their skin is an unacceptable discriminatory attitude and a violation of the very spirit of the African Charter and of the letter of its Article 2’.

The Article 3 provides for everyone to be treated equal before the law and is entitled to the equal protection of the law. While Article 17 accords everyone ‘may freely take part in the cultural life of his community’ and goes on to provide that the promotion and protection of morals and traditional values recognised by the community shall be the duty of the State. This provision has been interpreted to include that ‘language is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and in its activities. To deprive an individual of such participation amounts to depriving him of his identity.’

The next six articles enumerate different rights of peoples. The Charter, however, does not define who constitute a ‘people’ and it cannot automatically be assumed that minorities and peoples means the same group. While deciding the case of Katangese rights in DR Congo (Zaire), the African Commission has stated, ‘there may however be controversy as to the definition of peoples and the content of the right [of self-determination]. The issue in the case is not self-determination for all Zaireans as a people but specifically for the Katangese. Whether the Katangese consists of one or more ethnic groups is, for this purpose, immaterial.’

The Article 19 of the Charter asserts that all peoples shall be equal and that nothing shall justify the domination of a people by another. In the Article 20 declares the right of all peoples to existence and proclaims their “unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.” The second paragraph states, “Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.” The African Commission has considered the right to self-determination in only one case ruled that, at least in circumstances of no violation  human rights, self-determination could not be equated with secession. Article 22 sets forth the right of peoples to economic, social and cultural development.

The Charter includes three articles that set out the duties of individuals to their community. Article 28 states that every individual “shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.” Article 29 seems to attempt to balance the individual’s duties to community and State.

Redressal mechanism of The African Commission on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights is composed of eleven members ‘chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality, and competence in matters of human and peoples’ rights.’ Members of the Commission serve in their individual capacities and are, therefore, expected to act independently while serving as Commissioners. The Commission is trying to encourage States to participate in the process. NGOs may submit comments on State reports which the Commission formally recognised the value of such ‘shadow’ reports in a 1998 resolution.

The African Charter does not explicitly allow ‘individual and NGO complaints’ but uses the term ‘other communications’ to distinguish these communications from those submitted by States. Detailed provisions for the latter are provided in Articles 47-54. Communications have been filed by international organisations and individuals even by some based outside Africa. Individual members of a minority group may complain on their own behalf or on behalf of the group to which they belong. Complaints may be filed on behalf of specific individuals or groups that have been the victims of human rights violations, or they may draw attention to a widespread practice of such violations.

Every communication should be detailed and comprehensive given the limitations of the kind of information available to the applicant. The communication must not be anonymous and must allege violations of rights that are protected by the Charter and must be compatible with the OAU/AU. The communication must be submitted within a reasonable period from the time local remedies are exhausted. As with other international communication procedures, domestic remedies must be exhausted unless it is obvious that this procedure is unduly prolonged. The Local remedies must not only be available but effective and sufficient. The Commission also has distinguished between individual cases and cases of serious and massive violations where it may be impossible for the complainants to identify all the victims. In the latter case, there is no need to exhaust domestic remedies.

All communications that are received by the Secretariat must be transmitted to the Commission even if they appear to be unfounded or beyond the Commission’s jurisdiction. The Commission determines whether or not to consider a communication. While Article 55 empowers a simple majority of the Commission, in practice the Commission usually acts by consensus.

The Commission will inform the applicant if it does not take up a case. In case it does then the individual communications are confidential and are examined in closed sessions. The State is given the opportunity to respond to the allegations, and the complainant may reply in writing to the State’s response. The Commission normally invites all of the parties to attend or be represented at a hearing. An author, his/her legal representative, and the State are entitled to be represented at the hearing. Since 1994, the Commission has undertaken a number of on-site investigations of communications with the consent of the State concerned. The reports from such missions are adopted as part of the proceedings and may also be published by the Commission. After hearing the parties and completing any investigation, the Commission deliberates, reaches its decision, and adopts its report in the case. All of these actions are in camera. However, NGOs recognised may be invited as observers. The Commission’s conclusions are not legally binding on States, but the Commission does reach direct conclusions that a State is (or is not) in violation of specific articles of the Charter.

Conclusion

To sum up, this module will be a good read about brief African history. It will be taking through African history from 1500s to early 2000, its involvement in various social changes like  industrialization, and both the world wars. This whole discussion considers various aspects of socio-cultural influences, Pan-Africanism, political changes and various other interesting concepts.

Reference

1. Carolyn M. Shaw, The Evolution of Regional Human Rights Mechanisms: A Focus on Africa, Journal of Human Rights, 2007, Volume 6, Issue 2.
2. Jeremie Gilbert; Constitutionalism, ethnicity and minority rights in Africa: A legal appraisal from the Great Lakes region, International Journal of Constitutional Law, Volume 11, Issue 2, 1 April 2013, Pages 414–437, https://doi.org/10.1093/icon/mot002.
3. Rechner, Jonathan D., From the OAU to the AU: A Normative Shift with Implications for Peacekeeping and Conflict Management, or Just a Name Change?, Vanderbilt Journal of Transnational Law . Mar2006, Vol. 39 Issue 2.
4. Edwin Egede, Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of Mankind.