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Issue III: Human Rights Governance

Relational thinking has figured prominently in the African conception and practice of human rights (Organization of African Unity (OAU) 1981). All major regional African human rights instruments which have been adopted since decolonization placed greater emphasis on group and interdependent rights. In 1979, the then Senegalese President Leopold Senghor argued that human rights in Africa had to respect group rights as much as individual rights, as well as the right to development (Senghor 1979).[1] This conception of rights had to reflect African traditional societies, which were at their core collectivist and not as individualistically oriented as mainstream human rights ideas tend to be (Ake 1987). Human rights ideas in global fora have historically been derived from a Western natural rights perspective and from liberal political philosophy, which place individualism at their core. A closer reading of the various human rights documents shows that a premium is placed on people's rights. Indeed, according to the African Charter on Human and People's Right (adopted in 1998, the Protocol came into effect 25 January 2005), the individual has not only rights but also duties to uphold community and family life and values (Articles 27-9). Moreover, the family is seen as the natural unit and basis of society and shall receive protection from the state to be able to carry out this function (Article 18). The right to development is upheld, since the satisfaction of economic, social, and cultural rights (of individuals and groups) is seen as a guarantor for the effective enjoyment of civil and political rights.

The AU reinforced the tradition of a relational conception when it emphasized people's rights over individual rights in its numerous human rights provisions (Shivji 1989). The AU Constitutive Act indicates that the AU shall respect human rights, and work to promote and protect them in accordance with the Banjul Charter and other relevant human rights instruments (Article 3h). The Constitutive Act speaks of the right of peoples (not individuals) to participate in the activities of the Union. In a study of how the African Commission on Human Rights has interpreted the group rights provisions of the Banjul Charter (Articles 19-24), Basil Ugochukwu et al. finds that group rights have indeed trumped individual rights. According to him, group rights claims are disregarded only when they imply a challenge to state sovereignty or to the integrity of state boundaries (Ugochukwu, Baradu and Okafor 2011). Many contested issues are embedded in the interpretation of group rights, and some of these contestations are currently being brought to light by civil society groups and intellectuals in Africa during the complicated process of merging the African Court on Human Rights and the African Court of Justice into one overarching African Court of Justice and Human Rights.

The dispute between the AU and the International Criminal Court (ICC) clearly brings out the differences between the African conception and practice of humans right and global approaches to human rights. Relational governance in the human rights sphere emphasizes how human beings give recognition to each other and recognize rights as correlative to duties. Social relationships and human community is the departure point, and the individual, and his/her freedom and interests are a function of them. The human being is constituted by the character of the social relations in which he stands (Cobbah 1987). The AU as an institution and many of its member states have often disagreed with the ICC's implementation of its mandate on African soil. The argument of the AU has been that the ICC should consult more with the AU before issuing arrest warrants against incumbent leaders.[2] For the AU, the ICC interpretation of its mandate often complicates efforts aimed at negotiating political solutions to complex crises in places such as Libya, Kenya, and Sudan. As Murithi explains:

All inter-governmental organizations would want to determine how their member states engage with issues relating to transitional justice, peacebuilding democratic governance and the rule of law, without feeling that there is an overbearing and patriarchal entity in effect stipulating how the continent should be going about doing so. (2013, p. 6)

The dispute reached a critical level when the AU convened an extraordinary summit on 12 October 2014 to discuss a possible bloc withdrawal of African countries from the Rome Statute.[3] A bloc withdrawal was avoided, nonetheless the AU made a collective petition for the ICC to grant immunity to any sitting African head of state, no matter the crime the accused is charged with. Nonetheless, the AU-ICC dispute should not be overemphasized, since subtle but important openings in the assumed 'stand-off' tell us that some African states are on good terms with the ICC, and indeed invite its proceedings into their sovereign affairs (Kersten 2016).

The process of operationalizing the African Court of Justice and Human Rights has added more tension within the AU-ICC relationship and must be understood against the backdrop of the contending visions of human rights protection upheld by the AU and the ICC, respectively. The recently approved draft protocol has expanded the proposed African Court's jurisdiction to include international crimes including genocide, war crimes, and crimes against humanity as well as transnational crimes such as trafficking in persons or drugs, terrorism, and piracy. NGOs have argued that the drafting process would have benefited from a process of consultation, not least with relevant expert stakeholders and civil society actors (du Plessis 2012, p. 11). Given that the Court and the ICC would occupy the same jurisdictional space, the fact that the draft protocol is silent on the relationship between the Court and the ICC is a challenge to the universal jurisdiction of the ICC (ibid., p. 10). The protocol also includes a contested article that grants immunity to African senior government officials.[4]

Importantly, this conflict reflects a larger debate about 'peace vs justice' dilemmas in human rights governance (Dolidze 2011). There has been a tendency to reduce the AU-ICC dispute to those either for or against accountability, even though the issues at stake have deep philosophical and historical roots. With the non-cooperation position, the AU has challenged the objectivity of the ICC and its selective (anti-African) implementation of its mandate. Notwithstanding, there are ongoing processes in line with African values and relationalism to enhance accountability and to end gross human rights abuses in Africa (Maru 2013; Forji 2013).[5] Ongoing initiatives seek to mend AU-ICC relations, and in this regard, Mehari Maru advised African states to use a relational approach—bloc voting—to instead reform and change the ICC's position in Africa (Maru 2013). Africa has a bloc advantage in the ICC, as just over one-quarter (thirty-four) of the 122 states which are parties to the Rome Statute are member states of the AU. Generally, little has so far been written on relational-inspired ways to support an understanding of an African approach to human rights (for an exception, see Murithi 2013).

Embedded in the AU's argument is the reference to a value of collective decision-making and participation by local, national, and regional agents for seeking justice. The literature on peace-building often argues that local and cultural approaches to seeking peace and justice cannot be sidelined or neglected if indeed the objective is stability, the rule of law, and nationbuilding in order to prevent large-scale human rights abuses from occurring again (Villa-Vicencio 2009). Villa-Vicencio argues that national criminal jurisdictions as well as traditional African reconciliation structures have a community-based acceptance and richness in ideas and values that should be affirmed and, where relevant and necessary, adapted to meet the demands of international law (meaning, some flexibility within the framework of universalism).[6]

Relational ideas that inform the human rights discourse on the continent hold the potential for both good and bad, as they have the potential to increase conflict and reconciliation simultaneously. It is difficult to see the merits in the AU stance on non-cooperation with the ICC if it complicates the search for accountability for mass atrocity crimes, and undermines the prospects for the development of international justice, particularly on the African continent. The refusal by some countries to place themselves under the jurisdiction of the Rome Statute means, according to African governments, that the ICC will fall short of being a genuinely international court, as Murithi (2013, p.7) has pointed out.

  • [1] Address delivered by H.E. Mr Leopold Sedar Senghor, President of the Republic of Senegal,OAU DOC CAB/LEG/67/5.
  • [2] If examined in a simplistic and impressionistic way, this is just a ploy by African leaders toprotect each other. Protecting incumbent regimes from prosecution may well be part of theargument, but a careful reading of African politics will show that the AU claim goes deeper thana simple attempt to protect its sitting presidents from prosecution.
  • [3] The Rome Statute is the founding treaty of the ICC. It was adopted on 17 July 1998 and itentered into force on 1 July 2002. Forty-seven African states were present for the drafting of theRome Statute at the Rome Conference in July 1998 and the vast majority of these countries votedfor its adoption.
  • [4] Non-state actors have argued that the immunity article goes against the founding principles ofthe AU, and most clearly the AU Charter Article 4(o) which sets out that the AU must respect thesanctity of human life and condemn and reject impunity. In addition, it seems to strip the proposedCourt of its integrity and ability to reach its mandate.
  • [5] Taking a critical position towards the AU stance, Alex Obote-Odora argues that the AU isbecoming a tool in the hands of authoritarian African leaders who wish to protect each other'spower positions against the global drive toward accountability (Obote-Odora 2013).
  • [6] Importantly, he makes the case for a distinction between blood crimes and less serious formsof crime, recognizing that traditional courts rarely have the competency to deal with the former,especially not where mass killings and genocide are involved (Villa-Vicencio 2009).
 
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