Reimagining the African Union: A More People-Centered Approach
Laïssa Christelle Alexis
Submitted in Partial Fulfillment of the Prerequisite for Honors in Peace and Justice Studies under the advisement of Professor Craig Murphy
May 2020
© 2020 Laïssa Christelle Alexis
ACKNOWLEDGEMENTS
I would like to extend my gratitude to the countless number of people who have supported me throughout this process. Thank you to my advisor Craig Murphy for his support during this project. I would not have been able to complete this without your help. I would like to thank my Peace and Justice major advisor Catia Confortini for encouraging my academic growth since my first year. Your classes opened a new world for me. I would also love to thank professors Nadya Hajj, and Corinne Gartner for being a part of my thesis committee. And for being wonderful professors.
Thank you to all my professors and my mentors at Wellesley. Special thank you to
Professors Nikki Greene, Margaret Cezair-Thompson, and Anjali Prabhu. All of you have fostered both my academic, creative, political, and personal growth. I am grateful for your help and hope to show you my appreciation in the future. I would also like to thank Dr. Tracey
Cameron and Dean Rebecca Garcia for being supportive of me since the minute I got to
Wellesley. I could not have made it through my first year without your advice and support.
I am eternally grateful to the friendships I have made at Wellesley, that carried me through this institution and will continue to carry me beyond. I cannot wait to see what adventures we come up with next.
I would also love to recognize my family and ancestors for investing in me and praying for me in every step of my journey. Thank you to my family for supporting my dreams and ideas, no matter how wild they may seem. I could not be here without you.
Lastly, I want to recognize the continued struggle of oppressed people’s around the world. A Luta Continua!
TABLE OF CONTENTS
List of Acronyms………………………………………………………………………………….i
Introduction: The African Union and Human Rights…………………………………………....ii
Chapter One: A (Brief) History on the Origins of Human Rights………………………………..1
Chapter Two: A United Africa………………………………………………………………….17
Chapter Three: Oppressive Regimes in Africa: Explaining the Existence of ‘Weak’ African
States………………………………………………………………………………….………….34
Chapter Four: The African Union and the World………………………….…………………...48
Chapter Five: Reimagining a New African Union……………….………………….………….61
Bibliography……………….………………….………………….………………….………….74 Alexis i
LIST OF ACRONYMS
— ACJHPR African Court of Justice and Human and People’s Rights
— AU African Union
— EAC Extraordinary African Chambers
— ECOWAS Economy Community of West African States
— ICC International Criminal Court
— ICJ International Court of Justice
— IFI International Financial Institutions
— IHRL International Human Rights Law
— IMF International Monetary Fund
— OAU Organization of African Unity
— PAP Pan-African Parliament
— UDHR Universal Declaration of Human Rights
— UNSC United Nations Security Council
Alexis ii
Introduction: The African Union and Human Rights
The theme of the 33rd annual African Union (AU) Summit in Addis Ababa, which took place this year on the 9th and 10th of February, was “Silencing the Guns: Creating Conducive
Conditions for Africa’s Development”1. The African Union gathered to discuss making peace a reality for Africa. The Summit’s topic is part of the AU’s Agenda 2063, “The Africa We Want”.
Agenda 2063 is the African Union’s plan to transform Africa into a “global powerhouse”2 by the year 2063, the one-hundredth anniversary of the Organization of African Unity. The agenda’s goal is to create more sustainable development for the future of the continent and its people. The leaders of African states are increasingly thinking about peace; as it relates to their development goals, but they are thinking of it. The African Union itself has increasingly become involved in conflict resolution efforts and promotion of human rights on the continent; a contrast to its predecessor, the Organization of African Unity (OAU).
Established in 2002, the African Union replaced the Organization of African Unity as the foremost uniting body of African states. The OAU/AU serves to further solidarity for the African continent. However, the organization has been the subject of criticism for its lack of efficiency in protecting Africans from human rights abuses by their leaders. In the past, the OAU was reluctant to intervene in domestic affairs. The OAU’s non-intervention norm meant that it did not get involved in the many human rights crises in Africa in the late 20th century.
1 African Union “African Union Strives to ensure a Conflict-Free Africa in line with the theme on “Silencing the Guns: Creating Conducive Conditions for Africa’s Development”, African Union, accessed April 24, 2020 https://au.int/en/pressreleases/20200210/african-union-strives-ensure-conflict-free-africa-line-theme-silencing-guns 2 African Union “Africa 2063: The Africa We Want”, African Union, accessed April 24, 2020 https://au.int/en/agenda2063/overview Alexis iii
Part of the impetus for the creation of the AU was a new focus on human rights. African leaders realized the OAU’s mistakes and believed that they needed to change the focus of the organization. Since then, the AU has come to center human rights. “Silencing the Guns” is evident of that. On its website, the AU describes the genesis of Agenda 2063 as the:
…realisation by African leaders that there was a need to refocus and reprioritise Africa’s agenda from the struggle against apartheid and the attainment of political independence for the continent which had been the focus of the Organisation of African Unity (OAU), the precursor of the African Union; and instead to prioritise inclusive social and economic development, continental and regional integration, democratic governance and peace and security amongst other issues aimed at repositioning Africa to becoming a dominant player in the global arena.3
The original organization, the OAU, focused on sovereignty for African states. This focus on gaining and supporting self-determination for Africans is not as pertinent to the twenty-first century AU. The need for “inclusive social and economic development” takes precedent. This also means that the AU wants to ensure that leaders respect human rights on the continent. The organization realizes that development cannot happen with continued conflicts and human rights abuses.
The AU has shown greater efforts to providing “African solutions to African problems” amid controversies about bias against African states in international organizations like the
International Criminal Court (ICC). For example, in 2016, the Extraordinary African Chambers convicted Chadian dictator Hissène Habré of crimes against humanity and sentenced him to life in prison. The court, an agreement between Senegal and the African Union, was created precisely to bring justice to victims of the Habré dictatorship. People in Africa and abroad praised the trial as a wonderful step forward in holding leaders accountable for their actions.
Despite recent efforts, the AU has still not done enough to prevent conflict and protect people.
During human rights crisis, the organization has been unable to find the best ways of intervening.
3 Ibid. Alexis iv
While non-African states have no problem intervening in an African state’s affairs, the OAU/AU has historically been very hesitant to do so. When an AU intervention does happen, it is usually in the form of joint peacekeeping missions with the UN, (the largest of these being in Somalia), or a military intervention.
This thesis’s purpose is to reimagine how the AU can work to prevent harm, and when harm happens, to establish accountability practices. How best can the current African Union create strong provisions for intervention against member states that abuse the human rights of their citizens? This thesis will not be an in-depth review of the mechanisms of the institutions of the African Union, though some mechanisms will be reviewed. Rather, its aim is to help in reimagining a new African Union, one that executes its basic duties of providing peace and security. As an exercise in “worldmaking”4, this thesis will use peace and justice frameworks and theories as part of its analysis.
To understand the human rights mechanisms in Africa by the African Union, it is important to understand a bit of the history of human rights and the current debates. The first chapter seeks to explore the history of human rights globally and in Africa, the language around them, and how African revolutionary leaders used them during the post-colonial era. This chapter outlines the different definitions of human rights and the philosophical arguments on which they rest. Some scholars, peace practitioners and activists see human rights as a tool of continued Western domination in countries in the Global South, therefore, understanding some of the origins of human rights helps to illuminate this position. This chapter will primarily argue
4 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination. (Princeton, New Jersey: Princeton University Press, 2019). In her book, Getachew discusses the way that decolonization remade the international order. Through this process of worldmaking, Pan-African revolutionaries sought not only to liberate their nations but to remake the world. Alexis v that the current internationally held human rights framework does not sufficiently tackle structural violence and will explore the implications of this.
The second chapter begins to answer the questions around the formation of the
Organization of African Unity and the African Union and human rights. It focuses on the
OAU/AU and the rise of Pan-Africanism, anti-colonial struggles, and human rights. The chapter primarily looks at the establishment of the Organization of African Unity and uses the works of leaders such as Kwame Nkrumah and other early Pan-Africanist thinkers to get a sense of what the considerations were. It also examines the transition from the OAU to the AU. This chapter analyzes some of the earliest provisions for human rights in the OAU that the AU later adopted.
The AU’s human rights document entitled the African Charter for Human and Peoples’ Rights, will be the primary focus.
The third chapter concentrates on conflict in Africa. Often, popular media and many scholars present Africa as a region of perpetual conflict. This chapter illustrates that, frequently, this analysis is devoid of historical understandings of colonialism’s legacy and the continued subjugation of African states. Chapter three investigates the international hierarchy which subjugates African states. It does this in examining the role of international financial institutions
(IFIs) in Africa; particularly through the intervention by former colonial powers in African states’ economic policies. The advent of global capitalism and the installation or support of exploitative African leaders are some causes of the region’s conflicts. The OAU/AU is unequipped to deal with these challenges because a) the organization accepts any leader into its general assembly whatever their human rights record and b) the OAU/AU does not do enough to challenge inherited colonial institutions. Due to concerns of supporting a state’s self- Alexis vi determination, the AU rarely holds African leaders accountable. This chapter also delves into the uses of sovereignty by African leaders to avoid accountability.
Chapter four focuses on the OAU/AU and its relationship to international law and the international justice system; and particularly why those relationships may be fraught. The chapter incorporates some critiques of international law by African scholars and leaders. These critiques manifest themselves in the rhetoric that the AU or individual African states have about international human rights law. This chapter begins to answer the question “What role does international law have in ensuring human rights on the continent?” One of the primary objections to human rights talk is its use to defend “humanitarian” military interventions that contribute to more violence and instability in a country. The responsibility of foreign governments when a country is in a human rights crisis can be a hard question to answer. It is also one of the aims of this chapter. A lengthier discussion of the Hissène Habré case and its implications will also be part of chapter four.
The fifth chapter proposes a new direction using the ideas of revolutionary African leaders and thinkers as well as peace theory. It proposes ways for the African Union to connect with the public; something the organization has been unsuccessful at doing. This chapter also considers other ways of responding that may not be with force. African societies have their own
Indigenous practices of conflict resolution that the AU has not implemented on a continent-wide level. The chapter asks, “What can the AU learn from these practices in thinking about the way forward?” The AU also has difficulty reaching and incorporating civil society into its human rights and conflict work. Therefore, this chapter also presents recommendations from various parties outside of the AU. The chapter reconsiders the work of early thinkers of the OAU and demonstrates that they had significant insights on these issues. Finally, using the work of Alexis vii contemporary African peace practitioners and thinkers, this chapter will explore ways of creating radical change.
The African Union is starting to think of its role as a conflict mediator more seriously, but the future is still uncertain. As many African states are approaching their 60th anniversaries and look towards their future, the AU must be critical of its past and reconsider its anti-colonial project. This thesis aims to contribute to that process.
Alexis 1
Chapter One: A (Brief) History on the Origins of
Human Rights
A Declaration of Universal Rights?
“Human rights” are norms that encapsulate the current international discourse. These norms seek to regulate human behavior through a set of codes and laws. Human rights are
“inalienable” or based on the fact of one’s humanity, no matter one’s social status. As a result, states or any other powers cannot take them away. Anyone needing to defend themselves from their government can invoke their human rights. They are an ideology; an ideology being a way of conceptualizing the world.1 They are not based on any truths that can be removed from said ideology.
Human rights are a field of study, a professional field, and an element of many countries’ foreign policies. Documents such as the UN’s Universal Declaration of Human Rights (UDHR) have made them a part of a global agenda. The Universal Declaration asserts that every human being is entitled to the rights it enumerates.2 The term “human rights”—and, even this most famous declaration of their universality—are greatly contested by academics, lawyers and peace practitioners, particularly by those who see human rights as a moral arm of Western domination
1 Issa, G. Shivji. The Concept of Human Rights in Africa (London: Codesria Book Series, 1989), 70. 2 United Nations General Assembly, The Universal Declaration of Human Rights, (10 December 1948). available from https://www.un.org/en/universal-declaration-human-rights/ Alexis 2 used to justify humanitarian interventions. These debates are about their meaning and relevance in everyday life as well as their enforcement.
Many scholars and activists in the Global South argue that the current understanding of human rights is Eurocentric and is proof of Western domination.3 It is not that concepts of morality and ethics do not exist in other parts of the world. Indeed, people have different understandings of the world and about how to uphold human dignity because they have unique histories and cultures. This also does not mean that diverse cultures share no common values, but that there are also many that they do not share. However, the dominant human rights discourse and the UDHR embody Western conceptions of human dignity and overlooks conceptions found in other regions.
Western conceptions of human dignity dominate the global conversation on justice and ethics. The UN’s human rights declarations, like any other grand statements, represent the ideas and thoughts of the people who constructed them at the time they constructed them. The drafters of the Declaration built these norms for a post-World War II world. But what human rights do is center Europe in the world, therefore, allowing any ideas that come from it to be declared as universal. In fact, for many leaders of territories fighting for independence from colonial rule during this time, the term “human rights” did not bear much weight. It was not part of their conversations about the steps to liberation. Though the language was available, most saw self- determination as the most important fight. During the decolonizing period of the 1960s, human rights did not guarantee many African anti-colonialists’ most sought after rights, the right to collective liberation or self-determination. It was not until the 1970s that many scholars pinpoint that the term human rights became part of international discourse and used by many African
3 Ivan Manokha. The Political Economy of Human Rights Enforcement; Moral and Intellectual Leadership in the Context of Global Hegemony (Basingstoke: Palgrave Macmillan, 2008) Alexis 3 states. Samuel Moyn in his book Last Utopia: Human Rights in History, draws attention to what he calls the neutrality of human rights. It was this neutrality that allowed them to become
“universal”.
The international human rights movement became so significant, then, neither because it offered a rights-based doctrine alone nor because it forged a truly global vision for the first time. Rather, it was the crisis of other utopias that allowed the very neutrality that had made “human rights” wholly peripheral to the aftermath of World War II— when taking sides in a contest of programmatic visions seemed so pressing— to become the condition of their success. As a number of its partisans in the 1970s were well aware, human rights could break through in that era because the ideological climate was ripe for claims to make a difference not through political vision but by transcending politics. Morality, global in its potential scope, could become the aspiration of humankind.4
Post WWII, the world was plunged into an ideological warfare between the United States and the
Soviet Union. Whereas the period of decolonization required an explicitly political stance, the era afterward did not. Human rights ability to transcend political ideologies by arguing solely based on morals, allowed it to become the norm. However, it is exactly its neutrality that makes it almost ineffective.
Partly because of this neutrality those responsible (or complicit) for these oppressive systems are also the ones propagating (or co-opting) rights talk. Human rights can easily be folded into an imperialist agenda that actually violate human rights. States invoke human rights during humanitarian interventions and the promotion of human rights is a large part of the role of the varied UN organs and agencies like the General Assembly, Security Council and most significantly the Office of the High Commissioner for Human Rights (OHCHR). However, many of those states leading humanitarian interventions have their own questionable human rights record. Until all states respect human rights within and beyond their borders, they will neither be universal nor inalienable.
4 Samuel Moyn. The Last Utopia: Human Rights in History, (London: Harvard University Press, 2010), 213 Alexis 4
The problem with the current understanding of human rights, aside from their claimed universality, is that conversations about them often remove them from the struggle against the oppressive systems of the world. Rather, they are just seen as a set of norms that must be rigidly applied. They do not substantially combat against the structural violence that violates those rights described in the UDHR. They do not do enough to fight against social and political inequality.
The human rights world also does not talk much about transforming conflict. Nor do many human rights specialists often concern themselves with structural violence. Structural violence refers to the systemic ways that some groups of people are prevented from having certain opportunities or fulfillment of basic needs.5 The focus is on returning to pre-conflict times when dealing with human rights crises not abolishing the systems that allowed it to happen in the first place. Meaning, many do not explore the deep-rooted issues behind conflicts. Moreover, it is difficult to do so, as rights talk and human rights advocacy on an international level are shrouded in complicated, bureaucratic systems, and grand statements with little follow-through.
However, just because human rights discourse does not address structural issues, does not mean we must throw them away. Many activists and revolutionaries have used rights talk to describe their fight against oppressive structures showing the potential for revolutionary use.
These individuals show us that human rights can be relevant in dismantling oppressive structures. For these norms to remain relevant to the most marginalized communities in the world, they must advance the freedom of all people. They must be restricted to the point of view of oppressed people.
5 Johan Galtung. "Violence, Peace, and Peace Research." Journal of Peace Research 6, no. 3 (1969): 167-91
Alexis 5
The Universal Declaration of Human Rights: A Cosmopolitan Document
The UN celebrated the UDHR’s seventieth anniversary in 2018 with much fanfare. Many of the events in academic or in international forums focused on the progress made in the realm of human rights since 1948. The UN adopted the UDHR in the immediate aftermath of World War
II. Although there are different concepts relating to human dignity or what we owe to each other,
“human rights” as defined by the Universal Declaration is the dominant international discourse.
Richard Shapcott in this book, International Ethics: A Critical Introduction argues that it is the case that some claim we live in a “rights civilization” or a “rights-based international order”.6
Most conversations about human rights and their origins often trace them back to European philosophers like John Locke. There are debates around the origins, but the fact that writers of the Enlightenment period are often the starting point indicates European centrism.
The Universal Declaration of Human Rights (UDHR) from 1948 is one of the founding documents of the United Nations. As an essential document of the United Nations, it is celebrated in international forums as emblematic of how nations can work together. The ideas expressed in the document have formed the basis for much of international human rights laws and subsequent UN conventions and meetings. It set the foundation for the creation of international human rights law which looks to manage the ways that countries interact with each other and within their borders; and the establishment of a series of international courts, including the International Criminal Court (ICC). I will use it as a starting point because of its importance; although other documents exist that expound similar ideas, including the American Declaration
6 Richard Shapcott. International Ethics: A Critical Introduction (Oxford: Wiley, 2013), 43. Alexis 6 of the Rights and Duties of Man7, which preceded the UDHR, as well as the African Charter on
Human and Peoples' Rights or the Banjul Charter, which will be the focus of later chapters.
The United Nations declares its premier document as “... a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world.”8 To the UN, part of the legitimacy of the document is that it was created by a global community. The document is important in all their operations, from the
Assembly to local missions.
The UDHR takes on a cosmopolitan view of the world; delineating a responsibility to other human beings based on a shared humanity. Shapcott explains this view in his book,
International Ethics. Quite simply, “Cosmopolitans are moral universalists...human beings ought to be considered as one single moral community, with some rules that apply to all...
[cosmopolitans] emphasize positive (justice and aid) and negative ( i.e. non-harming) duties across borders.”9 Cosmopolitans view documents like the UDHR as a common standard that the world should be trying to achieve. There should be an education to people across the world of their rights, and an effort by governments to protect them within and outside their borders. This responsibility to protect against human rights violations is perhaps the most contentious issue between cosmopolitans and those who share an opposing or “anti-cosmopolitan’” vision of the world. Western countries and authorized actions by the UN and its “peacekeeping” forces often use this responsibility to protect in humanitarian interventions. These peacekeeping forces often do more harm than good. Anti-cosmopolitans would agree with such criticisms and see this as what typically happens when a universal is attempted to be achieved. In fact, in their view, “…a
7 Ninth International Conference of American States, American Declaration of the Rights and Duties of Man (2 May 1948). https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm 8 United Nations General Assembly, The Universal Declaration of Human Rights. 9 Richard Shapcott. International Ethics: A Critical Introduction (Oxford: Wiley, 2013), 8. Alexis 7 world state based on universalism would be a source of violence, domination, and tyranny.”10
Anti-cosmopolitans believe that humanity should be viewed as a collection of distinct communities whose primary obligations are to those communities, not the world at large.
A Different Origin of Human Rights
Most scholarship attributes the origins of a global conception of human rights to Europe, although there are debates as to whether that is true. It is important to also understand that the idea of an international protection of human rights that supersedes a national government also has origins in Latin America. As mentioned before, Latin American states had already drafted a human rights document before the UN did, the American Declaration of the Rights and Duties of
Man. In her book, Evidence for Hope: Making Human Rights Work in the 21st Century Kathryn
Sikkink argues for an expanded and more accurate understanding of the origins of human rights.
She emphasizes the importance of Latin America in helping to create a consciousness around the need for international human rights protection.11 The literature around human rights often ignores perspectives from the Global South. As Sikkink argues, even criticisms of human rights remains Eurocentric as they only focus on European discourse on human rights and not from the
Global South.12
In terms of sovereignty, a discussion that is most relevant to this thesis, Latin American leaders had thoughts around that too. They saw sovereignty as something not in the hands of the national government but that comes from the people. “This vision of popular sovereignty implies that a government cannot use claims of sovereignty to justify human rights violations against
10 Ibid., 51. 11 Kathryn Sikkink. "The Diverse Political Origins of Human Rights." In Evidence for Hope: Making Human Rights Work in the 21st Century, 55-93. (Princeton; Oxford: Princeton University Press, 2017) 12 Ibid. Alexis 8 citizens since those citizens would then have grounds to revolt and alter their form of government”.13 Sikkink uses the 1917 Mexican Constitution to argue this. Highlighting the role of Latin America complicates narratives about international human rights. It is not as simple as the West imposing ideas on the colonized but that people from the Global South had some influence in creating the systems we see today. However, the UNHDR does not mention self- determination in the way that Latin American states do. The right to self-determination, (that is to say sovereignty) is not mentioned in the UDHR though this is a right that is expressed in later
UN conventions.14 This was partly due to the influence of post-colonial states. Sovereignty, self- determination, collective liberation, whatever it may be called, is particularly important to former colonized countries. Samuel Moyn also points to the importance of self-determination for anticolonial movements.15 These countries are the reason later documents of the UN reflected this change.
Notably, this Mexican conception of sovereignty also differs from that described in the
Organization of African Unity’s human rights charter. The African Charter on Human and
Peoples' Rights (Banjul Charter) does list sovereignty as a right, “All peoples shall have the right to existence. They shall have the 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.”16 In contrast, the Charter does not emphasize popular sovereignty but state sovereignty. Chapter two will discuss this distinction.
13 Ibid., 62 14 United Nations General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples, (December 14, 1960). https://undocs.org/A/Res/1514(XV). This resolution called for the independence of colonized countries. 15 Samuel Moyn. The Last Utopia: Human Rights in History, 89 16 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), (Banjul, Gambia: 28 June 1981) https://www.achpr.org/legalinstruments/detail?id=49 Alexis 9
Though, Sikkink contributes an important contribution to the debate about the origins of human rights, Latin American states do not use rights talk as an imperialist tool. Therefore, they do not receive much of the criticisms. Whatever the origins may be, the current iteration of human rights does not sufficiently protect people from harm and this must be addressed. As Issa
G. Shivji says in his book The Concept of Human Rights in Africa, the fact that debates continue are indications of their limited scope. He argues that the UDHR is merely a projection of one culture’s values and the idea of being human; an idea that has changed over time even within cultures.17 This is important in discussions about international human rights enforcement.
However, what can be learned from the Latin American example is how to make human rights more transformative. That is, by focusing on collective liberation.
A Global Hierarchy
Human rights have become an ideological weapon of the West, used to justify interventions. The enforcement of human rights through forceful interventions is proof that the global hierarchy, with Western states at the top and their former colonies at the bottom, has changed little since the time of decolonization. Recipients of this "help" often see humanitarian interventions as an infringement of a state’s sovereignty akin to colonialism. Military interventions by the United States and former European colonial powers in Africa have received backlash from Africans and other concerned people. These interventions by Western powers have also faced these criticisms. Though not an army representing any specific state, the various
UN peacekeeping missions have also received similar criticism. Peacekeeping forces have faced multiple serious allegations of abuse and violence from soldiers to the civilian population. The
17 Issa, G. Shivji. The Concept of Human Rights in Africa Alexis 10 states that continue to hold the most sway at the UN include the United States, the United
Kingdom and France who not only are some of the biggest contributors to the organization18, but all have a permanent seat on the UN Security Council (UNSC) with veto power. Therefore, any sort of human rights enforcement coming from this body at the UN is seen by some as indicative of Western supremacy. China and Russia also have veto power.
Not only are formerly colonized states subjected to these interventions; international organizations do not treat the West with the same degree of global condemnation when they commit crimes that break human rights law. This argument has taken place most notably around the International Criminal Court (ICC) and its focus on Africa.19 African states were some of the
ICC’s most ardent supporters during its establishment. They were initially incredibly involved in systems like the ICC that looked to hold governments and their leaders accountable for crimes; hoping to use it as a tool to advocate for themselves. Now, they point to the seeming hypocrisy of investigating African states while not looking into the acts of violence committed by Western states within and beyond their borders. This anger is not only directed at the ICC but other international courts like the UN’s International Court of Justice (ICJ). These acts of violence include the violence of colonialism and its legacy.20. Shivji accuses the general conversation around human rights in Africa to be ahistorical as often the history of colonialism, slavery and imperialism perpetuated by European states, all grave human rights abuses, are not mentioned in
18 United Nations System Chief Executives Board for Coordination, Total Revenue by Government Donor, accessed April 2019 https://www.unsystem.org/content/FS-D00-02 19 Fisher, Kirsten J. "Africa's Role in the Progression of International Criminal Justice: A Moral and Political Argument." The Journal of Modern African Studies 56, no. 4 (2018), 543 20 Francis Ssekandi, and Netsanet Tesfay. 2017. "Engendered Discontent: The International Criminal Court in Africa." Georgetown Journal of International Affairs 18, no. 2: 78, The authors say in the article that, “the crimes of colonialism, apartheid, and environmental destruction were deemed too controversial and imprecise to survive the vetting process. More specifically, the crime of colonialism was deemed a relic of the past and no longer relevant in the modern world. However, the issue is very much relevant today.”, 4 Alexis 11 analysis of the archetypal authoritarian African dictator.21 Western imperialist interests often installed leaders of awful regimes in Africa. They were not just random actors. Chapter three explores this point more closely.
Because of the ways that powerful states invoke “rights talk” in interventions, humanitarian or not, some see it as a moral ideological arm of Western imperialism and capitalism. In his book, The Political Economy of Human Rights Enforcement, Ivan Manokha notes that, “We are therefore dealing with two phenomena whose time-frames coincide— ascendance of global capitalism and its neoliberal form with hundreds of millions of people being condemned to abject poverty on the one hand, and development of a global moral discourse which identifies individuals in their political and civil emancipation as its key objective.”22 Manokha looks at how the global economic system is used to create a hierarchy of sorts. The rise of global capitalism contributed to many human rights abuses, slavery, colonialism, and genocide amongst other things in pursuit of capital. Yet, the very perpetrators of these crimes use rights talk with little awareness of the contradictions.
As interventions often violate a state’s sovereignty, sometimes to impose a certain economic system, it needs a human rights ideology to justify it. Manokha uses Antonio
Gramsci’s theory of hegemony to argue why this is possible. Hegemony is “the condition of a world society or state system in which the dominant state and dominant social forces sustain their position through adherence to universalized principles which are accepted or acquiesced in by a sufficient proportion of subordinate states and social forces.”23 By creating this view of
21 Issa, G. Shivji. The Concept of Human Rights in Africa, 69 22 Ivan Manokha. The Political Economy of Human Rights Enforcement; Moral and Intellectual Leadership in the Context of Global Hegemon, 5 23 Ibid.,165 Alexis 12 human dignity called human rights, one that is internationally agreed upon, powerful Western states can defend their actions in their fight for them.
An African Human Rights
One of the common differences between African and European societies pointed out by experts and theorists are the ways that they view themselves. The UDHR focuses on individual rights. The focus on individual rights is because this was a cultural value for the members drafting it at the time. The rights of the individual come before a collective good, whilst in general, African societies are centered around communities. However, calling any tradition universal, even about the group one is referring to, homogenizes the people for whom that tradition comes from. Furthermore, these ways of viewing the world obscure the fact that communities have disagreements amongst each other, especially marginalized members of those communities like women. Richard Shapcott discusses this issue in laying out critiques of this anti-cosmopolitan view. Shapcott refers to thinkers like this as pluralists. Pluralists view cultures as static and cultural values unchanging. They implicitly give little hope to marginalized identities everywhere who seek to challenge those practices of their own culture which harm or exclude them from equal moral consideration.24 While it is important to recognize different cultural understandings, these ways of homogenizing groups of people often harm the most vulnerable and do not really combat structures of violence.
I would not say that the UDHR solely reflects traditional European values, but rather reflects the thinking of the bourgeois politicians and leaders at the time who may or may not have been Europeans themselves but were influenced by Western Enlightenment thinking. In
24 Richard Shapcott. International Ethics: A Critical Introduction, 84 Alexis 13 response to universal claims, some people have chosen to take on a relativist approach to combat
Western hegemony, which I can, using terms from early on, call anti-cosmopolitan. The issue here is that cultural relativism may give rise to fascist, authoritarian regimes. Many African leaders have taken the extreme end of cultural relativism to justify their actions by saying that they are in fact based in tradition. The Democratic Republic of Congo’s (formerly Zaire) Mobutu
Sese Seko is a good example. He instituted a policy of authenticité or “Zarianization” that was a way of decolonizing.25
This paper is not endorsing an either relativist or universalist approach to understanding human rights or ethics but instead draws attention to what is deemed universal. What some believe to be universal is often centered and seen as neutral, but often what is considered universal represents that of the dominating group, a hegemon. Given their hegemonic status, this group may not notice that what they consider normal is particular to them.26 Others who accept their “universal” but who exists outside of this hegemon will see it this way too.
There are different conceptions of how to treat other human beings in Africa. Some in
Africa view human rights as an ideology of struggle due to their emphasis on state sovereignty.
Human rights, as Shivji puts it, “must be an ideology of struggle” and many Africans have used them as such.27 He states that “The rights-holders in the right to self-determination are dominated/exploited people and oppressed nations, nationalities, national groups and minorities identically in each concrete situation. The duty bearers are states, oppressor nations and
25 Kenneth Lee Adelman. "The Recourse to Authenticity and Negritude in Zaire." The Journal of Modern African Studies 13, no. 1 (1975): 134-39. This Zarianization included changing the names of the cities from European names, taking down statues of European foreigners and the removal of Western-style dress. It also help create a cult of personality for Seko, who saw himself as chief of Zaire and governed the country in that way. 26 Ivan Manokha. The Political Economy of Human Rights Enforcement; Moral and Intellectual Leadership in the Context of Global Hegemony 27 Issa, G. Shivji. The Concept of Human Rights in Africa, 88. Alexis 14 nationalities and imperialist countries.”28 Recognizing human dignity is important but rights talk cannot just be talk, it must motivate struggle. Many African revolutionary leaders viewed sovereignty or the right to govern oneself and make decisions that way as a right. A right to struggle against colonialism and Western domination.
As mentioned previously, self-determination is a right recognized by the Banjul Charter; a document that aims to promote human rights on the continent. Self-determination is especially important to marginalized groups who seek to liberate themselves from their oppressors. Because of the history of anti-colonial struggle, the OAU/AU emphasizes this right. With this attachment to sovereignty, the Charter emphasizes the importance of states as representatives of their population. This raises many issues. What kind of state is the best representative of a community, a nation? Can that even be possible when the interest of those at the top, especially in a capitalist system, are not always the interest of others? However, in viewing human rights this way, the drafters of the Charter took on a communitarian view. The Banjul Charter, in its emphasis on state sovereignty, stresses a community’s right to collective liberation over an individual’s. This conception of self-determination being only in the state’s hands poses a problem as leaders use this to get away with authoritarianism. This is one argument that I will continue to go back to over the course of this thesis. Unlike the Mexican constitution, the Banjul Charter does not stress the ability of the people to change their government if they see this as fit.
Conclusion
Paul Tiyambe Zeleza contends that discourse around human rights in the West following the legacy of the UNHDR tends to be idealistic, legalistic, dualistic, and ethnocentric. He writes,
28 Ibid., 80 Alexis 15
…idealistic in that human rights are reduced to ideas abstracted from social history, so that they are seen as the outcome of concepts not conflict, insights not instigation, philosophy not politics; legalistic in that their provenance is primarily located in courts not culture, procedure not practice, rhetoric not reality, codes not contingency; dualistic in that they either polarize or prioritise civil and political rights against economic and social rights and vice versa; and ethnocentric in that their source is usually located in the West by both universalists and relativist.29
Human rights as defined by the UDHR are neutral not universal. Anyone can use them to further any political agenda. This is part of the problem. They continue to be divorced from social transformation and struggle. Human rights need to address structural violence and not take on the goal of reform. This is partly because the fight for human rights on an international level remains in the courts. While powerful states profess the importance of protecting human rights on one hand and violate them on the other.
African states have taken human rights a little further by adding an anticolonial element to it. As Adom Getachew notes in her book, Worldmaking After Empire, “While international human rights protections have provided important resources in challenging international hierarchy and can be combined with collective claims for self-government, on their own, they offer a limited account of the wrongs involved.”30 However, human rights discourse continues to fail at addressing structural violence. International human rights protections were not enough for
African states to assert themselves, which is why they had to combine it with claims to self- determination.
This discussion of the origins and uses of human rights is important to understanding how their use in Africa. It is important to note that the OAU is modeled after international/regional organizations at the time like the European Economic Community and the United Nations. In
29 Paul Tiyambe Zeleza, “The Struggle for Human Rights in Africa” (2004), in Human Rights, Peace and Justice in Africa: A Reader, ed. Heyns, Christof and Karen Stefiszyn. (Pretoria: Pretoria University Law Press, 2006), 42. 30 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 33 Alexis 16 doing so, the founders of the OAU took on some of the issues in these institutions; including their elitism and bureaucracy. The African Union adopted, with some key changes, the UDHR and the human rights rhetoric for their own use. Furthermore, like other UN documents, experts, politicians, and other elites developed the Banjul Charter and the OAU’s Charter with little input from the public. The documents do not change the status quo while purporting to be challenging it. Though the Banjul Charter takes on a more collective rights understanding of human rights, the document does not stray that far away ideologically from the articles set out in the
UNHDR.31 The degree to which the African Union did not revolutionize human rights, is part of the discussion for the next chapter.
31 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), June 28, 1981 https://www.achpr.org/legalinstruments/detail?id=49 Alexis 17
Chapter Two: A United Africa
Introduction
In 1986, African leaders used the OAU to organize their own declaration of human rights called the African Charter on Human and Peoples Rights (Banjul Charter), signed in Banjul,
Gambia.1 When leaders and experts converged in Senegal, to draft the document that would become the Banjul Charter, Léopold Seder Senghor, the country’s president, described the document as “…the first legal instrument which will enable our continent to organize its own system, and which is intended to safeguard equality, freedom, justice, human and peoples’ dignity.”2 Senghor and many other leaders saw the Banjul Charter as something that could further legitimatize the OAU, not only to outsiders but to people on the continent. However, the
OAU/AU has largely failed at managing and preventing conflict as well as protecting individuals from abuses by the state. There are number of reasons for this. First, the OAU did not fully interrogate inherited colonial institutions and attitudes during its formation; and second, the
OAU and its successor the AU provided African leaders with a lot of power over their constituents, leaving civilians at their mercy.
Pan-Africanism and African Unity
1 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter") 2 Léopod Sedar Senghor. “Address Delivered by Leopold Sedar Senghor President of the Republic of Senegal (1979)” in Human Rights, Peace and Justice in Africa: A Reader, ed. Heyns, Christof., and Karen Stefiszyn. (Pretoria: Pretoria University Law Press, 2006), 49 Alexis 18
African leaders believed that the best way they could fight against colonialism was to band together. These African leaders were Pan-Africanist. Quite simply, Pan-Africanism is the belief that African peoples must build solidarity amongst each other. Pan-Africanism is a movement that began with descendants of enslaved Africans in the Americas looking to form a sense of solidarity amongst other peoples of African descent, both on the continent of Africa and in the diaspora. It is not a static movement and continues to evolve especially as it becomes institutionalized. Early Pan-Africanist included W.E.B DuBois and Marcus Garvey, both descendants of Africans brought to the Americas. These thinkers influenced African leaders who created the OAU.
Kwame Nkrumah, president of the then-newly formed Republic of Ghana, was the most outspoken supporter of an official African union or federation during the period of formal decolonization. Leaders like Nkrumah did not see the end of colonialism with the ending of formal colonization but saw room for more subjugation due to the hierarchy of the international order. He saw this in the form of neocolonialism, or economic exploitation3, and balkanization which is the “…breaking up of Africa into smaller, weak states.”4 Neocolonialism includes control of the government policy of a formerly colonized state by a former colonizer or imperialist state. A proponent of Pan-Africanism, Nkrumah, and others like him saw the OAU as a way to secure the non-domination of African states and use it as a way of securing their self- determination.5
However, during the time of decolonization there were differing opinions on how the continent was to move forward.
3 Kwame Nkrumah, Neo-Colonialism: The Last Stage of Imperialism, (New York: International Publishers Co., Inc.: 1966), ix 4 Kwame Nkrumah Africa Must Unite (New York, NY: Frederick A. Praeger Inc., 1963), 173 5 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 108 Alexis 19
Though the most outspoken, Nkrumah was not the only one who believed in unity as the best way forward. Different leaders had different ideas of what would be the best way of realizing this dream prior to the creation of the OAU. Rotimi Ajayi and Segun Oshewolo state in their chapter on the African Union that “In Africa, immediately after decolonisation, the integration agenda polarised the continent into two broad camps. While the Casablanca bloc represented by Kwame Nkrumah wanted a politically united and economically integrated region, the Monrovia bloc wanted a functionalist and gradualist approach to unity and integration.”6 The
Casablanca conference held in 1961 was a meeting led by Nkrumah that sought a federalist approach to unity with close economic ties in a bid to defeat colonialism. The conference included the United Arab Republic led by Gamal Abdel Nasser, Ghana, Guinea, Mali, and
Morocco. Nkrumah was in favor of a sort of United States of Africa plan, but others were not so sure. Ghana, Guinea and Mali’s short-lived Union of African States was a realization of this plan.7
Emperor of Ethiopia Haile Selassie was against federation. Ethiopia was part of the
Monrovia group who favored a confederal approach to unity; they privileged sovereignty. States in this bloc in addition to Ethiopia were Senegal, Somalia, and Liberia. There were a few other blocs with varying ideas of unity. Ultimately, those who preferred a more loosely held unity of independent states won out.8 What became the OAU was really a sort of compromise between different visions of what African unity could look like.
6 Rotimi Ajayi and Segun Oshewolo, “Ghaddafi and the African Union The End of an Era?”African Union Ten Years After: Solving African Problems with Pan-Africanism and the African Renaissance, ed. Mammo Muchie, and Phindil Lukhele-Olorunju, (Africa Institute of South Africa, 2013), 6 7 Kwame Nkrumah Africa Must Unite, 141 8 Frans Viljoen, International Human Rights Law in Africa. 2nd ed. (Oxford, UK: Oxford University Press, 2012) 155 Alexis 20
Some see the OAU/AU as a Pan-Africanist dream realized. However, due to the failure of the organization to change the status quo, this title is unconvincing. For one, African leaders at the time did not give much thought to the question of borders and advocated for territorial sovereignty.9 This question of borders is important when talking about state formation and sovereignty. Borders are part of what makes a state. However, Nkrumah was not naïve on the question of borders. In a speech cited in Timothy Murithi’s book on the African Union, Murithi notes that Nkrumah warned of the issues ahead, “there is hardly any African state without a frontier problem with its adjacent neighbours….but let me suggest that this fatal relic of colonialism will drive us to war against one another… we shall have fought in vain for independence.”10 Immediately after decolonization, there were a few conflicts in Africa on the question of borders. Nkrumah believed that a federation would avoid this problem.
The Formation of the OAU
After some debate, the OAU was established in 1963. The headquarters of the
Organization of African Unity, and now African Union, is in Addis Ababa, Ethiopia. The leaders involved with the OAU sought to evade the inherent inequalities in the international system by creating their own structures that sought to be “distributive and egalitarian”.11 It was an attempt to partially exit and insulate from the dependencies and domination.12 From the very beginning, the OAU emphasized on the question of sovereignty. Sovereignty to some of those leaders, was full control by the senior officials to determine their country’s path.
9 Ibid. 10 Timothy Murithi, The African Union: Pan-Africanism, Peacebuilding, and Development (Great Britain: Ashgate, 2005), 13 11 Frans Viljoen, International Human Rights Law in Africa, 24 12 Ibid. Alexis 21
Instead of the dream of overall governance over the continent, the primary purpose of the
OAU was to help establish legitimacy for newly independent African states. Knowing this, the focus on self-rule is not surprising. The preamble of the Charter states this from the very beginning. It begins with, “We, the Heads of African States and Governments assembled in the
City of Addis Ababa, Ethiopia, convinced that it is the inalienable right of all people to control their own destiny… have agreed to the present Charter”.13 In his book, Richard Shapcott speaks about this way of viewing sovereignty. He states, “The sovereign states was the only setting in which people could achieve their individuality and their freedom because it was the only
Community within which people have reflectively constructed their identity, or in which people were capable of ruling themselves according to reason.”14 The African Charter believes this and that sovereignty for the state is also self-determination for its people.
To understand the OAU and its evolution, it is important to know the organization's structure. All independent African states were entitled to be members of the OAU.15 The OAU did not have any restrictions on who could join, no matter what their human rights record. As written in the Charter of the Organization of African Union, the original OAU also included four institutions within the organization: the Assembly of Heads of State and Government, the
Council of Ministers, the General Secretariat, and the Commission of Mediation, Conciliation and Arbitration.16 The Assembly consisted of Heads of State and was the “supreme” body of the
OAU. They were to discuss matters related to the continent and make any changes they saw fit.
The Council of Ministers consisted of designated ministers from each member state. Their task
13 Organization of African Unity (OAU) Assembly, Charter of the Organization of African Unity (Addis Ababa, Ethiopia: May 25, 1963). 14 Richard Shapcott. International Ethics: A Critical Introduction, 53 15 Organization of African Unity (OAU) Assembly, Charter of the Organization of African Unity, Article V 16 Ibid., Institutions Alexis 22 was to implement any decisions made by the Assembly. The General Secretariat consisted of the
Secretary-General, the Assistant to said Secretary-General and employees of the Secretariat.
They were tasked with carrying out the provisions laid out in the Charter and any regulations approved by the Assembly.17
The last institution which is the most related to the topic of this thesis is the Commission on Mediation, Conciliation and Arbitration, but it does not receive as much description in comparison to the others. Keeping the peace is essentially the task of the Commission. The OAU
Charter reads,
Member States pledge to settle all disputes among themselves by peaceful means and, to this end decide to establish a Commission of Mediation, Conciliation and Arbitration, the composition of which and conditions of service shall be defined by a separate Protocol to be approved by the Assembly of Heads of State and Government. Said Protocol shall be regarded as forming an integral part of the present Charter.18
The Charter created this Commission to mediate any disputes between member states. The
Charter also granted the Assembly the power to create more commissions if they saw fit; which they did. With its hierarchy, bureaucracy, and multiple levels of implementation, the OAU resembled other institutions like the UN. However, for an institution that wanted to be egalitarian, it handed over ordinary African people from the hands of colonial leaders to that of
African elites.
An African Conception of Human Rights
When the OAU was first established in the 1960s, human rights were not at the top of the agenda. As Rachel Murray puts it in her book, Human Rights in Africa: From the OAU to the
17 Ibid., XVIII 18 Ibid., Article XIX Alexis 23
African Union, “…the OAU’s focus was on protection of the state, not the individual”.19
Therefore, many of the early documents did not thoroughly discuss how people can be protected from the state through mechanisms like human rights. This does not mean to say that the concept of human rights was completely foreign to African leaders; at the point in which the OAU began, the UDHR would have been nearing its 20th anniversary. In fact, the original OAU Charter mentions the UDHR twice.20 However, resistance to European powers and the unity in this struggle is what pushed many African states to form the OAU. The organization subordinated these rights to their anti-colonial struggle as they recognized this as their primary right. In his article “A ‘Struggle approach’ to Human Rights”, Christoff Heyns notes this as well writing,
“The Charter of the OAU (1963) shows little explicit recognition of the idea of human rights, but it clearly endorses the anti-colonial movement and recognizes the right of African states to engage in the liberation struggles of the continent and may in that sense be seen as a human rights document.”21 The OAU wanted sovereignty first in order to liberate African states. It was only through this self-determination that they could advocate other human rights. This need for sovereignty created a norm of non-interference by the OAU. This norm meant that the OAU did not intervene in the many conflicts and human rights crises of the late twentieth century.
About two decades after the creation of the OAU, African leaders realized the need for their own declaration of human rights. Discussions that would lead to the African Charter on
Human and People’s Rights (Banjul Charter) began in the late 1970s. The OAU adopted the
19Rachel Murray. Human Rights in Africa: From the OAU to the African Union. (Cambridge: Cambridge University Press, 2004.),7 20 Organization of African Unity (OAU) Assembly, Charter of the Organization of African Unity. The Preamble of the Charter recognizes the UDHR. “…Persuaded that the Charter of the United Nations and the Universal Declaration of Human Rights, to the Principles of which we reaffirm our adherence, provide a solid foundation for peaceful and positive cooperation among States…” 21 Christof, Heyns ‘A “’Struggle approach’ to human rights”. Human Rights, Peace and Justice in Africa: A Reader, 16 Alexis 24
Banjul charter in 1981 to protect human rights with the ratification of the document in 1986. The
Banjul Charter also created an African Commission on Human and Peoples' Rights “to promote human and peoples' rights and ensure their protection in Africa.”22 The Banjul Charter is not the only document by the OAU/AU on human rights. Others include the OAU Convention on
Refugees23, and the African Charter on the Rights and Welfare of the Child.24 The OAU’s successor, the African Union, continues to use the Banjul Charter as its human rights document.
Fulfilling the Need for a Human Rights Charter
There was a rising tide, a changing conversation in the international sphere that pushed
African leaders to look at human rights more seriously. In taking part in “rights talk”, African leaders may have wanted to keep some sense of legitimacy in the international sphere.25 Human
Rights was becoming an important “ideological tool in the West’s Cold War armoury”.26 This corresponds with Manokha argument in, The Political Economy of Human Rights Enforcement, of Western states using human rights language to create a moral discourse which provided
Western capitalism retrospective legitimacy compared to the socialist-communist USSR. This ideological warfare is important to note considering the leftists ideologies of many of Africa’s revolutionary leaders. Frans Viljoen in his book, International Human Rights Law in Africa, also notes that the Banjul Charter came about as a response to human rights abuses by African leaders such as Idi Amin in Uganda.27 The crimes committed by Amin, forced the OAU to reevaluate
22 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), 23 Frans Viljoen, International Human Rights Law in Africa. 2nd ed. (Oxford, UK: Oxford University Press, 2012), 242 24 Ibid., 391 25 Issa, G. Shivji. The Concept of Human Rights in Africa, 94 26 Frans Viljoen, International Human Rights Law in Africa., 159 27 Ibid., 158 Alexis 25 their position on non-interference.28 The OAU realized the relationship between human rights and conflict.
African leaders saw the Banjul Charter as a continuation of the OAU’s mission of
“freedom, equality, justice and dignity [as the] essential objectives for the achievement of the legitimate aspirations of the African people.”29 Without the guarantee of human rights and prevention of conflict, the promotion of these liberties cannot happen.
The Banjul Charter
Many view the Banjul Charter as a flawed document.30 The reasons for this categorization are diverse. The Charter holds the same rights as other human rights documents but goes further in many aspects. It recognizes economic, social, and cultural rights as well as civil and political ones. It also delineates duties individuals have in additions to rights. Heyns writes that the Banjul Charter recognizes, “…‘a right to work under equitable and satisfactory conditions’ (article 15), ‘a right to health’ (article 16) and ‘a right to education’ (article 17).
Some prominent socio-economic rights are not mentioned by name, such as the right to food, water, social security and housing.”31 Like the OAU Charter, the Banjul Charter also reaffirms the right to self-determination. Article 20 of the Banjul Charter reaffirms the right to sovereignty.
“All peoples shall have the right to existence. They shall have the unquestionable and inalienable
28 Organization of African Unity (OAU) Assembly, Charter of the Organization of African Unity. In the Banjul Charter, Chapter 1, Article 12, section 5, the crimes of Idi Amin seem to be directly addressed “The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.” 29 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights 30 Gino J. Naldi, The Future Trends in Human Rights in Africa: The Increased Role of the OAU in The African Charter on Human and Peoples' Rights: The System in Practice, 1986–2000. Evans, Malcolm D., and Murray, Rachel, ed. (Cambridge: Cambridge University Press, 2002.), 5. Naldi describes the Banjul Charter as having “largely proved to date to be a false dawn for the promotion and protection of human rights in Africa.” 31 Christof Heyns, and Magnus Killander. “The African Regional Human Rights System” in ed. Human Rights, Peace and Justice in Africa: A Reader, Heyns, Christof., and Karen Stefiszyn, ed. Alexis 26 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.”32 This statement seems to reaffirm popular sovereignty though this is not practiced in real life. The people referenced here mean the state. Shivji states that the Charter is not as focused on people’s rights and that, “It is decisively state-centered, confirming the practice of the OAU and its member states since inception. Examination of its substance of provisions shows that it is primarily the ‘state’ which is seen as a collective representative of the people in the African
Charter.”33 The Banjul Charter pays little attention to what Shivji describes as “The second plank of a ‘internal’ aspect of political self-determination [referring] to the freedom of the ‘people’ to choose the form of their governance and government.”34 In the third chapter, I will explore the consequences of this.
The Banjul Charter does not guarantee certain rights like the right to organize, which scholars like Shivji take issue with. He argues that this is on purpose. Though the Charter does recognize an individual’s right to be in “…assembly freely with others…”35, that right is restricted by the “…law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.”36 Shivji argues that the Charter’s seeming
“…opposition to the right to organize is an important expression of state authoritarianism”. The
African charter does not guarantee certain rights like the right to organize because that was not in the interests of those drafting and signing the document. It also delineates duties of a citizen to the state. These duties include duties toward “…his family and society, the State and other
32 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), Article 20 (1) 33 Issa, G. Shivji. The Concept of Human Rights in Africa.95 34 Ibid.,78 35 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), Article 11 36 Issa, G. Shivji. The Concept of Human Rights in Africa, 86 Alexis 27 legally recognized communities and the international community”.37 Others include the duty to
“…preserve and strengthen positive African cultural values”38 and “…to preserve and strengthen social and national solidarity, particularly when the latter is threatened.”39 What these duties show is the closer focus by the African Union on community; a departure from the individual focus of the UDHR.
The Banjul Charter created the African Commission on Human and Peoples' Rights in
1987. Their tasks, as delineated in the Banjul Charter, are, “To collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights, and should the case arise, give its views or make recommendations to Governments.”40 The Commission is to receive complaints from states and develop a mechanism by which civil society, organizations and individuals, can submit recommendations and violations to the Charter’s provisions.41
Ensuring the protection of the rights laid out in the Banjul Charter, is another task of the
Commission. The General Assembly choses the eleven members of the Commission from a list provided by member states. There are not many specific criteria for who can be chosen except that they are to be “…known for their high morality, integrity, impartiality and competence in matters of human and peoples' rights; particular consideration being given to persons having
37 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), Article 27 38 Ibid., article 29 39 Ibid., 40 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), Article 45 41 Rachel Murray. Human Rights in Africa: From the OAU to the African Union. (Cambridge: Cambridge University Press, 2004.), 52 Alexis 28 legal experience.”42 The members of the Commission are meant to serve in a personal capacity and cannot represent the interest of any state. In an attempt to avoid this, the commission may not include “more than one national from the same state.”43 In 1998, the OAU established the
African Court on Human and Peoples’ Rights.44 Like the Commission, the court consists of eleven judges. This Court and Commission are meant to work together. The Court can make legally binding decisions that the Commission recommends.45 Both the Commission and the
Court were kept in the transition from the OAU to the AU. However, they have not carried out much in their prescribed duties.
The Transformation from the OAU to AU
Despite these changes, the OAU still proved to be inefficient. Abou Jeng in his book on peacebuilding in Africa argues that:
The OAU was fundamentally a political organisation which sought to accelerate decolonisation struggles as well as salvage what little was left of the African unity project. In this sense, it was merely a platform to provide solidarity and a sense of identity amongst states, and was not, therefore, set out to establish functional institutional machinery that could proactively generate norms and enforce policies.46
The OAU was not created with the goal of peacebuilding and conflict management in mind.
However, it soon found itself in the position of having to do so. Along with these structural inadequacies, the OAU’s norm of non-interference severely hindered its capabilities of
42 Organization of African Unity (OAU) Assembly, African Charter on Human and Peoples' Rights ("Banjul Charter"), Article 31 43 Ibid., Article 32 44 Organization of African Unity Assembly, Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, (Ouagadougou, Burkina Faso: 10 June 1998) 45 Ibid., Article 2 46 Abou Jeng. Peacebuilding in the African Union: Law, Philosophy and Practice. (Cambridge: Cambridge University Press, 2012), 130 Alexis 29 peacebuilding. It was not until the new century that African leaders changed the structure of the organization.
Like Nkrumah, Libyan leader Muammar Ghaddafi was keen on creating a more united
Africa. His ambition is part of what led to the Extra-Ordinary Summit of the OAU in Sirte, Libya to discuss the future of African unity.47 On the 9th of September 1999, the Sirte declaration laid the foundation for a new African union. Like the OAU before it, the AU was created because of a greater need for solidarity.48 Africa was facing new issues coming into the new millennium and needed to create original ways to combat them. Thabo Mbeki, South African president at the time, was also very involved in the reimagining of the OAU. He dreamed of an African renaissance post-Apartheid. Pan-Africanism was once again a great motivator for change.49
The Organization of African Unity officially became the African Union in 2002. As of the writing of this thesis, all African states are members of the AU. Morocco renounced its membership in the OAU in 1984 because of the admission of the Sahrawi Arab Democratic
Republic (Western Sahara) into the AU and the recognition by the General Assembly of a
Moroccan occupation. However, Morocco rejoined the AU in 2017.50
The AU is an attempt at righting the wrongs of its predecessor, and unlike its predecessor, it seeks to promote a more integrated continent and is more concerned with issues
47 Rotimi Ajayi and Segun Oshewolo, “Ghaddafi and the African Union The End of an Era?”, in African Union Ten Years After: Solving African Problems with Pan-Africanism and the African Renaissance, ed. Mammo Muchie, Phindile Lukhele-Olorunju, and Oghenerobor Akpor, (Pretoria: Africa Institute of South Africa, 2013), 9 48 Timothy Murithi, The African Union: Pan-Africanism, Peacebuilding, and Development, 7 49 Abou Jeng. Peacebuilding in the African Union: Law, Philosophy and Practice. 156 50 Hannah, Armstrong. “Morocco just Joined the African Union. here's Why that Matters” The Washington Post, February 20, 2017. https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/20/morocco-just-joined-the- african-union-heres-why-that-matters/. The AU General Assembly’s decision to admit Morocco stirred controversy, especially by those who support the sovereignty of Western Sahara. Some saw the decision as contradictory to AU values of self-determination. Both Morocco and The Sahrawi Republic are full members of the AU. Alexis 30 related to human rights.51 There are some key changes to the AU from the OAU. Article 3(h) of the Constitutive Act—the document that outlines the framework for the AU and replaced the
OAU Charter— states that one objective of the AU is to, “…promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights [Banjul
Charter] and other relevant human rights instruments;…”.52 This acknowledgement of human rights is a departure from the OAU. The AU also includes many new principles: a principle of intervention, peaceful resolutions and 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…”.53 It even includes the right of Member states to request intervention from the Union.54 The Act is still firm on the right to sovereignty and the non-interference in the internal affairs of a state55 but this added language on protecting human rights is a sign of an awareness by leaders of where the OAU went wrong.
The AU kept some of the same institutions of the OAU including the Assembly, the
Executive Council (formerly the Council of Ministers), and the Commission or Secretariat. Its headquarters remains in Addis Ababa. However, while the OAU originally had four organs, the
AU has nine. Some of the most significant additions regarding the topic of this thesis are the
Pan-African Parliament and the Court of Justice. These were added as ways to shed the organization’s reputation of being a club of elites, or as Timothy Murithi refers to them, “a
51 Kay Matthews. “Renaissance of Pan-Africanism: the AU and the New Pan-Africanists” in African Union and Its Institutions, John Akokpari, Ndinga-Muvumba, Angela, and Murithi, Tim, ed. (South Africa: Jacana Media, 2009), 33 52 Thirty-Sixth Ordinary Session of the Assembly of Heads of State and Government, The Constitutive Act of the African Union, (Lomé, Togo: 11 July 2000), Article 3(h) 53 Ibid., Article 4(h) 54 Ibid., Article 4(j) 55 Ibid., Article 4(g) states that the Union would follow a principle of “non-interference by any Member State in the internal affairs of another”. Alexis 31 toothless talking shop.”56 The Pan-African Parliament tasks is ensuring the “…full participation of African peoples in the development and economic integration of the continent…”57 According to Murithi in his book on the African Union, the Parliament is the AU’s way of “…ensuring grassroots involvement by ordinary Africans in the laws that directly affect their future.”58 Even with the rebranding, many Africans still see the AU as removed from them.
The AU created the Court of Justice as the “principal judiciary organ of the Union.”59
However, the AU decided to merge the Court of Justice with the African Court on Human and
People’s Rights to create the African Court on Justice and Human and People’s Rights
(ACJHPR). In 2014, the General Assembly adopted the Malabo Protocol which gives the new court criminal jurisdiction.60 The ACJHPR will have the authority to try an individual for up to fourteen crimes. The African Court seems to be a promising aspect of the future of human rights in Africa. Plans for the ACJHPR are in motion though the future is unclear. The idea of an
African court on this scale can be traced back to the adoption of the Banjul Charter. However, the African Union now envisions the ACJHPR as an alternative to the International Criminal
Court and other international courts.
56 Timothy Murithi, The African Union: Pan-Africanism, Peacebuilding, and Development, 26 57 Thirty-Sixth Ordinary Session of the Assembly of Heads of State and Government, The Constitutive Act of the African Union, Article 17(1) 58 Timothy Murithi, The African Union: Pan-Africanism, Peacebuilding, and Development, 32 59African Union. “Protocol of the Court of Justice of the African Union”, accessed 28 April 2020. https://au.int/en/treaties/protocol-court-justice-african-union 60 African Union General Assembly, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. (Malabo, France: 27 June 2014. accessed 26 April 2020. https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights
Alexis 32
Conclusion
With the end of colonialism, African states faced new adversities. They felt the need to unite to fight against continued economic exploitation in the form of neocolonialism and intervention in the form of imperialism. This struggle united not just Africans on the continent but in the diaspora as well. In Worldmaking After Empire, Getachew discusses the decolonizing project of the Black internationalist as a “worldmaking” project. African unity in the form of a federation or other organizations was an attempt to stop the problem of neocolonialism.
While the OAU primarily served as a forum for African leaders, the AU aims to take on a greater peacebuilding role. The AU continues to be Africa’s foremost organization for unity.
This means that it can create massive changes on the continent. In some ways, the AU has not properly distinguished itself from its predecessor. Modeled after earlier Western documents and institutions, the OAU and its successor has failed to reinvent or reimagine to a great degree what unity would look like for them. To the extent, they adopted “the master’s tool”, they did not dismantle systems of oppression.61
However, the creation of the AU out of the OAU has not really changed many significant things in terms of human rights enforcement and bureaucracy makes it difficult for the AU to do any actual work. The AU continues to be a mouthpiece for the elites of African countries to promote their political agenda. Despite attempts to change this, it does not yet represent the voice of the most marginalized who face human rights abuses by the very leaders in the General
Assembly. The continued focus on sovereignty gives way to a system in which the state holds all the power; a state that may be non-democratic.
61 Audre Lorde. “The Master’s Tools Will Never Dismantle the Master’s House.” 1984. Sister Outsider: Essays and Speeches. (Berkeley, CA: Crossing Press. 2007) 110- 114. Alexis 33
It is important to note that there are several sub-regional institutions in Africa like the
Economic Community of West African States (ECOWAS), which was established in 1975, and the Southern African Development Community (SADC). Other organizations include Economic
Community of Central African States (ECCAS) and Arab Maghreb Union (AMU). These organizations are challenging the AU’s role on the continent and increasingly taking up security roles. As they take on greater responsibilities, it remains to be seen how all these organizations will work together in protecting of human rights.
Alexis 34
Chapter Three: Oppressive Regimes in Africa:
Explaining the Existence of ‘Weak’ African States
The Legacy of Colonialism
The previous chapter discussed the mechanisms that the OAU/AU have in order to deal with conflict and human rights abuses. It is also important to discuss the reasons for these conflicts. There are many theories about why states violate human rights. One being that healthy democracies do not violate rights because they have nothing to fear. Governments do not feel the need to repress their people to stay in power. They become more repressive when they believe that there is a threat to their power.1 Another is the formation of the state itself and the level of democratic institutions. More democratic institutions and higher levels of economic development will decrease the amount of abuses.2 This is not always the case, but the point of this thesis is not to elaborate on this question. The last—and most relevant to this paper—is the relationship a state has with other states.3 This relationship can influence domestic policy. Foreign interventions by “great powers” have played a significant role in the political instability that many African states face today. The term intervention does not just refer to military intervention, but any sort of force or pressure applied by a foreign entity to advance a domestic agenda.
Foreign interventions in the instance of protecting human rights, like with apartheid South
1 Rodwan M. Abouharb and David Cingranelli. Human Rights and Structural Adjustment. (Cambridge: Cambridge University Press, 2007), 52 2 Ibid., 53 3 Ibid., 56 Alexis 35
Africa, are not necessarily a terrible thing. The divestment and sanctions movement against apartheid South Africa played an influential role in ending apartheid. However, some states intervene with ulterior motives; often regime change or for more influence in the region.
Furthermore, conversations about human rights in Africa cannot exclude colonialism's violent legacy. This is not only because most African states are less than seventy years old, but in trying to understand violence that pervades today, it is important to understand how violence begets violence. Colonialism and its cousin imperialism are structural violence; structural violence that continues in the inherited institutions of present-day African states. This, along with continued economic subjugation of these states through international financial institutions
(IFI) and sovereign debts of African states prove that major conflicts that violate human rights are a result of structural violence. “A society that is vulnerable to being overwhelmed by violence is typically already a society in deep crisis.”4
European colonizers used a “divide and conquer” method to rule over their colonies.
Essentially, colonial powers would sow misunderstandings and animosity between groups in order to squash any unified resistance. They would do this by privileging one group over another, by giving one group more political power in decision making. The example often cited is Rwanda. In the late 1800s, Germany was Rwanda’s colonizer, and they took part in the
“divide” method by privileging the Tutsi ethnic group over the Hutu in terms of giving political power.5 The Belgians continued to play into this dynamic in the early to mid-twentieth century.
These animosities would later boil into the Rwandan genocide of the mid-90s.6 Rwanda is
4 Laurie Nathan. “‘The Four Horsemen of the Apocalypse’: The structural causes of crisis and violence in Africa” in Human Rights, Peace and Justice in Africa: A Reader. Heyns, Christof., and Karen Stefiszyn, ed. (Pretoria: Pretoria University Law Press, 2006), 86 5 Kenneth R. White, "Scourge of Racism: Genocide in Rwanda." Journal of Black Studies 39, no. 3 (2009): 471-81. 6 Ibid. Alexis 36 significant because it raised the question of how to intervene in a human rights crisis. The genocide served as a turning point for humanitarian actions and changed the conversation on human rights enforcement. Rwanda is also significant because it is a clear example of colonialism’s violent legacy.
This history of colonialism created a hierarchy among countries in the world. Getachew states that “colonization was not experienced as an exclusion from but as unequal integration into international society.”7 African states are members of international organizations but there remains a hierarchy. This unequal integration means that many formerly colonized states are not equal members of the international system. Many international organizations often subject
African states and other states in the “third world” to their rules. Though formerly colonized states are the majority of UN members, the UN Security Council—arguably the most powerful
UN body—continues to have just five permanent members with veto power. Two of which once held extensive colonial empires.
Powerful states and international institutions are partly responsible for the authoritarianism, the disorder, and weakened capacities of some African states because international hierarchies influence domestic politics. These things do not occur in a vacuum.
Oppressive regimes in the “third world” are often linked to Western capitalism. There are many examples of the ways that European and American leaders have tried to influence domestic policy in Africa and around the world. This has often led to the installation of leaders who abuse human rights. Some of Africa’s most well-known human rights abusers received Western support including people like Mobutu Seko and Hissène Habré. Western powers have an outsized influence on African politics. In his book, Sovereigns, Quasi Sovereigns, and Africans:
7 Adom Getachew. Worldmaking after Empire: The Rise and Fall of Self-Determination, 18 Alexis 37
Race and Self-Determination in International Law, Siba N’Zatioula Grovogui notes a paradox in self-determination. It is “…that the rules and procedures of decolonization were determined and controlled by the former colonial powers to effect specific outcomes… The rules and processes of decolonization not only denied African communities the right to the protection of the law, they failed to recognize Africans' need for such protection.”8 The period of formal decolonization did not completely decolonize states but restructured empires.9
Economic Subjugation
This chapter names a few reasons why human rights abuses and political instability occur in Africa. First, the legacy of colonialism and its inherited institutions. In his article on the OAU,
Tim Murithi quotes Achille Mbembe in discussing the continued economic subjugation of
African states. He says:
Externally, the African postcolony is also afflicted by another configuration of terror and violence embodied in a set of economic policies fostered by international financial institutions such as the World Bank and the International Monetary Fund (IMF). Millions of African citizens have been deprived of jobs, food and shelter and are now reduced to struggling for daily survival (Mbembe 2010). ‘Instead of curbing the corruption of local elites, the brutality of the international system has increased their greed and carelessness. Under the pretext of privatization, looting has become a norm as well as a cultural practice. Partial democratization under conditions of structural adjustment has opened the way for the privatization of violence’ (Mbembe 2010).10
8 Siba N’Zatioula Grovogui. Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International Law. (Minneapolis: University of Minnesota Press, 1996), 6 9 Ibid.,185. In his book, Grovogui argues that Europeans set the terms of decolonization. He says, “Decolonization was to allow for a transition from territorial claims to new forms of control built upon past philosophical foundations including political, legal, and cultural assimilation of the colonized into the structures of the global system. By determining the political and constitutional settings of national independence, Western powers virtually dictated the terms of postcolonial relations. These terms were intended to preserve structural links between Western economies and those of their former dependencies.” 10 Tim Murithi. "Pan-Africanism and the Crises of Postcoloniality: From the Organization of African Unity to the African Union." In The Crises of Postcoloniality in Africa, edited by Omeje Kenneth, (Dakar: Codesria, 2015), 217- 36. Alexis 38
External actors like the IMF and the World Bank still influence African states’ economic policies. This is the neo-colonialism that Nkrumah spoke of. Structural adjustment programs are loans provided by IFIs to help states suffering from economic crises. The receiving state needs to implement certain domestic policies to qualify for these loans.
Murithi notes that wealthy nations control international financial institutions, therefore those nations’ interests are more represented. “The IMF, like the World Bank, is controlled by the world’s wealthiest nations and voting on policy implementation is weighed according to the capital shares that each country owns. As a consequence, the representatives of these wealthy countries use their influence to make policies to meet the needs of rich countries in expense of poor ones."11 It can be argued that former colonizers still have an interest in interfering in their former colonies affairs. IFIs are also interested in protecting human rights and make it a large part of their recommendations.
Second, many African leaders have taken advantage of their state’s weak democratic and economic infrastructures to further their own interests. Policies by IFIs do not curb corruption but help increase greed and carelessness. Leaders do this through the political disenfranchisement of the population and the corruption of democratic institutions. Economic motives have been the drive for leaders to exploit their states’ riches often leading to human rights violations. This chapter will also explore how these leaders use the language of sovereignty given to them by the OAU/AU to defend or hide behind their actions.
The International Economic System and The Promotion of Human Rights
11 Timothy Murithi, The African Union: Pan-Africanism, Peacebuilding, and Development, 17 Alexis 39
Colonization subjugated colonized territories and made them places of exploitation for labor and material resources. This exploitation led to poverty and continued political instability of some former colonies. Many former colonies are still tied to their colonizers. One example is of former French colonies in Africa, who still use the currency introduced by France in 1945.
The currency, called the franc CFA, is pegged to the euro, and is still chaired by France. This creates a dependency on France by these states that are supposed to be sovereign. This is one example of the “restructuring” of this dominant power’s empire. Colonizing states used their colonies to develop their own countries.
Kwame Nkrumah describes the economic dependence of African states as having the potential to continue the subjugation of Africa. Nkrumah says,
The economic weakness of the new African states is inherited from the colonial background, which subordinated their development to the needs of the colonial powers. To reverse the position and bring Africa into the realm of highly productive modern nations, calls for a gigantic self-help programme. Such a programme can only be produced and implemented by integrated planning within an over-all policy decided by a continental authority.12
Nkrumah recognized that sovereignty does not just mean political sovereignty, but economic independence as well. Political self-determination does not guarantee liberation or the protection of human rights. The self-help program imagined by Nkrumah did not include foreign actors with foreign aid. However, in contemporary times, many African states rely heavily on foreign aid or other forms of economic assistance from the international community. In her book on foreign interventions in Africa, Elizabeth Schmidt describes these forms of assistance as coming with “… strings attached. Motivated by free market ideologies that were intended to bolster global capitalism, Western dominated international financial institutions imposed draconian stabilization and structural adjustment programs on African nations as a condition for foreign
12 Kwame Nkrumah Africa Must Unite (New York, NY: Frederick A. Praeger Inc., 1963), 152. Alexis 40 loans.”13 Often cited examples of a continued exploitation of Africa (and the Global South) by the West are the World Bank and International Monetary Fund (IMF) in the form of structural adjustment programs.
Developing economies often request aid from IFIs like the World Bank and IMF. States are to write up Poverty Reduction Strategy Papers (PRSPs) in order to request assistance. In their book, Human Rights and Structural Adjustment, Rodwan Abouharb and David Cingranelli, argue that IFIs are still interested in these PRSPs and adjustment programs though they do not show any increase in respecting human rights or reducing poverty. They note that “The fundamentals of ‘less state, more market’ remain the same. The Bank and the Fund are still wedded to one- size-fits-all, rapid neoliberal structural adjustment as the key tool to promote economic development.”14
Many scholars have studied structural adjustment programs and their effect on human rights. Structural adjustment programs include reforms like “…policies of deregulation, privatization, and reducing the size and scope of government within a broader framework of increased exports and greater private investment.”15 Policies also include “…privatization of basic services, including water systems, reductions in government spending, and the removal of subsidies and price restrictions for essential goods and services…”16 This privatization is usually done because, according to the World Bank and IMF, these essential goods and services can be provided more efficiently by the free market.17 These policies are meant to help a state develop their economy and build infrastructure. Along with policy recommendations on the economy,
13 Elizabeth Schmidt. Foreign Intervention in Africa: From the Cold War to the War on Terror. (New York: Cambridge University Press, 2013), 9 14 M. Rodwan Abouharb, and David Cingranelli. Human Rights and Structural Adjustment. (Cambridge: Cambridge University Press, 2007), 235 15 Ibid, 59 16 Ibid., 235 17 Ibid. Alexis 41
IFIs tend to emphasize the importance of democracy and human rights. The launch of these structural adjustment programs coincided with the increased importance of human rights in international discourse. However, these programs often had a worse effect on the most marginalized members of society.
The policies of organizations like the IMF and World Bank have brought about political instability and violence in countries in Africa and elsewhere. Elizabeth Schmidt states that,
“Mandated currency devaluations resulted in spiraling inflation and shortages of imported goods.
Stipulated privatization programs resulted in widespread layoffs, rising unemployment, and an upsurge in crony capitalism. These measures had devastating effects on the most vulnerable members of society.”18 If subsidies are removed for services like petrol, people may no longer afford it. Without securing necessities there can be no talk of protecting human rights. Schmidt also says that the implementation of these programs is rarely democratic and instead imposed from the top of power structures. In places with politically repressive regimes, the “crackdown” on protests against these policies can be brutal.
There are a few recent examples of political unrest caused by recommendations from
IFIs. In 2018, the IMF recommended an increase on petrol prices in Haiti. They argued that increased revenue from the raise would provide the Haitian government with more money to invest in social programs and to build much-needed infrastructure throughout the country. There was not much conversation about how poor Haitians could afford to buy petrol at these higher gas prices. The raise sparked protests against the Haitian government, which responded with a violent suppression.19
18 Elizabeth Schmidt. Foreign Intervention in Africa: From the Cold War to the War on Terror, 10 19 “Haiti’s low fuel prices unfairly benefit the rich and need to be raised, IMF says”, The Miami Herald, July 12, 2018. https://www.miamiherald.com/news/nation-world/world/americas/haiti/article214722915.html Alexis 42
In Sudan, we find a similar story. The IMF advocated for austerity measures to boost the economy in order for Sudan to qualify for a loan. The Sudanese governments followed these recommendations. However, these policies created insecurity amongst the Sudanese population about the affordability of things like bread. These austerity measures were partly what sparked the Sudanese revolution which began in December 2018.20 The Sudanese people were not just protesting over the price of food and other necessities, but against an undemocratic government that did not respect their human rights. The Sudanese government reacted to these protests by killing and injuring protestors.
The recommendations made by these organizations are often within the framework of capitalism. The question of global capitalism and the economic world order is important in trying to understand the reasons for political instability and human rights violations in Africa. States are often punished for outright refusing to take part in the economic system or seeming to. Much of the intervention by the United States during the Cold War years was to prevent African states from aligning with the Soviet Union. This meant that the United States and other Western capitalist governments supported anti-communist leaders even if they disrespected human rights.
These leaders exploited and plundered their states’ resources for their personal wealth or that of their political allies. The extraction of resources for capital gain is another reason for these humanitarian interventions. Foreign powers turned a blind eye as long these leaders meet their interests.
To avoid a continued re-domination, African states must declare their economic independence. Like Kwame Nkrumah, Amílcar Cabral, the Bissau-Guinean, and Cape-Verdean
20 “Sudanese Protests, After Days of Violence, Turn Anger Over Bread Toward Bashir”. The New York Times, December 14, 2018. https://www.nytimes.com/2018/12/24/world/africa/sudan-protests.html
Alexis 43 revolutionary political organizer, also calls for economic independence. He calls for a new economic system, saying:
We [the Cape Verdean and Bissau-Guinean people] must destroy everything the enemy can use to continue their domination over our people, but at the same time we must be able to construct everything that is needed to create a new life in our land…Along with political resistance and armed resistance, we must constantly strengthen economic resistance, cultural resistance and physical resistance. Destroy the economy of the enemy and build our own economy21
There is a need for African States to declare their economic independence as well as their political sovereignty. In doing so, they sever ties to their colonizers so that no tool can be used against them. How they do this is beyond the scope of this writer, though people like Cabral had ideas. One attempt at this economic independence is the New Partnership for Africa’s
Development (NEPAD), a program of the African Union that focuses on the best way to develop
African economies. However, the question remains what sort of economic system should African states follow? Critics of the NEPAD say that African states cannot simply follow neo-liberal economic policies. They cannot follow Western frameworks for development. If African leaders care about human rights, liberation, and sovereignty, they must realize that neo-liberal policies and capitalism will not work for their populations. Another step in the right direction in terms of providing some economic independence for African states is sovereign debt forgiveness. For many states, an undemocratic leader incurred their sovereign debt. Now it is the debt that the nation must pay, making them dependent on their debtors and stunting economic growth.
The Uses of Sovereignty
21 Amílcar Cabral, Unity & Struggle Selected Speeches and Writings. trans. Michael Wolfers (New York, NY: Monthly Review Press, 1979), 239
Alexis 44
The creation of organizations like the OAU was to help remove international hierarchies or mitigate their influence on African states. Getachew states that “Nondomination recasts the current configurations of international hierarchy as infringements on collective projects of self- government.”22 However, by focusing on leaders and the state, the OAU disregarded popular movements and civil society. Timothy Murithi declares that this focus did nothing but achieve
“The hoisting of national flags and singing of national anthems…”23 and a “mere transfer of power [that] left intact the economic and political position of new states.”24 Understanding this legacy of colonialism and economic exploitation, the AU elevated the importance of sovereignty.
However, in doing so, they created another problem.
Sovereignty has served as central to the fight against imperialism and colonialism while serving as a tool for leaders to evade international justice. Getachew says that sovereignty has been used to protect states against rightful claims of abuses of power while also serving as a foundation of “anti-imperial visions of international justice”25. The OAU Charter’s definition of sovereignty made it easy for dictators, and repressive leaders to become a sort of paternal figure, one who knew what was best for the country. Some of Africa’s most oppressive leaders often viewed sovereignty as a blanket right to do whatever they wanted. Whenever questioned, they would hide behind the excuse of self-determination.
Shivji argues that the AU’s conception of sovereignty looks only to serve African leaders themselves. Many of these leaders, like previously mentioned, have ties to former colonial powers or have built their wealth on the exploitation of their states. He says:
African dictators and pseudo-democrats overtly and covertly operate as agents of the new forms of colonialism by continuing to allow the penetration of their economies and
22 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 33 23 Timothy Murithi, The African Union: Pan-Africanism, Peacebuilding, and Development, 17 24 Ibid. 25 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 33 Alexis 45
societies. They permit the unfair and exploitative extraction of their natural resources and foster the conditions that force the departure of human talent and in doing so they sustain a neo-colonial framework.26
Africans cannot trust these leaders to enforce human rights, as they are invested in the imperial project and keeping their power. Shivji argues that “The African bourgeoisie is strategically compromised with imperialism to the extent that it cannot head even a democratic revolution.
Hence the task of an anti-imperialist, democratic revolution falls largely on the shoulders of working people.”27 Because these leaders are not interested in an anti-imperial revolution, so long as it challenges their status in the world. The idea behind focusing on self-determination before talking about human rights was to ensure that states would secure as when independent, but that does not always translate to liberating people.
However, Getachew states “Viewing sovereignty as primarily an impediment to securing the rights of individuals provides cover for imperial practices cynically masked as humanitarian efforts and leaves insufficient normative resources to distinguish and critique imperial and hierarchical curtailments of sovereignty”.28 Just as African leaders hide behind their sovereignty to commit human rights abuses, Western powers hide behind human rights rhetoric to disrespect the sovereignty of African states. Seeing sovereignty, as incompatible with the idea of protecting human rights allows imperial powers to disrespect a state’s sovereignty under the guise of humanitarianism.
Conclusion
26 Issa, G. Shivji. The Concept of Human Rights in Africa, 70 27 Ibid., 28 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 33-34 Alexis 46
It is important to acknowledge the historical inequities that continue to influence the world today. Because these historical wrongs have never been seriously addressed, they persist. These wrongs stem from colonialism and imperialism. However, these sorts of power hierarchies have not gone away.
Though, I am critiquing the OAU/AU’s idea of sovereignty and its lack of engagement with public, this paper seeks to avoid a condemnation of the sovereignty in Africa primarily because of its anti-imperialist roots. What this thesis is calling for is not an abandonment of sovereignty but a redefining of it, that removes its power from repressive leaders. Popular sovereignty is the right course of action. The AU does not protect self-determination of the everyday person. Ultimately, the AU did not seek the path towards federation like Nkrumah wanted or economic independence in the way that Cabral wanted. This is partly because the opposing forces at the time were too strong against those favoring it, Western powers, and their mouthpieces, continue to be more influential. From the beginning, elites who were interested not in union but in keeping their power, leaders such as Haile Selassie, won out. They continue to drive the way forward. Cabral warned of opportunistic leaders who may rise to power. Cabral states;
However, we must take into account the fact that, faced with the prospect of political independence, the ambition and opportunism from which the liberation movement generally suffers may bring into the struggle unconverted individuals. The latter, on the basis of their level of schooling, their scientific or technical knowledge, but without losing any of their social class biases, may attain the highest positions in the liberation movement.29
These leaders did not look to change the material conditions of everyday people but instead changed power into the hands of a few leaders. Some would later exploit and oppress their peoples. The emphasis on non-interference, these leaders to continue until it was too late. The
29 Amílcar, Cabral. Return to the Source Selected Speeches. (New York: Monthly Review Press, 1974.) Alexis 47 protection of human rights and conceptions self-determination in Africa must be thoroughly anti- imperialist and people centered. Much like the conception of sovereignty described by Sikkink, the African Union must stress that sovereignty cannot be used to justify human rights violations against citizens and if so, those citizens would have grounds to revolt and alter their form of government.30
30 Kathryn Sikkink. "The Diverse Political Origins of Human Rights." In Evidence for Hope: Making Human Rights Work in the 21st Century., 62 Alexis 48
Chapter Four: The African Union and the World
The African Union’s Role in the International Community.
As the African Union is a global organization, it is important to understand its relationship to the international community, particularly with the United Nations organizations, international human rights law, and the International Criminal Court. These relationships are often fraught. This chapter serves to think of how international law promotes peace on the continent and the ways that it may not do so. It is not the scope of this thesis to tackle the intricacies of international law but to understand its contributions to protecting human rights.
International human rights law refers to a set of laws that determine regulations for how governments can treat individuals. IHRL seeks to hold states accountable for human rights abuses. Human rights law sees its legitimacy in various treaties signed by states where they agree to abide by these laws.1 In order to be a member state in an international organization, there are certain treaties that these states must become party. These treaties may undermine a state’s sovereignty. Indeed, this was the argument that many states had against ratifying the ICC. UN member states abide to the ruling of the UN Security Council upon signing the UN charter; even if the UNSC were to order a military intervention to keep peace and security. States agree to allow UN intervention to maintain peace and international cooperation. Like the UNSC, the AU
Assembly can intervene in a member state’s domestic affairs in the case of crimes against humanity. Belonging to these communities implies responsibility. If a state cannot protect its people, the international community must take that responsibility. These laws also influence
1 Frans Viljoen, International Human Rights Law in Africa, 5 Alexis 49 national laws though there are varying interpretations of the law due to differing cultural expressions.
However, many argue that international law has served the interests of powerful Western states.2 Some African leaders have a contentious relationship with the international bodies responsible for protecting and enforcing international human rights law (IHRL). These bodies include the UNSC, the UN’s International Court of Justice (ICJ) and the ICC. They also argue that the organizations express the interest of their former colonizers with a clear bias towards
African states. The accusations have the potential to erode the African Union’s relationship to the international community.
Because the African Union suffers from unequal integration into the world system, the relationship between African states and states with “developed economies” is often patronizing.
This is partly where these criticisms come from. Robert Cox, in his essay on hegemony in international relations says,
One mechanism through which the universal norms of a world hegemony are expressed is the international organization. Indeed, the international organization functions as the process through which the institutions of hegemony and its ideology are developed. Among the features of international organization which express its hegemonic role are the following: (1) they embody the rules which facilitate the expansion of hegemonic world orders; (2) they are themselves the product of the hegemonic world order; (3) they ideologically legitimate the norms of the world order; (4) they co-opt the elites from peripheral countries and (5) they absorb counter-hegemonic ideas.3
Cox explains how international organizations support Western hegemony. Many international bodies are not directly exploitative but serve as a place where states can have their interests heard, if within the interests of the hegemon.
2 Ibid., 8 3 Robert W. Cox. "Gramsci, Hegemony and International Relations: An Essay in Method." In Gramsci, Historical Materialism and International Relations, edited by Stephen Gill, 49-66. Cambridge Studies in International Relations. (Cambridge: Cambridge University Press, 1993), 62 Alexis 50
The United Nations as a forum
There has not always been this contentious relationship with the international community.
During the period of formal decolonization, the international community was something Africans used to further their claims to independence; whether on an international forum like the United
Nations or through solidarity efforts with other colonized countries outside of the continent.
Revolutionary African leaders turned to the United Nations as the international forum for decolonization and to fight against their colonizers. Some leaders have adopted the language to gain international support in talking about the issues facing their communities. Of course,
African leaders have themselves used the UN to uphold their cause for liberation. In a speech to the UN, Amílcar Cabral affirmed that liberation and achieving so by any means necessary is a right. Cabral said,
We Africans, having rejected the idea of begging for freedom, which contrary to our dignity and our sacred right to freedom and independence, reaffirmed our steadfast decision to end colonial domination of our country, no matter what the sacrifices involved, and to conquer for ourselves the opportunity to achieve in peace in our own progress and happiness.4
Cabral was an African revolutionary fighting against Portuguese colonialism who recognized the need to appeal to an international audience by using rights talk.
Amílcar Cabral was not the only African leader to use rights talk in conversations with the international community. Patrice Lumumba in his speech proclaiming Congolese independence in June 1960 said “We shall see to it that all citizens enjoy to the fullest extent the basic freedoms provided for by the Declaration of Human Rights”5. This direct reference to the
4 Amílcar, Cabral. Return to the Source Selected Speeches. (New York: Monthly Review Press, 1974.) 5 Patrice Lumumba, The Truth about a Monstrous Crime of the Colonialists, (Moscow, Foreign Languages Publishing House, 1961), 46 Alexis 51
UDHR shows the importance of the international community. While Albert Luthuli, a South
African Nobel prize winner and anti-apartheid activist also often cited the Declaration in his fight against South Africa’s racist regime.6 Interestingly enough, South Africa was one of the eight states to reject the UDHR in 1948. Even if they do not term it human rights, revolutionary
African leaders often talked about the morality or ethics behind their decolonization projects and the need for the world to support them.
In 1960, the United Nations General Assembly adopted a resolution that recognized the independence struggle of colonized peoples. The United Nations General Assembly resolution
1514 states that, “The subjection of peoples to alien subjugation, domination, and exploitation constitutes a denial of fundamental rights” and that “all peoples have the right to self- determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”7 This resolution also required all colonial powers who at the time had not relinquished the colonies to do so. With the UN the anti-colonial struggle lost its strictly national character and moved onto an international struggle.8 This resolution partly facilitated the independence of many African states in the 60s. With this resolution, human rights adopted an anti-colonial stance, not the other way around. Many of
Africa’s revolutionary leaders would appeal to the UN using this resolution for the independence of their nations. Being a UN-recognized independent state gave substantial weight to claims of self-determination. African states continue to use the UN as this sort of forum to voice their concerns.
6 Robert Trent Vinson. “Albert Luthuli, MLK and global human rights”, Africa is a Country, January 17, 2019, https://africasacountry.com/2019/01/albert-luthuli-martin-luther-king-jr-and-global-human-rights 7 United Nations General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples, December 14, 1960. https://undocs.org/A/Res/1514(XV) 8 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 73 Alexis 52
The African Union and International Law
The colonization process of African countries used international law.9 European states went through a process of international cooperation to gain and keep their colonies. Like the history of human rights, it is important to know the history of international law to understand today’s relationships. These histories are continuing to color the sometimes-antagonistic relationship between the international community and African leaders. It is also important to consider the history of international organizations to understand the ideas of burden membership and unequal integration.
African states have long been forced to occupy this subordinate position. In her book,
Getachew uses Ethiopia and Liberia, two African countries that did not live under formal
European colonial rule, as examples of burdened membership. By burdened membership,
Getachew means “a form of inclusion in an international society where responsibilities and obligations were onerous, and rights and entitlements limited and conditional.”10 Getachew outlines how Ethiopia, in its battle against an Italian invasion, faced difficulties getting the
League of Nations to recognize its struggle. Getachew says, “The result was an unequal and burdened form of membership. In this way, the expansion of international society and the entrenchment of international hierarchy went hand in hand” and it includes “impositions that accompanied international assistance and oversight”.11 Getachew uses the unwillingness to allow
Ethiopia into the League of Nations as an example of unequal integration into the international
9 Siba N’Zatioula Grovogui. Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International Law. (Minneapolis: University of Minnesota Press, 1996), 14 10 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 54 11 Ibid., 58, Getachew explores the history of the Ethiopian struggle against Italy. The League of Nations was hesitant to aid Ethiopia even though Italy would be breaking international law on sovereignty in invading Ethiopia. Alexis 53 community. The organization did not outright deny them of this membership but gave a conditional membership. Furthermore, Getachew also states that “…hierarchy designates not hegemony but processes of integration and interaction that produce unevenly distributed rights, obligations, and burdens. These processes of unequal integration are structural and embedded in the institutional arrangements of the international order. They create the international conditions of ongoing imperial domination.”12 Getachew uses the historical example of the League of
Nations but many observe these patterns in contemporary times.
It is important to note that the UN was not and is not the only international community that the African Union and African states take part in. One of these is the Non-Aligned movement whose founders include Kwame Nkrumah. The Non-Aligned movement is the second-largest bloc of states after the UN. Its member states mainly comprise of former colonies in the Global South. In fact, one stipulation for joining the Non-Aligned movements is not being party to the NATO agreement. Though the movement is not very well-known or active. It is another forum that African states and the African Union can choose to use in the 21st century.
The African Union and United Nations Partnership
Most United Nations peacekeeping missions have occurred in Africa—with the first of these kinds of missions being in the Congo following its independence—while most of the ICC tribunals have been about African conflicts. However, in the last 20 years, the AU has stepped up its own peacekeeping operations. The AU has deployed peacekeeping missions in Darfur, the
Central African Republic and most notably in Somalia with the African Union Mission to
Somalia. The mission is a peacekeeping effort of African Union forces with the support of the
12 Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination, 33 Alexis 54
UN Security Council. The mission began in 2007 and forces remain in Somalia until today.
Though the bulk of this paper so far has analyzed the failures of the OAU/AU to intervene in conflicts and resulting human rights abuses, the organization has started to be more involved.
Since its restructuring, the AU has put several frameworks and policy proposals on conflict, peace, justice, and human rights. African states and the African Union contribute a lot to the UN peacekeeping forces. This partnership between the AU and the UN signals the African continent’s further integration into international organizations; though still from a subordinate position.
The OAU/AU often works with the UN for human rights enforcement, usually through the peacekeeping forces brought by the UNSC. Peacekeeping operations in Africa, and indeed around the world, have largely been ineffective in achieving their primary goal, maintaining peace and security. The African Union has had difficulties financing peace operations, which is why they often partner with the UN peacekeeping missions.
Reports have come out from various peacekeeping missions around the world of sexual assault, physical violence, and extortion from peacekeeping forces. NGO and other human rights organization have reported these allegations about peacekeeping forces in several countries with missions. Force rarely breeds peace and security. Bringing in a large, armed force that has little to no connection to the individuals they are supposed to be protecting is flawed. Reports in
Somalia have also accused African Union forces of similar crimes.13 This provides further proof that force does not create peace.
13 "The Power These Men Have Over Us" Sexual Exploitation and Abuse by African Union Forces in Somalia”, Human Rights Watch, September 8, 2014. https://www.hrw.org/report/2014/09/08/power-these-men-have-over- us/sexual-exploitation-and-abuse-african-union-forces
Alexis 55
This is not to say that the interventions in African states are/were not needed, but that the same sort of standards are not applied to Western powers and their allies. There is not currently an international tribunal for Israel and its crimes against Palestinian people or calls (except from the Global South and anti-war advocates) to hold the US and its allies responsible for the war crimes committed during the Iraq and Afghanistan wars.
In addition to this a serious conversation on alternative forms of intervention must take place. Often, military force or other types of pressure in the form of sanctions are taken to punish a nation for human rights abuses. Military force often kills innocent civilian while sanctions hurt economies that harm the poorest in society. In to protecting individuals and groups from human rights abuses by the state proper channels of intervention, which do not worsen already volatile situations, must take precedent. The last chapter of this thesis spends some time pondering this question.
The AU and the ICC
The International Criminal Court is another relationship that is important to human rights enforcement in Africa. The ICC is a permanent criminal court established with the Rome statute.
The ICC prosecutes individuals for genocide, crimes against humanity, and war crimes committed after 2002, when the court came into force. One of the goals of the ICC is to help bring justice in post-conflict countries. By seeking justice through the law, the hope is to create a more peaceful society. The fraught relationship between African states and the International
Criminal Court is well documented. Many states have threatened to leave while some have already begun the proceedings to do so. Much of the resistance by African states to the ICC is the impunity of Western states. African leaders criticize the ICC for an African bias. Nine of the Alexis 56 eleven proceedings of the ICC have involved an African state. This is not a universally African feeling, or one shared by all successive administrations of a state. However, it is a feeling worth understanding for the future of international justice and human rights enforcement in Africa. This attitude can derail any efforts toward international peace.
In 2009, a warrant issued by ICC for the arrest and trial of Omar al-Bashir, then president of Sudan, for war crimes in Darfur, started much of the debate still occurring today. Many
African leaders disagreed with the decision and used the AU as a forum to express this disagreement. The ICC is a tool but if not taken seriously, it cannot last. African states were initially enthusiastic about the ICC. Thirty-three African states have ratified the Rome statute, being the largest regional bloc of ICC members. However, since 2009, a few African states have begun exit plans with Burundi becoming the first African state to formally exit the ICC in 2017.
One of the most important norms of the ICC is the anti-impunity norm. This norm fights against impunity of leaders, who often get away from domestic and international justice systems.
This norm is also controversial for African leaders. It is this norm that many scholars argue is one of the sticking points in the relationship between AU member states and the ICC.14 The
African Union does not believe that a criminal court should prosecute sitting presidents. The
Malabo Protocol, which elaborates on the duties of the African Court of Justice and Human and
People’s Rights, grants immunity to heads of state. The protocol states in Article 46Abis that,
“No charges shall be commenced or continued before the Court against any serving AU Head of
State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”15. In her article, Lucrecia García
14 Samuel Okpe Okpe. “Anti-Impunity Norm of the International Criminal Court: A Curse or Blessing for Africa?” Journal of Asian and African Studies, (March 2020). 15 African Union General. Assembly, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Article 46Abis Alexis 57
Iommi states that the tension between the ICC and Africa is an issue between values and priorities. She states, that, “This anti-impunity norm, which pro ICC actors prioritize, is in tension with other norms of greater importance to African states, namely peace, sovereignty, anti-colonialism (i.e. a rejection of perceived Western interference in African nations) and Pan-
African solidarity.”16 With Article 46Abis, the African Union is once again protecting the sovereignty of African states (leaders).
The resistance to the ICC by repressive and oppressive governments can be hard to take seriously. These leaders are more concerned with saving themselves and they are protecting themselves from accountability practices accountable. However, in understanding the continued subjugation of African states, one cannot deny these sentiments. Dismissing their concerns of
Western domination can make it more difficult to actually further peace and bring justice to victims of human rights abuses. At the same, the AU must not allow itself to be a forum for the powerful. It is not right that oppressive African leaders use the anti-colonial argument to keep people from entering and investigating their domestic affairs.
Omar al-Bashir, though ousted in April 2019, has still not appeared before a judge at the
ICC or arrested. This is a serious miscarriage of the justice the ICC looks for and is exactly the kind of impunity the court tries to fight against. Some African leaders have escaped accountable because of the ongoing struggle between the AU and the ICC. If the ICC really aims to bring justice, they need to take seriously the critique of by some African leaders. This way, African states can see legitimacy in the ICC and allow for a full corporation.
The Case of Hissène Habré
16 Lucrecia García Iommi. “Whose Justice? the ICC ‘Africa Problem’." International Relations 34 (1): 106
Alexis 58
The AU has increasingly taken an aggressive role in the enforcement of human rights after decades of criticism for inaction and not affecting transformative change. However, they continue to not be unexpansive and unsuccessful. The African Union has increasingly relied on sub-regional organizations for human rights enforcement. Perhaps, the organization with the most success has been the Economic Community of West African States (ECOWAS). ECOWAS intervened in Liberia during its civil war in the early 1990s. The ECOWAS Monitoring Group
(ECOMOG) sent troops to Liberia to intervene in a burgeoning political crisis. The UNSC approved the intervention. Despite the resources used by ECOWAS in Liberia, the mission was not remarkably successful and the war in Liberia resulted in thousands of deaths. ECOWAS is in humanitarian responses in its region.
With the case of Hissène Habré, partnerships between the AU and sub-regional organization like ECOWAS proved to be an effective force for promoting human rights on the continent. The former Chadian president had sought refuge in Senegal after the fall of his presidency in 1990. In the late 2000s, the international justice system called him to court. After many calls for his extradition, the ICJ, a UN body, asked Senegal to put Habré on trial or to send him to a European court.17 The ICC could not to put Habré on trial because he committed his crimes before 2002. Senegal sought the AU’s help in putting Habré on trial as they did not have the jurisdiction. Much like past African leaders, the African Union initially protected Habré.
They eventually changed their rhetoric and demanded that Habré’s trial take place in Africa. The
AU mandated Senegal to try Habré on behalf of Africa.18 Habré initially sued Senegal in the
ECOWAS Court of Justice to stop his trial. A judge ruled against him.
17 Rita Kiki Edozie, and Keith Gottschalk. The African Union's Africa: New Pan-African Initiatives in Global Governance (East Lansing, Michigan: Michigan State University Press, 2014.) 3 18 Ibid Alexis 59
The AU and Senegal jointly set up the Extraordinary African Chambers (EAC) in the
Senegalese Courts. The court sentenced Habré to life in prison. They convicted him on charges of crimes against humanity, torture, and rape. Testimonies from the survivors of Habré’s crimes played a significant role in his conviction. The commission that investigated his crimes estimated that Habré and his secret police killed over forty thousand people. In continuing the question of how these leaders come to power, it is important to note that Habré enjoyed a lot of support from the French and the American governments. The Reagan administration in the United States supported Hissène Habré’s regime because of his opposition to Libyan leader Muammar
Gaddafi.19 Chad shares a border with Libya and the two leaders led their countries to war in the
Chadian-Libyan conflict of the 1980s. The US supported the Chadian government by providing them with arms.20 It is worth noting that the OAU at the time was trying to mediate between the two parties.21 They feared a worsening conflict between the two states would become a continent wide crisis.
What happened with the case of Habré was a great coming together of various organizations as well as the work of the lawyers and advocates for the victims of Habré. I use the
Habré example to illustrate the long journey to justice but also highlight how various African institutions can work together. This case can set an example for how the African Union can hold leaders accountable for their actions.
Conclusion
19 Keith Somerville, “The War in Chad: France and Libya Fight it Out”, in Foreign Military Intervention in Africa. (Great Britain: The Castlefield Press, Ltd, 1990) 20 Ibid. 21 Ibid., 74 Alexis 60
The ICC’s relationship to some African states is hindering its ability to carry out the court’s goals. Because of the sometimes-contentious relationship between African states and the international community. The African Union has turned inward, finding their solutions to their problems. The trial of Hissène Habré shows the direction that the AU is hoping to take.
However, what both the debate about the CC and the Habré trial shows is the limited degree to which the law can bring about peace and justice. Habré’s victims will receive financial compensation as the court ordered him to pay millions for crimes. However, the effects of his time in office continue to impact Chadians today. Furthermore, those complicit in Habré’s rule both domestically and internationally did not face the courts. The international community can be helpful in holding leaders accountable for their actions. Although, it must be emphasized that the law will not bring about justice or positive peace.22 The current way that the international system works is not sufficient at addressing structural violence, therefore any action taken without addressing the root cause of issues is unsatisfactory.
22 For a more detailed study on how the law may not necessarily bring peace in Africa read Kamari Maxine Clarke’s Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (Durham; London: Duke University Press, 2019). Through field work and using an anthropological lens, Clarke examines the AU-ICC relationship to understand the relationship role in shaping understandings of justice in Africa. Alexis 61
Chapter Five: Reimagining an African Union
Intro
The future of the AU is uncertain. With the increasing influence of regional institutions and the organization’s own bureaucracy, it seems that the AU will become less relevant. To fulfill its Pan-African dream, the AU must rethink its role in Africa and the world, to not just one seeking to protect the sovereignty of African states (leaders), but one that seeks to challenge the status quo. It has begun to do this with Agenda 2063. However, the AU must move towards a people-centered approach and be an organization that centers African people. Much of this thesis has investigated human rights protection from the top-down, institutional ways as this is the most common way; but that may be the problem. If this stays the fact, the ruling class will use those mechanisms to their advantage. This admittedly is not an easy task as it would require the AU to rethink its entire ideology and organization, but it is a step that the AU must start thinking about doing. They cannot wait until 2063 to achieve this change. If it does not do so, the organization will remain as abstract and bureaucratic as ever and would have wasted a useful tool to achieve peace on the continent.
The African Union’s human rights architecture is there to protect people and must the people must it. Often it is international NGOs or civil society organizations do this work. Shivji argues that civil society organizations and NGOs must separate themselves from oppressive state structures and elite structures. The “Protection and promotion of human rights is not some
‘expert’ business to be carried out by the so-called intellectuals on behalf of the masses.”1 This should be people’s work. The professionalization of human rights alienates the people who ought
1 Issa Shivji, The Concept of Human Rights in Africa, 88 Alexis 62 to have their protection. Human rights should not be separated from the general struggle against oppression. As Issa Shivji says,
…human rights vocabulary [needs] to undergo [a] transformation. In the new perspective,
one does not simply sympathize with the ‘victims’ of human rights violation and beg the
‘violators’ to mend their ways and numerous cataloged episodes of violation; rather one
joins the oppressed/exploited/dominated or ruled against the
oppressor/exploiter/dominant and ruling to expose and resist, with a view ultimately to
overcome, the situation which generates human rights violations.2
The current way that the African Union and indeed the world enforces human rights is to acknowledge the pain of the victim while prosecuting the perpetrator. However, there is rarely a transformative aspect to this work. Taking the side of the oppressed/exploited/dominated or rule against, as Shivji suggests, will allow for radical transformation of human rights talk. If the AU were to follow this transformation it would be quite different from other regional organizations.
Decolonizing Conflict Resolution
In her essay, “Decolonizing Conflict Resolution: Addressing the Ontological Violence of
Westernization”, Polly O. Walker calls for the decolonization of conflict resolution as it stands today. Walker argues that the continuation of these ways of conflict resolution, which privileges western theorists and their ways of thinking, is part of the continuing violence of westernization and marginalization of Indigenous voices. She says that, “the subjugation of Indigenous worldview or ways of dealing with conflict is a key tenet of colonization”3. Even if Indigenous
2 Ibid., 71 3 Polly O. Walker. "Decolonizing Conflict Resolution: Addressing the Ontological Violence of Westernization." American Indian Quarterly 28, no. 3/4 (2004): 527-49. Alexis 63 people are the ones to implement these conflict resolution plans, Western ideas and values influence them.
Some people may argue that these traditional ways of peace-making are not suitable for complex conflicts. This argument undermines the practices themselves and as Walker states continues colonial violence by privileging some methods over others. They also do not consider the importance of keeping peaceful relationships even at a smaller level. Local conflicts can become national. Social and political issues need to be handled at the local level to support a peaceful society. Polly Walker argues that Indigenous ways of conflict resolution are in fact conflict transformation. She states that in “…collectivist cultures the primary purpose of resolving conflict is to bring harmony to the group. Thus, conflict is viewed holistically, not analytically or broken into parts; it is embedded in the networks of the community.”4
Though Walker writes this essay about Indigenous peoples in the United States, this idea of looking toward indigeneity is also useful in Africa. This return to indigenous practices is not a new idea in Africa. Many leaders, activist and theorist considered this during the period of decolonization including Amílcar Cabral. It is well known that various indigenous practices of conflict resolution exist on the continent, from the Gada system in Ethiopia, to the Gacaca courts used in the aftermath of the Rwandan genocide. When considering ways that the African Union can move forward, the organization should consider indigenous worldviews and practices. Not recognizing these practices on a continent-wide level perpetuates colonial erasure.
However, the idea here is not a sort of return to pre-colonial times as a return would be impossible. It is also not to claim that indigenous practices are perfect, but to start to look at alternative ways of thinking—rooted in Africa—that may prove to be more effective.
4 Ibid., 530 Alexis 64
African Peacekeeping Philosophies
The usual understanding of indigenous practices of conflict management are more community-centered and about reconciliation. Varied African peace practices put a focus on community. In his article “Re-Empowering Indigenous Principles for Conflict Resolution in
Africa”, Ndubuisi Christian Ani says that “The intractability and resurgences of conflicts in a number of African states and elsewhere point to the failures and limitations of the mainstream state-centric peace and security paradigms that are applied to resolve disputes in the continent.”5
Current models of conflict resolution do not work as they are not people centered or transformative. The way things have been going needs to change. The AU must rethink its methods of conflict resolution to stop the cycle of violence.
One way to do this is to gain a greater understanding of indigenous African conflict resolution methods. Like mentioned before, it is not possible to go back to pre-colonial times nor should African states try, but it is important to consider history. This re-centering of indigenous practices is something thought of by African leaders like Amílcar Cabral. In his book Africana
Critical Theory, Reiland Rabaka explains Cabral’s ideology as well as that of his revolutionary party. Rabaka states Cabral ideology was that:
…it preserves precolonial traditions and values but, at the same time, these traditions and
values are drastically transformed through the dialectical process of revolutionary
decolonization and re-Africanization; in other words, by the protracted struggle against
the superimposition of foreign imperial cultures and values and the reconstitution and
5 Ndubuisi Christian Ani. "Re-Empowering Indigenous Principles for Conflict Resolution in Africa: Implications for the African Union.", 15 Alexis 65
synthesis of progressive precolonial and recently created revolutionary African traditions
and values.6
Through these protracted struggles for liberation and this re-Africanization, Africans have created revolutionary traditions and values that may help with current conflicts. The struggle against colonialism, imperialism and continued struggle against neo-colonialism has created innovative ideas about how to deal with conflict. In his book, Reiland Baraka writes:
In the process of decolonization, the colonized become “new men” and “new women,” as Cabral put it. This is so, partly, because they relax ethnic, local and regional distinctions in favor of a new transethnic and multicultural national identity, forged through their fight(s) as a race-class and an emerging nation-state against European capitalist colonization (and racialization). Where class (and clan) struggle may have previously been the motive force of Guinea-Bissaun history, now, in light of European racist capitalist colonization and African revolutionary decolonization and re-Africanization, it is race-class struggle, colonizer against colonized, that is the central history-making and history-shaping force.7
Cabral’s argument is not that these indigenous worldviews provide a perfect guide for the anticolonial struggle, but the project of creating a postcolonial society should build upon indigenous worldviews in addition to socialist ideas. This revitalization of national culture would facilitate a new political consciousness that would promote change.
With indigenous practice, conflict is transformed and used to forge new peaceful relationships. Walker states that:
…Indigenous approaches to addressing conflict are more accurately described as conflict transformation in that they seek to address the conflict in ways that heal relationships and restore harmony to the group. In contrast, Western conflict resolution methods prioritize reaching an agreement between individual parties over mending relationships that have been damaged by the conflict.8
6 Reiland Rabaka. Africana Critical Theory Reconstructing the Black Radical Tradition from W.E.B. Du Bois and C.L.R. James to Frantz Fanon and Amilcar Cabral (Lanham: Lexington Books, 2010), 264 7 Ibid., 253 8 Polly O. Walker. "Decolonizing Conflict Resolution: Addressing the Ontological Violence of Westernization." American Indian Quarterly, 528. Alexis 66
The transformation of conflict is not just about resolving and returning to how things were before but abolishing any systems that caused the problem in the first place. They do this by using the lessons learned in reconciliation. Ani shares these sentiments as well. He says, pertinent to conflict resolution, literary discourses on traditional African approach highlights that the African system accords greater value to social networks in the comprehension, analysis and resolution of conflicts. The analysis of the roots of conflict thus does not start from the immediate conflict cause but from the possible web of relationship deteriorations that led to the conflict. It becomes imperative that many actors, in fact the entire community, become part of the conflict resolution process.9
Some traditional African methods focus on reintegration of offenders into society. These methods can be less punitive than mainstream conflict resolution practices. Offering something of material value to the community and/or the victim is one of these reintegration methods.
Though punishment is possible, and in fact some compensation can also be forms of violence, the focus is on continuing mutually beneficial relationships.10 These methods tend to emphasize transformative justice.
These Indigenous peacekeeping and conflict resolution methods may also aid in transitional justice. Transitional justice is defined as addressing wrongs, like human rights abuses, while moving towards a more just society. Transitional justice is key for post-conflict zones. The African Union has a Transitional Justice policy framework as part of the African
Union’s agenda 2063. Many African states have used transitional justice in their states post- conflict, most notably South Africa’s Truth and Reconciliation council. The AU recognizes
Transitional Justice as “crucial for the promotion of human rights and justice, peace and security,
9 Ndubuisi Christian Ani. "Re-Empowering Indigenous Principles for Conflict Resolution in Africa: Implications for the African Union, 21 10 Ibid., 24 Alexis 67 good governance and development.”11 The policy is meant to be a framework in which respective African states can take from and apply to their own situations.
It may not be possible for the African Union to implement a specific conflict resolution method from a group. However, it may be able to integrate its philosophy and community-focus.
Current methods of conflict resolution do not think of the community and target individual actors. For example, in the case of Hissène Habré, Habré received a life sentence. However, peace and justice must mean more than sending a high-profile individual to prison. It must interrogate the entire system that allowed such an individual to become president in the first place. Many of the conflicts and political instability stem from political disenfranchisement. To fix these issues, there must be political solutions, not just judiciary solutions.12 The African
Union must start looking towards conflict resolution and peacekeeping methods that seek to transform conflicts, not just kick it down the road. This, like stated before, would require a whole new way of thinking, and a new radical approach.
These traditional practices that center community and not individuals are important. I am not claiming that violators not hold personal responsibility for their actions, but that punitive measures are not the essential element of human rights enforcement and conflict resolution.
However, force and other retributive measures have been the preferred methods of human rights enforcement and conflict resolution in Africa. These methods are not effective. The enforcement of human rights on an international level like the ICC, ICJ, UNSC, and diverse types of international law does not bring peace.
11 African Union Commission, Transitional Justice Policy. February 2019, available from https://au.int/sites/default/files/documents/36541-doc-au_tj_policy_eng_web.pdf 12 Kamari Maxine. Affective Justice: The International Criminal Court and the Pan-Africanist Pushback Alexis 68
The People of Africa
In many African countries, the public and civil society have an adversarial relationship with their governments.13 It is important for the African public to be involved in the activities of the AU. Many see the AU as a club of elites who meet to discuss Africa’s problem. One of the issues that the African Union faces is how to better involve the African public in its operations.
The public is already struggling against abuses by governments. The AU does have a few institutions created to increase the involvement of the public.
One institution is the Pan-African Parliament. Inaugurated in 2004, the Pan-African
Parliament (PAP) is an institution of the African Union, it seeks to maximize participation in the
African Union in society. Some objectives of the institution include, “promot[ing] the principle of human rights and democracy in Africa…promot[ing] peace, security and stability” and
“giv[ing] a voice to the African peoples and the Diaspora”.14 Though modeled after the European
Parliament of the European Union, members of the Pan-African Parliament are not voted in but selected among members of national parliaments of African states.15 Members of the PAP serve their term on the Parliament along with their term on their national government. The institution does not have legislative power.
Having members of Parliament who may not represent the best interests of the people of their respective countries as their representatives on a continental level is not a people centered approach. It continues to prove that the African Union is a club of elites. This disconnection between the AU and the public makes it difficult for the organization to have accountability
13 Timothy Murithi, The African Union: Pan-Africanism, Peacebuilding, and Development, 112 14 “About Us”, Pan-African Parliament, accessed 27 April 2020, http://www.panafricanparliament.org/index.php/about-us 15 Juliana Appiah and Getrude Ansaaku. "Towards a People Friendly Pan-African Parliament: Lessons from the European Parliament." Journal of African Union Studies 5, no. 2 (2016), 5-22 Alexis 69 practices. Though the creation of the PAP seemed like a step in the right direction, like many other initiatives of the AU, it has not reached its potential. However, the existence of the PAP means that there are already tools in place to forge a better relationship between the public and the AU.
Forging a New Relationship
Peace and justice theorists have spent a long time trying to find ways to make
“unpeaceful relationships” peaceful. This thesis is an exercise in doing this with the African
Union. One of the most well-known theories in the field is that of the Curle model16. It is a way of conceptualizing how to create those peaceful relationships. The diagram divides the relationship between an aggrieved party, and its opponent into two categories and subsequent sub-categories. The model places relationships based on awareness of the issues at hand and balance, or division of power between opposing groups.
16 Adam Curle and Maire A. Dugan. ""Peacemaking: Stages and Sequence"." Peace and Change 8, no. 2 (Summer, 1982): 19-28
Alexis 70
Figure 1 Curle model
Using the diagram, I would label the relationship between the African Union and the public as low awareness and unbalanced. In this case, the AU would be the opposing party while the public would be the aggrieved party. The UN and Africa’s sub-regional organizations could serve as allies. It may seem odd to apply the Curle model to the African Union and its relationship to African people, but I believe it presents a good framework to start working on steps to fix the issues. These steps are not rigid but serve as a guide for peacebuilding.
The first stage in the model for an unbalanced, low awareness relationship is education.
This education aims to increase awareness about the conflict. The two sides must gain an understanding of each other. As well as raising awareness, the aggrieved party must learn about their political power, i.e. what they can do to improve the relationship. If they are not aware of the issue and what they can do about it, they will not be motivated to do anything. In the African
Union’s relationship with the public, there is little awareness about what the organization does, Alexis 71 particularly in terms of human rights.17 People are more likely to know about the UN and its various organizations due to their presence, but the AU does not have the same presence. How does an organization look to work for people who do not know it? The AU is aware of its image problem and has been working towards fixing it but has not done enough. The AU needs to engage in a massive education program where they educate people of their rights under the
Banjul Charter as well as the role of the AU in protecting those rights. The AU already has the mechanisms in place that they could use to conduct a massive education program. They could use schools, universities, or the PAP for example. They could also employ the governments of its member states to do their part in educating their populations.
Following the Curle model, the second step would be a confrontation where the aggrieved party, this being members of public, can negotiate the terms of a new relationship.
This step may include public forums, conferences, and other public engagements in which civil society groups share their visions of the future. It may also include organizing diverse groups for social change. Again, the AU already has certain frameworks in place but are not using them to their full potential. The AU should also investigate amending or changing some of the language in the Banjul Charter, or any of its functions, after speaking with members of the public.
The third and fourth steps on the diagram would be similar for the AU relationship with the public. These steps may include a restructuring of the PAP in allowing Africans to vote for its members. This could include setting up permanent forums for members of the public and civil society. These permanent forums would have the same voice as the General Assembly and not
17 Ibrahima Kane and Nobuntu Mbelle. Towards a People-Driven African Union: Current Obstacles & New Opportunities. AfriMAP, 2007.
Alexis 72 receive surface-level engagement. Going forward, the AU would invest in these various forums working towards transforming the way the organization works.
In thinking about protecting people from human rights abuses, there must also be preventative actions taken. One of the problems with human rights enforcement is that it is often reactive. By expecting a problem and working towards its prevention, the AU can solve many issues. Preventing conflict would require a challenge to the status quo. Dismantling structural inequalities would be key in preventing more conflict. Africans fought to liberate themselves from their colonial masters by using everything from international law to guerilla warfare. The
African Union must continue the fight for liberation by fighting for human rights. Forging better relationships with civil society and the public more generally may be a step towards this.
Moving forward
A peace and justice framework can be beneficial in helping the African Union rethink its role on the continent. The continued focus on state sovereignty is not beneficial for protecting human rights. If you are a member of an oppressed group that cannot rely on your national government to protect you, as many in Africa are, what do human rights mean to you?
It is not simply that mainstream conflict resolution methods do not work in Africa due to differences in culture, it is clear these methods are not enough even in the West. Cultures all over the world have different concepts of human dignity. It is important to understand the philosophical and historical understandings of ethics, morals, and rights in various parts of the world. Therefore, like Polly O. Walker states, it is time to decolonize conflict resolution, especially in the context of Africa. The African Union has a lot to do before they can accomplish their goals by 2063. There are a few tools that have potential to be effective agents of change on Alexis 73 the continent such as the African Court of Justice and Human and People’s Rights which is in development.
When it is finally established, it must be part of a multi-layered approach to protecting human rights in Africa by the African Union. The Pan-African Parliament must be transformed into a true forum for civil society. Despite the difficulties ahead, the 2002 transformation of the
OAU to the AU is proof that a transformation is possible. Pan-Africanism is a tool that the AU has used and continues to use to create change. This collective identity is a big part of the cooperation of the African Union. This identity is not rooted in “…tangible material elements but rather intangible ideas of Pan-Africanism, which reflect the collective memories and notion of
Africa’s common identity and need for unity against common challenges.”18 Outside of government structures, Africans have found a way to build Pan-African solidarity, mainly through NGOs and activist organizations. The African Union must find a way to integrate this into its operations. There are many other suggestions and frameworks available to reimagine a better African Union. This thesis was a small project toward that effort.
18 Ndubuisi Christian Ani. "Re-Empowering Indigenous Principles for Conflict Resolution in Africa: Implications for the African Union." The Journal of Pan African Studies 10 (9): 15-35, 19 Alexis 74
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