For the Rule of Law

The Review

International Commission o f Jurists

The Evolving African Constitutionalism Special Issue

Editor: Atlanta Dieng

Ju n e 1998 N ° 60 This special issue has been made possible through the contribution as guest editors o f:

• Dr. Bertrand G. Ramcharan, IC JM em ber • Prof. Kofi Kumado, Acting Chairman of the IC J Executive Committee • Mr. Nicolas M. L. Bovay, I C J Predd and Publicationj Officer Content

Introduction

The Evolving African Constitutionalism ...... 7 Bertrand G. Ramchamn

Articles

Elements of Constitutionalism ...... 11 Louis Henkin

Constitutionalism in Africa: Emerging Trends...... 23 Mpazi Sinjela

The Rule of Law and Political Liberalisation in Africa...... 29 Amedou Ould-Abdallah

Africa and the Universal Declaration of Human Rights...... 41 Kofi Kumado

The Ghanaian Constitutionalism of Liberty...... 47 Bertrand de Rossanet

Innovations in the Interim and 1996 South African Constitutions ...... 57 Jeremy Sarkin

The "N o Party" or "Movement" Democracy in U g a n d a ...... 79 George B. Kirya

Ethiopia: Constitution for a Nation of Nations...... 91 Fasil Nahum

The Algerian Constitution: A Constitution Based on the Separation of Powers and the Protection of Individual and Collective Freedom s.. 103 Abdallah Baali

The Supreme Constitutional Court and its Role in the Egyptian Judicial System ...... 113 Awad Mohammad El-Morr, Abd El-Rahman Nossier, Adel Omar Sherif Human Rights and the Structure of Security Forces in Constitutional Orders: The Case of Ethiopia...... 135 James C. N. Paul Election and Electoral Systems in Africa: Purposes, Problems and Prospects...... 167 Amare Tekle African Conflict Prevention Mechanisms: The Evolving Doctrine of Democratic Legitimacy...... 179 Bertrand G. Ramcharan Victims of Abuse of Power with Special Reference to Africa...... 199 Daniel D. Ntanda Nsereko

Docum ent

The Question of the Impunity of Perpetrators of Human Rights Violations ...... 221 A letter from the Permanent Representative of Ethiopia to the United Nations

Basic Texts

• African Charter on Human People's Rights (1981)...... 227 • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (1998)...... 243 • Harare Declaration of Human Rights (1989)...... 251 • Harare Commonwealth Declaration (1991)...... 257 • Bloemfontein Statement (1995)...... 261 • The Windhoek Declaration on Democratic Institutions and the Transition to Democracy in Africa (1993)...... 265 The Evolving African CoiwtitutionxiLUm: A Condtitutional&m of Liberty and Human Rights

Bertrand G. Ramcharan1

This special issue of the Review of Jurists can only applaud it and must the International Commission of act to help it take root. Jurists has been inspired by a number of considerations: first, African States, Third, it is increasingly being reali­ and African regional and sub-regional sed that in order to tackle the root organizations such as the OAU, ECO­ causes of conflicts in Africa and elsew­ WAS, and SADC are engaged in a here, one must help plural societies determined effort to address conflicts articulate shared national visions of in the continent and to promote the future and to develop forms of African solutions to African problems; governance that give all parts of the new forms of constitutionalism are a population a stake in the development of centred part of this effort. The the country. Majorities and minorities International Commission of Jurists must work together and one should (ICJ), as an organization dedicated to consciously engender confidence on the rule of law, whose antecedents the part of minorities that the constitu­ include the ‘Law of Lagos’, has a natu­ tional and legal order will protect ral interest in studying these evolving them and help them to retain their cul­ constitutions. ture, language and religion. There has so far been little scholarly attention to the Second, there is a new doctrine of protection of minorities in Africa and democratic legitimacy taking hold in this is an area which the International the continent. The Conflict Prevention Commission of Jurists and other Mechanism o f the O A U has, on severed human rights organizations would occasions, insisted that democratically need to pay more attention to in the chosen governments will be defended future. against illegal coups. The Security Council of the United Nations has also Fourth, there have been numerous come out in favour of this doctrine. affirmations by authoritative African The International Commission of leaders and voices that respect for

1 Dr. Bertrand G. Ramcharan, a national of Guyana, is the Director for Africa in the UN Department of Political Affairs, New York; and Adjunct Professor at Columbia University. He is also a member of the International Commission of Jurists. human and peoples rights must be the they respect, rather than violate foundation for building lasting peace human rights is crucial. and justice nationally, regionally and internationally. One therefore sees The importance of elections and new constitutions steeped in the philo­ electoral systems is placed under the sophy of the African Charter on spotlight, as are the emerging electoral Human and Peoples Rights, the cooperation regionally and sub-regio- Universal Declaration of Human nally. The rule of law and political Rights, the International Covenants, liberalisation in Africa is also analysed and other normative instruments. One and the ground travelled, and the also sees authoritative pronounce­ challenges to be met are assessed. ments such as the Commonwealth Harare Declaration and the Harare The spirit of the times is captured Declaration of African judges empha­ by the Harare Declaration of Human sising the centrality of human rights. Rights (1989), subscribed to by lea­ How this is being done in new natio­ ding African judges: nal constitutions is of intrinsic interest to the International Commission of Ju rists. Fundamental human rights and freedoms are inherent in humankind. In some cases, they The national constitutions and are expressed in the constitu­ other topics examined in this special tions, legislation and principles issue of the Review bring out one of common law and customary point forcefully: the evolving African law of each society. They are constitutionalism is a constitutiona­ also expressed in customary lism of human rights and liberty. In all the constitutions discussed, the themes international law, international of democracy and respect for human instruments on human rights rights are emphasised prominently. and in the developing interna­ There is experimentation in new forms tional jurisprudence on human of governance, sure enough, but the rights. thread running through these experi­ ments is an insistence on democratic The Harare Commonwealth legitimacy - with the meaning of Declaration (1991) gave voice to the democracy left open as the experi­ African and international consensus: ments unfold. We believe in the liberty of the The need to control the abuse of individual under the law, in power by those in authority is also equal rights for all citizens another leading theme. This comes out regardless of gender, race, of recognition, alas, that in too many colour, creed or political belief, countries in Africa and elsewhere the and in the individuals inalie­ people have been the victims of those nable right to participate by meant to protect them. Reigning in means of free and democratic security forces so as to ensure that political processes in framing the society in which he or she branches of government - the lives. legislature and the executive, as well as the judiciary itself, The Bloemfontein Statement adop­ conform to the legal principles ted by leading African and of a free society. Judicial review Commonwealth lawyers in 1995 put and effective access to courts these issues in terms of the rule of law are indispensable, not only in and human rights as follows: normal times, but also during periods of public emergency In democratic societies funda­ threatening the life of the mental human rights and free­ nation. It is at such times that doms are more than paper aspi­ fundamental human rights are rations. They form part of the most at risk and when courts law. And it is the special provin­ must be especially vigilant in ce of judges to ensure that the their protection. law’s undertakings are realised in the daily life of the people. In Instruments, such as these, buil­ a society ruled by law, all public ding upon the African Charter on institutions and officials must Human and Peoples Rights, are the act in accordance with the law. bedrock of the evolving African The judges bear particular res­ constitutionalism discussed in the ponsibility for ensuring that all ensuing essays. Elements o f CoruftitutionaLum

LouLi Henkin *

At the end of the twentieth century, Ordinarily, such constitutions have virtually every State has a constitution not been enforceable as law and had and, with rare exceptions (notably little normative character. They can the United Kingdom), the constitution be readily amended by political autho­ is a written formal document. rity. Generally, a constitution sets forth the forms and institutions of govern­ In contrast, other constitutions - ment. Usually, it expresses or reflects such as contemporary Western consti­ a political-economic ideology, inclu­ tutions - are normative, prescriptive. ding the principles governing relations They do not describe what is but between individual and society. ordain what must be, establishing a blueprint for how government is to be Constitutions have varied marked­ organized and what the governors ly in character and in the ideology must do if government and governors they reflect. Some constitutions - such are to have constitutional legitimacy. as the socialist constitutions of These constitutions recognise indivi­ Eastern Europe after the Second dual rights, and obligate government World War - have been essentially to respect and ensure them. The manifestos, programmatic. They des­ constitution declares that it is supreme cribe the kind of government and the law and establishes institutions to institutions of government that have assure that it is given effect as already been established and indicate such. The constitution is not readily plans and make promises for the amended. future. They nod to the rights of the individual in society but declare Prescriptive constitutions are not the rights which government is prepared all alike, but in general modern to grant, rather than recognizing prescriptive constitutions reflect and rights which the government is obliga­ give effect to “constitutionalism” and ted to respect. (These constitutions “the rule of law.” Constitutionalism is also have tended to stress the citizen’s nowhere authoritatively defined, but, duties rather than his/her rights and as commonly used, a constitution to subordinate rights to duties.) designed to reflect constitutionalism

Louis Henkin is Professor of Law, Colombia University. will have common elements, with constitutions have provided for other variations. It declares the sovereignly forms of “benign discrimination" of the people and derives its authority ("affirmative action”) in constitutional from the will of the people. It pres­ political arrangements for ethnic cribes a blueprint for representative groups, at least temporarily. Some government responsible and accoun­ constitutions have given constitutional table to the people through universal status to a particular subject, remo­ suffrage at periodic elections. ving it from disposition by the ordinary Governmental authority is to be political process. exercised only in accordance with law established pursuant to constitutional In these pages, I elaborate, though processes and consistent with consti­ still in summary fashion, the elements tutional prescriptions and limitations. that have been commonly reco­ Government is for the people, but gnised as essential to constitutiona­ is limited by a bill of individual lism. I illustrate them with examples rights. Many constitutional systems and annotations from existing consti­ fractionate governmental authority tutions, principally the US by some separation of powers or Constitution, the constitution with other checks and balances. (Some which I am best acquainted. I refer systems divide authority Vertically” also to international instruments, in by forms of federalism.) Increasingly, particular the Universal Declaration constitutions provide for constitu­ of Human Rights and the covenants tional review by a court or other and conventions that have derived independent institutions with from it. authority to monitor compliance with constitutional prescriptions and to provide remedies against their viola­ tion. Constitutionalism implies also I - Government According to the that the constitution cannot be sus­ Constitution pended, circumvented or disregarded by political organs of government, Constitutionalism implies that and that it can be amended only by public authority can legitimately be procedures appropriate to change of exercised only in accordance with constitutional character and that give the constitution. There can be no effect to the will of the people acting in extra-constitutional government, no a constitutional mode. exercise of public authority by any person or institution not designated Even constitutions committed to pursuant to the constitution. There constitutionalism have included can be no continuation in office special accommodations responding beyond the term for which officials to particular historical, political, or were elected or appointed. A constitu­ demographic considerations. For tion may provide for suspension in example, some modern constitutions public emergency of particular institu­ have provided special representation tions or processes but such suspen­ in parliament for women. Other sions are essentially deviations from constitutionalism and must be strictly authority between a central govern­ limited and sharply scrutinised. (See ment and constituent entities some­ IX below.) times serves to protect against too- much concentration of governmental power.

II - Separation of Powers Federal States have come about for different reasons in different circum­ The French Declaration of the stances - to help persuade indepen­ Rights of Man and of the Citizen dent entities to join a new union, to (1789) declared that "any society in protect ethnic, religious or other which rights are not guaranteed, or in minorities. The particular history and which the separation of powers is not the particular purpose of creating a defined, has no constitution.” (Article federal State have shaped the particular 16.) In the eighteenth century, enligh­ division of authority between the tened opinion saw the separation of nation and the constituent units. powers as essential to limited govern­ Agreement on a federal character for a ment and the prevention of tyranny. State has sometimes made unification Separation of powers and other forms of politically feasible but federalism has checks and balances in the conduct of often hampered the development of government continue to be recognised national policy and has constrained as essentials of constitutional govern­ the conduct of international relations ment in some countries, particularly which, inter alia, may prevent national those with presidential systems of commitment to common human government, e.g., the United States rights standards. Smaller units lend and France. Parliamentary systems, themselves to stronger communal on the other hand, have moved values but sometimes afford weaker towards parliamentary supremacy protection for individual and minority essentially unchecked by any indepen­ rights. dent executive power. Such parlia­ mentary systems may nonetheless maintain Kmitations on government - through popular accountability by Ill - Popular Sovereignty and regular elections, through a bill of Democratic Government individual rights, and through consti­ tutional review, generally by a judicial "Constitutionalist” constitutions body, to assure conformity to the prescribe government by the people constitutional blueprint and its bill of through representative institutions. rights. Usually, such constitutions establish a parliamentary or a presidential sys­ tem, a legislature of one or two cham­ F e d e r a lis m bers deciding by majority, an executive In principle, a federal system is no elected directly or indirectly. They more conducive to constitutionalism provide for universal and equal suffra­ than a unitary State, but division of ge by all citizens, freedom of political activity (speech, press, assembly, VI - Controlling the Police association), and political parties. Constitutions may provide for majority A constitutionalist system of or proportional representation, or government includes an effective police variations consistent with authentic institution to enforce democratic law representative government. and respect for individual rights. But the police, having a monopoly of legiti­ mate force, must not be allowed to subvert democratic institutions or IV - Constitutional Review abuse individual rights.

Constitutionalism indicates the need for an institution and a process VII - Civilian Control of the that will monitor governmental M ilitary authority for conformity to the consti­ tutional blueprint and for consistency Civilian control of the military is with constitutional limitations. Some essential to popular sovereignty, constitutional systems (e.g., the to democracy, to separation of United States) have given the power powers, and to individual rights. of constitutional review to its judiciary Constitutionalism requires that the generally, some to a special constitu­ military remain in the barracks and tional court (e.g., the Federal have limited apolitical functions under Republic of Germany), some to a non­ mandate from constitutionally-consti­ judicial body (such as the French tuted civilian authorities. Governance ConJeil ConjtitutionneL). by military junta for however brief a period is anticonstitutional.

V - An Independent Judiciary VIII - Individual Rights Whether or not the judicial branch Constitutionalism implies obliga­ of government has authority to tions on government to respect and exercise constitutional review, an ensure individual rights for all inhabi­ independent judiciary is essential to tants. Constitutions commonly include the rule of law, to maintaining a bills of rights, frequently supplemen­ constitutional order, to securing ted by civil rights legislation and other individual rights. The method of laws designed to prevent, punish, selecting judges, and their qualifica­ deter. An accepted catalogue of indivi­ tions, tenure and compensation, can dual rights (“human rights”) is set contribute to their independence, but forth in the Universal Declaration of in the end judicial independence has Human Rights adopted by the UN to be nurtured and protected as part General Assembly in 1948; the of a political culture of constitutiona­ Declaration includes what have come lism. to be characterised as economic-social rights as well as civil-political rights. Political Rights obligates States par­ Many States have incorporated the ties to the Covenant to respect and Declaration by reference in their ensure the right to life. (Articles 2,6.) constitutions or laws, or have borro­ That provision prohibits lawless wed particular provisions from the killing by government and, by exten­ Declaration or from international sion, also “disappearances.” The covenants and conventions deriving Covenant does not prohibit capital from it.1 punishment, but in 1989 the UN General Assembly approved a proto­ Some national constitutions, e.g., col that would abolish the death penal­ that of the United States, have also ty in States adhering to it. Som e natio­ provided models for constitutional nal constitutions have outlawed rights provisions in other countries. capital punishment, others have not. Judicial review to define and protect The Covenant requires the State to rights, exercised by an independent protect the life of an individual against judiciary, as in the United States, or his/her neighbour. It does not require by constituent courts, as in Western the State to prohibit abortion.2 Some European countries, has also served as national constitutions have been inter­ an example to other constitutional sys­ preted as protecting a woman’s right tems. Constitutional jurisprudence in to have an abortion; other constitu­ the United States, Canada, Australia, tions have been interpreted as permit­ in European countries, in India, and ting (or requiring) the State to prohi­ other countries, and the jurisprudence bit abortion. developed pursuant to international agreements by international institu­ • Liberty and security of perjon. tions, notably the European and the Article 3 of the Universal Declaration American human rights commissions declares that everyone has the right and courts, have also had important to “liberty and the security of the influence in other parts of the world. person.” Subsequent articles in the Declaration prohibit slavery and The Jurisprudence as to Several servitude, torture or cruel, inhuman or Particular Rights Is Especially degrading treatment or punishment, Noteworthy arbitrary detention. The State may deprive a person of liberty (or life) • The right to life. The Universal for violation of law but only if the Declaration declares that everyone law is not arbitrary and the person is has the right to life. (Article 3.) The properly convicted; in the criminal International Covenant on Civil and process, the accused is entitled to

1 The Declaration was later the basis of two international agreements, a Covenant on Civil and Political Rights and a Covenant on Economic, Social and Cultural Rights. Particular rights have been elaborated in special conventions, for example, on slavery, on genocide, on torture, on free­ dom from racial discrimination, on discrimination against women. 2 The American Convention on Human Rights appears to require the State to prohibit abortion. Article 4(1). various guarantees adding up to due association, assembly. These freedoms process of law. In our time m particular, are deemed to be essential to political a key element in due process of law is democracy as well as to individual that the police be subject fully to law, human development and fulfilment. and their activities be subject to scruti­ ny by political as well as judicial • Property and economic enterprise. bodies to assure their respect for indi­ The commitment to individual rights vidual rights. implicit in constitutionalism includes the right to property. The Universal The Declaration also recognises Declaration recognises everyone’s the right to freedom of movement, right to own property and not to be residence and travel, and the right to arbitrarily deprived of it (Article 17).3 free choice of employment. Later Neither the Declaration nor any other articles guarantee freedom of authoritative instrument defines the conscience, expression, religion, asso­ right to property, or indicates the per­ ciation and assembly (see below). missible limitations on the use or Such provisions are common to many ownership of property. The Universal constitutions, but with important Declaration was designed to be accep­ variations. table to countries of eveiy economic ideology - free market, socialist or There has been debate as to whe­ mixed - and expresses no view on free ther the right to “liberty” has indepen­ enterprise generally. dent content - that is, whether its content is defined by the protections The US Constitution has been read for particular freedoms in the subse­ as safeguarding freedom of enterprise quent articles or whether it guarantees including freedom of contract; it also freedoms other than those speci­ expressly protects against State fied. In the United States, for impairment of the obligations of example, “Liberty” has been held to contracts. (Article 1, Section 10.) The imply essential autonomy, freedom of Constitution protects property against choice in personal matters, as well as deprivation “without due process of some freedom of economic enterprise law” (Amendment V) but does not (see below). preclude taxation as long as it is not confiscatory. (The Constitution now • Freedom of religion, presd and explicitly permits progressive income exprejjion. Liberal constitutions, and taxation. Amendment XVI.) Property the Universal Declaration, recognise a and economic liberty are subject to right to freedom of thought, conscience reasonable regulation for public pur­ and religion, freedom of speech, press, poses.

3 That right was omitted from the Covenants as a result of political tensions at the time the Covenants were concluded, reflecting differences as to the scope of the right and its protection, but the right to property was not questioned in principle. The US Constitution provides in the Universal Declaration (Article 7) addition that private property shall declares: not be taken for public use without All are equal before the law and just compensation. (Amendment V.) are entitled without any discri­ The jurisprudence of such “eminent mination to equal protection of domain” (nationalisation, expropria­ the law. All are entitled to equal tion) has not limited the public uses protection against any discrimi­ for which property may be taken; for nation in violation of this example, the courts have upheld Declaration and against any taking for aesthetic purposes, and for incitement to such discrimina­ programmes of land reform and redis­ tion. tribution. Constitutional jurispruden­ ce in the United States has struggled with difficult issues as to whether a Equality, equal protection and non­ governmental action was a permissible discrimination are also principal regulation or constituted a taking themes of the international covenants. requiring compensation, and what The special Convention on the compensation is just m general or in Elimination of All Forms of Racial particular circumstances. Discrimination has more adherences than any other human rights con­ A number of constitutions promul­ vention. The Convention on the gated since the Second World War Elimination of All Forms of ordained socialism, prescribed public Discrimination against Women has ownership of the means of production also been widely adhered to. and imposed limitations on individual economic enterprise and private pro­ In the United States, the constitu­ perty. The demise of communism in tional jurisprudence of equality and Europe has effectively eliminated equal protection fills volumes. In most socialist constitutions, but in general, it has required equal treat­ China one billion people continue to ment of those similarly situated but live under a totalitarian, “socialist” has permitted (though not required) constitution. It cannot be concluded unequal, compensatory treatment for that the demise of communism in those in different circumstances. Europe has established that socialism Constitutional jurisprudence has been “with a human face” would not be uncertain as to various forms of “affir­ consistent with the values of constitu­ mative action.” It is established that in tionalism. the United States segregation - “separate but equal” - is not equal. • E q u a lity . Equality and the equal protection of the laws are prominent No one has suggested that the themes in national constitutional law equal protection of the laws forbids and in international human rights: all progressive taxation. (In the United human beings are entitled to enjoy States, as indicated, progressive inco­ human rights and are therefore equal me taxation was expressly authorised in respect to those rights. In addition, by constitutional amendment.) • Economic and social righbi. The trade union as an aspect of the right of Universal Declaration includes econo­ association. mic-social as well as civil-political rights. Economic and social rights • Workers’ rights. The Universal include, inter alia, the right to work, Declaration recognises the right to to adequate food, housing, health work, to free choice of employment, to care, education. The Covenant on “just and favourable” conditions of Economic and Social Rights obligates work, to protection against unemploy­ a State parly to achieve such rights ment; to equal pay for equal work; to progressively "to the maximum of its “just and favourable” remuneration available resources.” ensuring an existence worthy of human dignity; to social security; to Virtually all States are now essen­ rest and leisure. Everyone has the tially Welfare States, but not all States right to join a trade union. prescribe welfare principles in their constitutions. Older constitutions Constitutional protections of the (e.g., the United States) recognised worker differ with different economic only civil and political rights, but systems and in different constitutions. constitutional political rights of many The constitutions of liberal States with of the States of the United States early liberal economic systems protect the established a right to education. Many freedom to choose one’s work (and constitutions developed in the second half of the twentieth century recognise one’s place of residence), as well as the economic and social rights but in freedom of association, which includes ger eral do not provide for their enfor­ the right to form and join trade ce! nent by means and institutions - for unions. Socialist constitutions may example, judicial review - available to offer different or additional rights to enforce civil and political rights.4 In workers, including a right to be provi­ the law of some States, however, some ded with work by society. rights recognised in the Covenant on Economic and Social Rights may be • Minority righbi. Neither the characterised - and enforced - as civil Universal Declaration5 nor the US and political rights, for example, the Constitution addresses “minority right to choose one's occupation as a rights.” Both see rights as individual, protected hberty, or the right to join a and both assume that members of

4 See, e.g., Article 37 of the Constitution of India. 5 After World War I, the League of Nations, persuaded that oppression of minorities was a major source of international conflict, promoted a series of "minorities treaties” in which some States undertook to safeguard certain rights of members of ethnic or national minorities in their territories. After the Second World war, the international system did not focus on causes of war in Europe, and sought to maintain international peace and security through the United Nations and acceptance of the right to self-determination. Some minorities it was assumed would achieve self-determination and cease to be minorities. For the rest, members of minorities would find protection for their rights in the new international human rights movement which would protect all human beings equally. minorities will have their individual limitations in the public interest. The rights safeguarded equally with those Universal Declaration provides: of all other members of the community. In the exercise of his rights and Increasingly, however, it has been freedoms, everyone shall be recognised that membership in mino­ subject only to such limitations rity groupings has continued to be a as are determined by law solely cause and focus of human rights pro­ for the purpose of securing due blems. Inter-group hostility has been recognition and respect for the an important contributor to oppres­ rights and freedoms of others sion and to discrimination against and of meeting the just require­ individuals. Expulsion and other ments of morality, public order forms of “ethnic cleansing” have emer­ ged as contemporary, and horrible, and the general welfare in a violations of human rights. Also, some democratic society. (Article 29). policies and practices related to group relations have human rights implica­ The Covenant on Civil and tions, e.g., policies of assimilating Political Rights expressly permits res­ minorities (“melting pot”) as distingui­ trictions on some rights, e.g., the free­ shed from maintaining their identity dom of movement and residence, if (“pluralism”), affirmative action pro­ restrictions are “necessaiy to protect grammes, group defamation laws, pre­ national security, public order (ordre ferences for some groups in financing public), public health of morals or the education. International human rights right and freedom of others.” The agreements have hardly addressed Covenant permits similar limitations these problems; emerging constitu­ on the freedom of expression. (Article tions have been taking account of 19.) them in different ways. Neither the Declaration nor the Covenant nor constitutions generally consider which right prevails when Permissible Limitations on two rights compete. Nor is there a Rights developed international jurisprudence Constitutionalism, all constitutio­ as to the scope of “national security,” nal systems, and all international “public order,” or “morals,” but scho­ human rights instruments, are at one lars have explored the international in treating rights as subject to some meaning and scope of those terms.6

6 See, e.g., A.C. Kiss, “Permissible Limitations on Rights, in The International Bill of Rights".

The Review — N° 60 — Special Issue / 1998 19 The Covenant on Civil and prohibit such expression only if it Political Rights not only permits but incites to illegal action. requires States to impose certain res­ trictions on freedom of expression.7 The jurisprudence of liberal consti­ Article 20 provides: tutions - e.g., the United States - treats virtually no rights as absolute, but has 1) Any propaganda for war created categories and hierarchies of shall be prohibited by law; rights and freedoms. In the United States, freedom of enterprise, and 2) Any advocacy of national, other economic-social activities, are racial or religious hatred that subject to reasonable regulation in the constitutes incitement to public interest. Some rights, however, discrimination, hostility or are fundamental and preferred, e.g., violence shall be prohibited the freedom of speech, press, religion by law. and assembly, and the right to autono­ my (privacy) in intimate matters; The extent to which a constitutio­ infringements of such rights and free­ nalist society may or must limit free­ doms are strictly scrutinised and will doms in order to safeguard the rights be upheld only if justified by a compel­ and freedoms of others or the public ling public interest. Certain classifica­ good is not agreed. Even States com­ tions and distinctions in the law, e.g., mitted to constitutionalism and indivi­ racial classifications, are suspect and dual rights differ, for example, as to are strictly scrutinised by the courts; what limitations they tolerate for the distinctions on the basis of gender sake of public morality. In the United are also examined more carefully than States, the constitution protects even distinctions on the basis of other expression that offends others, or that criteria. promotes uncivil or uncivilised ideas or policies.

United States jurisprudence draws a line between opinion and advocacy IX - Suspension and Derogation on the one hand and incitement to violence or to other unlawful action. Authority to suspend basic ele­ Contrary to the International ments of constitutional government in Covenant, the US Constitution, as times of “emergency” poses what is interpreted, prevents the prohibition probably the most serious threat to of propaganda for war or racial hatred constitutionalism and constitutional or discrimination; the law may government.

7 The Covenant (Article 17) also seems to require a State to protect individual honour and reputation, presumably, inter alia, by providing remedies against libellous expression. See also Article 19 which permits laws necessary for “respect of the rights or reputations of others.” Some constitutions provide for sus­ Constitutional Amendment pension of some institutions, or of some rights, in time of public emer­ A constitution reflecting respect for gency. Unlike most constitutions, the constitutionalism has to be subject to United States Constitution does not amendment if it is to reflect the sove­ reignly of the people contempora­ provide for suspension of the constitu­ neously, rather than the sovereignly of tion, of the legislature, or of the courts, their ancestors who framed the consti­ and does not permit executive govern­ tution. On the other hand, too-ready ment in any circumstances. Only the amendment would threaten the cha­ privilege of the writ of habeas corpus racter of the constitution as funda­ may be suspended, only in case of mental, supreme law. Amendments, of invasion or rebellion, and only by course, should be effected by proce­ Congress. (Article 1, Section 9.) dures that reflect the sovereignly of the people acting in a constitutional The Covenant on Civil and capacity and mode. Amendments must Political Rights (Article 4) provides: not be such as to derogate from the commitment to constitutionalism, In time of public emergency including respect for individual which threatens the life of the human rights. nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures C onclusion derogating from their obliga­ tions under the present In brief, at the end of the twentieth Covenant to the extent strictly century, legitimate, acceptable consti­ required by the exigencies of tutions must reflect respect for consti­ the situation.8 tutionalism including, in particular, respect for individual human rights. Even in such circumstances some The jurisprudence of the international rights - e.g., the right to life, freedom human national rights movement and from torture, freedom from slavery - of developed constitutions provide the may not be derogated from, and no stuff on which new constitutions can derogating measures may involve draw. racial, gender or similar invidious dis­ crimination. There is no model constitution.

8 For interpretation of Article 4 see T. Buergentlial, “To Respect and To Ensure: State Obligations and Permissible Derogations” in The International Bill of Rights: The International Covenant on Civil and Political Right/) (L. Henkin, ed.), Columbia University Press, 1981. Some constitutions are brief and No two constitutions are or should simple, others extensive and complex. be the same. A constitution must States differ as to how they distribute reflect the particular society, its geo­ law between constitution and legisla­ graphy and history, economy, demo­ tion. Putting provisions into constitu­ graphy, traditions, culture. But whe­ tions gives them the status of supreme ther a constitution prescribes for a law and largely immunises them from unitary or a federal State, a presiden­ ordinary political processes. There is tial or a parliamentary system, a socia­ ample room for differences reflecting list, free-market or mixed economy, local needs, but there can be no devia­ a constitution that is authentically tion from basic elements - popular constitutionalist must secure constitu­ sovereignty, accountable government, tional legitimacy and constitutional and respect for the human rights of all review, authentic democracy, accoun­ the inhabitants without distinction. table government and one that The Universal Declaration does not will respect and ensure individual require that any rights be “constitutio- human rights and secure basic human nalised,” only that they be recognised, needs. respected and ensured. But it is important that the idea of rights, and In the end, no document, no blue­ the principal rights, have constitutio­ print of government, no bill of rights is nal supremacy, and some rights will sufficient to guarantee constitutiona­ not in fact be respected and ensured lism. In the end, constitutionalism unless they are rendered effectively depends on political, social and econo­ supreme law. It is important too that mic stability and a political culture the constitution establish institutions - that is committed to constitutionalism. e.g., an independent judiciary or What the constitution provides will constitutional court - that will respect reflect, contribute to, and help main­ and have authority to assure that tain such a culture of constitutiona­ others respect individual rights.9 lism.

9 Some believe that a constitution should promote an independent legal profession to assure due process of law in criminal proceedings but not only in criminal proceedings. Cori'ititu tiona ILim in Africa:

Emerging Trendd

Mpazi Sinjela *

Introduction ting away from these types of constitu­ tions, which were viewed as having Sub-Saharan Africa is going been imposed upon them by departing through a revolutionary change in its colonial States. It was argued that political and constitutional orienta­ these constitutions were not a suitable tion. Ever since the demise of commu­ vehicle for creating unified States nism, a number of African countries from the different and fragmented which had adopted the Soviet political nations often mexed in the pre­ system found their constitutional independence era.1 Furthermore, a model uprooted over night. Within a competitive system modelled after that short space of time, their constitutio­ of Western democracies was conside­ nal model was deprived of its basis red to be unsuitable for bringing and essence. The ruling circles in about economic development. While these countries had to change if they Western type democracies encouraged did not wish to face political annihilation political competition and rivalry, the or extinction from the face of the same was, however, considered to be earth. time wasting and a detraction from economic development programmes It is to be recalled that, at indepen­ set out by these countries. Political dence, most African countries adopted parties were themselves often conside­ a “Westminster” or a “Gaullist” consti­ red to be tribally oriented and said not tution model after that of the United to be national in character. A multi­ Kingdom, France or Portugal, the for­ party democracy was considered to mer colonial States. However, most encourage tribal division and conflict, Sub-Saharan countries started shif­ and was, therefore, undesirable.

* Mpazi Sinjela, United Nations Office of Legal Affairs. The views expressed herein are those of the author and not necessarily reflect those of the United Nations. 1 It has been observed that, «In the developing countries, constitutions were expected to carry a much heavier burden. They had to foster a new nationalism, create national unity out of diverse ethnic and religious communities, prevent oppression and promote equitable deve­ lopment, inculcate habits of tolerance and democracy, and ensure capacity for administra­ tion^ See Yash Ghai, «The theory of the State in the Third World and the Problem of Constitutionalism*, Connecticut Journal of Int’L. LawL Vol. 6, p. 416 (1991). 2 See Peter Slinn, «A Fresh Start for Africa? New African Constitutional Perspectives for the 1990s», Journal ofAfrican Law, Vol. 35 7 p. 1. The protagonists of the above The political changes in Eastern arguments led the way for the elimina­ Europe signalling the end of the Cold tion of multiparly systems of govern­ War meant that African totalitarian ment and their replacement with regimes were no longer needed by the single-party dictatorial regimes. West by virtue of their strategic or Where a peaceful transition to a one geographical location/ No longer sup­ party rule was not possible, civilian ported but condemned for gross viola­ governments were overthrown by tion of human rights, these dictatorial force and were replaced by military regimes had to succumb5 and give w ay rule.3 Particularly prone to military to a new order. A hurricane of political coups were former French colonies. change in Sub-Saharan Africa ensued.

It is also to be recalled that most of the single-party or military regimes, such as those of Mobutu Sesse Seko of Political Pluralism Zaire and Kamuzu Banda of Malawi lasted for more than thirty years due A review of the political reforms to support from some Western taking place in most African countries governments. This support was rende­ indicates a return to the old constitu­ red because of Western government’s tional political order of the indepen­ pursuit of narrow selfish interests and dence era. Unlike the constitutional counteracting the spread of commu­ order in the one party State, the emer­ nism. There was gross violation of gent new constitutional order includes human rights in most of these coun­ elaborate human rights provisions and tries, but such violations were condo­ attempts to curb the autocratic power of ned. the executive branch of government.

3 In connection with Africa’s experience with constitutionalism, it has been observed that: Africa’s experience with constitutionalism has not been a happy one in the thirty years since most Sub-Saharan countries became independent. The great enthusiasm of the early 1960s that greeted new constitutions providing for democracy, the rule of law, and guarantees of human rights has, in many places, been dashed by military coups, emergency decrees, suspension of constitutional guarantees, and autocratic, abusive rule. See J.W . Salacusa, Third Wort? Legal Studied, p. xi, (Foreword) (1988). 4 Filip Reyntjens observes that: «The events in Eastern Europe have effectively ended the Cold War, including its extension into Africa under different forms. This has put an end to the inclination, on the part of Western countries, to support regimes that are authoritarian or worse, but 'friendly' to keep communism out. A major reason for condoning gross human rights violations and dictatorships has thus disappeared». See «The Winds of Change. Political and Constitutional Evolution in Francophone Africa, 1990-1991», Journal of African Law, Vol. 35, p. 44 (1991). 5 See, for example, Peter Mutharika who expresses the view that Kamuzu Banda was abando­ ned by the West as a result of the end of Cold War and collapse of apartheid in South AJtnca. Journal of African Law, Vol. 40, p. 205 (1996). The independence of the judiciary is asserted that aid should be given to asserted. Under one party rule, the governments with a view to promoting executive branch wielded wide and all political reform and promotion of embracrng powers. The Courts were good governance. Such aid would be stripped of any meaningful power to withheld where a government fails to check against abuse of power by the meet the litmus test of “political condi­ executive branch of government. As a tionality”. It has been further asserted result of this lack of accountability, that democracy should be a condition the principle of good governance for any meaningful relationship with a was impaired. Corruption was rife and donor country/ The guiding prin­ abuse of power could not be questio­ ciples for support of any government, ned. This lack of accountability it has been stressed, should be based weakened political institutions. on its record of performance in esta­ Consequently, economic development blishing a pluralist government that is stagnated throughout Sub-Saharan accountable to the public and respects Africa.6 the rule of law and human rights. A The wind of political change taking repressive and corrupt government place in Sub-Sahara Africa has been should therefore not be supported. viewed as presenting a window of The objective in giving aid only to opportunity through which to press those countries that meet this condi­ for more political reforms and the tionality is desired to foster good establishment of democratic pluralist governance which would promote systems of government. Towards this “respect for the rule of law, freedom of end, Western governments have been the press, protection of human rights, linking political reform of institutions and institutions which make govern­ to economic assistance. It has been ment accountable to the governed".8

6 A report of the World Bank on Sub-Saharan Africa has observed that «A root cause of weak economic performance in the past has been the failure of public institutions. Private sector initiative and market mechamsms are important, but they must go hand-in-hand with good gover­ nance - a public service that is efficient, a judicial system that is reliable, and an administration that is accountable to the public». See Sub Sah ara A frica: from CrufLf to Sustainable Growths p. xii (189). 7 The British Foreign Secretary put it bluntly that: Countries that tend towards pluralism, public accountability, respect for the rule of law, human rights, market principles, should be encouraged. Governments which persist with repressive policies, corrupt management, wasteful discredited econo­ mic systems should not expect us to support their folly with scarce aid resources which could be better used elsewhere. Speech given to the Overseas Development Institute I London on 6 June, 1990, reprinted in Human Rights in Foreign P olicy (Annex), Foreign and Commonwealth Office, London, 1991. Similarly, JVL Mitterrand at a Franco-African summit considered democracy to be the pre­ condition for warm relations with France. See Reyntjens, op.cit, p. 44. 8 Peter Slinn, op. cit., p. 4. New Trends in Constitutional regarding the protection of individual Law-Making: High Premium human rights, Article 35 (1) requires Placed on Protection of Human the Courts to have regard to public R igh ts international law in interpreting the Bill of Rights. As an added safeguard, A survey of the newly adopted a ten-member Human Rights constitutions across Sub-Saharan Commission is established, charged Africa demonstrates an increased with the mandate of, inter alia, revie­ emphasis on individual human rights. wing any proposed legislation v 'u-a-vu The independence of the judiciary is the Bill of Rights and international asserted. In many countries, a human human rights norms and standards. rights commission has been establi­ The Commission is required to advise shed to guarantee respect for human the relevant legislative bodies regar­ rights. Yet in others, an ombudsman ding the constitutionality of any pro­ has been appointed to hear and investi­ posed legislative measures vut-a-vu) the gate human rights complaints. Bill of Rights.

A close look at some of the recent The Namibian constitution is yet constitutional amendments signals a another example of an egalitarian resolve to move away from repressive constitutional model born out of severe tendencies towards a more egalitarian repression and abuse of individual society. This resolve is particularly human rights. It too contains a vast noticeable in countries that had expe­ array of human rights provisions and rienced harsh dictatorial one party or safeguards against abuse of power. military regimes. A Bill of Rights has The Constitution places emphasis on been included in a number of new life and liberty of the individual and constitutions. on human dignity. Torture, and cruel, inhuman and degrading treatment are The South African Constitution is outlawed.10 an excellent example of an egalitarian Constitution emergent after years of The Ombudsman has been given oppression. The new Constitution is wide powers and a range of responsi­ the supreme law of the land. It pro­ bilities which include offering assis­ vides for an independent judiciary, an tance to persons alleging that their enforceable Bill of Rights which gua­ fundamental rights or freedoms have rantees fundamental human rights, been infringed upon. Other general including the right of free speech, reli­ powers of the Ombudsman include gion, assembly and movement.9 the investigation of complaints against Furthermore, to ensure a liberal inter­ officials alleged to have violated fun­ pretation of Constitutional provisions damental human rights and freedoms,

9 See Gretchen Carpenter and Margaret Bewkes, «The Path to Constitutional Democracy in South Africa: An Update», Journal ofAfrican Law* Vol 36, p. 169. 10 Article 8 of the Constitution. See also Jill Cotrell, «The Constitution of Namibia», Jo u rn al o f African Law, Vol. 35, p. 71. abuse of power, unfair, harsh, insensiti­ has suffered an injustice. The Human ve or discourteous treatment, manifest Rights Commission, on the other injustice, corruption or conduct that hand, is charged under Article 129, would be regarded as unlawful, with the responsibility of investigating oppressive or unfair in a democratic cases involving allegations of human society.11 rights violations.

The Tanzanian Constitution is yet The constitutional reforms in another Constitution that has recently Francophone African countries have gone through an amendment to include demonstrated an even more rapid and a Bill of Rights. This Constitutional radical change than in Anglophone amendment has been hailed as having countries.14 By the beginning of the “marked the beginnings of a reasser­ 1990s, multiparty systems had been tion of legality in the administration of introduced in almost all Francophone the State”.12 countries. The constitutional reforms accompanying the political reforms The new Malawian constitution have also signalled a return to the follows the model of a country emer­ independence constitutions modelled ging from a totalitarian regime. The after that of France. Like in new constitution proclaims the inde­ Anglophone African countries, the pendence of the judiciary. The courts new Constitutions include an array of are required to exercise their powers human rights provisions. A mecha­ independent of any person or authori­ nism for safeguarding human rights ty.13 The Constitution also provides a has been established. This includes the Bill of Rights; all three branches of establishment of Constitutional Courts government are bound to observe its or the office of an Ombudsman.15 In provisions. The institutions of Mozambique, (a former Portuguese Ombudsman and Human Rights colony), a Constitutional Council is Commission have also been establi­ established instead, and is charged shed. According to Section 123 of the with determining the constitutionality Constitution, the Ombudsman is char­ of acts of the organs of the State as ged with the responsibility of investi­ well as supervising elections and refe­ gating cases m which an individual renda.16

11 Article 48 of the Constitution. See also Jill Cortrel, id. 12 J.M . Mwaikusa, «The Limits of the Judicial Enterprise: Judicial Powers in the Process of Political Change in Tanzania®, Journal ofAfrican Law^ Vol. 40, p. 243. 13 See Peter Mutharika, «The 1995 Democratic Constitution of Malawi», Journal of African Law, Vol. 40, p. 215. 14 Reyntjens observes that «In Francophone Africa in particular, virtually no countiy has been untouched by the wave of political reform», op. cit., p. 44, and that «Compared to the marked evolution in the French and Portuguese speaking countries, Commonwealth Africa seems to be lagging behind®. Id., p. 53. 15 Reyntjens, Op. Cit, p.51. 16 M. Hall and T. Young , «Recent Constitutional Developments in Zambia®, Journal ofAfrican Law, Vol 35, p. 112. C onclusion tected and guaranteed, a Bill of Rights should be included in every There is a swift political change Constitution. taking place in Sub-Saharan Africa in which monolithic dictatorial rule is Having made a full circle in her giving way to multiparty systems in experimentation with various consti­ which the government is being called tutional law models, it is hoped that upon to account to the governed. The Sub-Saharan Africa has finally com­ power of governmental authority is pleted her search for a viable constitu­ increasingly being restricted through tional model. The new political order various checks and balances. The pro­ must ensure that any constitution tection of individual human rights is being promulgated must be “legitima­ also increasingly being asserted te, credible and enduring, that guaran­ through the inclusion of a Bill of tees rights and freedoms perceived to Rights which is to be enforced by am be fundamental, and that provides independent judiciary.17 structures for the effective conduct of the nation’s business, for the achieve­ These positive changes are welco­ ment of its economic development and me. However, in order to safeguard for the welfare of its citizens.”18 It is them, it is necessary to strengthen the hoped that the changes will be lasting various governmental institutions, and will lead to the establishment of particularly the judiciary that must viable democratic governments based uphold the rule of law and pronounce on the rule of law and the respect of on any abuse of power, regardless of humans rights. the position of the abuser in govern­ ment. No individual or institution In a new democratic constitutional should be above the law. It is also order energies which would otherwise necessary to ensure that the checks be spent on fighting repression can and balances are instituted in order to now be spent on economic and social prevent any individual from ever development of the people. Good acquiring a monopoly of power. governance will foster accountability of the governors to the governed and The protection of human rights will lead to economic and social deve­ should be at the core of every constitu­ lopment in which human rights and tional amendment. In order to ensure the worth of the individual can fully that individual human rights are pro­ be realized by all.

17 Muna B. Ndulo and Robert B. Kent, «Constitutionalism in Zambia*, Journal of African. Law, Vol 40, p. 277. ' 18 Id, p, 256. The Buie of Law and Political

Liberalisation In Africa

Amedou Ould-Abdallah *

I - Introduction elected, but democratic governance will remain elusive. Elections alone do The political climate in Africa has not create democracy, and much needs changed considerably in the past ten to be done to develop and strengthen years, and there has been a significant the institutions of State and society degree of political liberalisation throu­ which are central to the process of ghout the continent. Most countries democratisation. now have elected governments, and are in the process of political transi­ This paper focuses on two of the tion, although to varying degrees. basic building blocks of democracy - Moreover, better informed public opi­ constitutions and the rule of law. It nions and a new generation of political first considers reasons why neither leaders is coming to the fore, replacing constitutions nor the rule of law were the “big man" autocrats who largely effectively consolidated in most of dominated African politics since inde­ post-colomal Africa, and discusses pendence. However, this is not cause their importance to good governance for complacency. As the experience of and to democracy. It then points to recent years has shown, the trajectory of some of the requirements for streng­ political transition will not be uniform, thening the rule of law and building and the process itself will not necessarily effective legal systems, before sugges­ be smooth. Equally importantly, poli­ ting some of the constitutional and tical transition may not result in a legal issues which African countries functioning democracy, and it is not undergoing the process of political certain that democratic regimes will be transition will most probably have to consolidated effectively. In some ins­ address. tances the process of democratisation may be stalled or blocked by those Post-Colonial Experience seeking to maintain the status quo, in others incumbents may try to control Many African countries began and direct the process, in yet others their post-colonial existence with governments may be democratically inherited liberal democratic systems in

® Amedou Ould-Abdallah is Executive Secretary, Global Coalition for Africa; former Special Representative of the UN Secretary-General in Burundi. place. They had constitutions which were so inclined to argue that multi­ provided for the separation of powers, party political systems were both independent parliamentary bodies, “unafrican” and unnecessary at a time judiciaries and civil services, and a when all Africans shared the same degree of political openness, including goals of self-governance and develop­ recognition of political parties and ment. Moreover, proponents of single­ political representation. However, party structures argued that they were within a relatively short space of time, necessary to promote national unity, most were transformed into one-party while in some instances the former States, either through deliberate poli­ colonial powers actively supported tical action or by default. In some one leader in order to perpetuate their cases, single-party structures were own influence. The military govern­ established after military coups ousted ments which took over in some coun­ civilian governments, while in others tries justified their existence on the the single-party monopolistic system grounds of defending the nation was enshrined in re-written constitu­ against corrupt civilian politicians. tions by civilian governments. The widespread adoption of the one-party In most instances, over time, the State throughout the continent, State and the ruling party became though varying in degree, was per­ indistinguishable, and membership of haps the single most important reason the party was a requirement for social for the erosion of constitutionally pro­ and political advancement. To ensure tected rights and the retreat from governance based on the rule of law conformity - or at the least to combat witnessed by many African countries overt resistance - to the prevailing form independence to the late 1980s. ideology, community and civil society organisations were coopted by the party, the activities of religious groups The ideological basis for the African single-party State was a com­ were curtailed, the media was taken bination of the colonialist precedent, over by the State, and other political marxist/social democratic idealism, groupings were either banned or sup­ and African traditions of consensus pressed. Traditions of legal challenges to politics. Colonial rule had demonstra­ non-constitutional actions by the State ted the “efficiency” of centralised did not exist in most countries, given undemocratic government. Marxism their colonial past. In any event, once as an ideology was in ascendance the single-party State became all throughout the developing world at encompassing, as it did in many coun­ the tim e that m o st African countries tries, the means to mount those chal­ gained independence, and promoted lenges were effectively curtailed. In the idea of a vanguard party which some cases, the apparatus of control would lead the masses to economic became more repressive, and for the and social development. The African most part those outside of the State- tradition of consensus politics provi­ party hierarchy found themselves ded a cultural framework for those increasingly excluded from power and leaders of anti-colonialist struggle who influence. Eventually, in almost all countries manipulation, contributes greatly to a which adopted single parly politics, sense of security and predictability. both the legislature and the judiciary However, if constitutions are to be lost their independence, and either effective, they need to be relevant to became adjuncts to the State and the the needs of the people. They also ruling party, or were denied the need to be supported by legislation, human, financial and technical and upheld by both the State and civil resources to function effectively. In society. The mere existence of a military regimes, they often found constitution, however comprehensive, themselves overruled and disregarded. will do little to create a stable environ­ In some instance, constitutions were ment for democracy and development ignored, especially if their provisions unless people know and understand had never been translated into law, its provisions, have faith that their and in others they were re-written to governments will not overrule it, and explicitly limit the independence of believe that their rights as promulga­ the judiciary and the legislature, and ted within it, will indeed be upheld. to concentrate power in the executive. Therefore, the existence of an inde­ pendent judiciary and legislature, a Human Rights, Constitutions, free and competent press, and a and the Rule of Law vibrant civil society are all necessary to ensure that constitutional provi­ Governments, in principle, should sions are translated into reality. ensure that the rule of law predomi­ nates. In instances whereby the Most constitutions of African government is unable to do this, its countries embody the rights and free­ ability to govern is called into ques­ doms defined in international charters tion. In instances in which the govern­ such as the Universal Declaration of ment itself violates the basic tenets of Human Rights, the African Charter rule of law, it cannot be said to govern of Human and People’s Rights, and lawfully. Democratic governments the International Covenant on Civil which behave in an unlawful manner and Political Rights. Some constitutio­ will be voted out of office, while auto­ nal provisions, such as those which cratic regimes tend to enter into an cover participation in the process of ever-increasing spiral of repression in governance through elections based order to stay in power. The legacy of on universal suffrage, lay the basis for such brutal regimes is often a popular democracy. Others, to the extent that disregard for the rule of law, and a they provide for the separation and lack of trust in political and legal pro­ limitation of powers, guard against the cesses. Countries coming out of vio­ accumulation of power and arbitrary lent conflict often face the same pro­ action on the part of the State. Other blems. constitutional provisions guaranteeing freedom of speech, assembly and asso­ The existence of a constitution, m ciation, and the press, are fundamental which basic rights are enshrined, and to the existence of democratic gover­ which is n ot subject to governmental nance, while the equality of all citizens, including minorities and Rule of law is essential for a predic­ women, is a basic requirement of table, stable environment in which democratic societies. citizens are informed of their rights and have faith that such rights will be The inviolability of the constitution protected by an independent, functio­ is the essential principle which gives ning, legal system. Rule of law is also constitutions their symbolic signi­ essential to curb corruption, and to ficance. Without respect for this promote a climate favourable to principle, constitutions are of little investment and private sector deve­ value, as the recent history of a num­ lopment. Additionally, acceptance of, ber of African countries attests. In and adherence to, the rule of law practical terms, issues such as the guards against arbitrary governmental extent to which the constitution is action, provided that government offi­ cials accept that they are subject to, generally recognised as the ultimate and not above the rule of law. An source of authority and the fundamen­ unfortunate legacy of single-party tal instrument for defining and uphol­ politics in some countries is that most ding rights, whether the constitution people have little faith in either the can be amended or changed by the legal system or the judiciary, and executive branch without a process of public confidence has to be re-built consultation, and whether and under if the rule of law is to be institutionali­ what circumstances it can be suspen­ sed. ded, are of central importance in ensuring that the principle of inviola­ The basic concept underlying the bility is respected. rule of law is that the rights and duties of persons should be subject to a set of In many African countries, consti­ generally accepted and enforceable tutions have been re-written as part of rules, and not to the arbitrary actions, the recent and on-going process of coercion or use of force of those in political transition. The re-writing has power. Reduced to this basic concept, in some instances facilitated quite the rule of law is indeed a universal widespread participation in defining principle. In democratic societies, the the political system to be followed. rule of law comprises two compo­ It is possible that the process of consti­ nents. The first is inherent in the term tutional negotiation, and not just the itself - law and law alone must be the constitution itself, may have an impact yardstick for determining the rights on the sustainability of democracy. and duties of individuals, and judging Constitutions which are developed their conduct according to such rights through a process of participation are and duties. The second is that the laws likely to enjoy greater ownership, in and the legal system which enforces that the process of negotiation serves them must be just. The concept of a to build both public support for the “just” law is embedded in the idea of provisions of the constitution, and constitutional democracy, and is awareness of rights and responsibili­ embodied in all of the international ties. documents concerning human rights. Thus, cruel and inhumane punishment some African countries. In the event is not normally accepted as just, even that the expropriation of private pro­ though it may be consistent with the perty is declared to be in the national prevailing laws of a society. interest, adequate compensation should be made. Freedom of ideological Rule of law requires a just legal and religious belief and the expression system which has certain attributes. A of such belief, and freedom of move­ just legal system is most often based ment and association Eire other funda­ on a constitution or similar document, mental attributes of a just legal system. which not only enshrines the basic In multicultural societies, these free­ rights of individuals but also provides doms attain greater significance. for the system of governance and the maintenance of an orderly society. A With regard to its own functioning, basic attribute of a just legal system is a just legal system requires that indivi­ that it must ensure the personal safety of duals be subjected to as few members of society, and thus penalise constraints as possible, and that the acts of aggression, and provide for province of the law does not extend effect sanction against the aggressor. beyond that which is absolutely essen­ Although applying for the most part to tial for the maintenance of public individuals, this attribute also covers security, the protection of individuals, acts of aggression by the State. Those and the guarantee of basic rights. It universal human rights which can be also requires that there is provision for classed as the “freedoms from” - free­ judicial discretion. Legal rules, which dom from arbitrary arrest, detention, are essentially an abbreviated form of torture, and cruel and inhumane general principles of justice, lay the punishment - fall under this attribute. framework for acceptable behaviour, Most legal systems have provisions but these rules need to be applied to which permit this attribute to be disre­ suit specific circumstances if rule of garded in extreme circumstances, but law is to prevail. it is important to note that these are exceptions, and must be treated as In the application of justice, a fun­ such. When the exceptions become damental principle is that no person the rule, as they have under certain should be found guilty of an offence if autocratic regimes, the whole concept the act did not constitute an offence at of rule of law is abandoned. the time it was committed. A corollary of this is that no person should be sen­ Another basic attribute of a just tenced to a punishment more severe legal system is that it declares unwar­ than that with which the offence was ranted aggression and trespass against punishable at the time it was committed. personal property to be unlawful. The In autocratic regimes, both of these right to own property and the legal fundamental principles tend to be protection of such property is atte­ ignored. Another basic attribute of a nuated with respect to nationalisation just legal system is that laws should or expropriation of property, both of serve a public purpose and should be which have occurred in the past in legislated with the object of regulating general conduct. Laws which are passed appointment of members of the judi­ with the specific intent of penalising a ciary, and the responsibilities of over­ particular individual, or group of indi­ sight bodies still need to be addressed in viduals, are unjust. However, such a number of countries, while the shor­ laws are a common feature of non- tage of well-qualified and experienced democratic regimes. candidates continues to limit legal pro­ fessionalism. Promoting the Rule of Law and Developing Effective Legal Legal Training and Skills Systems Development As with other sectors, individual Promotion and maintenance of the and institutional capacity-building in rule of law requires an adequate and the legal profession is required in the functioning legal system which can majority of African countries. In many both meet the demands of a rapidly instances, highly competent and well- changing environment and ensure the qualified people exist at the most protection of basic rights. Given their senior levels, but a “hollowing out” of recent past, this is a major challenge the profession has occurred, due in which a number of African countries part to low salaries and poor condi­ are now facing. Although the constitu­ tions of employment. Past actions, tions adopted by most countries are which in some instances banned priva­ comprehensive and in line with inter­ te legal practice, have also meant that nationally accepted norms, the pro­ there is a shortage of legal expertise in blem is to ensure that the provisions of a whole range of areas which are beco­ those constitutions, and the rights ming increasingly important. This is enshrined in them, are upheld by the worsened in many cases by a shortage of rule of law. In many African countries, law clerks and ancillary staff. the legal system itself will require strengthening, and the following are among the problems which will proba­ The Court System bly have to be addressed. Developing an effective and just legal system requires more than the Independence of the Judiciary independence of the judiciary and the existence of appropriate legal expertise. The independence of the judiciary A functioning court system is also cen­ is a key element of an effective legal tral to the concept of due process. system. Since the onset of pohtical Unfortunately, this is the least developed hberahsation, judiciaries have begun aspect of the legal system in a number of to assert their independence in many African countries, in part due to lack countries. However, this needs to be of resources. In some instances, even institutionahsed and checks and the physical infrastructure is woefully balances put in place to ensure that inadequate. Among other things com­ the judicial system is free from politi­ puterized record keeping, access to cal interference. Issues such as the reference documents, and research and library facilities would greatly in the process of political liberalisa­ improve the functioning of the court tion, their track record to date is systems in many countries. mixed.

Revision of Legislation Information and Legal Access A number of countries are faced Provision of information about with the need to both develop new rights, and access to the legal system, legislation and to revise existing laws. are essential if rule of law is to prevail. New constitutional provisions need to Comprehensive constitutional and be translated into law. At the same legal provisions, though laudable in time, the outdated and often repressi­ principle, are relatively meaningless in ve legislation which remains on the practice if people are unaware of statue books needs to be removed or them. Moreover, public awareness is revised. Moreover, the move to more the only way to guard against abuse or liberal economic systems, privatisa­ abandonment of rule of law by those tion, and the development of the pri­ in power. The role of an independent vate sector demand new laws, as well press and civil society organisations in as appropriate legal expertise. In addi­ building public awareness, and immo­ tion, globalisation and the new inter­ bilising public opinion around specific national trading environment require issues is crucial. In most countries, that individual countries enact a range democratisation has resulted in a of legislation to bring them in line with much more vibrant independent press international standards. and civil society. However, in many instances both the professionalism and genuine independence of the press and Establishment of Watchdog Bodies civil society organisations need to be built. Access to justice, though cer­ The establishment of independent tainly improved, also remains an issue watchdog bodies such as the office inmost African countries, particularly of the ombuddman, anti-corruption for the poor and those outside of agencies, and human rights and elec­ major urban centres. Provision of toral commissions which report to legal aid, and development of para­ parliaments, can be very helpful in legal services and citizens’ advice promoting the rule of law. Such centres, would greatly improve legal bodies, provided that they function access in most countries, and there are effectively, send a signal that no-one is some innovative experiences which above the laws, and that there is could be built upon. recourse in cases of abuse of the law. However, to function effectively, such Constitutional and Legal Issues bodies need to be independent in action, and not just in name, and also Obviously, the specific constitutio­ require adequate human and financial nal and legal issues which will arise in resources. Although many African countries undergoing political transi­ countries have established such bodies tion will depend on the particular circumstances which pertain in the Property Rights country, as well as on its recent past. Property rights are closely linked The following are some of the issues to land rights in many countries, which may, however, be faced by a where similar policies were applied to number of countries. the private ownership of land and of property. Property rights, and the Land Rights and Land Tenure legal basis for transfer and sale of pro­ perty, are becoming increasingly Many African countries have to important as countries try to encourage resolve problems of land tenure and private investment and private sector land ownership. In some instances, development. Indeed, lack of security private ownership and inheritance of of property rights and of lack of land was made illegal under single­ contract enforcement mechanisms are party regimes, while m others land among the major constraints to private which had been previously privately investment. As with land, people are owned was expropriated by the State. In unwilling to make the longterm invest­ such cases, although land can now be ments which provide employment and owned by individuals, establishing promote economic growth if they feel ownership can be a complex process. that their investments may not be Even in countries where private secure. In some countries, past arbi­ ownership of land was always permit­ trary governmental action with res­ ted, registration and records of change pect to property contributed signifi­ of ownership are often incomplete. cantly to both the crisis of governance The problems are exacerbated in and the economic downward spiral countries in which conflict led to dis­ which those countries then suffered. To a certain extent, the legacy of such placement of large numbers of people, in actions persists and is a constraint to those where communally owned land development, as people still lack the was acquired by commercial enter­ confidence that their investments are prises, or where there are land shor­ safe. tages. Land issues are a political, as well as a legal problem in many coun­ tries. Some are faced with the need for Citizenship land redistribution, while in others Democratisation has focused land grabbing by politicians or those increased attention on citizenship, in in positions of influence has been a terms of both who is eligible to vote, cause of tension. In some instances, and who is eligible to stand for political women do not enjoy equal rights office. There is concern that countries under law to own or inherit land. will invoke extremely stringent Land ownership and the right to inhe­ citizenship laws, thus effectively rit land can also have an economic disenfranchising large segments of impact, as people are unlikely to invest the population. There is also a danger unless they feel that they have some that political liberalisation may give security of tenure. rise to attempts by politicians to change citizenship laws for their though remaining in separate commu­ own advantage. Indeed there are nities. More stringent, and more instances in which more restrictive stringently applied, citizenship laws citizenship laws appear to have been could lead to the expulsion of those applied in order to exclude parti­ persons not under the protection of cular candidates from standing for formal international refugee agree­ election. ments, or to hostility toward them by local communities. It can also, has Changes m citizenship rights to been seen, lead to large numbers of make them more restrictive could people who have been either living in result in political disruption, particu­ an area for many years or have been larly, in multiethnic countries, if it born there, being stripped of their appears that particular ethnic groups citizenship, the protection of minori­ are being targeted. Restrictive ties, and the rights afforded to citizenship codes also play into the hands of those who want to increase minorities, is closely linked to issues of ethnic tension. Conversely, more citizenship. liberal citizenship laws will potentially diffuse ethnic conflict - which remains Maintenance of Civil Security a significant challenge to democracy in Africa - by permitting more people The effective maintenance of civil to participate in the political process. security is becoming a pressing issue They can also help to develop a sense in many African countries. In some, a of common identity, which can be an willingness to resort to violence in the important cohesive factor in multiethnic case of dispute is the legacy of protrac­ societies. Citizenship also affect ted civil conflict. While generations of economic development. Even more young people have grown up knowing than land and property rights, the nothing but war and civil unrest. In likelihood of people making longterm others, general lawlessness and crime investments in a country if they do are the consequence of^ears of poor not feel their citizenship is protected, governance and lack of employment is extremely limited. prospects. The proliferation of small arms, a result of armed conflict and Concerns over citizenship and porous borders, as exacerbated the nationality laws have also come to the problem, while rapid urbanisation has fore because of ethnic conflict and the stretched the capacity of municipal status of refugees. Many African countries harbour refugees, either m authorities to maintain law and order. official refugee camps or in informal For the most part insufficient atten­ settlements. In some instances, over tion has been paid to the development of time, refugees have become integrated politically neutral and professional into local communities, often of the civilian police forces, due largely to a same ethnic group. In others, they past tendency to rely on the military have settled m neighbouring countries and security forces to maintain civil long after the original conflict if over, order. Corruption dent. Legislation emanating from such constitutional provisions has for the In Africa, as elsewhere, single­ most part been effective in establi­ party politics and command econo­ shing the basis for the formation and mies created the conditions for cor­ functioning of political parties, but has ruption. Corruption is worse in those generally been less so with regard to countries where institutions such as their funding. As experience with mul­ the judiciary and the legislature are tiparty elections grows, the problems weak, where rule of law and adherence of campaign finance and funding of to formal rules are not rigorously parties are increasingly coming to the observed, where political patronage is fore. Opposition parties frequently standard practice, and where civil complain of the lack of a level playing society lacks the means to bring public field, and of the of excessive advan­ pressure to bear. Once established, tages of incumbency. In addition, democratic political systems and open many opposition candidates say that economies provide the best opportuni­ inequality in access to resources essen­ ties for controlling corruption. In per­ tially tilts the balance in favour of iods of transition, however, when one those already in power. set of rules and norms has broken down, and another has not yet been institutionalised, corrupt practices can flourish. Although legal solutions alone are insufficient, they are an C onclusion essential part of any anti-corruption strategy. Of course, a fundamental As African countries develop more requirement is that the judicial itself is open, participatory political systems, not corrupt, but legal sector corrup­ there is need for both effective formal tion is a regrettable legacy of single­ rules and behavioural change. Africa’s party politics in some countries. Until recent past has shown that one corruption aijpl political influence over without the other is insufficient to the judiciary are curbed, neither rule ensure good governance. Formal rules of law nor effective governance will be can give the outward appearance of possible. democracy while non-democratic behaviour continues. Conversely, behavioural change which is not Political Party and Campaign accompanied by changes in formal Finance rules can be short-lives, and - as expe­ Most of the recently-revised consti­ rience has shown - freedoms can easily tutions of African countries make pro­ be reversed and repression reintrodu­ vision for the existence of political ced. There is no guarantee that the parties and broadly define the electo­ current process of democratisation in ral system to be followed. In an Africa will continue or be sustained. attempt to guard against past prac­ But continued strengthening of the tices, many specify term limits for rule of law will help to institutionalise it. elected officials, including the presi­ Rule of law provides the formal rules by which societies can be governed by the will of the people, and counter­ and also induces democratic beha­ vailing forced to balance the power of viour by providing redress and sanc­ the executive, the rule of law lays the tion in cases of abuse. In short, by pro­ cornerstones of democracy. The rest is viding for the promotion and up to the people of African countries protection of human rights, governance themselves. Africa and the Universal Declaration

o f Human Rightd

Kofi Kumado *

When, on 10th December 1948, determination, cooperation in solving the General Assembly of the United international problems of an econo­ Nations adopted the Universal mic, social, cultural or humanitarian Declaration (by 48 affirmative votes, character and the promotion of res­ none against and 8 abstentions) as a pect for human rights and fundamen­ common standard of achievement for tal freedoms. Viewed from this angle, all peoples and all nations, most of the its claim to reflect human values present member States of the which Eire universal to mankind would Organisation of African Unity were seem to be unquestionable. still under colonial rule. The participa­ tion of Africans in the formulation of As the Secretary-General of the the Universal Declaration was there­ International Commission of Jurists fore negligible. Are we in Africa then noted in his address marking the 36th entitled to question its claim to univer­ anniversary of the Universal sality or the extent to which its stan­ Declaration, its adoption in 1948 was dards are common for all peoples and historic and ground-breaking because nations? for the first time, an international organisation had been created with From one perspective, the the object of promoting human rights. Universal Declaration constituted At that time, many of those who worked merely the completion of the unfini­ assiduously to formulate it hoped it shed business of setting up the agenda would derive its strength in part from for the United Nations commenced in its being perceived as an authoritative Charter. For, as is well-known, the interpretation of the obligations which UN Charter defines its purpose to States assumed in subscribing to the include the promotion of international Charter. U N practice which has given it peace and security, the development of almost equal status with the Charter friendly relations among nations based has helped to solidify its foundations. on respect for equal rights and self Professor Sohn of Harvard Law

Kofi Kumado, Acting Chairman of the Executive Committee of the International Commission of Jurists, Professor of Law, University of Ghana, Legon. School was right when he observed It is essential, if man is not to be some thirty years ago that the practice compelled to have recourse, as a at the UN had made the Universal last resort, to rebellion against Declaration a part of the constitutio­ tyranny and repression that nal law of the world community and human rights should be protec­ together with the UN Charter consti­ ted by the rule of law. tuted a world law superior to all other international instruments and to the Another factor which has made the municipal laws of the member coun­ Universal Declaration both attractive tries of the UN. and enduring is that, contrary to the claim by some myopic scholars, it did The adoption of the Universal not encapsulate any particular ideolo­ Declaration shortly after the Second gy or the political philosophy of any World War and its provisions respec­ country. It thus sent to the world a ting self-determination and anti­ loud and clear message that its colonialism - all of these factors concern was with the dignity of the established a consciousness, at the human being. Nor was it concerned international level, of the nexus bet­ solely with the rights of the individual. ween peace, national independence Due recognition wag given to collective and human rights. It ensured that rights or what is referred to in the thereafter nobody would require contemporary literature and jargon as that this nexus be proved but rather solidarity rights as well as the obliga­ that our collective energies would tions which the individual must shoul­ be more gainfully employed on trying der side by side with his rights. And so to sharpen the tools for their attain­ the then President of the General ment. Assembly of the UN, Dr. Evatt of Australia could declare at the end of One of the greatest achievements the voting that, of the framers of the Universal Declaration was the refusal to subor­ millions of men, women and dinate the rights therein contained to children all over the world will national law or to use language that turn for help, guidance and ins­ may have achieved such subordination piration to this document. and the clear recognition between human rights and peace. Confronted For us in Africa, it will be w rong to as we are in this nuclear age with the interpret the Universal Declaration in question of how to survive in peace in an Eurocentric terms or to put an ideolo­ unjust international system, in the face gical tag on it. The truth is that in the of religious persecution, military dicta­ contemporary interdependent and torships, State repression and racial interpenetrating global society of ours, discrimination, the preamble to the the Universal Declaration and the Universal Declaration serves as a emerging international law of human constant reminder to us of the nexus rights it has engendered serve as the between human rights and peace web around which our hopes for a when it declares poignantly, better and more just world are woven. Those simple but vague words enshri­ with the continent’s problems. This ned in the Universal Declaration ring preoccupation with defending national even more true for us today, especially independence has created almost a in the face of the retreat by the rich fetishistic attachment to the principle and developed countries from multila­ of non-intervention in the internal teralism in their international relations affairs of countries. This attachment to bilateralism - a process which hag created a near-unanimity in being emphasises the strengths and interests of hostile to any claim that there are States rather than the welfare of the higher standards (e.g. universal world community as a whole. In any human rights) with which the soverei­ event, today, forty years since its gnty of each African State may be adoption, if further proof of its univer­ measured either by the world commu­ sality and its closeness to African thin­ nity or by their brother States. The king on human rights were thought third norm is the sanctity of the national necessary, one only needs to compare boundaries inherited from colonial the language of the Universal times. Indeed, in some cases the Declaration with the African Charter Universal Declaration may well be on Human and Peoples Rights which treated as part of the threat by African became operative in October 1986. governments. How, for example, is the right to self-determination to be trea­ There is no doubt that the material ted in the face of unbending faith in and concrete conditions in Africa are pre-independence national boundaries difficult. Apart from having to within the context of ethnic multiplici­ contend with an unfair, unfavourable ty and scarce resources? and unhealthy international economic system, Africa is also faced with But Africa’s predicament, whether poverty on a massive scale, ignorance social or economic needs more than and disease. Further, there is the debt additional resources to resolve it. A problem, the solution of which has vital element which is missing is the compelled many African governments to need to situate our governments in the engage in painful and imposed struc­ support of their people. There is no tural adjustment programmes, the denying the fact that many of the human costs of which are only begin­ rulers in Africa today lost the support of ning to be appreciated by the interna­ their people a long time ago and, apart tional community. from the military elite which keeps them in power, have ceased to be Besides, the fragility of our natio­ accountable to anyone. If the econo­ nal systems has meant that those who mic reform packages being instituted wield power in Africa have a ready by various African governments are and sometimes plausible excuse for meeting with lukewarm response from concerning themselves with matters the populace at large, it is not so much not always conducive to human rights’ the fact of their constituting painful observance. The first has been the pre­ medicine as the loss of confidence in dominance of national independence the leadership. For the hard truth over supranational regimes for dealing today is that, for most African people, government has become merely a national policy-making. Seventh, the source of patronage; an inefficient arm Trade Union movement is too intert­ of State power maintained against the wined and dependent on central wishes of the people by monopoly government goodwill to be effective, over the coercive apparatus of the outside wage issues. In short, govern­ State. The argument that a certain sys­ ment as a deliberative process in tem of rule is indigenous to the which the society as a whole takes African and provides the best vehicle part, which was so much an integral for harnessing scarce resources, over­ part of the ethos of traditional society in coming' ethnic divisions and moving Africa, has disappeared since indepen­ forward in unity has long lost its credi­ dence. bility with the people. In redressing the dismal picture The catalogue of what has been just painted, admittedly, the developed wrong with the African leadership is world has an important part to play. not difficult to recite. First, there are First, the developed countries can no checks on governmental authority. continue to insist, more seriously and Except for a few countries, Gambia without undue regard for their so-called for example, the idea of constitutional strategic considerations, that a coun­ government was killed a long time try's human rights record will be an ago. Secondly, the institutions and important factor in determining its eli­ organisations which could have deve­ gibility for assistance. Secondly, they loped as counter-weights to the execu­ can be more generous in dealing with tive have been destroyed, their func­ the debt problem o f A frican countries. tionaries detained and tortured or Thirdly, a human face ought to be put forced into exile. Thirdly, the concept routinely on the kind of structural of a free press is denied. What there is, adjustment programmes that the is monopolised by government and World Bank, the International bullied or sycophantic. Fourthly, the Monetary Fund and other multilateral judiciary is not independent; the security or bilateral lending agencies are per­ of the judges who try to retain a cer­ mitted to impose on reforming Third tain measure of independence is World countries in general and those constantly undermined by the govern­ in Africa in particular. ment. Fifth, human rights are syste­ matically abused, while sympathetic But the most important part in the World Bank Officials and Western enterprise of integrating human diplomats, more intent on acting as rights into the fabric of modern apologists for the international finan­ African States has to be played by cial system than as watchdogs of the governments in Africa. The res­ human decency, file reports extolling ponsibility for freeing their citizenry the economic performance of the and the media, for giving their citizens government. Sixth, legislation hag real choices, for securing the judiciary - ceased to be a deliberative and infor­ in short for fostering constitutionalism med process. Parliament, where it in their respective countries, lies on exists, is seldom a forum for informed them. Authoritarian rule will only end in strength. In 1948, given the dominance Africa when new ideas, African ideas, of the States in international law and begin to determine the limits of power the near-unanimous denial of any and the nature of political institutions. room for the individual, a more ambi­ tious programme for human rights, To paraphrase a statement by the going beyond setting the agenda, Nigerian Nobel Laureate, Wole would have been doomed to failure. Soyinka, the African political leader­ Thus those to whom the task of for­ ship must move quickly to replace “the mulating the Draft Declaration fell divine right of force” to rule with wisely confined the exercise to elabo­ popular will. rating a universally-acceptable set of values in a language sufficiently vague It is in the pursuit of these reforms to be flexible and adaptable to the that the Universal Declaration changes in society. becomes even more relevant for Africa as we celebrate worldwide the 50th Since then other human rights ins­ year of its adoption. Just as the truments have been developed within Universal Declaration acted as the the UN system and regionally with impetus for the emerging international different types of enforcement human rights law, so also fresh and mechanisms. All draw their inspira­ reinvigorated approaches to the pro­ tion and strength from the trail blazed pagation and observance of its values by the Universal Declaration. Today, throughout Africa should ensure the 50 years later, few would deny that necessary turnaround in the observan­ human rights have attained respecta­ ce of human rights and the rule of law bility. on the continent. Ju st as the Universal Declaration promoted a humanitarian But, as we celebrate the 50th anni­ outlook and consensus at the interna­ versary of the Universal Declaration, tional level that became increasingly one important task remains which we inhospitable to colonialism and contri­ must continue to tackle vigorously. buted in no small measure to the acce­ Indeed, for us in Africa, an assurance leration of the decolonisation process, that it would be vigorously pursued is so should we look up to it for the deve­ the only justification for being jubila- lopment of that caring society we all tory at this period in our history. We hope for and should strive towards in must redouble our efforts to bring the years ahead. But how do we achie­ human rights out of the international ve this movement forward on the instruments into the homes of the lea­ wings of the Universal Declaration? ders and the governed in Africa. The ratification record of African countries Candour would compel us to admit in so far as it relates to the international that the Universal Declaration, human rights instruments is poor. though timeless in its language, has its No knowledgeable person would deny limitations. Such an admission need that if all independent African States not make us despondent, however; for were to translate the values embodied those limitations were its hidden in these instruments including the African Charter on Human and hope from the fact that the Assembly Peoples Rights into the daily lives of of Heads of State and Government of their citizeniy the gain to the quality the Organisation of African Unity at of life will be dramatic. The most the recent meeting in Ouagadougou, important element in this reinvigora- Burkina Faso, adopted a Protocol that tion process will be education, human adds a Court to the human rights regi­ rights education. For as Sir Richard me in Africa [see Basic Texts]. Even Wild, then Chief Justice of New more exciting is the fact that the Zealand said three decades ago, Protocol was signed immediately by thirty States. The law cannot itself guarantee human rights. Nor can any government. It is a rational and Let this 50th anniversary of the active public opinion that offers Universal Declaration provide us with the best assurance of progress. the zeal to translate the human rights dream so eloquently captured in the In Africa, this public opinion also various international and national ins­ needs to be informed. truments into reality by focusing more resolutely on the implementation We take heart and are encouraged mechanisms and promotional activi­ to look forward to the future with ties. The Ghanaian Constitutionalism of Liberty

Bertrand de RoManet*

Introduction Directive Principles of State P olicy The Ghanaian constitution is a remarkable document of liberty. On In Chapter Six on the Directive 28 April 1992, even in the eyes of the Principles of State Policy the follo­ opposition at the time, “the people of wing political objectives are enuncia­ Ghana expressed their sovereign will ted: in a referendum and chose what is now the 1992 constitution” which “is 1) Ghana shall be a democratic State essentially a liberal democratic consti­ dedicated to the realisation of free­ tution which guarantees respect for dom and justice; and accordingly, the rule of law and fundamental sovereignly resides in the people of human rights”.1 Ghana from whom Government derives all its powers and authority through this Constitution;

The Blessings of Liberty 2) The State shall protect and safe­ guard the independence, unity, and In the preamble the people of territorial integrity of Ghana, and Ghana seek to secure “the blessings of shall seek the well-being of its citi­ liberty, equality of opportunity and zens; prosperity”. They made a solemn declaration and affirmation of their 3) The State shall promote just and commitment to: freedom, justice, pro­ reasonable access by all citizens to bity, accountability; the principle that public facilities and services in all powers of government spring from accordance with law; the sovereign will of the people; the principle of universal adult suffrage; 4) The State shall cultivate among all the rule of law; the protection and pre­ Ghanaians respect for fundamental servation of fundamental human human rights and freedoms and the rights and freedoms, unity and stability. dignity of the human person;

* Bertrand de Rossanet is a specialist on human rights and constitutional law. 1 B. J. da Rocha, Chairman, New Patriotic Party, in The Stolen Verdict, Ghana, N ovem ber1992. Report of the New Patriotic Party, 5 March, 1993- 5) The State shall actively promote and the Prisons Service in so far as the integration of the peoples of the complaints relate to the failure Ghana and prohibit discrimination to achieve a balanced structuring of and prejudice on the grounds of those services or equal access by all place of origin, circumstances of to the recruitment of those services birth, ethnic origin, gender or reli­ or fair administration in relation to gion, creed or other beliefs." those services;

c) to investigate complaints concer­ ning practices and actions by per­ Fundamental Human Rights and sons, private enterprises and other F reed om s: institutions where those complaints A National Commission on allege violations of fundamental Human Rights human rights and freedoms under the Constitution; Chapter Five of the Constitution enshrines fundamental human rights d) to take appropriate action to call and freedoms to be respected and for the remedying, correction and upheld by the Executive, Legislature reversal of instances specified in and Judiciary and all other organs of paragraphs a), b) and c) above government and its agencies and to be through such means as are fair, enforceable by the courts. Chapter proper and effective; Eighteen provides for establishment of a Commission on Human Rights and e) to investigate all instances of alle­ Administrative Justice with the follo­ ged or suspected corruption and wing functions: the misappropriation of public moneys by officials and to take a) to investigate complaints of viola­ appropriate steps, including tions of fundamental rights and reports to the Attorney-General freedoms, injustice, corruption, and the Auditor General, resulting abuse of power and unfair treat­ from such investigations; ment of any person by a public offi­ cer in the exercise of his official duties; f) to educate the public as to human rights and freedoms by such means b) to investigate complaints concer­ as the Commissioner may decide; ning the functioning of the Public and Services Commission, the adminis­ trative organs of the State, the g) to report annually to Parliament on Armed Forces, the Police Service the performance of its mandate.3

2 Article 35. 3 Article 218. A National Commission for Civic system of local government and admi­ E du cation nistration which shall, as far as practi­ cable, be decentralised.5 The institu­ Chapter Nineteen provides for the tion of chieftaincy, together with its establishment of this Commission, traditional councils as established by with the following functions: customary law and usage is guaran­ teed in Chapter twenty-two of the a) to create and sustain within the Constitution society the awareness of the prin­ ciples and objectives of this Commissions of Inquiry Constitution as the fundamental law of the people of Ghana. The establishment of Commissions of Inquiry is provided for in Chapter b) to educate and encourage the Twenty-Three. public to defend this Constitution at all times, against all forms of abuse and violation. Code of Conduct for Public O fficers c) to formulate for the consideration of Government, from time to time, A Code of conduct for public programmes at the national, regio­ officers is provided for in Chapter nal and district levels aimed at reali­ twenty-four. sing the objectives of this Constitution. Political Parties d) to formulate, implement and over­ see programmes intended to incul­ The right to form political parties is cate in the citizens of Ghana awa­ guaranteed under the Constitution. reness of their civic responsibilities Every citizen of Ghana of voting age and an appreciation of their rights has the right to join a political party and obligations as free people; and and a political party is free to partici­ pate in shaping the political will of the e) such other functions as Parliament people, to disseminate information on may prescribe.4 political ideas, social and economic programmes of a national character, and sponsor candidates for elections Decentralisation and Local to any public office other than to G overnm ent District Assemblies or lower local government units. Chapter Twenty of the constitution provides that Ghana shall have a Every political party must have a

4 Article 233. 5 Article 240. national character, and membership purposes of public elections and refe­ must not be based on ethnic, religious, renda. regional or other sectional divisions. The internal organization of a pohtical The Ghanaian Electoral party must conform to democratic Commrssion consists of: principles and its actions and purposes must not contravene or be inconsistent a) a Chairman; with the Constitution or any other b) two Deputy Chairmen; and law. c) four other members. The State must provide fair oppor­ tunity to all political parties to present The members of the Commission their programmes to the public by are appointed by the President ensuring equal access to the state- under Article 70 of the Constitution. owned media. All presidential candi­ The Chairman of the Electoral dates must be given the same amount Commission has the same terms and of time and space on the State-owned conditions of service as a Justice of media to present their programmes to the Court of Appeal. The two Deputy the people. Every candidate for elec­ Chairmen of the Commissron have the tion to Parliament has the right to same terms and conditions of service conduct his campaign freely and in as are applicable to a Justice of the accordance with law. High Court. The Chairmen and the two Deputy Chairmen of the Pohtical parties are required by Commission cannot, while they hold law office on the Commission, hold any other public office. The other four a) to declare to the public their reve­ members of the Commission are paid nues and assets and the sources of such allowances as Parliament may those revenues and assets; and determine. If a member is absent or dies, the Commission shall continue its b) to publish to the public annually work until the President, acting on the their audited accounts. advice of the Council of State, appoints a qualified person to fill the Only a citizen of Ghana may make a vacancy. contribution or donation to a political party registered in Ghana. The Electoral Commission has the following functions:

a) to compile the register of voters Electoral Commission and revise it at such periods as may be determined by law; Every citizen of Ghana of eighteen years of age or above and of sound b) to demarcate the electoral boundaries mind has the right to vote and is entit­ for both national and local govern­ led to be registered as a voter for the ment elections; c) to conduct and supervise all public he hails from that constituency; elections and referenda; and d) to educate the people on the electo­ c) he has paid all his taxes or made ral process and its purpose; arrangements satisfactoiy to the appropriate authority for the pay­ e) to undertake programmes for the ment of his taxes. expansion of the registration of voters; and The Judiciary f) to perform such other functions as may be prescribed by law. The Constitution declares that justi­ ce emanates from the people and shall Ghana is divided into as many be administered in the name of the constituencies for the purpose of election Republic by the Judiciary which shall of members of Parliament as the be independent and subject only to Electoral Commission may prescribe, this Constitution. Citizens may exerci­ and each constituency is represented se popular participation in the admi­ by one member of Parliament. No nistration of justice through the insti­ constituency shall fall within more tutions of public and customary than one region. The boundaries of tribunals and the jury and assessor each constituency are to be such that systems. the number of inhabitants in the constituency is, as nearly as possible, The judicial power of Ghana is ves­ equal to the population quote. ted in the Judiciary, accordingly, nei­ ther the President nor Parliament nor any organ or agency of the President P arliam en t or Parliament can have or be given final judicial power. The Parliament of Ghana consists of not less than one hundred and forty The Chief Justice is the Head of elected members. A person is not to be the Judiciary and is responsible for a member of Parliament unless - the administration and supervision of the Judiciary. a) he is a citizen of Ghana, has attai­ ned the age of twenty-one years The Judiciary consists of - and is a registered voter; a) the Superior Courts of Judicature comprising - b) he is resident in the constituency for which he stands as a candidate i) the Supreme Court; for election to Parliament or has resided there for a total period of ii) the Court of Appeal; and not less than five years out of the ten years immediately preceding iii) the High Court and Regional the election for which he stands, or Tribunals. b) such lower courts or tribunals as ciaiy, are charged on the Consolidated Parliament may by law establish. Fund.

The Superior Courts are superior courts of record and have the power to The Supreme Court commit for contempt to themselves and all such powers as were vested in a The Supreme Court consists of the court of record immediately before Chief Justice and not less than nine the coming into force of the other Justices of the Supreme Court. Constitution. It is the final court of appeal and has such appellate and other jurisdiction In the exercise of the judicial as may be conferred on it by the power of Ghana, the Judiciary, in Constitution or by any other law. The both its judicial and administrative Supreme Court is not bound to follow functions, including financial adminis­ the decisions of any other court. It tration, is subject only to the may, while treating its own previous Constitution and shall not be subject decisions as normally binding, depart to the control or direction of any person from a previous decision when it or authority. appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on Neither the President nor questions of law. Parliament nor any person actin g under the authority of the President or Parliament nor any other person Subject to the jurisdiction of the whatsoever can interfere with Judges or High Court in the enforcement of judicial officers or other persons exer­ the Fundamental Human Rights and cising judicial power, in the exercise of Freedoms as provided in Article 33 their judicial functions; and all organs of the Constitution, the Supreme and agencies of the State shall accord to Court has exclusive original jurisdic­ the courts such assistance as the tion in - courts may reasonably require to protect a) all matters relating to the enforce­ the independence, dignity and effecti­ ment or interpretation of the veness o the courts, subject to this Constitution; and Constitution. b) all matters arising as to whether an A Justice of a Superior Court, or enactment was made in excess of any person exercising judicial power, the powers conferred on is not hable to any action or suit for Parliament or any other authority any act or omission by him in the exer­ or person by law or under this cise o the judicial power. The admi­ Constitution. nistrative expenses of the Judiciary, including all salaries, allowances, gra­ The Court of Appeal consists of - tuities and pensions payable to or in respect of, persons serving in the judi- a) the Chief Justice; b) not less than ten Justices of the a) the Chief Justice who shall be the Court of Appeal; and Chairman; c) such other Justices of the Superior b) the Attorney-General; Court of Judicature as the Chief c) a Justice of the Supreme Court Justice may, for the determination nominated by the Justices of the of a particular cause or matter Supreme Court; request to sit in the Court of Appeal for any specified period. d) a Justice of the Court of Appeal nominated by the Justices of the The Court of Appeal has jurisdic­ Court of Appeal; tion throughout Ghana to hear and determine, subject to the provisions of e) a Justice of the High Court nomi­ nated by the Justices of the High the Constitution, appeals from a judg­ Court; ment, decree or order of the High Court and Regional Tribunals and f) two representatives of the Ghana such other appellate jurisdiction as Bar Association one of whom shall may be conferred on it by this be a person of not less them twelve Constitution or any other law. years’ standing as a lawyer;

The High Court consists of - g) a representative of the Chairmen of Regional Tribunals nominated by a) the Chief Justice; the Chairmen; h) a representative of the lower courts b) not less than twenty Justices of the or tribunals; High Court; and i) the Judge Advocate-General of the c) such other Justices of the Superior Ghana Armed Forces; Court of Judicature as the Chief Justice may, by writing signed by j) the Head of the Legal Directorate him, request to sit as High Court of the Police Service; Justices for any period. The High k) the Editor of the Ghana Law Court has jurisdiction to enforce Reports; the Fundamental Human Rights and Freedoms guaranteed by the 1) a representative of the Judicial Constitution. Service Staff Association nomina­ ted by the Association;

m) a chief nominated by the National House of Chiefs; and The Judicial Council n) four other persons who are not There is a Judicial Council compri­ lawyers appointed by the sed of the following persons - President. The functions of the Judicial and regulations for regulating the Council are - practice and procedure of all courts in Ghana. a) to propose for the consideration of Government, judicial reforms to improve the level of administration of Without prejudice to clause (2) of justice and efficiency in the this article, no person sitting in a Judiciary; Superior Court for the determination of any cause or matter shall, having b) to be a forum for consideration and heard the arguments of the parties to discussion of matters relating to the that cause or matter and before judg­ discharge of the functions of the ment is delivered, withdraw as a mem­ Judiciary and thereby assist the ber of the court or tribunal, or as a Chief Justice in the performance of member of panel determining that his duties with a view to ensuring cause or matter, nor shall that person efficiency and effective realisation become functiu officio in respect of that of justice; and cause or matter, until judgment is deli­ vered. c) to perform any other functions conferred on it by or under this Constitution or any other law not inconsistent with this Constitution. Freedom and Independence of the Media The Judicial Council may establish such committees as it considers neces­ Freedom and independence of the sary to which it shall refer matters media are guaranteed subject to the relating to the Judiciary. Constitution and any other law not inconsistent with it, there is to be no There is a Rules of Court censorship in Ghana. There is to be no Committee which consists of - impediments to the establishment of private press or media; and in particu­ a) the Chief Justice, as Chairman; lar, there can be no law requiring any b) six members of the Judicial person to obtain a licence as a prere­ Council other than the Chief quisite to the establishment or opera­ Justice nominated by the Judicial tion of a newspaper, journal or other Council; media for mass communication or information. c) two lawyers, one of not less than ten and the other of not more than Editors and publishers of newspa­ five years' standing, both of whom pers and other institutions of the mass are nominated by the Ghana Bar media are not to be subject to control Association. or interference by government, nor shall they be penalised or harassed for The Rules of Court Committee, by their editorial opinions and views, or constitutional instrument, makes rules the content of their publications. All agencies of the mass media are, at viii) the Ghana National all times, free to uphold the principles, Association of Teachers; provisions and objectives of this Constitution, and shall uphold the r e s­ b) two representatives nominated by ponsibility and accountability of the the Ghana Journalists Association; government to the people of Ghana. c) two persons appointed by the President; and Any medium for the dissemination of information to the public which d) three persons nominated by publishes a statement about or against Parliament. any person shall be obliged to publish a rejoinder, if any, from the person in The functions of the National respect of whom the publication was Media Commission are - made. a) to promote and ensure the freedom There is provision for a National and independence of the media for Media Commission consisting of fif­ mass communication or informa­ teen members as follows - tion;

a) one representative each nominated b) to take all appropriate measures to V ensure the establishment and main­ tenance of the highest journalistic i) the Ghana Bar Association; standards in the mass media, inclu­ ii) the Publishers and Owners of ding the investigation, mediation the Private Press; and settlement of complaints made against or by the press or other iii) the Ghana Association of mass media; Writers and the Ghana Library Association; c) to insulate the State-owned media iv) the Christian group (the from governmental control; National Catholic Secretariat, the Christian Council, and the d) to make regulations by constitutional Ghana Pentecostal Council); instrument for the registration of newspapers and other publications, v) the Federation of Muslim except that the regulations shall not Councils and Ahmadiyya provide for the exercise of any Mission; direction or control over the pro­ vi) the training institutions of fessional functions of a person journalists and communica­ engaged in the production of news­ tors; papers or other means of mass communication; and vii) the Ghana Advertising Association and the Institute e) to perform such other functions as of Public Relations of Ghana; may be prescribed by law not and inconsistent with this Constitution. International Commis ion of Jurists Innovations in the Interim

and 19 9 6 South African Constitutions

Jeremy Sarkin *

Introduction factors of ethnicity, class, culture, reli­ gion and language which apartheid had Since the Union of South Africa in specifically accentuated. 1910 and before 1994, South Africa has had three constitutions, adopted in The system bred intolerance, a cul­ 1910, 1961 and 1983. These constitu­ ture of violence and lack of respect for tions took little account of the mul­ life and, indeed, rights in general. In tiethnic, multilingual and multicultural consequence, levels of political violence nature of South African society. were extremely high during the 1980s Indeed, they catered almost exclusive­ and 1990s. Between September 1984 ly for the white, Christian, Afrikaans, and October 1990, some 8500 died in patriarchal minority. It is not surpri­ political violence, and levels of violence sing, therefore, that South Africa was escalated during the subsequent tran­ a highly polarised and divided society. sition as political rivalry intensified. Many people had been dispossessed of The number of deaths attributed to their land, had their language and cul­ political violence in the period tures marginalised and were the vic­ January 1990 to the end of 1995 tims of gross human rights violations. exceeds 16000. The majority of South Africans had been denied access to an enormous One of the themes exacerbating variety of amenities, institutions and this violent political rivalry was a opportunities, including many places conflict between traditionalism and and types of employment, particularly in democratic principles. Central to the State institutions. Most of civil society political strife between the Inkatha was unimportant, as far as the State Freedom Party (IFP) and the African was concerned, and this sector played National Congress (ANC) in an increasingly oppositional role KwaZulu-Natal from the mid-1980s during the apartheid era. Divisions was the fact that Inkatha’s major sup­ existed between black and white port came from people who believed but there were also divides based on very strongly in the traditional system of

Jeremy Sarkin, Associate Professor in Law, University of the Western Cape, Advocate of the High Court of South Africa, Attorney at Law, State of New York, USA. South Africa. Agreement on the hereditary chiefs and customary law.1 mechanics of the transition was rea­ The growth of support during the ched during the 1993 Multi-Party 1980s for the ANC and its allies, who laid emphasis on democracy and Negotiating Process at Kempton appealed to urbanised Zulus, was seen Park, which had been preceded by by Inkatha as a threat to its traditional two rounds of talks (CODESA I and support base. This shift in allegiance II). The political pact which sought to both democratic principles and the to navigate the issues while providing ANC as a party threatened Inkatha s security to some grouprngs, was status and consequently its ability to agreed to by 26 parties, many of bargain for a more central role in the whom had httle apparent legitimacy political life of South Africa. It was in and no mandate.2 It was recorded in this context that violence took increasing the interim Constitution3 and secured precedence as a means of political the participation in elections of all but expression, and it was such predica­ extreme groupings on the political ments, issues and problems that drove spectrum. The interim Constitution and shaped the negotiation process also contained the 34 Constitutional between the apartheid government Principles which would govern the and liberation movements which final Constitution. delivered a two-phase transition to democracy.

The Interim Constitution

Negotiations The first phase of the transition began on 27 April 1994 when the The transition process is seen to interim Constitution came into force. have begun officially on 2 February The second and final phase would 1990, when then President F. W. de begin when the final Constitution, Klerk made his now famous speech drafted by an elected Constitutional unbanning organisations such as the Assembly, came into force in 1997. ANC, the Pan Africanist Congress (PAC), and South African Communist Until 27 April 1994, South Africa's Party (SACP), and announcing the white minority parliament was sove­ start of negotiations for a democratic reign and the courts, staffed largely

1 In KwaZulu-Natal there is a king of the Zulus as well as 250 chiefs who govern the four mil­ lion people who Kve under traditional rule. 2 Political organisations at the negotiations included 'governments’ and parties from the nomi­ nally independent homelands. The drafting of the interim Constitution took place with Httle public input and a degree of secrecy attributed by those involved to the need to reach a settlement. However, participants guaranteed that the drafting of the final Constitution would be a transparent affair which sought and used public input. 3 South Africa Constitution Act 200 of 1993. by white males, functioned as mere T he C ou rts technicians who simply interpreted and implemented the law of the land. The negotiators of the • interim Thus, there was no check on State Constitution recognised that the esta­ power. The legislature could adopt blished court system in South Africa any law and the courts had only a pro­ could not be relied upon to be the cedural reviewing function. This chan­ guardian of democracy and human ged when the interim Constitution rights. Most of the sitting judges were came into force.4 white males and were thought to be unsuited to decide on constitutional One of the major themes of the issues in consequence of their training, negotiation process was the need to experience and political temper. A provide protections for minorities and constitutional court was widely seen the crucial debate was whether this as necessary.6 Leaving the old judiciary should occur by way of group rights intact and conferring on them the or in terms of individual rights. The added powers of judicial review would fear was that without the protection be to allow law democratically enacted afforded by a bill of rights, unrestrai­ by the majority to be overturned by a ned majoritarianism could harm mino­ court composed of a partisan and insu­ lated minority. Some argued for the rities or members of minority groups decentralisation of the constitutional and that, therefore, a check on the powers of the courts,6 wanting to power of the majority was essential. enable all courts to strike down legis­ Constitutional supremacy was seen as lation or administrative acts that the solution and was established by transgressed constitutional bounda­ section 4, which stated: ries. Critics of the decentralised model argued, however, that not even the This Constitution shall be the appointment of more judges would supreme law of the Republic solve the basic problem that members of and any law or act inconsistent the old apartheid judiciary would be with its provisions shall, unless the beneficiaries of these enhanced otherwise provided expressly or judicial powers and were ill-suited to by necessary implication in this wield them. The view that won out Constitution, be of no force was that one court, meticulously selec­ and effect to the extent of the ted and well-balanced, should have inconsistency. the powers of constitutional review, at

4 Section 251 of the Constitution of the Republic of South Africa Act 200 of 1993. 5 Dugard “Judicial Power and a Constitutional Court” paper delivered at a Conference on a Constitutional Court (1991) 70 at 73. 6 See Chaskalson "A Constitutional Court: Jurisdiction, Possible Models and Questions of Access” paper at the Constitutional Court Conference 91 at 95; Cowling 195 and Didcott quoted in Cowling fn 19. least for the initial transition period. legal order. To borrow from Judge Thus a new court, the Constitutional Jackson in the United States, the Court, was grafted on to the existing belief was that the purpose of a bill of judiciary to function at its apex toge­ rights in the South African context ther with the Appellate Division. would be to Composed of 11 judges, this court has jurisdiction as “the court of the final withdraw certain subjects from the instance over all matters relating to vicissitudes of political controversy, to the interpretation, protection and place them beyond the reach of majori­ enforcement of the provisions of the ties and officials and to establish them as Constitution”.7 legal principles to be applied by the courts. One’s right to life, liberty, and At the same time, a new structure property, to free speech, a free press, for appointing judges was established. freedom of worship and assembly, and The Judicial Services Commission other fundamental rights may not be (JS C ) was a response to calls for a fai­ submitted to vote; they depend on the rer process of judicial appointment outcome of no elections.9 than had pertained in the past, and was aimed at securing a wider variety of Various sections entrenched the input on judicial appointments and supremacy of the rights contained in thus adding broader representation Chapter 3 of the Constitution over and credibility to the Bench. The JS C other law and administrative actions. is specifically required to: Section 7(2) stated, for example:

This Chapter shall apply to all have regard to the need to law in force and all administra­ constitute a court which is inde­ tive decisions taken and acts pendent and competent and performed during the period of representative in respect of race operation of this Constitution. and gender.8 Although it does enshrine rights widely regarded as universal, South Africa’s Bill of Rights also reflects the Bill of Rights country’s unique situation10, including provisions aimed at dealing with a The interim Constitution included brutal past and others recognising a a chapter on fundamental rights, the multicultural society. One of the first time in South Africa’s history that clauses that provoked heated debate a bill of rights had been part of the was section 28, which protects the

7 Section 98(2). 8 Section 99(5) (d). 9 Judge Jackson in Wedt Virginia Board of Education v Barnette 319 U.S. 624, 638 (1943). 10 See J D van der Vyver Comparative Law in Constitutional Litigation' (1994) 111 S A L J 19. right to acquire property and not to be achieve the adequate protection and deprived of it without compensation.11 advancement of persons or groups or categories of persons disadvantaged unfair discrimination”15 and, in similar vein, provided for the “right to E q u a lity respect for and protection” of dignity which has generally been deemed to The right to equality is a key provi­ be the right of individuals to be trea­ sion, given the previous lack of equali­ ted with dignity by the State.16 ty in the country. The equality section also provides for equal protection,12 an important amplification in the context of a history of racial oppres­ R eligion sion whose eradication was at the centre of the struggle for liberation The central importance of notions and the transition to democracy. of equality can be seen in provisions Indeed, the whole thrust of the nego­ tiating process was to ensure a “non- on religion, belief and opinion. The racial, non-sexist South Africa”.13 It right to freedom of conscience, reli­ must be said, however, that nowhere gion, thought, belief and opinion is near as much attention was devoted to guaranteed and these provisions effec­ overcoming gender oppression as to tively reduced the power and influence racial oppression. of the Church, particularly the Dutch Reformed Church, which partnered In addition to forbidding discrimi­ the apartheid regime, giving equal place nation on the basis of “race” and “gen­ for the first time to other religious der”, the Bill of Rights also prohibited denominations as well as opinions and discrimination on the basis of beliefs outside of organised religion. A much stricter differentiation and sepa­ sex, ethnic or social origin, colour, ration between Church and State was sexual orientation, age, disability, reli­ brought into being and, while the gion conscience, belief, culture or lan- Church is still able to influence indivi­ guage. 14 duals, it will not have the power to affect government policy which was It insulated from constitutional wielded by the Dutch Reformed challenge “measures designed to Church in the apartheid era.

11 Section 28. 12 Section 8(1). 13 Sunday Tinted 8 August 1993. 14 Section 8(2). 15 Section 8(3). 16 Cachalia et al (nl43) 33. L an gu age Every person shall have the right to use the language and to In the past, despite the multilingual participate in the cultural life of character of the population, South his or her choice.18 Africa had only two official languages - English and Afrikaans. One of the proposals on the negotiation table was that the new democratic South Africa Structure of the State should officially recognise only a single language in order to facilitate The question of the structure of the national unity, communication and State was one of the major bones of contention during negotiations. At easier and cheaper administration. issue was the extent to which the Those who would have had their lan­ governing structures in the country guages excluded resisted this and their should be decentralised. This was view found favour with the drafters of highly contested terrain for political the interim Constitution. Section 3 parties since much of their support thus provided that 11 languages was ethnically based and, in some would be the official languages of the cases, regronally based. State at national level and “conditions shall be created for their development The inevitable result was a com­ and for the promotion of their equal promise, providing for three levels of use and enjoyment”. In addition, pro­ government. A legislature (the vision was made for the establishment of National Assembly and the Senate) an independent Pan South African and nine regional parliaments were Language Board to develop South provided for. Moreover, to ensure a African languages as well as: smooth and peaceful transition, ‘sun­ set clauses' were written into the inter­ German, Greek, Gujerati, Hindi, im Constitution, essentially giving minority parties a stake in govern­ Portuguese, Tamil, Telegu, Urdu, and ment. Thus, while the ANC was the other languages used by communities majority party in the legislature, the in South Africa, as well as Arabic, government is a government of natio­ Hebrew, and Sanskrit and other lan­ nal unity (GNU), with the cabinet guages used for religious purposes.17 composed of the ANC, the National Party (NP) and the IFP. This conti­ In addition the Bill of Rights pro­ nued until mid-1996 when the NP vides that: withdrew from the GNU.

17 Section 3 (10) (c). 18 Section 31. Electoral system An ongoing question is thus whe­ ther the list electoral system is the cor­ The April 1994 elections saw the rect one for South Africa or whether a electorate vote for two of the three hybrid situated somewhere between tiers of government - national and pro­ the constituency and list systems vincial parliaments on the basis of pro­ would be preferable. The argument portional representation and a party for a hybrid system is that it would list. This system was established to remove the problems associated with ensure representation of small parties the list system while also dealing with and minorities which, it was argued, concerns arising from the “first past the post” result of the constituency- would not occur within the consti­ based system. tuency system that operated in South Africa until 1994. However, while At a national level the ANC recei­ ensuring that usually marginalised ved just over 63% of the vote. At pro­ groups will enjoy some representation, vincial level the ANC achieved a the current system tends to reduce majority in seven of the nine pro­ debate in Parliament, limits accounta­ vinces. Thus, two provinces are bility and decreases the overt concern of controlled by parties other than the individual representatives with public ANC: KwaZulu-Natal by the Inkatha opinion. Parliamentarians tend to toe Freedom Party, and the Western Cape the party line because the party is able by the National Party. to ensure compliance and because the individual parliamentarian wants to In Premier of KwaZulu-Natal and obtain a place on the party list in the Others t> President of the Republic of South future. In other words, under the list Africa and Otherd, 9 the Constitutional system, the power of the party, or Court20 focused its attention on the rather the party leadership, increases, ability of parliament to amend the unless there is an overt attempt by a interim Constitution specifically in number of members to remain inde­ relation to the powers of the pro­ pendent. vinces.21 The issue had much to do

19 CCT/36/95; 1995 (12) BCLR 1561 (CC). 20 The court heard argument in the case on 15 November 1995 and delivered its judgment on 29 November 1995. 21 The amendments which were challenged were: clause 149(10), which permitted the President, rather than the relevant provincial legislature, to determine the remuneration of premiers and provincial executive councils; clause 182, which empowered the President to determine guidelines for identifying which traditional leaders would become ex officio members of local government councils; clause 184(5), which relieved government of the duty to consult with traditional leaders before passing legislation affecting them until such time as the Council of Traditional Leaders had been set up. This amendment validated legislation giving central government, rather than the provinces, the power to pay traditional leaders. The legislation had been passed by Parliament but had not been signed by the President; clause 245 which provided that local government could not be restructured by provincial governments until 31 March 1996. with a struggle for power resulting major support base consists of people from the election outcome of an ANde­ who believe very strongly in the tradi­ controlled government at national tional system of hereditary chiefs.23 level and two provinces controlled by other parties. The issue also has Under apartheid traditional leaders important ramifications for the streng­ played little formal role and African th of the regions vid-a-vuf the centre. customary law was treated by the legal system with much derision. Although The applicants in the case argued many South Africans believed in and that the amendments to the complied with these laws, they were Constitution were unlawful because given very little weight and were not the central government had failed accorded the deference they deserved. to comply with a section in the Constitution which required that a In the podt-apartheid society custo­ province must agree to amendments mary law will enjoy greater status and that affected it. The court dismissed this is given constitutional force in this argument, ruling that the section various sections. However, as a result applied only to an amendment that of the outcry from women when it see­ affected a particular province and not, med that customary law, which is as was the case with the amendments often discriminatory against women, in dispute, where all provinces were would be given special status and affected. In a unanimous decision,22 immunity from constitutional review, the court therefore ruled that the four section 33(2) of the interim constitutional amendments affecting Constitution stated: local government, traditional leaders No law, whether a rule of the and the power of provinces to pay pre­ common law, customary law or miers were not unconstitutional. legislation, shall limit any right entrenched in this chapter.

Traditional Authority In addition, section 35(3) stipula­ ted that when performing the The role and status of traditional interpretation of any law and leadership and African customary law the application and develop­ are issues that have occupied much ment of the common law and attention in South Africa. Besides customary law, a court shall their relevance (or offensiveness) to have due regard to the spirit, South Africans, they have been fore­ purport and objects of this grounded by the fact that Inkatha’s Chapter.24

22 Judgment delivered by Justice Mahomed. 23 In KwaZulu-Natal there is a king of the Zulus as well as 250 chiefs who govern the four mil­ lion people who live under traditional rule. 24 Section 35(3). Sections 181 to 184 dealt with tra­ State Institutions Supporting ditional authority and provided for D em ocracy the establishment of provincial houses of traditional leaders. These houses The interim Constitution establi­ were to be consulted on legislation, shed a number of institutions to pro­ and were mote democracy and human rights. These structures were seen to be critical , entitled to advise and make against the background of the prior proposals to the provincial legis­ absence of human rights and the need to lature or government in respect entrench a human rights culture and of matters relating to traditional act against State repression, corrup­ authorities, indigenous law or tion and anti-democratic practices. the traditions and customs of The institutions provided for included traditional communities within the Human Rights Commission,29 the the province.25 Commission on Gender Equality,30 the Commission on the Restitution of A National Council of Traditional Land Rights,31 and the Public Leaders was also established, constitu­ Protector. ted of 20 individuals elected by an electoral college made up from mem­ bers of provincial houses of traditional leaders. 6 The council was constitutio­ Human Rights Commission nally empowered “to advise and make recommendations to the national The Human Rights Commission's government” and the President when tasks were (and are) to develop and requested to do so.27 Parliamentary promote human rights by promoting bills dealing with issues in the compe­ community awareness and education, tence of the council had to be referred making recommendations to to it. However, opposition by the Parliament, reviewing legislation, and, council to a bill had only a 30-day importantly, investigating alleged vio­ delaying effect.28 lations of fundamental rights and

25 Section 183(2) (a) 26 Section 184. 27 Section 184(4). 28 Section 184(5) (c) 29 Sections 115-18. 30 Sections 119-20. 31 Sections 121-23. 32 Sections 110-14. assisting victims to secure redress. process of establishment and appoint­ Powers of the commissioners are far- ment, the imperative of independence reaching. For example, in conducting and impartiality, powers and func­ investigations, they or others directed tions, staff and expenditure, and pro­ by them may enter and search pre­ vided for the establishment of provincial mises and gain access to information public protectors. relevant to any investigation. They may compel any person to produce The functions of the Public any document and answer questions Protector are, firstly, to investigate under oath. The commission even has any conduct in State affairs, or in the the power to take disputes to court. public administration in any sphere of government, that is alleged or suspected While such powers can be abused, to be improper or to result in any they were seen as necessary to ensure impropriety or prejudice; secondly, to that the Commission has the ability to report on that conduct; and, finally, to promote and protect human rights. take appropriate remedial action. The Public Protector is also empowered to The appointment procedure speci­ investigate, report and take remedial fied in the interim Constitution pro­ action in relation to improper prejudice, vides for commrssioners to be maladministration, dishonesty or nominated by a joint parliamentary improper dealings with respect to committee, composed of one member public money, improper enrichment, of each political party in Parliament. and receipt of improper advantage. The committee must nominate 11 The office is concerned not only with South Africans who are “fit and pro­ ensuring the honesty of those working per persons" and who are “broadly for the State but also with ensuring representative of the South African that they treat citizens with respect. community”. Parliament then The power of the office is made clear approves the nominations. Unfor­ by the right of search, seizure and sub­ tunately but predictably, this procedu­ poena conferred on it. re saw the committee appoint commis­ sioners whose political leanings broadly represent the political parties Commission on the Restitution in Parliament. o f L a n d R igh ts

The question of land restitution is The Public Protector dealt with in the interim Constitution by the 'establishment of the The office of the Public Protector Commission on the Restitution of was created by the interim Land Rights.33 This is one of the Constitution which laid down the three legs to the land policy which is

33 Sections 121-3 of the Constitution of the Republic of South Africa Act 200 of 1993. currently being pursued by the The Truth and Reconciliation government. These are land restitu­ Commission36 tion, land redistribution through mar­ ket-related mechanisms, and land The interim Constitution also pro­ tenure reform.34 The Commission has vided for a process, embodied in the the responsibility of receiving, investi­ Truth and Reconciliation Commission, gating and taking forward claims and to establish the truth about the past, the law details how claims must occur promote reconciliation37 and grant and how the Commission must deal amnesty for politically motivated with them. The Land Claims Court is crimes committed during the apartheid tasked with the responsibility of rati­ years.38 To promote this endeavour fying agreements mediated by the the interim Constitution39 provided that: Commission, as well as arbitrating in cases where no agreement can be rea­ amnesty shall be granted in res­ ched. The Court s principal powers He in pect of acts, omissions and the ability to determine restitution, offences associated with politi­ compensation and rightful owner­ cal objectives and committed in ship.35 the course of conflicts of the past. To this end Parliament under the constitution shall Commission on Gender Equality adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990, and The Commission on Gender before 6 December 1993, and Equality’s object is to promote gender providing mechanisms, criteria equality and to advise and make and procedures, including tribu­ recommendations to Parliament or nals, if any, through which such other legislatures on laws or proposed amnesty shall be dealt with at laws which affect gender equality and any time after the law has been the status of women. passed.

34 See generally A. J. van der Walt, 'Land reform in South Africa since 1990 - an overview’ Vol 10 (1) South African. Public Law (1995) 18. 35 Guidelines for applications were determined in Ex Parte Macleantown President! Association; In Re: Certain Erven and Commonage in Macleantown (199 6) 3 All SA 259 (LCC). 36 See generally J. Sarkin ‘The Trials and Tribulations of South Africa’s Truth and Reconciliation Commission’ (1996) 12 The South African Journal on Human Rights 61 7 and H. Varney and J. Sarkin 'Failing to Pierce the Hit Squad Veil: An Analysis of the Malan Trial’ South African Journal of Criminal Justice (1997 forthcoming). 37 There have been further negotiations in KwaZulu-Natal between the A N C and the IFP for ano­ ther amnesty for perpetrators of violence in that province as part of a peace agreement. This further amnesty arrangement, if agreed to, could have devastating negative results for the rule of law. 38 See the postamble of the interim Constitution. 39 Act 200 of 1993. It w as considered vital for the futu­ It has been of critical importance re of the emerging democracy that a that victims from all political persua­ forthright and explicit acknowledge­ sions have been given a platform42 to ment of the devastating misery of the testify to their suffering and reclaim preceding years should occur. A truth their dignity, while perpetrators have and reconciliation commission was an arena in which to declare their sins deemed a suitable mechanism for this and be given amnesty in exchange for mission and for the considerable ambi­ the full truth. Thus the possibility of a tion of uniting an intensely polarised national catharsis has been established populace. on the basis of testifying by victims, amnesty for perpetrators who make full disclosure, and some type of repa­ Many resisted the truth-disclosing ration and rehabilitation for victims. process on the basis that covering up The final report of the Commission, the trauma of the past would have no including recommendations,43 should negative effects and that reopening assist in ensuring that gross human old anguish could be destructive. rights violations do not occur in South Supporters of this view advocated a Africa again. blanket pardon for perpetrators of abuses.40 However, the opinion that The creation of this institution was held sway was the notion that a demo­ characterised by open debate and cratic State founded on human rights significant involvement of civil so­ ideals could not deny the atrocities of ciety. Non-governmental organisa­ the past. These had to be revealed and tions (NGOs), which had frequently the misery of the victims recognised, been victimised under a p a r t h e i d now thus enabling recovery of a concealed operated in a climate friendly to history, albeit only between 1960 and human rights. While many NGOs 1993/1 were initially averse to playing a

40 G. Simpson “Blanket Amnesly Poses a Threat to Reconciliation” BiuiwM Day 22 December 1993. 41 The cut-off date for acts for which amnesty could be granted was a major bone of contention. The Freedom Front (FF) and the PAC called for extension of the cut-off date from December 1993 until 10 May 1994, the date of President Nelson Mandela's inauguration. This would have enabled their members who were involved in preelection violence to be included in the process. While the extension was not agreed to, President Mandela indicated when the enabling legislation was passed that the achievement of peace throughout the coun­ ty, especially in KwaZulu-Natal, could pave the way for the constitutional amendment which would be necessaiy to extend the cut-off date. In the spirit of reconciliation, this extension was agreed to, a year after the commission began its work. 42 Some victims disagree with this assertion; see N. Ali “Focus on the Truth” Sowetan 14 February 1995; and P. van Zyl "Hiding Behind the Truth” Weekly M ail 27 January to 2 February 1995. 43 The Commission’s recommendations will possibly include an opinion on whether individuals found to have committed gross human rights violations should hold public office. See this author’s comments in Janet Levy ‘Perilous Purge’ 10 (4) Democracy In Action (July 1996) 5. 44 See S Friedman ‘An Unlikely Utopia: State and Civil Society in South Africa’ (1991) 19(1) Politikon 5. robust role, those that have survived threat of potentially substantial civil funding and other difficulties have damages claims. been able to successfully navigate the transition and make important contri­ The Court also dismissed the argu­ butions to the ongoing process of poli­ ment that the State was obliged by tical transformation. international law to prosecute those responsible for gross human rights The constitutionality of the legisla­ violations, finding that South Africa tion establishing the Truth and was not bound by the international Reconciliation Commission was chal­ instruments relied on by the appli­ lenged in The Azanian Peopled cants. Organisation (AZAPO) and Otherd t> The Predident of the Republic of South Africa. In relation to the issue of State The political party Azapo and the immunity from civil claims arising families of slain activists challenged from wrongs committed by its the provisions on the grounds that employees, the Court had to consider perpetrators who were granted the argument that wrongdoers would amnesty were exempt from criminal not be discouraged from coming for­ and civil liability. This, it was argued, ward if their own liberty or property together with the denial of the right to was not threatened by their revela­ claim civil compensation from the tions. While the Court conceded this, State, violated the constitutional right it stressed that Parliament had legiti­ to have justiciable disputes settled by a mately exercised the choice to divert court of law or another independent limited State resources to reconstruc­ and impartial forum. tion and development. In addition, Parliament had provided for a repara­ The Constitutional Court ruled tions process in the Act, which would against the applicants, finding the take into account the claims of each amnesty provisions to be constitutio­ victim. nally valid. The court noted that it had been agreed that the granting of amnesty in respect of criminal prose­ cutions was central to the process of reconciliation and transformation to The 1996 Constitution democracy. The drafting of the final The Court went on to consider Constitution was the second phase of arguments against the granting of the transition in South Africa. The amnesty in respect of civil liability of interim Constitution, which ushered in wrongdoers. After stressing that the first phase, provided for the amnesty did not necessarily ref' r only to Constitutional Assembly to draft the the narrow context of criminal prose­ final Constitution. The Constitutional cution, the Court pointed out that Assembly (CA) process, which began wrongdoers would be discouraged after the 1994 elections and culmina­ from revealing the truth if there was a ted in the adoption ceremony two years later, on 8 May 1996, has been for international mediation on the hailed not only as unique but also as extent of power which should be given one of the most democratic and inclusi­ to provinces in the final Constitution. ve constitution-making exercises in Efforts to draw the IFP back into the history. process failed, and the IFP boycott threatened to undermine the legitimacy of the final Constitution.

Drafting Process The drafting process proceeded slowly at first but picked up speed by the second year. In accord with ideals of The CA, composed of the 490 transparency and inclusiveness, a members of the elected National public participation plan was set in Assembly and Senate, was given two motion. 6 Public comment was elicited years to negotiate a constitution in through various mechanisms, inclu­ accordance with the Constitutional ding public hearings, talk-lines, the Principles. Two-thirds majority appro­ Internet and written and oral submis­ val was required and the sions. Two types of public hearings Constitutional Court would be the were held: sector hearings, which tar­ final arbiter on whether the text geted specific groups such as traditional honoured the commitments enshrined leaders, business, women and religious in the interim Constitution. groups; and constitutional public mee­ tings, which targeted certain, mainly Conflict about the relative power rural areas. In addition, various theme of national and provincial government committees46 heard submissions and continued to be a dominant theme in reviewed documents submitted by a all areas of South African politics, variety of interested parties. Over five including the Constitutional million draft constitutions in 11 lan­ Assembly. Indeed, the IFP withdrew guages were made available to the from participation in the CA on the public for discussion in November grounds that other parties had rene­ 1995.47 Thus, at the very least, the ged on an agreement about the need process was beneficial in imparting

45 See generally Public participation kicks off’ Constitutional Talk (10-23 February 1995) 1; 'Towards a new constitution’ Corutitutumal Talk (30 June-10 August 1995) 1; 3. 46 The themes addressed by these committees were: 1) character of State; 2) structure of State; 3) relations between levels of government; . 4) fundamental rights; 5) judiciary and legal systems; 6) specialised structures. 4 7 The working draft reaches millions’ Condtitutional Talk (9-29 Februaiy 1996) 2. Much emphasis was placed on plain language to make the text accessible to all South Africans. Sometimes, however, clarity and precision suffered. knowledge about constitutionalism to ted itself to finalising the text by 11 members of civil society.48 However, October. The IFP then announced its the extent of the effect of pubhc com­ intention to end its boycott of the ment is unknown. constitutional process and indications were that the IFP aim was to streng­ The text was finally adopted in then provisions dealing with the role Parliament on 8 May 1996 and after of traditional leaders and the Zulu the adoption ceremony the king, particularly in the context of Constitution was referred to the local government. Constitutional Court49 for determina­ tion of whether its provisions com­ However, although it was reported plied with the 34 Constitutional that agreement had been reached, the Principles contained in the interim return of the IFP to the CA was short­ Constitution.50 lived.

Initially, only political parties were The vote in the CA on 11 October permitted to present written and oral mirrored the outcome on 8 May. arguments to the Constitutional Court Argument on the revised text was on the issue of certification. Later, heard in the Constitutional Court however, provision was made to allow from 18 to 20 November 1996, with the public to submit argument to the the Democratic Party, the Inkatha Court as well.51 Members of the Freedom Party and the KwaZulu- pubhc were permitted to submit written Natal government requesting the objections by 31 May 1996.52 court to reject the text for a second Hearings took place during the first time. A further 18 organisations and weeks of July and a unanimous judg­ individuals also lodged objections. The ment was delivered on 6 September court unanimously granted certifi­ ruling that certain provisions did not cation in its judgment handed down comply with the Constitutional on 4 December. 4 Although certain Principles.53 parts of the interim Constitution remained in force, the revised and Negotiations resumed by mid- final Constitution came into force on September 1996 and the CA commit­ 4 February 1997.

48 ‘Excellent results for CA media campaign’ Constitutional Talk (22 April-18 May 1996) 7. 49 Section 73(2) read with sections 71(2) and (3). 50 Section 73(1) and 71(1). 51 Letter from the Human Rights Committee to the President of the Constitutional Court c'ated 18 April 1996.

52 See document submitted by the Human Rights Committee to the Constitutional Court c m 29 May 1996 entitled ‘Certification of the Constitution adopted by the Constitutional Asseiri1 >'y on 8 M ay 1996’. 53 Ex parte Chairperson of the Constitutional Assembly; in re Certification of the Conjtitutwf the Republic of South Africa 1996 (10) BCLR 1253 (CC). 54 Certification of the Amended Text of the Constitution of the Republic of South Africa 1996 CCT 37/96. The B ill o f R igh ts E q u ality

The Bill of Rights in the final The equality clause59 has been Constitution protects more rights than strengthened. While the list of prohi­ the interim Constitution did. The Bill bited grounds for discrimination is not of Rights not only binds the State exhaustive, three are added: pregnan­ (vertical application) but, to the extent cy, marital status and birth. A further that the nature of the rights permit, it significant addition is protection of the also binds private and juristic persons right to substantive equality, achieved (horizontal application).55 • To what by including the terms “the right to extent it will operate horizontally, equal benefit of the law”. Thus, the however, remains for the courts to final Constitution requires more than determine. formal equality in law; equality must be achieved in the effect and impact of laws as well. Clauses similar to those contained in the interim Constitution protect cul­ tural, religious and language rights. Among the provisions of the lan­ Socio-Economic Rights guages clause 6 is a duty on the Pan South African Language Board to An important debate was whether “promote and create conditions for the socio-economic rights should be pro­ development and use of" all official tected as fundamental rights. This was languages, the Khoi, San and Nama critical in the context of historical languages and sign language. The exclusion of the majority of South rights of cultural, religious and lin­ Africans from much of the economic guistic communities are protected,57 as and social life of the country.60 While is the right to freedom of religion, all parties expressed commitment to belief and opinion.58 It is noteworthy, the underlying goal of social and eco­ however, that the exercise of cultural nomic upliftment, some balked at and religious rights is explicitly sub­ affording socio-economic rights the ject to conformity with the Bill of status of fundamental rights. The rea­ Rights. sons lay in traditional scepticism about

55 For a discussion on the implications of direct horizontal appHcation, see Peter Leon ‘Nanny or Watchman' - the role of the Bill of Rights under South Africa’s Final Constitution’ De Rebud (July 1996) 461-64; see generally ‘Judiciary could make a minefield of Constitution' Budinedd D ay (16 May 1996) 15. 56 Section 6. 57 Section 31. 58 Section 15. 59 Section 9. 60 See ANC The Reconstruction and Development Programme: A Policy Framework (1994) 3. enforceability of the rights and the Commission to demand information desirability of involving courts in deci­ from relevant organs of state on mea­ sions about economic and welfare sures taken towards the realisation of policy. The bias in the interim rights relating to housing, health care, Constitution in favour of civil and food, water, social security, education political rights can be explained in and the environment. light of these concerns.

The final Constitution goes farther than the interim Constitution, provi­ Freedom of Expression ding for the right to a basic education (section 29) and the right of access to In the context of a divided and adequate housing (section 26), health polarised society the question of what care services, including reproductive should constitute constitutionally pro­ health care, sufficient food and water tected speech was highly disputed. and social security (section 27). The freedom of expression clause61 Access to land through land reform was, therefore, the subject of much measures is also provided for (section debate. An ANC proposal that a 25) and children have special entitle­ prohibition against hate speech should ments (section 28). be included in the final Constitution proved controversial, drawing opposi­ These clauses attempt to ensure tion from the DP as well as groups that the State will continue to improve advocating free speech. There was the living conditions of South Africans particular concern at an internal through better nutrition, clean and limitation of the right to freedom of convenient water sources, and impro­ expression in addition to the “reaso­ ved health care and housing. It should nable and justifiable” limitation of be noted, however, that the language rights provided for in section 36, the used circumscribes the scope of most limitations clause. The ANC view of these rights. Thus, the right is of prevailed and thus the right to free­ “access to” adequate housing or suffi­ dom of expression does not extend to cient food or water. In addition, the propaganda for war, incitement to duty imposed on the State is “to take imminent violence or advocacy of reasonable legislative and other mea­ hatred that is based on race, ethnicity, sures” to realise the right. It is, there­ gender or religion and that constitutes fore, clear that the realisation of these incitement to cause harm. Considering rights will largely depend on the ability the history of South Africa and the of the State to deliver. However, to potential for unfettered freedom of counter the problem of enforcement expression to affect race relations, the which exists in regard to progressive reasons for proposing these limitations realisation of rights, section 184(3) are understandable. Nevertheless, mandates the Human Rights limiting expression in these ways is no

61 Section 16. guarantor of positive social relations property. It was further argued that and may, in fact, serve to sanction the Constitution should be drafted to repression of free political debate. ensure that equitable land reform (res­ titution and redistribution) could take place.

P ro p erty As a result the property clause per­ mits land, water and related reform to A provision that was subject to occur62 as well as restitution or equi­ much debate, because of past unjust table redress to those dispossessed in practices relating to land and present the past.63 The clause further man­ ownership patterns, was the property dates the State to “take reasonable clause. In fact, during negotiations on legislative and other measures, within the Bill of Rights three issues remai­ its available resources, to foster condi­ ned contentious right until the night tions which enable citizens to gain before adoption day: education, pro­ access to land on an equitable basis”.64 perty rights and labour rights. However, the clause states that “no law may permit arbitrary deprivation One of the arguments for including of property.”65 Where property is a property clause was that, without it, it expropriated, this can be done only in would be difficult to entrench the terms of “law of general application” rights of those unfairly dispossessed of and for a “public purpose or in the rights in property to reclaim what was public interest” and “subject to com­ rightfully theirs. It was also argued pensation” which has been “agreed to that there was value in entrenching a by those affected or decided or appro­ right to acquire properly which had ved by a court”.66 Public purpose is been denied to the majority along defined to include “land reform" and racial lines, and that such a clause “reforms to bring about equitable would prevent arbitrary dispossession access to all South Africa’s natural by the State in the future. resources « .67

On the other hand, it was conten­ In terms of section 25(3), compen­ ded that the Constitution should not sation for expropriation must be have the effect of protecting unjustly acquired privileges and a clause just and equitable, reflecting an should therefore not entrench the equitable balance between the rights of those unfairly privileged in public interest and the interests

62 Section 25(8). 63 Section 25(7). 64 Section 25(5). 65 Section 25(1). 66 Section 25(2). 67 Section 2 5 (4 ). of those affected, having regard to applicable, this law still remains sub­ all relevant circumstances, ject to the Constitution.69 The including - Constitution permits national or pro­ a) the current use of the proper­ vincial legislation to provide for the creation of houses of traditional lea­ ty ders.70 National legislation, in addi­ b) the history of the acquisition tion, may establish a council of tradi­ and use of the property; tional leaders/1 and may provide a c) the market value of the pro­ role for traditional leaders at local perty; level on issues that affect local com- mumties.• • 72 d) the extent of direct State investment and subsidy in the acquisition and beneficial capital improvement of the Institutions Supporting Democracy property; and e) the purpose of the expropria­ Again like its predecessor, the 1996 tion. Constitution provides for State insti­ tutions supporting democracy. However, the appointment mecha­ nisms fail to ensure that those appointed Traditional authority will be people concerned with human rights rather than political appoin­ Like the interim Constitution the tees/3 and this impacts negatively on 1996 Constitution affords recognition both the effectiveness and credibility to traditional authorities and customa­ of these structures. ry law, providing that the During negotiations on these institution, status and role of tradi­ human rights institutions, the major tional leadership, according to custo­ controversy was whether the power to mary law, Eire recognised, subject to appoint and dismiss members should the Constitution.68 rest with the majority party or whe­ ther a higher level of consensus should While the courts are directed to be obtained. The appointment mecha­ apply customary law when that law is nism finally accepted provides for

68 Section 211(1). 69 Section 211(3). 70 Section 212(2)(a). 71 Section 212 (2) (b). 72 Section 212(1). 73 See Barbara Whittle The Public Protector, Auditor-General, Pubhc Service Commission and SA Reserve Bank' De RebuJ (July 1996) 407; 'Independence of the HRC threatened' Cape Timed (28 November 1996) 2. nominations made to the National and the Auditor General - were also Assembly by a “committee of the provided for in the interim Assembly proportionally composed Constitution. of all parties represented in the Assembly”/ 4 However, the failure to The Electoral Commission is a new establish an independent appointment institution, born of the decision to process comparable to that pertaining place responsibility for free and fair to the Truth and Reconciliation elections in the hands of an indepen­ Commission/5 is disappointing. The dent structure. clause permitting civil society invol­ Also new is the Commission for the vement in the nomination process is Promotion and Protection of the not sufficient safeguard against politi­ Rights of Cultural, Religious and cal appointments. Linguistic Communities. Its establish­ ment represents a compromise rea­ The institutions are: the Public ched at the famous Waenhuiskrans Protector/7 the Human Rights multilateral in April 1996 to accommo­ Commission, the Commission for date the NP’s demands for special the Promotion and Protection of protection of language and cultural the Rights of Cultural, Religious rights. and Linguistic Communities78, the Commission for Gender Equality, the An Independent Authority to Auditor-General and the Electoral Regulate Broadcasting is also created Commission. Four of these - the to ensure fairness and a diversity of Public Protector, the Human Rights views broadly representing South Commission, the Gender Commission African society.

74 Section 193(5). 75 See generally Jeremy Sarkin 'The Trials and Tribulations of the South African Truth and Reconciliation Commission' (December 1996) South African Jou rn al on Human RighU 617. 76 The role of civil society is mentioned a few times in the Constitution. In section 59(1) (a) and 72(1) the National Assembly and National Council of Provinces are directed to facilitate public involvement in the legislative and other processes and conduct their business in an open manner. Unfortunately, however, sections 59(1) and 72 (b) state that ‘reasonable measures may be taken to regulate pubhc access, including access of the media’. Both section 59(2) and 72(2) also permit the public to be excluded from a committee if ‘it is reasonable and justi­ fiable to do so in an open and democratic society'. One can only hope that these sections will be narrowly construed and that section 42(3), which states that the National Assembly provides a ‘national forum for public consideration of issues ’, will be given due weight. The role of civil society is also mentioned in regard to appointments to State institutions sup­ porting constitutional democracy. However, section 193(6) is extremely weakly worded and merely states that ‘The involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1)(a)’. 77 See G. Barrie 'The public protector: fiat ombudsman! ’ De Rebud ( September 1995) 5 80-83. 78 To give further incentive to Afrikaners in their quest for a separate ‘Volkstaat’ provision was also made in section 235 for the ‘recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.’ The only interim Constitution com­ ned with the position of Roman and mission which is absent from the final Roman-Dutch law and insufficiently text is the Land Claims Commission,79 concerned with examining the reasons an omission which can be explained for such a position. The effect of law partly in terms of the body’s envisaged on society and what is just, fair and short lifespan and partly in terms of promotes equality are now key deter­ provisions in the property clause80 minants in both the legislative and dealing with land reform measures. In judicial processes. addition, the property clause in the final Constitution 1 provides for resti­ While the law in South Africa used tution or equitable redress to a person or to be what the politicians said it was, community dispossessed of property the shift to a constitutional system after 19 June 1913 as a result of past means that the law will be what the discriminatory laws or practices.82 Constitution says it is. It this shift to a constitutional system emphasising individual human rights, freedom and C onclusion equality, the role of the courts, parti­ cularly the Constitutional Court, will be fundamental.83 One of the best The interim and 1996 Constitutions have played a major role safeguards of a rights-based democracy in ensuring that the law in South is an independent judiciary, intrepid in Africa adapts to deal with all the pro­ its willingness to uphold the principle blems and challenges facing the of separation of powers and to be the nation. Under the new democratic dis­ guardian of fundamental human rights pensation the Constitutions have and freedoms. emphasised human rights and indivi­ dual freedom while at the same time Indeed, the presence of progressi­ introducing measures to instil confi­ ve-minded individuals, women and dence and inspire trust in and between academics on the Constitutional Court individuals and groups. South African bench has already produced decisions law in the past has been overly concer­ that augur well for the future.84

79 See generally A. J. van der Walt Land reform in South Africa since 1990 - an overview’ Vol 10 (1) South African Public Law (1995) 18. 80 Section 25. 81 Section 25. 82 This date was chosen to ensure that people who were dispossessed of land in terms of the Black Land Act 27 of 1913 would have access to redress for the land removed from them. 83 For more detail on the role of the court in regard to political matters and in regard to certifi­ cation see J Sarkin 'The Political Role of the Constitutional Court’ 114(1) S A L J (1 9 9 7) 134. 84 See J Sarkin 'Problems and Challenges Facing South Africa's Constitutional Court: An Evaluation of its Decisions on Capital and Corporal Punishment’ 113 South African Law Jou rn al ( 1996) 71; J. Sarkin ‘Abortion and the Courts’ in S. Liebenberg (ed) Towards A Final Constitution: A Gender Perspective (1995) 217. Crucial, also, is the unifying effect been inclusive and legitimate. If there of a constitution and bill of rights.85 is a sense that all sectors of a society These documents, in tandem with have been incorporated, then national such devices as the flag86 and national commitment to the ideals and values anthem87, play symbolic roles in facili­ contained in the constitution is enhan­ tating nation building and reconcilia­ ced. If the instrument stems from a tion and can also nurture a striving for process which is only partially suc­ common goals and aspirations. This is cessful at inclusivity, those excluded very dependent, however, on the or marginalised will in all probability extent to which the constitutional view the document as a source of drafting process is perceived to have conflict.

85 See J. Sarkin "W hy There Should Be An Abortion Clause in the Final Constitution’ 4 South African Journal of Human Righbt (1995) 582; Peter W Hogg Constitutional Law of Canada (3rded) (1992) 7967 and Peter Russell ‘The Political Purposes of the Canadian Charter of Rights and Freedoms’ (1983) 61 Canadian B a r Review 30. 86 Section 5. 87 Section 4. The “No Party” or “Movement

Democracy in Uganda

George B. K in/a * *

I — The purpose of this essay is to ticians used to engage in. There is now introduce the new pohtical philosophy a move away from symbols to factual which has been working in Uganda values and substance. The majority of for the last 11 years, the “No Party” people these days demand clear des­ or “Movement” System. I hope to criptions of terminologies used in life show people , particularly in the western so that they are left with no doubt as to what these terminologies mean. world , that there are other political systems which can legitimately pre­ Since democracy has now become sent themselves to countries and run a a measure which different people use democratic government without using to determine what sort of leadership the conventional systems now existing exists in a given country so as to decide in the world. No one is re-inventing whether to deal with that country or the wheel, we are just improving on it. not, it has become essential that we all know what we mean when we talk It has become veiy evident throu­ about democracy. I can feel vibrations ghout the world that without demo­ coming from many of you, wondering cracy and good governance, it is difficult why I should speak such nonsense. If or even impossible to sustain a peaceful, I were to ask what one understands by stable and prosperous country. We democracy I have no doubt that I have to, however, appreciate that would receive many versions of what democracy cannot be decreed. It is a democracy means. There is, therefore, form of culture which evolves over a need to have an internationally time. It should be a life style which has agreed definition of democracy as is to be felt at every level of society and in the case with” the Universal Declaration of all sorts of human activities. Human Rightd As it stands today, one finds that different people have diffe­ One observes that in many coun­ rent meanings of democracy. This tries in the world, pohticians are ultimately makes it difficult to use moving away from dogma, rhetoric democracy as a measure for anything and simple ideologies which past poli­ or anyone.

* Professor George B. Kiiya is Ugandan High Commissioner to the United Kingdom. The most precise definition of suitable in other parts of the world, democracy most universally quoted is including Africa. There are a number that of Abraham Lincoln which talks of examples where particular political of "government of the people, by the systems have been imposed on or bor­ people and for the people". rowed by some countries and this has caused disastrous situations. There are, however, people parti­ cularly from the Northern One, however, sometimes wonders Hemisphere who think that a country to why the western countries tend to be democratic must have multi-par­ believe that to show and prove that a ties. They state that there cannot be country is democratic, it has to be genuine or durable democracy confrontational. It has to divide itself without genuine political parties. In into “pigeon holes” where each the same breath, there is the expres­ “pigeon hole” has people who never sion of there being freedom of choice. talk to one another except when And one wonders as to whom this confronting one another. That there choice is given. One is justified in should be a group of intelligent people asking this question because with par­ whose job is to do nothing but oppose, ties it is known that it is the leadership even if opposing a certarn obvious which decides what the members’ issue may appear stupid. choice should be by writing the party manifesto which binds them all through what is called “collective res­ It is high time that people stopped ponsibility” which they dare not oppo­ being deceived by symbols. Political se in future. They also chose for mem­ parties in a number of African coun­ bers which candidate they should vote tries are mere symbols behind which for. Furthermore, some people tend to are tribal or religious groupings whose use pluralism, but one can go beyond interests are not in any way to build that, as is the case with the Movement the nation but to see themselves in in Uganda. This thinking in itself in a power. This, as a result, leads to lack way tends to drive one to re-write of policies and lack of ideas to build Abraham Lincoln’s definition to read the nation. This in the end becomes “Government of the Party, by the the real enemy of democracy, peace, Party and for the Party”. People in stability and development. this case becoming secondary. The Movement, however, covers choice Experience has shown that in most and pluralism in their broadest and African countries where there are two or freest sense. more strong tribes or strong religious, when politrcal parties are formed, they tend to follow tribal or religious lines and not political ideology or policies. II — I wish here to submit that it is a My diplomatic situation, unfortunate­ fundamental mistake to assume that ly, does not allow me to give many because a political system is suitable in examples, but they are there for all to one part of the world, it will also be see. This has contributed to a large extent to the conflict and the instability by consensus. And this is where the common in Africa. philosophy of a “pendulum-oppojition”\s developed. No single group wins or The only example I can give is that loses all the time. The pendulum of Ethiopia where the people appre­ moves from Zero-opposition on cer­ ciated the problem and, therefore, tain issues to, may be, total opposition decided to base their democracy on on other issues. Under this system, their ethnic differences. They vote therefore, no one group is doomed to within tribal groups. The government be losers all the time. And I must is broad-based, putting into considera­ emphasize that this one of the reasons tion the different tribes. Uganda has in a way eliminated per­ manent groupings with friction and ill- feelings against others, a common This is also why the Movement situation under the conventional philosophy in Uganda encourages free 'fixed-opposition ”, “the government in participation and discussion of issues waiting” philosophy. by everybody at all times. There is the reality that no body has the monopoly over ideas, and that it is through free We have to remind ourselves of the many examples in Africa where multi- exchange of the available ideas that partysm, vehemently pressed for by you enable the important cross-fertili­ the Western countries, has resulted in sation of these ideas to take place. serious confrontations, mostly tribal People are then able to contribute to and other forms of rival and political issues by offering what they consider instability leading into civil wars, des­ and believe is the best solution at the truction of poverty, killings and all material time, instead of waiting until sort of atrocities.. We should try to they may be in power themselves or separate between the right of a people to those with similar thinking. choose freely and the political system where political parties have been Changing of democratic govern­ found to be the best way of governance. ments takes time; it takes a minimum We should also differentiate between of four to five years, often longer. And pluralism in its general form and politi­ what has sometimes happened is for a cal parties. This is why some people bunch of politicians to say that they strongly feel that to define democracy so know better, and they put out a policy that it is all inclusive, one should iden­ which turns out to be futile without tify the ingredients or pillars or ele­ any of the group leadership accepting ments if democracy, so that when one that fact. By the time there is a chan­ judges who is and is not democratic, ge, the damage is done and sometimes these are the ingredients that are put irreparably. to test.

The Movement in Uganda, on the A country should, therefore, be other hand, allows alternative ways of allowed to evolve a political system managing issues , including the run­ which ensures that the principles of ning of state through decisions made democracy are upheld, taking into consideration the historical back­ Since independence, Ugandans ground and experience , geographic appear to have turned themselves into and cultural peculiarities of the popu­ “guinea pigs” for different forms of lation in the country involved. This governance. Since 1962 when Uganda should then provide a basis for jud­ obtained its independence from ging whether a country is democratic Britain, it has gone through at least or not. four different forms of governance. As a result Uganda happens to have the largest number of present and former presidents in Africa, which is a record eight in number in a period of only Ill — Based on the experience in 35 years. It has had multiparty gover­ Uganda over the last twelve years, one nance twice. One from 1962 to 1967 hopes that the international community and again from 1980 to 1985. A one recognizes that the principles or ingre­ party government once from 1967 to dients of democracy should include: 1971 and a military dictatorship once from 1971 to 1979. 1. Free, fair and regular elections of those to govern by those to be Looking at the track record of all governed. these governments, none of them pro­ vided peace or stability for the country which are a pre-requisite for sustained 2. Freedom of Association. growth and development. The govern­ ments were characterized by sectarian 3. Freedom of the Press. politics, Lack of democracy, lack of transparency and a winner takes all 4. Freedom of Expression. attitude during the period, Uganda had three civil wars with large scale 5. Independent judiciary. killings, destruction of properties, gross violation of human rights and 6. Impartial or a genuinely national moral decay. army. As a result of these sad events in 7. Respect of human rights. Uganda, the people, through the National Resistance Movement (NRM) led by, now President Yoweri 8. Accountability Kaguta Museveni, waged a five-year protracted people’s resistance against 9. Provision of food, housing, health, the regimes that were mismanaging clothing and education. the country then. The NRM took over power in 1986, ushering in fundamen­ 10. The right for the population to tal changes in all fields, including a develop among themselves mea­ new political philosophy based on the sures for a better living and not No-Party or Movement political sys­ live under the dangers of poverty. tem of democracy. IV — This is very much in line with tunity to choose, affirm or what was written by the late Professor decent. It is rather the active Claude Ake when he said: involvement in a process: that of setting goals and making "Liberal democracy offers a decisions. More often than not, form of political participation it is the involvement in the pro­ which is markedly different cess rather than the acceptability from and arguably inferior to of the end decision which satis­ the African concept of partici­ fies the need to participate". pation. For the Africans, espe­ cially the rural dwellers, partici­ The late Ake further says that the pation is linked to community. African elite to not want this type of Africans do not generally see democracy because they are mainly themselves as self-regarding interested in democracy as a means to atomised beings in essentially power. They are nervous about the competitive and potentially egalitarian implications of increased conflicting interaction with social and economic rights. others. Rather, their conscious­ ness is directed towards belon­ We should remember that when ging to an organic whole. The there is a crisis or an issue of general point is to find one’s station and national importance, developed coun­ duly in life not to assert one's tries with multi-partis put into play all interest and claim rights over their top brains in what they call others. People participate not cross-party discussion so that at the because they are individuals end they agree to an all party consensus. whose interests are different Thereafter, they address the issue as and need to be asserted but one and speak with one voice. The because they are part of an reason for this obviously is because, interconnected whole. Partici­ often two heads are better than one. pation rests not on the assump­ But more importantly, it is to make sure that they get the best from the tion of individualism and rest and no mistake is allowed to conflicting interests but on the occur. social nature of human beings. Related to this, the African It is also being observed that clear concept of participation is as cut differences in the community much a matter of taking part as regarding policy, ideology and lifestyle of sharing the rewards and are gradually disappearing. It is now burdens of community member­ difficult to feel and also see the clear ship. In addition, in the traditio­ blue water that used to dominate the nal African sense, participation past. This is, perhaps, one of the rea­ is quite unlike the western sons why people talk about global vil­ notion of the occasional oppor­ lage, global economy and so on. When a person takes a country like The philosophy which is being Uganda, it is still backward and advanced by the regime in power in underdeveloped. There is need to Uganda today is, therefore, to build a improve and build roads, there is need democracy which allows free choice for more and better equipped schools by the individual, each rndividual has and hospitals. We also need a more freedom to participate fully without productive and vibrant agricultural fear or favour, without coercion or and industrial sector. We need to arm-twisting; the emphasis being on improve our social welfare and many political empowerment of the people other areas. In such a situation, the from the grass-roots leading to partici­ most sensible thing is to mobilize the patory democracy rather than entire population to collectively put confrontational democracy. Decisions their heads together and carefully plan are then made by consultation and and work for future progress. Leaving consensus rather than “winner takes the building of a nation to one group all”. The Movement could be the with one set of thinking has a danger only political system anywhere, which that if things go wrong, it might take a empowers the electorate, both at local generation to correct the mistake, if at and parliamentary levels to recall their all. This could be very expensive to representative if it is proved that he the nation, not only in monetary or she cannot deliver. terms, but more so in terms of human lives. The Movement political system has a mechanism for internal debates on The bottom line to all this is a poli­ issues which enable it to have an tical system which provides an atmos­ in-built opposition and proposition on phere where everybody is free to the issue being discussed. This makes speak out their minds, everybody is participants at all levels in the free to contribute to local and national Movement, from the President, issues, providing the best from each the Ministers and Members of individual at all times. Parliament, work extra hard if they have to see any of their motions This is why I say that Uganda is through. It is a win-win system. No not re-inventing the wheel as far as single group is found to lose all the democracy is concerned, it is just time nor is there any group winning trying to improve on it. And in the all the time because there is a fluid Ugandan spirit of all inclusiveness and coalition situation all the time. This decisions by consensus , one can has brought about harmony and has predict that countries with multi­ made each individual feel armed with parties are going to find it more and power and choice wherever one is. more necessary to have cross-parly discussions on a number of issues. One needs to emphasize that the Confrontation either by word written, or No Parly or Movement System is not said, or physically, is gradually beco­ the same as one-party form of govern­ ming unacceptable by the majority of ment. It is not a party because one people, as a means of solving issues. does not need to register as a member. One, therefore, cannot be expelled 10. Full participation of women, the from the Movement. This is an all youth and the disabled in the embracing, all accommodating democratic process. Movement System. One is free to express oneself freely any time, asso­ For 11 years now since the No ciate with anybody any time and join Party or Movement Democracy was in discussions of general interest any introduced, Uganda has become the time. The main elements of the island of tranquillity with peace and Movement democratic philosophy stability never experienced before. include: There is more unity among the peoples of Uganda. The country 1. All leadership and policies come enjoys among the fastest economies in from grassroots through strong vil­ the region, averaging between 6-12% lage and local governments. if G D P per annum.

2. Individuals being elected to politi­ This, did not come by accident cal offices on individual merit. nor can I take it to be purely an act of God. It must have come as a result 3. Accessibility to all positions of lea­ of a well-planned democratic philo­ dership open equally to all citizens sophy, well executed and indeed and not just a few. accepted by the majority of Ugandans. This is why it is essential that 4. Enhancing the culture of tolerance people outside Uganda look at this through discussions rather than philosophy objectively. I am not a shutting up people who may not salesman, all I am saying is that let agree with a particular policy. us agree that the Movement is one form of democracy which fulfils all 5. Participatory all-inclusive demo­ the ingredients, all the principles of cracy instead of being confrontatio­ democracy. nal.

6. Forging democratic purpose through a common denominator or V I — They say that “the taste of the national interests. pudding is in the eating" and Uganda has gone through different types 7 . Accountability and transparency . of governance as mentioned above without success. But for the last 11 8. Minimizing differences by provi­ ding a broad-based government years, under the Movement System, from the village level up to the Ugandans have enjoyed peace, stability, national government. unity and economic growth never experienced before. One, therefore, 9. Agreeing on issues by consensus wonders why anyone would not rather than trying to out­ accept this as a true democratic manoeuvre others. system. Ugandans have been electing their Executive and Secretaries of Defence, leaders since 1986 from grassroots Finance, Youth, Women Affairs, level. This democratic principle was Mobilisation and Culture. further strengthened in 1996 when, for the first time, the President was Tier two is at the Parish level where all Executive Members from elected by universal adult suffrage. all the villages (L.C.I.) in the Parish Uganda has a very free press, there is form a Parish Council known as freedom of speech and expression, L.C.II.Together, they form an electo- there is freedom of association, an r£il college which elects, among them­ independent judiciary, a genuinely selves, nine officials as mentioned national army, accountability and above to run the Parish affairs, as the transparency. There is respect for L.C.II Executives. human rights overseen by an indepen­ dent national human rights commis­ Tier three is at the Sub-County sion with human rights sub-commit­ level where all Executive Members tees in every sub-county. In 1996, a from all Parishes in the Sub-County Universal Primary Education (UPE) form the Sub-County Council called L.C.III. They also elect, among them­ programme was started. There is also selves, nine officials of the Executive free healthcare. All these are there for to run the Sub-County affairs. There any doubting Thomas to go and verify. is also an elected Human Rights Sub-Committee at every Sub-County The Movement operates under a for monitoring the situation there. five-tier system, which also operates very well in line with the new policy of Tier four is at the District level. All government of decentralization and people in the district who are 18 years devolution of powers to the grass­ and above Eire free to stand and vote roots. for the Chairperson of the District through a one m£in vote system. They Tier one is at the village level, are also free to stand Eind elect District where all people in the village are Councillors for the District on merit members of the Local Council, L.C.I. and by secret ballot under the No All members in the village are free to Party System. Sub-counties form the assemble and discuss issues affecting constituencies where candidates their village and the nation at large at stand. Each district then ends up with any time they wish to do so. 40 to 50 Council Members directly elected. All members who are 18 years old and above Eire free to stand and also Direct elections under secret ballot vote for the government that runs the also take place for the Mayors of the village affairs, known as the L.C.I. City of Kampala, the capital, and the Executive. The Executive consists of Municipal Councils. For the first time, nine officials who Eire: Chairperson, direct secret elections will be taking Vice Chairperson, Secretary of the place under tier four in March 1998. Tier five is the National In Parliament, Uganda also has Parliament. At the National level, any interest groups which are represented Ugandan fulfilling certain criteria as and these include 10 members of the spelt out in the Uganda constitution is Army, five representing the Youth, free to stand for the Presidency. For five representing the Disabled and one to qualify as a presidential candi­ three representing Workers. date, one has to obtain 100 signatures of registered voters to qualify for nomi­ During 1997 the Ugandan nation in at least two thirds of all Parliament passed the “Movement districts. There are now 46 Districts in Act" which spells out clearly the way Uganda. Any number of candidates is the Movement is to operate. One of free to stand but the overall winner the issued was how to elect the has to obtain at least 50% of the total Chairperson and leadership of the votes cast. Movement.

In 1996 when Uganda held their The directly elected members of first ever presidential elections, there District Councils, Municipalities and were three candidates. Elections are the City are expected to congregate held through secret ballot by and turn into an Electoral College Universal adult suffrage throughout which is then supposed to elect the the country. Anyone elected can only Chairperson of the Movement among any Ugandan who may wish to stand. serve for a maximum of two terms of They are also expected to form the five years each term. Movement Executive. All Ugandans are also free to stand There is no doubt that among for parliament. Candidates have to Ugandans there are those who are not stand where they have their physical happy, with or do not believe in the homes and are nominated by 10 voters present system. Many of these are in their constituency. In each consti­ those Professor Ake mentioned as tuency, therefore, one can have as being interested in democracy as a many candidates as are able to be means of power. Although the nominated. Elections are also by Movement System allows anyone to secret ballot through universal adult aspire and try to obtain the highest suffrage. office in the country every five years these people feel that the easier way is Parliamentary elections took place through multi-parties. in June 1996 under this system and the elections were carried out in a The new Ugandan Constitution, calm atmosphere unwitnessed in the therefore, has given all Ugandans history of Uganda’s politics. The the choice to hold a referendum in Constitution also allows each district the Year 2000 where they will be free to directly elect one woman represen­ to choose to either continue with the tative to Parliament. Movement or No Party democracy or to organize Parties. It also allows democracy so that any time those Ugandans to decide on any other type principles are missing , then one can of democracy but makes it illegal say that a government or a country , to declare a one-party government. for that matter, is undemocratic.

We should constantly be reminded Once water is formed, one can that the only way to bring about decide to either leave it in liquid form sustainable peace, stability and for quenching one’s thirst or for economic development is to establish bathing or turn it into ice for cooling the right form of democracy for the one's glass of whisky or turn it into country but not to impose one. This steam if one wants to have a sauna also emphasises the saying that ' one bath. In each case, you have water man’s meat is sometimes another man’s poison”, so are some of the but in different forms to perform various forms of democracy in coun­ different functions. In the same way, tries like Uganda. It should also be once we have established the core or emphasized that without democracy the rules of democracy, we can then and good governance, there cannot have different forms of democratic be peace, and without peace, there governments which may include cannot be sustainable economic deve­ those with parties which decide to lopment. form coalition governments or those whose parties are elected under pro­ The positive changes that have portional representation, or those taken place in the political and economic which operate under “winner takes development in Uganda since 1986 all”or indeed a form like that in have come about as a result of the cor­ Uganda which allows as many free rect form of democracy which has ideas as there are in the electorate and brought about good leadership and as a where you allow each person to result contributed to peace, stability express himself or herself freely, so and tranquillity. that only members of Cabinet in a broad based government are expected to You are all aware that water is exercise collective responsi-bility one always composed of two molecules of a particular issue is agreed in Cabinet. hydrogen and one molecule of oxygen. One then assumes that each of these Each time you have this combination in the correct environment, you will different types of governance is cho­ create water. Equally so, when a coun­ sen for a particular purpose which is try follows all the principles or rules relevant to the particular country and governing democracy as mentioned people. Trying to impose one form of above, that country ought to be consi­ government to a country just because dered democratic. it happens to work satisfactorily in another country will be like serving This is why it is important to ice when once is thirsty or steam to emphasize the principles or rules of cool one’s drink. V II — The No Party Or Movement and administrators lined up to g o to System is a relatively new democratic Uganda to study the Movement. I can philosophy, and like anything else in hardly wait to receive their report. life it cannot be 100 per cent perfect. I, therefore, welcome suggestions To conclude, I wish to reiterate which can improve on this democracy, what I said earlier that unless Africa works out a formula which brings which has proved successful in about true democracy acceptable to Uganda. There is need to carry out most people in each country, it objective studies on how the will remain difficult to sustain peace Movement is w orking, and I am glad to and stability on the African say that there are social scientists Continent. Ethiopia:

Constitution for a Nation of Nations

Fajil Nahum *

A Departure understanding that the previous constitutional orders, whether of a The most important thing to note feudal monarchical nature or of a about the Ethiopian Constitution of Marxist dictatorial type, have failed to 1994 is that it is clearly a departure deliver what the society expected of from all previous Ethiopian constitu­ them. What the society expected (and tions. The State it envisages and the still expects), put in a nutshell, is a government it establishes are different constitutional order that, without both in form and content. Unlike the sacrificing the fundamental values of age-old monarchical constitutions that the society, propels it towards a sustai­ are familiar landmarks in Ethiopian nable political and socio-economic history, this constitution provides for a development in an orderly and peaceful republican form of government. To be fashion. sure, it is the second republican constitution that has been promulga­ Worldwide, the pace of change ted; but while the former one provided since the industrial revolution has for a single-party system and a unitary been accelerating and Ethiopia could government, the 1994 Constitution not remain unaffected. Already a big provides for a federal multiparty sys­ colonial battle was fought victoriously at tem of government. That the name of the end of the last century.2 A railway the State is the Federal Democratic line was extended from the sea inland up Republic of Ethiopia1 is no coincidence. to the capital in the early years of the new century and this brought in not The clearcut departure the only new goods but also new ideas. Constitution of 1994 makes is based The work of Christian missionaries in on the evaluation of previous constitu­ education through the decades, toge­ tional experiences. It is based on the ther with the government’s own

* Fasll Nahum is Professor of Law and constitutional expert, Ethiopia. 1 Art. 1 of the Constitution of the Federal Democratic Republic of Ethiopia, Negarit Gazeta, 55th year, No.l, 1995. Unless otherwise indicated, articles quaoted in this work refer to this Constitution. 2 The battle of Adwa , it may be remembered, was fought in 1896 against the Italians. At about the same time other colonial wars were fought in other parts of Africa, for instance in Madagascar and the Sudan, but with veiy different results. efforts, helped create a new intellec­ is a new beginning is not surprising. tual modernizing elite. The Second The question is: Has Ethiopia chosen World War and the United Nations- wisely this time in order to achieve the blessed Eritrean unification3 at mid- goals it has set for itself? The time has centuiy helped shake the traditional not yet come to fully answer the ques­ frame of mind. Ethiopia's participation tion. What can be answered is what in the United Nations forces in Korea Ethiopia has chosen and what the and later in the former Congo played trend seems to be. its part in the awakening within the armed forces. And finally the attemp­ That is why we will now focus on ted coup d’E ta t paved the way for a the salient features of the Constitution final and decisive confrontation with a of 1994. late-modernizing feudal monarchy.

With the drought as the last straw to break the camel’s back, the monarchy Ethnicity as a Major Component was swept away in 1974.4 In its eager­ ness for a short-cut to socio-economic development, Ethiopia, under the lea­ One feature of great import throu­ dership of the military junta known as ghout the Constitution, and one that the Derg, soon joined the Cold War places this constitution on a pedestal bandwagon as a vigorous player and of its own, more or less, is the utmost became the Soviet Union’s satellite. significance given to the ethno- The Marxist blueprint for overall linguistic components of the society. development, replete with instant The preamble of the Constitution friends and foes internally and inter­ does not open with the familiar nationally, initially created a new “We the People it is “We, the sense of direction and the feeling that Nations, Nationalities and Peoples of the society was now moving away Ethiopia...”. This is not a constitution from centuries-old stagnation. And of the Ethiopian citizens simply indeed move it did. But was it in the lumped together as a people. The intended direction’? Less than two Ethiopian citizens are first categorized decades later, the economy was in in their different ethno-linguistic grou­ even greater shambles, the internatio­ pings and then these groupings come nal Soviet system had collapsed, and together as authors of, and beneficia­ the society found itself polarized and ries from, the Constitution of 1994. in a traumatic civil war. The ethno-linguistic groupings and the nationality issue has historico- That the Constitution of the political and socio-economic signifi­ Federal Democratic Republic of 1994 cance beyond the cultural and linguistic

3 In 1952 Eritrea became federated with Ethiopia through UN Gnereal Assembly resolution. 4 See Proclamations No.l and No. 2 of 1974, Negarit Gaxeta, 34th year, Nos. 1 and 2, which deceptively refer to the "King” and “King-designate.” expressions. Indeed, “We the Nations, resulted in federalism as the only logical Nationalities and Peoples...” reco­ alternative in government/ Moreover, gnizes Ethiopia as a Nation of the type of federalism it has unfurled Nations. is not a territorial federalism but an ethnic federalism.8 To be sure, it is not The Constitution, therefore, neces­ as simple as all ethnic groups simply sarily becomes a constitution of a coming together to form the federa­ Nation of Nations. The importance tion. Some minority ethnic groups given to the ethno-linguistic compo­ (i.e., those with significantly less nents of the society by the population) have joined with much Constitution is absolute and real, and larger ethnic groups within a State, or cannot be overemphasized. Dealing have joined together again to form a with the fundamental principles of State. And these States formed on the the Constitution, Chapter 2 starts basis of ethnicity have then come toge­ with the clear provision that “all ther to form the federation. These sovereign power resides in the States have retained the characteris­ Nations, Nationalities, and Peoples tics of their ethnic groups for govern­ of Ethiopia.”5 Indeed, the Constitution mental and other ongoing constitutio­ is considered as nothing more than “an nal purposes. The ethnicity of States is expression of their sovereignly.”6 not just of historical importance, it is of actual significance in the everyday This rather unusual constitutional life of the people and of the federation as approach has been hailed, on the one a whole. hand, as a stroke of genius that will uplift Ethiopia from its age-old back­ wardness and, on the other, as the sign of the first cracks for disintegration. Parliamentary Democracy Could both be correct in that the out­ come depends on how the instrument Another salient feature of the is employed, just as the atom, as a Constitution of 1994 is expressed by fantastic source of energy, can be used the term “democratic” that is con­ either to greatly benefit mankind or to tained already in Article 1 of the send it to its doom? Constitution and also forms part of the nomenclature of the State. What “We the Nations, Nationalities and this constitution establishes is a parlia­ Peoples of Ethiopia...” is a formula mentary democracy much along the that has been developed to its full manner in which parliamentary extent in the Constitution. As a democracres have been working in concept that has bloomed fully, it has most of Western Europe and North

5 Art. 8 (1). 6 Art. 8 (2). 7 Art. 1. 8 Art. 4 6 (2). America. The use of the term “parlia­ mination. The right to self-determina­ mentary democracy” assumes the tion includes the right to develop one's exercise of freely and fairly contested, language, promote one's culture and periodic elections and representative preserve one's history. Beyond that it assembly or assemblies that are the includes the right to self-government expression of popular will and hold and equitable representation in State power for a mandated period. The and national government. The right to Constitution in this respect provides secession is the ultimate extension and for a two chamber parliament known expression of the right to self-determi­ as the Federal Houses. They are the nation and the Constitution provides a House of Peoples’ Representatives detailed set of procedures by which and the House of Federation. The this right may be exercised, if necessa­ Constitution also provides for a ry.11 The right to secession is definitely one-chamber State Council at State the most controversial item in the level. The House of Peoples' constitution. This right, which we will Representatives is “the highest autho­ examine in greater detail in Chapter 9, rity of the Federal Government," and under “The Nationality Right” it has the State Council is “the highest organ been pointed out as a basis for unity in of State authority.”9 The House of diversity and serves as a litmus test for Federation which is "composed of democracy. It can be a guarantee for representatives of Nations, sustainable peace and a solid founda­ Nationalities and Peoples” is the other tion for u n ity based on equality and representative assembly with specific mutual respect. The arguments mar­ powers, including the ultimate “power to shalled in favour of the right to secession interpret the Constitution” and to by any nation, nationality, or people decide on other matters of grave are based on the understanding that constitutional concern such as the the Nation-State exists to serve the right to secession.10 people and not vice-versa. If any nation, nationality, or people strongly and consistently feels its interests are The Right to Secession not being properly served by the existing JtatM quo, it should be able The right to secession is one of the to change it. Obviously the other peculiar features of the Constitution nations, nationalities, and peoples that again emanates from the overri­ have quite a say through the process ding significance given to the ethno- of accommodation. Detailed proce­ linguistic notion of nation, nationality dures are provided for the peaceful and people. The right to secession is and constitutional exercise of the right part of the broader right to self-deter­ to secession.12

9 Art. 50 (3). 10 Art. 62. 11 Art. 39. 12 Art. 39 (4) (a-e). Ownership of Land the dtatud quo. Its exploitation through market forces and otherwise is not Another item of the Constitution only permitted but expected and which is hotly debated, but on economic encouraged. Where ownership is rather than political terms, is the ques­ understood in its original Roman defi­ tion of ownership of land. The nition as being the sum total of use Constitution explicitly states that, “the (iu)ud), enjoyment of its fruit (fructud), right to ownership of rural and urban and disposing thereof (abiuud), it is land... is exclusively vested in the only the last item that is not available State and in the Peoples of Ethiopia.” It to market forces. The use of the land goes on to add, “Land is a common and enjoyment of its fruits through property of the Nations, Nationalities market forces and in accordance with and Peoples of Ethiopia and shall not the laws and regulations that pertain be subject to sale or to other means of to it are not affected. Thus, the ren­ transfer.”13 The general principle that ting, leasing, and developing of land is land, be it urban or rural, should not both expected and encouraged. be considered simply as a market com­ modity is based on Ethiopian expe­ rience of long standing. The extraordi­ nary significance attached to land that Language Policy propels it beyond market forces is usually put in philosophical language. Still another salient feature of the Land is seen in an inter-generational Constitution that emanates from manner as having belonged to one’s Ethiopia being a country of Nations, parents, grandparents, great-grandpa­ Nationalities, and Peoples is the rents and will belong to one’s children, constitutional provisions dealing with grandchildren, great-grandchildren. languages. Under the general provi­ Beyond-that, land is also seen as the sions of the first chapter of the common property of the extended Constitution, Article 5 provides both family, the clan, the tribe, etc. One for the equality of languages and for cannot forget that land touches sensi­ their practical application in govern­ tive chords in a traditional society that ment. The general principle is first laid is particularly subsistence-agriculture- down, that “all Ethiopian languages based. Other modalities of use of land in shall enjoy equal State recognition." traditional society will also attribute When this provision is put together special value beyond market forces to with the provision of Article 39 (2), land and the natural resources contai­ which provides each Nation, ned, be they water, minerals, or pas­ Nationality or People with “the right tures and forests. to speak, to write and to develop its own language...” as part of the right to This does not mean, however, that self-determination, then it becomes land is therefore frozen in the interest of clear that this general principle is not a

13 Art. 40 (3). matter of platitude, a principle with a mode of communication as is required hollow ring. State recognition of every for a modernizing State on the one Ethiopian language means that efforts hand, and on the other the need of the for its development—i.e., the preser­ different ethnic groups to feel that vation of its literature; the provision their identify is fully recognized and for a script, where such does not exist; respected. the documentation of its oral literatu­ re; and the further study of each lan­ guage via grammatical, vocabulary and overall publication and enhanced The Importance of Religion use of the language—will be done with both State blessing and State One very important item the support to the extent possible. Constitution specifically provides for is religion. Religion has played an Having said this, the question of important part in Ethiopian constitu­ State use of language has to be settled. tional history over the centuries.16 Here two provisions are made, one at From animism to archaic Judaism, Federal and the other at State level. At from Christian Orthodoxy to Islam, Federal level, Amharic is made the and from Catholicism to Protes­ working language of the State.14 This tantism, they have all left their strong means that the Federal State in all its imprint at one time or other in official dealings shall employ Amharic as Ethiopian constitutional history. its language. But member States of There has been no time in Ethiopia’s the Federation are allowed by the monarchical constitutional history Constitution to determine their res­ when there has not been a State reli­ pective working languages by law.15 gion. Christianity entered Ethiopia at In other words, each member State a relatively early period around 325 through a law promulgated by its A.D. and, by supplanting polytheism legislative council will have to deter­ and archaic Judaism, became the mine what the official language of State religion. Judaism s final attempt to that member State is. There is no reverse its fortunes around the end of question that this process of accom­ the first millennium is still remembe­ modation at the linguistic level is a red in Ethiopian history as a dark and reflection of the overall accommoda­ bloody era. The other major religion, tion process that federalism provides. Islam, has over the centuries slowly The balance will have to be made bet­ and quietly been extending its influen­ ween the need for non-cumbersome ce from the peripheral lowlands

14 Arts. 5 (2) and 106. 15 Art 5 (3). 16 See Conti Rossini, Storia d’Etiopia (Rome, 1929); Sven Rubenson, Survival of Ethiopian Independence ( London, 1976); D. Crummey, Prw.it,' and Politicians (Oxford, 1972), Trimingham, hlam in Ethiopia (London 1952); Gustav Aren, Evangelical Pioneerd in Ethiopia (Uppsala, 1978). inward. The one exception to this one-third of the provisions of the quiet Islamic development took place Constitution deal with fundamental towards the end of the fifteenth centu­ rights and freedoms. Chapter 3 of the ry, another violent attempt at supplan­ Constitution is divided into two parts ting Christian Orthodoxy as the State and rights are categorized as human religion. The Portuguese army, with rights and democratic rights. Human whose help the dtatud quo was re-esta­ rights deal basically with the rights blished, became another cause for a and freedoms of the individual and civil war, when Catholicism attempted include the classical, first-generation to supplant Orthodoxy as the State rights covered by the International religion. It is the history of religious Bill of Rights. The right to life, liberty, turbulence and its complicity in and the security of the person, as well as constitutional upheavals that makes the right of the person in a criminal these constitutional provisions signifi­ case, to be treated humanely and fairly, cant. First, the general principle is laid with all the procedural and substanti­ down that “State and religion are ve safeguards intact, throughout the separate.” Secondly, the important process are carefully spelt out. The departure is officially announced that right to equality before the law, the “there shall be no State religion.” To right to the protection of privacy and spell out in black and white the impli­ the right to freedom of religion, belief, cation of the first two provisions, a and conscience are all covered as part of third-one is added, saying that human rights. “Government shall not interfere in the affairs of religion. Religion shall not The compartmentalization of rights interfere in the affairs of govern­ as human rights on the one hand and ment.”17 With the constitutional right democratic rights on the other is not of individual freedom of conscience water-tight. Democratic rights tend to and religion provided for by the be more group oriented and/or politi­ Constitution,18 which includes that cal in nature. The right to freedom of right to worship, exercise, and propa­ thought and expression, the right of gate one’s religion, individually or col­ assembly, demonstration, and petition, lectively, and in public or private, the the freedom of association, and the picture is completed. freedom of movement are included in the second category.

So are the rights of women and Fundamental Rights and Freedoms children, as well as the right to marria­ ge and family incorporated into demo­ A significant thrust of the constitu­ cratic rights. The political rights to tion is achieved in the field of funda­ vote and to seek election, the right of mental rights and freedoms. Nearly Nations, Nationalities, and Peoples to

17 Art. 11. 18 Art. 27 (1 ). self-determination, economic, social, council of constitutional inquiry is also and cultural rights, the right to pro­ provided for, whose task is to examine perty and the right of labour are made constitutional issues and to submit its part of democratic rights and are care­ findings to the House of Federation fully enshrined. Going deep into what for final decision.”22 have internationally come to be known as second- and third-genera­ That the Council of Peoples’ tion rights or socio-economic and soli­ Representatives establishes the darity rights, the Constitution in addi­ Human Rights Commission,23 and the tion provides for the right to institution of the Ombudsman24 development and environmental right. reveals the importance given to funda­ mental rights and freedoms by the To ensure the proper and full exer­ Constitution. The clear message of the cise of such far-sighted enshrinement Constitution is that it is serious with of fundamental rights and freedoms, the respect for human rights. One the first article of Chapter 3 of the final interesting point to be mentio­ Constitution introduces two concepts ned! in connection with Chapter 3 of - first, that all organs of State at all the Constitution is that its amendment levels have the “responsibility and procedure is made exceptionally strin­ obligation to respect and enforce” fun­ gent and requires a majority vote in damental rights and freedoms;19 and each member State council and a two- second, that the interpretation of these thirds majority in both federal rights and freedoms shall conform to H ouses.25 international standards, specific men­ tion being made of the Universal Declaration of Human Rights and the Bill of Rights.20 Constitutional Interpretation

Federal and member State courts Since the Constitution, the highest with respective judicial authority and overall authority in the land, is a law, independent judiciary are empowered it is argued, its ultimate interpretation to interpret and enforce the Consti­ should rest with the highest court of tution and the whole legal regime.21 A law. On such premises, for instance,

19 Art. 13 (1). 20 Art. 13 (2). 21 Arts. 78-79. 22 Arts. 82-83. 23 Art. 55 (14). 24 Art. 55 (15). 25 Art. 105 (1). 26 See famous case of Mulberry vs. Madison, US Supreme Ct, 1 Cranch 137, 2nd L. Ed. 60 (1803); See also A. Bickel, The Least Dangerous Branch (New York, 1962). the American Federal Supreme Court is precisely this political institution that vested with the power of ultimately is vested with “the power to interpret interpreting the United States the Constitution.”2 The constitution Constitution.26 does not however consider its inter­ pretation a purely political matter. The In other federal systems, such as in constitution establishes the Council of Germany, the ultimate interpretation Constitutional Inquiry, a body of of the constitution rests with the mostly legal experts of high standing, constitutional court, which - although headed by the Chief Justice of the a specialized institution - is still a Federal Supreme Court, to examine court.27 constitutional issues and submit its findings to the House of Federation.29 The Ethiopian Constitution, on the The House of Federation thus has the other hand, in a creative stroke pro­ official competent and authoritative vides for something quite different, legal advice of the Council of emanating from and consistent with Constitutional Inquiry before it makes the overriding supremacy of the its final decision on constitutional nations, nationalities, and peoples issues. whose sovereignty the constitution expresses. Without losing sight of the However, there is no question but constitution as the supreme law of the that the authority to ultimately inter­ land, its characteristics as the supreme pret the constitution rests with nobo­ political instrument for self-determi­ dy but the House of Federation. The nation, peace, democracy, and socio­ House of Federation is not bound by economic development are fully the advisory opinion of the Council of exploited. Thus, the ultimate interpreter Constitutional Inquiry. Indeed the of the constitution is made, not the House of Federation can on appeal highest court of law, but the House of reverse a decision of the Council of Federation. The House of Federation, as Constitutional Inquiry, finding no the champion of the nations, nationali­ grounds for a particular constitutional ties, and peoples of Ethiopia, whose interpretation. 0 One hopes, however, equality it promotes and whose unity that law and politics would work hand based on their mutual consent it in hand in unfolding the constitution enhances, whose self-determination so that it consistently and increasingly right it enforces and whose misun­ achieves the objectives it set for itself derstandings it seeks to solve, it is at the preamble.

27 German Constitution. 28 Art. 62(1). 29 Art. 82. 30 Art. 84. Constitutional Amendment and may be submitted for referen­ dum.34 Another interesting feature of the constitution is its amendment proce­ dures. True to federal systems, it State of Emergency involves both regional and federal legislative organs in the process. The formal initiation of constitutional State of emergency is an unfortu­ amendment can come from either nate and exceptional situation that regional or federal legislative organs. may arise in the life of a State. To fore­ Where the initiative comes from the see such a possibility and to provide regions, a third of State councils must for specific procedures to avert have supported a draft by majority the danger posed is not uncommon vote. Otherwise either of the Federal in constitutions. How constitutions Houses can initiate a constitutional handle a state of emergency, however, amendment by a two-thirds majority varies from one system to another. vote.31 The Ethiopian constitution pro­ Constitutional amendments are vides for specific procedures and insti­ then categorized into two. Ordinary tutions to come to life on a temporary constitutional amendments require a basis when situations occur that two-thirds majority vote in a joint amount to a state of emergency At the meeting of the Federal Houses as well as Federal level, any of the following a majority vote in two-thirds of State conditions may trigger a state of emer­ councils. 2 gency: a) external invasion, Where constitutional amendment deals with fundamental rights and b) serious breakdown of law and freedoms enshrined in the constitution order, or the constitutional amendment ini­ c) natural disaster, or tiation procedures of Article 104, a more stringent requirement is introdu­ d) serious outbreaks of epidemics.35 ced. In such cases, the Federal Houses must each accept the proposal by a The Council of Ministers has the two-thirds majority and all State power, under such circumstances, to councils must pass the draft by majori­ issue a decree proclaiming a state ty vote.33 Constitutional amendments of emergency and, through regulations in addition require popular discussion it issues, take the necessary measures

31 Art. 104. 32 Art. 105 (2). 33 Art. 105 (1). 34 Art. 104. 35 Art. 93 (la). to protect the country’s sovereignty Ethiopian Constitution of 1994 and and peace, and to maintain public imprint an exclusive personality security, law, and order. To this end known as the Federal Democratic the Council of Ministers may suspend Republic of Ethiopia. democratic and political rights provi­ ded for in the constitution as neces­ The Constitution is “the supreme sary.36 The Council of Ministers, law of the land” and "any law, custo­ however, has the duty to submit the mary practice, or decision of an agency emergency decree to the House of of government or official that contra­ Peoples’ Representatives within 48 venes this constitution is null and hours of its adoption if the House is in session, and within 15 days if not in void.”40 That law, in its full sense, is session.• 37 not only prescription but both pres­ cription and application is a notion the Once adopted by the House of realistic school of law has been Peoples’ Representatives, an emergen­ making and emphasizing for a long cy proclamation stays in effect up to time. Indeed, prescription without six months and can be extended for a enforcement is nothing but pretence. four-month period successively.38 The But here something totally different constitution also provides for the is envisaged. At the time of the esta­ simultaneous establishment of an blishment of the Constitutional Emergency Board to oversee the Commission in 1993, the President of implementation of the state of emer­ the Transitional Government in his gency proclamation. The seven-person keynote address emphasized the great Emergency Board appointed by the importance of the application and House of Peoples’ Representatives enforcement aspect of the constitutio­ from among its members and from nal process. Hence one looks forward at legal experts is particularly empowe­ this initial stage of the development red to ensure respect for human rights of the new constitutional process in during a state of emergency.39 Ethiopia to the strict application of the provisions of the constitution in the spirit of peace, the enjoyment of From Prescription to Application human and democratic rights, and in the common interest. This would be These, then, are the important the additional distinctive and salient considerations that characterize the feature of the Constitution.

36 Art. 93(4). 3 7 Art. 93(2). 38 Art. 93 (3). 39 Art. 93 (5, 6) 40 Art. 9(1). The Algerian Constitution: a Constitution Boded on the Separation o f Powers and the Protection o f Individual and Collective Freedom**

AbdaLlah B aali *

Since its independence Algeria has by referendum. The new Constitution had three different constitutions. They reaffirmed the election of the have all constituted important land­ President of the Republic by direct marks in the progress towards the and universal suffrage and confirmed foundation of a pluralist democratic the status of the NLF as the only society. party. •

The first Constitution approved on Following the events of October 28 August 1963, first by the 1988, substantial reforms were imme­ Constituent Assembly, and then by diately instituted with, on 3 November popular referendum on 8 September, of the same year, the “constitutional establishes a presidential regime and amendment on a new organization of consecrates the National Liberation the executive function". This was fol­ Front (NLF) as the single party. lowed on 27 November by the adop­ tion by the 6th Congress of the NLF After the assumption of office of of “profound modifications in the Houari Boumediene on 19 June 1965 organization of national institutions and the creation of a Revolutionary and politics so as to permanently Council, the Constitution was suspen­ involve all the actors of the country, ded. without exception, in the political life of the Nation”, and on 23 February It was only in 1976, following the 1989, by the adoption of the second adoption of the National Charter constitutional amendment on guaran­ which proclaims socialism as an irre­ tees for individual and collective free­ versible movement and endows the doms. The new Constitution acknow­ Algerian Revolution with a philoso­ ledged, in particular, in Article 40, phical and political platform, that a “the right to create organizations of a new Constitution was finally adopted political nature”.

* Abdallah Baali is Permanent Representative of Algeria to the United Nations, New York. Multipartism was hence establi­ rhetoric, and issued calls for civil shed and a law was passed on 5 July disobedience - the authority of 1989, by the National Assembly which the State was weakened, notably defined the conditions for the creation of m the maintenance of order and securi­ political associations and entrenched ty. The emergence also of extreme the general principles to be applied in violence in politics as well as in society such cases. in general - through the use of terro­ Within this framework, it is speci­ rism as a means of gaining power - fied that a political association cannot brought the leaders of the country and base its existence or action upon an the political forces that were attached exclusively confessional, linguistic, or to constitutional legality and hostile to regional basis, nor upon the belonging violence, to agree, during the National to a same race or a certain professional Entente Conference, held in category. September 1996, upon a new reform of the Constitution which took place However, a serious distortion of in November of the same year. The the conditions governing the creation objective was to consolidate and inten­ of political parties occurred with the authorisation of parties based upon sify the democratic process in Algeria religious grounds. This has had dra­ on renewed grounds. matic consequences on the political life of the country. As previously mentioned, the constitutional process in Algeria has Around sixty political parties have evolved according to the historical, been authorised. The movement of political and social conditions which non-political associations which has have, at different times, prevailed in been authorised since 1988 has also the country. They have always evol­ known a spectacular rise with the creation of tens of thousands of non- ved towards the establishment of the lucrative associations in all areas of more democratic society which, long social, cultural and charitable life. before 1 November 1954, the foun­ Individual and collective freedoms ding fathers of the new Algeria had set have also gained from the new politi­ as their objective. cal climate established by the new Constitution with the creation of The purpose of this brief reflection is dozens of independent newspapers firstly to make a general presentation and magazines. of the Algerian Constitution, which represents today the fundamental As a consequence of the negative impact on the democratic process of law on which the whole Algerian insti­ the aggressive activism of the Islamist tutional edifice is based, and secondly parties - which took over the mosques, to highlight and explain some of the developed a fanatical and obscurantist particularities of this Constitution. I - The Algerian Constitution: A five year mandate through direct and Constitution Based on the secret universal suffrage, is the Head Separation of Powers which of State, embodies the unity of the Guarantees the Exercise of Nation, and is the guardian of the Individual and Collective Constitution. F reed om s The President, who is the comman­ The Constitution, which includes der in chief of the armed forces, pre­ 182 articles that are grouped under sides over the Council of Ministers, four chapters (i.e., guiding principles appoints and discharges the Head of ruling the Algerian society; organiza­ Government, makes military and civil tion of power; the control of consultati­ appointments, may grant clemency, ve institutions; constitutional reform), and may convoke the people through is "above all” - “it is the basic law referenda. which guarantees individual and col­ lective rights and freedoms, protects The management of the country's the free choice of the people and affairs is, however, allotted to the confers legitimacy to the exercise of government which reports to the pow er”. National People's Assembly. The judi­ ciary, on the other hand, is indepen­ The fundamental elements, language dent and exercises - through the State and religion, are reaffirmed in the Council, the Supreme Court and the Constitution, as well as are enshrined State High Court - control over the the inalienable principles related to activities of the executive which can the attributes of the people who are extend to crimes and offences commit­ the “source of all power” (Art. 6) and ted by the President of the Republic who “exercise sovereignly through the and the Head of Government within institutions chosen by way of referen­ the exercise of their functions. dum and through elected representa­ tives.” (Art. 7)

As for the State, it draws its legiti­ The mandate of the Constitutional macy and raison d’etre from the will of Council is to check whether a legislati­ the people to whom it is exclusively ve or executive act conforms with the dedicated (Art. 11). Constitution.

The Executive A. The Separation of Powers The President of the Republic is The President of the Republic, who responsible for national defence, exercises the highest office of the decides and conducts the foreign policy country, within limits set by the of the Nation, presides over the Constitution, and who is elected for a Council of Ministers, and appoints and discharges the Head of Head of Government, it is legitimately Government. These are important dissolved and the election of a new powers which are exercised by nume­ Assembly has to take place within rous Heads of State in democratic three months (Art. 82). countries. It is notably the case in France where the Constitution of 4 The Head of Government must October 1958, grants the same powers have, therefore, command a sufficient to the President of the Republic. majority within the National People’s Assembly at the time of designating a The management of the country’s government whose members are affairs is, however, in the hands of the appointed by the Head of State, and, Head of Government who presides therefore, also when the programme is over the Council of Government, submitted to the approval of the NPA. makes public appointments - without prejudice to the prerogatives of the The Head of Government may also President of the Republic -, and over­ re-examine the programme in light of sees the proper functioning of public the prevailing debate. administration. When the programme is approved, If appointed by the President of the the H ead of Government applies it. Republic, the Head of Government is Every year, the Head of Government responsible before the National is obliged to present before the NPA a People’s Assembly (NPA), whose declaration of general policy which approval of the government’s pro­ leads to the opening of a debate on the gramme is necessary . work of the government and, possibly, to the adoption of a resolution. On the other hand, the Head of Government can present a communi­ The NPA can also decide upon a cation before the Council of the vote of no confidence, thus entailing Nation, which is the second Chamber of the resignation of the government. Parliament, concerning the govern­ ment’s programme. This may only The President of the Republic may result in a resolution that bears no however, according to the terms of legal implications. Art. 129, dissolve the National People’s Assembly and decide upon early par­ In case of non-approval of the pro­ liamentary elections. gramme by the NPA, the appointed Head of Government tenders resigna­ Finally, Parliament may initiate a tion to the President of the Republic debate on foreign policy which may who appoints a new Head of lead to the adoption of a resolution by Government. a joint session of the two chambers of Parliament. The members of Should the NPA again reject the Parliament may question the govern­ new programme presented by the ment regarding issues of current concern or may address - orally or in The number of members of the writing - questions to a member of the Council of the Nation is equal to that government whose response may be of half - at the most - of the members of followed by a debate. the NPA.

Parliament sits in two ordinary ses­ The Legislature sions of at least four months each. It can also hold an extraordinary session Parliament is composed of two initiated by the President of the chambers, the National People’s Republic or upon request from the Assembly and the Council of the Head of Government or two-thirds of Nation, which draft and adopt laws in a the N PA members. sovereign manner. As it generally is the case in parlia­ The powers of the Parliament are mentary democracies, the initiative of important and are identical to those laws concurrently belongs to the Head that are exercised by Parliaments in all of Government and to the members of democratic States. Parliament.

As mentioned before, the To be adopted, a bill has to be Parliament, through the NPA, exer­ approved by the NPA and then sub­ cises wide control over the action of mitted, as it has been approved by the the government. Parliament can deny latter, to the Council of the Nation, the government’s investiture by rejec­ which has to adopt it by a three-quarters ting its programme. It can also deny majority. confidence in the government and can censure it. The government would fall in In case of disapproval, the any such case. Commufdion paritaire meets in order to propose a compromise text with Members of the NPA are elected regard to the dispositions that are for five years by direct and secret uni­ object of disapproval. versal suffrage, whereas the members of the Council of the Nation have a If the disapproval persists, the text is mandate of six years. The latter are, withdrawn. for two-thirds, elected by indirect and secret vote by the members of the Parliament has competence to Communal People’s Assemblies and legislate in all areas where parliaments the W ilaya (departmental) People’s traditionally have competence: Assemblies, the remaining third being designated by the President of the • fundamental rights and duties; Republic among outstanding persona­ lities in the scientific, cultural, profes­ • rules related to the right of abode, sional, economic and social domains. the status of aliens, and nationality; • rules related to the organization of their next session and that the laws the judiciary, criminal law, criminal which are not adopted by the law procedure, civil procedure, Parliament are rendered null and void. civil and commercial obligations and property; The Judiciary • territorial division, tax, rules for the issuing of the currency, budget, The Constitution guarantees the education, health, right to employ­ independence of the judiciary which ment, pension regulations, mines protects society and liberties and gua­ and hydrocarbons, real estate, rantees the protection of fundamental environment, customs, water, rights for all (Art. 138). forests ... Ju stice is equal for all, accessible to It also has competence to adopt all, finds expression in the respect of organic laws concerning: the law, and is administered in the name of the people (Art. 138). • the organisation and functioning of the civil service; Judges are answerable only to the • the electoral system; law and before the Co/ueii duperieur de La magidtrature which decides upon • the law on political parties nominations, transfers and promo­ tions. As in many democratic States • the law on information; such as France, it is presided over by • the law on the judiciary and judi­ the Head of State. cial organisation; the law on National security. The Supreme Court is the regula­ ting organ of the activities of all courts Organic laws Eire adopted by the and tribunals whereas the Council of absolute majority of members of the State regulates the activities of admi­ lower house and three-quarters majo­ nistrative jurisdictions. Both these ins­ rity of members of the Council of the titutions watch over the respect of the Nation and are submitted to a confor­ law and ensure the compatibility of mity control by the Constitutional jurisprudence throughout the country. Council before being promulgated. A Tribunal of Conflicts rules on conflicts of competence between the Within this framework, it should two institutions. be noted that in time of state of emer­ gency, of recess of the NPA or during A High Court of State is establi­ the intersession periods of Parliament, shed for cases of high treason commit­ the President can issue decrees, bea­ ted by the President of the Republic or ring in mind that the President must the crimes and offences committed by submit such texts to the two chambers the Head of State within the exercise of Parliament for their approval at of their functions. B - Rights and Freedoms among the political class - within the framework of the national agreement Fundamental freedoms as well as Conference on October 14-15 human and citizen’s rights are guaran­ September 1996 (when 27 political teed under the Constitution (Art. 32) - parties representing all the facets of and so is their individual or collective the Algerian political context, inclu­ defence (Art. 33). ding seven national organisations and/or trade unions, two organizations Are also guaranteed: the sanctity of of employers and two associations the person; freedom of conscience and representing civil society) - to regenerate opinion; freedom of intellectual, artis­ the constitutional basis upon which tic and scientific creation; the right to politics were being exercised in private life and sanctity of residence; Algeria. freedom of expression, association and reunion; freedom of association; the The constitutional reform which right to education and employment; took place in November 1996, the right to create trade-unions and through referendum, allowed the the right to strike; the right to health, introduction of protective measures and freedom of trade and industry. and amendments that would keep society safe against such drifts in the The right to create political parties is future. also granted and guaranteed.

Finally, other rights such as the 1 - The Non-Utilisation of right for all to be presumed innocent Identity for Political Purposes until proven guilty, equal access to public positions, the right to choose Article 42(3), which establishes the freely his or her place of residence, the existence of political parties (parties right to enter or leave national territory, were only recognized by the 1989 the right to vote and the right to stand Constitution as political associations), for election are guaranteed under the now stipulates that political parties Constitution. cannot be established on a religious, linguistic, racial, gender, professional or regional basis.

II - The Specifics of the Algerian In other terms, national identity, in Constitution its triple Muslim, Arabic and Amazigh (Berber) dimension, transcends the Drawing upon the consequences of political scene and is placed out of the mistakes committed since 1988 reach of demagogic exploitation for and the situation of laxism and derelic­ political and partisan purposes. tion that the country has experienced since then, which brought it to the The law on political parties adop­ edge of collapse, a consensus emerged ted after the reform confirms the non-utilisation of national identity for number of democratic countries. The political or partisan purposes. President’s powers have not been increased by the November 1996 Constitution. On the contrary, amend­ 2 - Non-Recourse to Violence and ments leading to a limitation of powers Respect for Democracy have been made with respect to the exercise of the presidential mandate. Drawing lessons from the painful experience that Algeria has known in Thus, the number of presidential the past few years, a paragraph stipu­ mandates, which in the past was unli­ lating that “no political party may mited, is now limited to two. This resort to violence or constraint, whate­ constitutes, in all respects, a unique ver their nature or form” has been disposition in the Arab world as well introduced by Article 42. as in Africa. Similarly, the right to create political parties cannot be invoked to threaten Moreover, the President of the the democratic and republican nature Republic is rendered, within the exercise of the State (Art. 42(2)). Thus, a party of his functions - and this is also the that would openly promote the demise case for the Head of Government - of democracy or of the Republic accountable before a High Court of would be denied legal existence. State.

Finally, in order to permanently Finally, and as far as the power to preserve the democratic order and issue decrees - which may occur only republican nature of the State, Article in a situation of State of emergency, 178 of the Constitution stipulates that recess of the NPA, or during inter-ses­ constitutional amendments may not, sion periods; in other words, in excep­ amongst other things, threaten: tional circumstances - is concerned, it should be emphasised first of all that • the republican nature of the State; resorting to decrees is no constitutio­ nal innovation neither in Algeria nor • the democratic order based on mul- in the rest of the world. The decrees tipartism; which are issued must be submitted to Parliament during the following ses­ • fundamental freedoms, and human sion and are nullified in case of rejec­ and citizens’ rights. tion.

3 - The Presidency A - The Creation of a Second Chamber The President of the Republic is granted similar powers to those The Algerian Parliament is now which belong to Heads of States in a composed of two chambers: The NPA, which is elected by constituted of civil society representa­ direct universal suffrage and which tives whose opinions and skills are not holds most of the power as is the case in necessarily present in the NPA. many democracies, notably in Europe. It is indeed the NPA that exercises the That the requested majority for a political control over the government, law to be definitely adopted at the approves a government’s programme, level of the Council of Nation should censures it, and gives or denies its be so large constitutes in fact an confidence. additional guarantee that the law will properly respond to citizens’ The Council of the Nation, where expectations. This is the case for two-thirds of the members are elected laws initiated by parliamentarians by indirect ballot as is the case in many countries that have a bicameral as well as those initiated by system. The designation of one- third the government, which are both of the members of the Council of the submitted to the three-quarters majo­ Nation is not specific to Algeria, many rity democracies also resort to this mode of designation.

In creating a second chamber the 5 - Control of the Executive and objective was to introduce more poise the Legislature and moderation in the legislature at a time when Algeria was undergoing its In addition to the political control first pluralist democratic experience, that the Parliament exercises over the and when the excessive enthusiasm of government, both chambers can, parliamentarians coupled with their within set limits, establish a commis­ insufficient knowledge of certain sion of enquiry on matters of general issues and political, economic, and interest at any time. social realities, may have led to a situa­ tion that would cause prejudice to the At another level, a Constitutional country’s interests or to the very suc­ Council is established to monitor cess of the democratic experience respect for the Constitution, the itself. regularity of polling operations (refe­ renda, presidential and parliamen­ The examination, by a second tary elections) and decide over the authority, of a law which has been constitutionality of treaties, laws and adopted by a majority of parliamen­ tarians, ensures that the law meets rules. the expectations of the citizens. This is all the more true since two-thirds The Cour dej comp ted is in charge of of the members of the Council of the controlling - a podterivri - the finances Nation represent local and regional of the State, local communities and communities and the other third is public services. 6 - The Constitutionaiisation of juridical basis to the economic reforms Freedom of Trade and which are necessary to the establish­ Industry ment of market economy, freedom of trade and industry is now part of In order to render the current liberalisation of the Algerian eco­ the freedoms guaranteed under the nomy irreversible, and to give a firm Constitution. The Supreme Constitutional Court and ltd Role in the Egyptian Judicial System

D r A w ad M o h am m ad E l- M o r r

•Jus Lice Abd Ei-Rahm an Noddier

D r Adel Omar Sher if *

Introduction the 1971 Constitution.1 The 1971 Constitution was the first Egyptian The Supreme Constitutional Court constitutional text to make provision sits at the apex of the Egyptian judicial for a supreme court. But the creation system, exercising an exclusive power of of the Supreme Constitutional Court judicial review in constitutional cases. was consistent with the Egyptian By providing an authoritative inter­ practice of specialisation in the judicial pretation of the Constitution it seeks system. A Supreme Court had been to draw a balance between the need for both consistency and progress in created in 1969 under a decree the development of constitutional law law.2 This court continued to function in Egypt. for a transitional period after the adoption of the 1971 Constitution The Court derives its judicial status until the establishment of the Supreme and powers from Articles 174 — 78 of Constitutional Court in 1979.3

* Egyptian experts on Constitutional Law. 1 Article 174: "The Supreme Constitutional Court shall be an independent judicial body in the Arab Republic of Egypt, and having its seat in Cairo.” Article 175: "The Supreme Constitutional Court alone shall undertake the judicial control in res­ pect of the constitutionality of the laws and regulations, and shall undertake the interpretation of the legislative texts in the manner prescribed by law. The law shall determine the other competencies of the court, and regulate the procedures to be followed before it.” Article 176: "The law shall organise the way of formation of the Supreme Constitutional Court, and prescribe the conditions required of its members, their rights and immunities.” Article 177: "The status of members of the Supreme Constitutional Court shall be irrevocable. The Court shall call to account its members, in the manner prescribed by law.” Article 178: “The judgement issued by the Supreme Constitutional Court in constitutional cases, and its decisions concerning the interpretation of legislative texts, shall be published in the Official Gazette. The law shall organise the effects subsequent to a decision concerning the unconstitutionality of a legislative text.” 2 Decree-Law No 81 of 1969. 3 Law No 48 of 1979. dicting the Constitution non-operative only in respect to the particular case being determined and affects only the The Power of “Abstention parties involved. It therefore follows Control” that, under abstention control, the same legislative provision may be vie­ wed differently by the same court in When the Supreme Constitutional another case, as well as by other Court was established in 1969 it was courts which reach alternative opi­ vested with the exclusive power of nions. judicial review. Prior to that date all Egyptian courts, irrespective of their level and regardless of the nature or Hence under the abstention control, a defective provision could the scope of their jurisdiction, had never be declared void; nor its binding exercised a form of judicial review force suspended or a ruling against its known as “abstention control”. application considered final. Consequently, the application of the By this mechanism a court, in the control had the potential to produce course of deciding a case before it contradictory judgments concerning could refrain from enforcing the rele­ the same constitutional issue in an vant legislative provision, if it was area where the need for consistency found to be in contravention of the was paramount. Constitution. However, the unconsti­ tutional provision was never declared However, the logical basis for both void, and its operative force remained modes of ensuring constitutional intact with respect to other cases. supremacy is the same. It has always been implicit in, and incidental to a court’s power to interpret the law that preference has to be given to the Abstention Control Compared Constitution over other legislative with Judicial Review enactments whether these originate from the legislature or the executive The exercise of the power of judi­ branch. However, this has never cial review results in the invalidation implied as was pointed out in a land­ or the legitimisation of the challenged mark decision of the Administrative statute by a judgment which is enfor­ Judicature Court in 1948, that the ceable in respect to all individuals and exercise of the power of judicial public authorities. In contrast, absten­ review means that the judiciary is tion control renders statutes contra­ superior to the legislature.4 Rather

4 In Osborn v Bank of United States, 22 US (9 Wheat) 738, 6 L ed 204 (1824), Chief Justice Marshall stated that "...courts are the instruments of law and can will nothing.” the mechanism of "abstention Nature of the Court’s Powers control”, as with full judicial review, is based on the proposition that where A fundamental rule is that judicial the will of the legislature, declared in review may only be exercised in rela­ statutes, stands in opposition to that tion to legislation which is being chal­ declared by the nation in the lenged by parties to a case before the Constitution, courts will be guided by courts. the m axinu “Lex dpeciaLL) derogat Legi generaLi” and "Lex podterior derogat Legi Article 4 of the Supreme Court’s priori” . The courts rely on the premise Rules stipulated that allegations of dis­ that legal provisions and norms are parity between a legislative provision ranked in a strict hierarchy to ensure and the Constitution must first be raised that those of a lower rank are subjec­ before a court by a party to the case. If ted to and controlled by those of a such a claim is considered by that higher level. Consequently priority court as having merit, that court can must be given to, and be governed by, then prescribe a time limit within constitutional provisions when they which the party might bring the conflict with other rules.5 constitutional issue to the Supreme Court for determination. The follo­ wing requirements must, therefore, be met: Establishment of the Supreme a) There must be a case before the Court and Recognition of the tried court in which specific rights Principle of Judicial Review are claimed. b) In the course of deciding this case, a The deficiencies associated with parly to it challenges the validity of the abstention control procedure led an applicable legislative provision. to the enactment of Law No 81 of c) The constitutional issue raised is 1969 which established the Supreme prima facie viewed as affecting the Court with the exclusive power of substantive rights claimed, which judicial review and law No 66 of 1970 form the “subject matter” of the which prescribed the applicable pro­ original case in question. cedural rules to be used before it. d) Proceedings before the trial court Thus, judicial review was centralised are suspended. However, these are in one court in contrast to the United resumed if the constitutional States of America where all courts - dispute does not reach the State and Federal - posses this power.6 Supreme Court within the time

5 Judgment of the Administrative Judicature Court of Egypt, 10th Februaiy 1948. 6 Dr. Adel Omar Sherif, Constitutional Adjudication in Egypt iEl-QiiaddaEl-Dejtory Fee M tur) (Dar El-Shabb, Cairo 1988) 78. limit prescribed by the court of trial. In these circumstances, the subject-matter of the case shall be decided on the basis of the While the former Supreme Court applicable legislative provision, the was established upon the legislature’s conflict with the Constitution not own initiative, the Constitution is having been established. the source of the current Court’s status and powers. Article 174 of the e) Where a judgment is rendered by Constitution defines the Court as an the Supreme Court as to the vali­ independent judicial body having its dity or otherwise of the questioned seat in Cairo. This constitutional foun­ legislative provision, it has to be dation of the Court aimed to achieve a given effect by the trial court, and number of objectives. the subject-matter of the case deci­ ded accordingly. First, it decisively resolved the issue as to whether a constitutional Although the Supreme Court’s court vested with the power of judicial judicial review function was confined review should be established or not. under Article 4 of Law No 66 to Acts of Second, it subjects the Court and Parliament, the Court determined that its members to the rules generally its powers could also extend to subor­ applicable to the judiciary, including dinate legislation.7 their rights, immunities and duties as judicial officials and terms and con­ Pursuant to the 1971 Constitution ditions of service.9 Third, it affirms the Supreme Court was superseded by the non-political nature of the Court’s the “Supreme Constitutional Court” in functions, and enables it to avoid 1979.8 Despite its relatively short exis­ involvement in matters of political tence, the Court has actively participa­ controversy. Fourth, it ensures the ted in the process of constitutional Court’s impartiality, the foundation of law-making, has afforded protection public confidence in the institution. to human rights and freedoms, and Finally, the constitutional basis of the has sought to ensure that democratic Supreme Constitutional Court enables principles determine the exercise of it to maintain its independence from governmental power. government and all pohtical parties as

7 Case No 4 of Judicial Year 1, decided by the Supreme Court on 30 July 1971, Collection of Decidioru, Vol. 1 at 16. 8 Under Article 192 of the Constitution, the Supreme Court was empowere. 9 Under the Court’s Law, Law No 48 of 1979, it is the responsibility of the General Assembly of the Court, not the Executive Branch, to appoint the justices. The only exception is the Chief Justice whose appointment is at the discretion of the President. well as from all improper influence, Constitutional Court Law (No 49 of inducement and interference from any 1979) which explicitly states that quarter. judgments in constitutional controver­ sies, as well as decisions on statutory Some further points should also be interpretation are final, irreviewable, noted about the status and power of and bind all individuals and public the Supreme Constitutional Court in authorities. comparison to its predecessor: E rga omned judgments and decisions The powers of judicial review and of the Court as set out in Article 49 of statutory interpretation are laid down law No 48 are those which bear on the in Article 175 of the Constitution, substance of the subject-matter being which also delegates to the legislature considered. In constitutional disputes the role of providing through law the this is the validity or otherwise of most appropriate mechanisms for their the challenged statutory provision, exercise. However, the legislature has and with regard to statutory inter­ no authority to remove either of these pretation, it is that which reveals powers of the Court, reflecting the the true intent of the Legislature. If subjection of the State to the rule of the Supreme Constitutional Court law as stipulated in Articles 64 and 65 of declares a case or request for statutory the Constitution. mterpretation inadmissible, its deci­ sion shall only bind the parties to that Under Article 31 of Law No 66 of dispute. 1970 the Supreme Court had held that a judgment invalidating a statute The Court has repeatedly asserted applied erga omnej due to the indivi­ that judgments upholding a statute sible nature of its annulment, and as a or declaring it void, are by virtue of corollary of the statute’s violation of its mandate to be published in the the Constitution. Where a judgment Official Gazette to ensure the widest upheld the constitutionality of a statute, possible communication.11 This is also a the Court ruled that it bound no one constitutional requirement.12 other than the parties to the dispute and was without prejudice to the right Neither the Constitution nor sub­ of other parties to introduce new argu­ sequent legislation has given the cur­ ments and challenges against that sta­ rent Court clear authority to function tute. This ruling10 led to the insertion through chambers although the argu­ of Articles 48 and 49 in the Supreme ment rs made that this would improve

10 Case No 16 of Judicial Year 7, decided by the abrogated Supreme Court on 5 February 1977, Collection of Decisions, Vol 1 at 43. In addition, see its judgment in Case No 8 of Judicial Year 3 (not published). 11 Case No 136 of Judicial Year 5, decided by the Supreme Constitutional Court on 17th March 1984, Collection of Decisions, Vol 3, p 49. 12 Article 178 of the Constitution supra note 1. the effectiveness of the Court by have any criminal convictions. The increasing its flexibility and mobility. minimum age required is forty-five. Nevertheless the bulk of opinion in An appointee must be selected from the Court would be against such a among the following categories: proposal. a) Current or former members of the judiciary who have been counsel­ lors for at least five consecutive The Structure of the Court years; or

The Supreme Constitutional Court is b) Current or former professors of composed of two separate, but inter­ law, who have held such positions dependent judicial bodies: the Court for at least eight consecutive years; or itself and the Commissioners’ Body. In addition, the administrative affairs of c) Attorneys who have practised the Court are handled by its own before the Court of Cassation and administrative staff. the High administrative Court for at least ten consecutive years. The Court According to Article 5, Section 3 of The Court is composed of the Chief Law No 48 of 1979, two-thirds of the Justice and individual justices. The justices must be chosen from among law does not specify a maximum num­ the first category, i.e. members of the ber of judges. But the Court’s statute judiciary. In fact since the establish­ prescribes that the quorum of judges ment of the Court, all its justices have required to sign a judgment is seven, been selected from this category. although all justices may take part in the deliberations of the Court. At pre­ sent there are ten justices of the The Chief Justice is appointed by Supreme Constitutional Court. In the President of the Republic. Justices order to be appointed, justices must are also appointed by the President meet the following eligibility require­ based on the advisory opinion of the ments as stipulated in the Judiciary Supreme Council of Judicial Bodies. Law .13 Each justice is selected from a choice of two candidates; the first of whom is A justice must be of Egyptian nominated by the General Assembly nationality, have at least a LL.B. in of the Supreme Constitutional Court law, be of good behaviour, and not and the second by the Chief Justice.14

13 Law No 46 of 1972. 14 Supra note 9. The Commissioners’ Body respect and preserve the Constitution and the laws, and fulfil the duties of The Commissioners’ Body’s principal their posts with honesty and credibility. duly is to prepare all cases, disputes, claims and petitions to be heard by the Court. The Head of the Adminuttration Commissioner’s Body is responsible for organising and regulating its work The Courts administrative staff is and supervising the work of its coun­ presided over by a Secretary-General sellors and assistant counsellors. whilst ministerial responsibility is vested Commissioners are appointed by the with the Chief Justice. President upon receiving the opinion of the Chief Justice and the General Personnel affairs are managed by a Assembly of the Court. Committee formed by the Chief Justice and consisting of two justices The Head of the Commissioners’ and the Secretary-General. A further Body must meet the same eligibility committee, composed of three justices requirements as the justices of the who are elected annually by the Court. As for the members of the General Assembly, acts as a disciplina­ Commissioners’ Body, ,they must ry tribunal for the administrative staff. meet the same requirements appli­ The Commissioners Body assumes the cable to their peers, as provided for role of prosecutor before this tribunal, the Judiciary Law. the decisions of which are final. In practice, appointments are made on the basis of promotion. The Independence of the Court Nevertheless, it is possible for posts to be filled by direct appointment from The Constitution, in several of its other judicial bodies. Moreover, the articles, emphasises the general inde­ Chief Justice has the right, based on pendence of judiciary. Article 65 states the opinion of the General Assembly that: of the Court, to appoint members of other judicial bodies to fill these posts on The independence and immunity of a temporary basis. In practice mem­ the judiciary are two fundamental bers of other judicial bodies are guarantees safeguarding rights and appointed to work as commissioners liberties. for at least one year, and may become permanent if their performance is dee­ Article 165 maintains that: med to warrant it. Judges and justices shall be The members of the independent, and subject to no Commissioners’ Body, including its other authority but the law. No Head, are sworn in before the General other authority may intervene in Assembly of the Court prior to assu­ cases or in the affairs of the ming their posts. They are sworn to judiciary. With specific regard to the The court itself decides all matters Supreme Constitutional Court, Article rnvolving the employment of its jus­ 174 of the Constitution, dtipra, ensures tices and of the Commissioners’ Body. its independence and this is reiterated in The delegation of court justices, even Article 1 of Law No 48 of 1979, which on a part-time basis, to the govern­ stipulates that Court’s Procedures and mental agencies is prohibited, except if jurisdiction. it is to an international organisation or foreign country, or involves teaching In addition, Article 177 of the at a university. 5 constitution states: The Chief Justice prepares the court's annual budget which is then The status of the members of reviewed and approved by the the Supreme Constitutional General Assembly of the Court. The Court shall be irrevocable. The latter retains the same measure of court’s members shall be authority as a Treasury minister with accountable to the court, in the regard to the implementation of the manner prescribed by law. budget plan, thereby ensuring the Court enjoys a fair degree of financial This accountability of the Court's independence. The budget plan must, justices and commissioners exclusively as with the national budget, be ultima­ to their peers is reflected m the esta­ tely approved by the People’s blishment of the General Assembly of Assembly. the Court which retains sole responsi­ bility for the court’s operation and all its internal and administrative affairs. The Jurisdiction of the Court The Assembly acting as a disciplinary The Court is vested by virtue of tribunal for the justices and for the Article 175 of the Constitution with members of the Commissioners’ Body, the power of judicial review, and the has the sole power to remove justices power of statutory interpretation. from office, thereby further reinfor­ Article 175 also stipulates that the cing their independence. legislature is entitled to indicate other competencies which the Court may The independence of the Court is possess, and the procedural rules for also strengthened by the manner in their exercise. Pursuant to Article 175 which justices and members of the the Supreme Constitutional Court has Commissioners’ Body are appointed been given the power to resolve juris­ as outlined above. Article 5, Section 1 of dictional conflicts between courts. It Law No 48 of 1979, does give the has also been given competence to President of the Republic the power to determine financial and administrative appoint the Chief Justice, but in prac­ disputes that may arise with respect to tice the most senior justice is usually members of the Court itself and the appointed to this position. Commissioners’ Body. The Power of Judicial Review which yield judicially enforceable rights unable to be overridden by Introduction ordinary law s.17

Judicial review forms the core of The power of judicial review is not the Supreme Constitutional Court’s only exercised in regard to the jurisdiction allowing it to play a key Constitution, but may also be used to role in the shaping of the country’ settle other legal disputes. It has pro­ social, cultural and political life as ved to be a very constructive means of the ultimate interpreter of the Constitution. introducing progressive change peace­ fully in the country while also helping to protect the fundamental rights and The exercise of this power is based freedoms of individuals when these on the proposition that the have been threatened. Constitution, as the ultimate source of all political power, is recognised as the supreme law from which all the In exercising this jurisdiction the powers of the government are derived. Court has defined many of the general Without effective restrictions on the and ambiguous terms in the power of governments and articulated Constitution, including the equal pro­ guarantees for the protection of indivi­ tection clause, equal opportunities to dual rights and freedoms, the principle all citizens, the concepts of a “fair of the rule of law cannot operate. trial” and “natural justice” to which all citizens are entitled; the “social solida­ Therefore, if the government acts rity” upon which the society is based, unconstitutionally it must be held to and constitutional limits of the right to account through the effective exercise of privacy. the power of judicial control in order to preserve the constitutional will of However, the power of judicial the people intact.16 This is in accord review is not intended to infringe on, with all written constitutions which or to be directed against the principle of have always contained provisions the separation of powers. 8 On the

16 Tresolini and Shapiro, American Constitution Law, 3rd ed, at 66. However the scope of judicial review must be restrained, in order to prevent the judiciary exercising power in excess of its constitutional mandate (see Bowers v Harwick, 478 US 186, decided by the United State Supreme Court on 50 June 1986). 17 Campare M arbury v JVLadision, 1 Crancb 137 (1803).

18 Elliot L Richardson, “Checks and Balances in Foreign Relations", AJIL, Vol 83, No4 , October 1989, 737. contrary, it recognises that the diffe­ ding to their origins and their subse­ rent branches of government share quent development.21 power through a series of checks and balances, holding each other to account.19 It has been widely recognised Bringing Constitutional Cases that the judiciary is the best mecha­ Before the Court nism for protecting the constitution Article 29 of Law No 48 of 1979, particularly if one notes that the Court specifies two principal procedures neither approves nor condemns any whereby a constitutional issue can be legislative policy.20 A claim of invalidi­ raised in connection with the determi­ ty against a statute once filed with the nation of the merits of a case and as a Court does not have the effect of sus­ prerequisite for its settlement. pending the statute’s powers. The challenged legislative provision remains in force until the Court Constitutional Issue Ruined by a reaches its decision. Party to a Case

Judicial review is now firmly Article 29 sub-paragraph (b), embedded in the system of Egyptian enables a party to a dispute on the government enabling the Supreme merits to question the validity of an Constitutional Court to act as arbiter applicable statute provided it can between individual and State through a show that the party has a personal dynamic interpretation of the stake in the outcome of that issue. If Constitution. By performing this func­ the court hearing the case, consider tion the Court implicitly recognises that prima facie, the claim of invalidity that the Constitution was never intended is well founded, it then prescribes the to be, nor has in practice proved to be, time limit within which that party has to a straitjacket. As Chief Justice institute constitutional proceedings Wendell Holmes aptly pointed out, the before the Supreme Constitutional provision of the Constitution are not Court. These proceedings are deemed to mathematical formulas, but organic be completely independent of those living institutions the significance of before the trial court, despite the fact which have to be determined accor­ that the invalidity of the challenged

19 TKe separation of powers is not merely a matter of convenience or a particular system of government. It has a primary and vital objective, namely to prevent tKe fundamentally diffe­ rent governmental powers falling into tKe same Kands (O’Donoghue v United States, 28g US 516, 530, 1933). In his dissenting opinion in Myers v United States, 272 US 52, 293, 1926, Justice Brandies wrote that the doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitraiy power and there­ by save the people from autocracy. However, as Madison argued in the Federalist N o 48, unless the various branches are connected in such a manner so as to give to each a constitutional control over the others, the degree of separation which the maxim requires as essential in a free society, can never, in practice, be duly maintained. 20 Mason and Beany, American Constitutional Law, 3rd ed, 11-21. 21 Justice Oliver Wendell Holmes in Compers v United States, 233 US 604, 610 (1914). provisions will affect the subject-mat­ The E x O fficio Jurisdiction of ter of the original case. Courts to Refer

In considering the allegation of sta­ Constitutional Issues to the Supreme tutory invalidity, the trial court takes Constitutional Court no decision on its compatibility with the Constitution. Only the apparent Sub-paragraph (a) of Article 29 breach of the Constitution is examined Law No 48 of 1979, entitles a court of trial on its own motion to refer a and if the court fails to prescribe a constitutional issue to the Supreme time limit for the initiation of constitu­ Constitutional Court. Where in any tional proceedings, but proceeds with proceedings it appears to a court that consideration of the merits, it is implicit prima facie a particular legislative pro­ in its decision that the constitutional vision appears to be in violation of the claim is groundless. Constitution and the constitutional issue has a bearing on the subject-mat­ The Supreme Constitutional Court ter of the case, the court may refer the has repeatedly affirmed that the requi­ issue of validity to the Supreme rements laid down by Article 29 for Constitutional Court for adjudication. brining constitutional disputes before This procedure will be used when the it, for example time limits and the parties to the original case either lack need for precise definition of the issue in the personal interest to challenge the question, must be adhered to by the applicable legislative provision, or are parties. Otherwise the case will be unable to identify the defect. This pro­ declared inadmissible.22 cedure is less frequently used than a reference by a litigant. Failure by the party who raised the constitutional issue before the lower The Supreme Constitutional Court court to strictly observe the prescribed can set aside the referred constitutio­ time limit for reference to the nal issue on the ground that its resolu­ Supreme Constitutional Court will tion does not affect the subject-matter of result in the resumption of the procee­ the initial dispute on the merits. dings on the merits. Where a trial court grants permission to raise a The E x-O fficio Jurisdiction of the constitutional issue before the Supreme Constitutional Court Supreme Constitutional Court, but fails to lay down any specific time Sub-paragraphs (a) and (b) of limit, the maximum period of three Article 29, of Law No 48 of 1979, months must be adhered to. prescribe the procedures whereby the

22Case No 48, Judicial Year 3, decided 21st June 1983, Collection of Decisions, Vol 2, 148. Supreme Constitutional Court will this case the petitioner, in his capacity as normally exercise its power of judicial a member of the State Council, chal­ review. lenged a decision to transfer him as being improper, arguing that Article However, Article 27 also provides 104 of the Council’s Law25 should be that : considered void. Upon a prima facie finding by the tried court that there Whenever the Court in the was a constitutional issue to be consi­ exercise of its powers, faces a dered, the matter was referred to the legislative provision linked to Supreme Constitutional Court. The dispute before the Court, that Court observed that the challenged provision may be invalidated by provision was framed in exactly the the Court after following the same manner as Article 83 of the legis­ procedural rules prescribed for lation regulating the ordinary judicial the examination of constitutio­ nal issues. body.26 The Court held that both Articles were, therefore, in violation of Article 68 of the Constitution which Under this provision, the Court grants all individuals the right to may examine the constitutionality of a undertake litigation, removes the legislative provision linked to a dispute immunity of all administrative deci­ brought before it. This means that this power can be exercised by the Court sions from judicial review, and fully while examining any issue other than guarantees all citizens effective access to the interpretation requests. The rea­ natural justice. son for this is that interpretation requests do not include judicial As part of its reasoning the Court controversy in the accurate sense, and noted that the connection between the hence, this power can not be exerci­ laws in question need not bear on the sed.23 Contrary to this are the consti­ subject-matter of the dispute before it. tutional cases within which the Court Nevertheless some degree of relevance may examine the constitutionality of a must be established. Apart from this legislative provision which has not broad guidance the notion of linkage been directly addressed by the parties remains vague in the absence of any seeking constitutional review but objective criteria. The Court is not which the Court considers is related to obliged to raise the constitutionality of the legislative provision which is being a related law. It retains a discretion challenged. This power has only been whether to consider the validity of exercised on one occasion to date.24 In such linked legislation.

23 See the Court s decision in the interpretation request No 2 for the 17 judicial year, rendered on October 21, 1995, published in the Official Gazette No. 44 on 2 November 1995. 24 Constitutional Case N O 10, Judicial Year 1, decided 16 M ay 1982, Collcctivn o f Decutiond, Vol 2, 150. 25 Law No 47 of 1972. 26 Law No 46 of 1972. Constitutional Proceedings provision allegedly contravening the Constitution and the constitu­ In addition to individual petitioners tional provision alleged to have and respondents, who as parties to a been contravened. In addition to constitutional case, enjoy equal rights having a detrimental effect on the before a public hearing, by virtue of parties’ case, lack of clarity will Article 3 5 (3 ) of Law No 48 of 1979, impede the Commissioners’ Body the government is automatically from determining the relevant legal accorded the status of a party having and constitutional points for sub­ .... _ QO an interest in such cases in order to be mission in its report to the Court. able to defend the statute in question and to be held accountable for any b) In order to ensure fairness and jus­ lack of compliance with the tice on behalf of all parties during Constitution. the proceedings, all cases and requests should be entered by the Chapter 2, Part 2 of Law No 48 Court Registrar on the same day lays down the specific procedural on which the party’s claim is filed rules to be followed for cases and with the Court.29 requests for adjudication which come before the Court. In the absence of a c) All interested parties have to be specified rule, the respective case or notified within fifteen days of the request is governed by the relevant entiy by the Registrar. general civil and criminal procedure d) In order to grant equal access to provided that this does not conflict both sets of pleadings these should either with the nature of the courts then be presented as follows: competence, or with its own establi­ shed procedures.27 Upon receipt of notification by the Court, each party has The following specific rules pres­ to submit arguments, together cribed for cases and requests filed with supporting documentary with the Court may be noted: evidence, within fifteen days. a) Article 30 of Law No 48 stipulates Counter arguments with sup­ that the petitioner’s claim must spe­ porting documents, must be cify with precision the legislative submitted within a further

27 Article 28 of Law NO 48 of 1979. 28 Case No 54, Judicial Year 3, decided on the 18 December 1983, Collection of Decuioru, Vol 2, 198. 29 Compare the dissenting opinion of Justice White in Lehr v Robertson, 463 US 248, (decided by US Supreme Court on 27 June 1983), in which he stated that “it is axiomatic that the fun­ damental requirement of due process, is the opportunity to be heard at a meaningful time and in a meaningful manner”. Also in Morrissey v Brewer, 408 US 471, 481, 1972, the Court held that due process is flexible and calls for such procedural protection as the particular situation demands. fifteen days following the After conducting hearings, the expiry of the previous time Commissioners’ Body issues a report limit. Further counter replies to which all parties have access. This should then be submitted sets forth inter a lia the legal and consti­ within a further fifteen days. tutional points involved, and the advi­ sory legal opinion it has reached, toge­ e) At the conclusion of the third and ther with its reasoning. final period, no further pleadings or statements form either the peti­ Within a week of the submission of tioner or the respondent may be presented. All pleadings are then this report the Court, The Chief communicated by the Registrar to Justice decides the day on which pro­ the Commissioners’ Body. ceedings are to commence. Parties are given notice at least fifteen days in advance. However, where necessary, and at the request of a party to the The Role of the Commissioners' dispute, this period may be reduced by B o d y the Chief Justice to not less than three days. The Commissioners’ body in the course of its preparatory work for the service of the Court must itself abide Cases and requests before the by judicial standards guaranteeing a Court are considered without an oral fair and public hearing.30 To facilitate hearing unless this is deemed necessary. its work the Body has, inter alia, the In such an instance, only counsel right to: a) require from governmental and the representative of the branches and departments all relevant Commissioners’ Body shall be heard. information and pertinent documents; A party to the dispute in whose name no b) summon the interested parties for pleadings were entered, waives his further clarification of the facts of the right either to be represented or assisted respective case or request the produc­ by counsel. tion of additional documents and sup­ plementary memorials, c) make other inquiries within a prescribed period, Where considered appropriate to and d) fine whoever causes undue the circumstances of the case or the delay to the progress of proceedings; request, both sets of counsel may be the implementation of which shall be invited by the Court to make written final unless totally or partly revoked supplementary submissions within a upon justifiable grounds. specified time.

30 In Prentis v Atlantic Coast Line, the US Supreme Court distinguished commissions acting in a legislative capacity from those conducting a judicial inquiry by stating that a judicial inqui­ ry investigates, decides, and enforces judgments based on present or past facts and according to existing laws. Legislation, on the other hand, looks to the future and changes existing conditions by making anew rule to be applied thereafter to all or some part of those subject to it. 211 US 226, 1908. Statutory Interpretation tant to justify a judicial interpretation, otherwise it will be inadmissible. The Constitution grants the power of statutory interpretation to the Supreme Constitutional Court in Exclusions accordance with and in a manner to be The power to provide statutory prescribed by the legislature. interpretation is not confined to sta­ Accordingly, under articles 26 and 33 tutes but extends to delegated legisla­ of Law No 48, statutory interpretation tion, and includes legislation made in extends to those laws and regulations the exercise of emergency powers which enjoy the force of law under the under articles 108 and 147 of the Constitution, provided in both cases Constitution. However, the following that the application of the respective are excluded from the Court's mandate: provision has been the subject of a number of differing opinions, and that a) Regulatory cabinet and ministerial the provision has reached a level of decrees. importance which necessitates the Court’s intervention in order to secure b) Police regulations issued by the its unified application. President under Article 145 of the Constitution in order to secure the Envisaged as a remedy against maintenance of public order, public arbitrary distinctions and inequalities health, security, or tranquillity in occurring in similar or identical cir­ either the entire territories of the cumstances, the Court's decision is State or a region or sub-region the­ enforceable against all individuals and reof. public authorities and invalidates any piece of legislation enacted to the c) Regulations under Article 74 of the contrary. Constitution which grants the President the right to take prompt measures in the face of dangerous Requesting threats either to national unity or to Statutory Interpretation the safely of the State or the need Decisions on statutory interpreta­ to eliminate impediments hindering tion are rendered by the Court subse­ State officials from the proper per­ quent to a request submitted by the formance of their constitutional Minister of Justice upon the applica­ duties. tion of either the Prime Minister, the Speaker of the People s Assembly, or d) Regulations concerning public ser­ the Supreme Council for Judicial vices as provided for in Article 146 of Bodies. In each instance, the request the Constitution. must precisely indicate the legislative provision to be interpreted; the diver­ e) Regulations necessary for the exe­ gent points of view regarding its appli­ cution of legislation as prescribed cation; and why the matter is impor­ by Article 144 of the Constitution whether issued by the President, or extend to examining the constitutiona­ his delegate, or by, a power assi­ lity of a provision, even if the latter gned by the law for that purpose, appears to be clearly in opposition provided that these regulations nei­ to the Constitution. Otherwise, the ther amend nor suspend the appli­ Court would find itself ex-officio enga­ cation of the corresponding law. ged in exercising a power of judicial review which is greater than that conferred on it originally by the legis­ The Court s Approach to lature. The Court can only reach Interpretation binding decisions concerning the In exercising its power, the Court interpretation of the Constitution seeks to reveal the legislatures true within the scope of its own jurisdiction intent, primarily by examining the lan­ as determined by Law No 48 of 1979. guage used. However, the Court will go beyond the literal language of a sta­ The Legal Effect of the Court’s tute if sole reliance on it clearly defeats Decisions on Statutory the purpose which the legislature Interpretation intends to accomplish.31 The Court’s decision applies In determining legislative intent retroactively from the date on which the court will examine documents the provision under review came into associated with the enactment of the force. However, any prior final judg­ statute including preparatory mate­ ments rendered by other courts which rials, debates in the Assembly, and the contradict the Supreme Constitutional circumstances that led to its adoption. Courts interpretation remain valid The Court may also, as a secondary under the principle of red judicata. source, consider comparative legal materials, national or international.32 This rule dates from the Court’s The Court has adopted a new practice predecessor, the Supreme Court, of referring to the foreign and interna­ which held that statutory interpreta­ tional human rights instruments it has tion by a competent body does not consulted in exercise of its functions establish a new rule, but should be including in interpretation cases. considered to form part of the original provision apart from final judgments The Courts jurisdiction to offer which are subject to the red judicata interpretation of statutes does not norm.33

31 Request No 1 Judicial Year 13 (Interpretation), decided 4 Januaiy 1991, Collection of Decidiotu, Vol 5, Part 1, 385. 32 Request No 2, Judicial Year 8 (interpretation), decided 7th May 1988, Collection, o f Decidiond, Vol 4, 384. See also, Request No 1, Judicial Year 15 (Interpretation), decided 30 Januaiy 1993, Collection of Decidiond, Vol 5, Part 2, 417.

33 Request No 1, Judicial Year 15 (Interpretation, decided 30 Januaiy 1993, Collection of Decidiond, Vol. 5, Part 2, -417. The Courts decisions are not sub­ the merits of the case, but is totally ject to review by any other authorities independent of the original adjudica­ including the legislature. However, tion, any subsequent proceedings, or the legislature s constitutional compe­ any sentence rendered.35 Moreover, tence to abrogate or amend the inter­ requests are subject to the procedural preted provision is not affected unless rules generally applicable to all cases the subsequent legislation is construed which reach the Court and unless the as rendering ineffective any constitu­ dispute which has arisen between the tional rights contained in the original conflicting judicial bodies concerns a document. conflict of competence in accordance with those rules the Court will not entertain an application.36

Resolving Conflict of Article 34 of Law No 48 of 1979, Jurisdiction states that a request addressed to the Court must include two formal copies of the conflicting judgments. However, Requests for Adjudication where both or either of the conflicting Where two courts from different judicial bodies have claimed jurisdic­ judicial bodies34 either claim or dis­ tion by pursuing consideration of the claim jurisdiction regarding the same merits of the case without rendering a subject-matter, the Supreme Consti­ final judgment, this requirement may tutional Court shall at the request of be dispensed with. an interested party, and in accordance with Article 25 and 31 of Law No 48, There is no time limit on the sub­ designate which of the two conflicting mission of a request. If a prescribed bodies has the jurisdiction to decide time limit were to expire and the pro­ the claim. ceedings of the two pending cases resume, the result would be two final The request addressed to the Court contradictory judgments concerning must describe the subject-matter of the same subject-matter. Therefore, the conflict; the judicial bodies enga­ the resolution of the conflict by the ged therein and the decisions taken. Supreme Constitutional Court is both Such a request is not regarded as a conceived as a preventative measure continuation of the deliberation of designed to avoid this eventual

34 The expression “judicial bodies” as used in this context, means either two courts dtricto dendu; two other judicial bodies; or a court and another judicial body. As a general rule, conflicts of competence arise in Egypt due to the fact that there are two main judicial branches: the civil and administrative branches, each of them being independent from the other. 35 Request No 5, Judicial Year 4, (Conflict), decided 7th January 1984, Collection o f Decision*) Vol 3, 367.

36 Request No 1, Judicial Year 6, (Conflict), decided 21st April 1985, Collection of Decidiond, Vol 3, 428. contradiction as well as a positive gua­ The Court has also held that only rantee against any miscarriage of justi­ parties having a personal stake in the ce occurring as a result of determina­ outcome of the decision of the particu­ tion by an inappropriate judicial body. lar conflict are entitled to submit a request, consequently, requests direct­ Additionally, a request for the ly referred by other courts lack stan­ determination of the proper court to ding and are inadmissible.39 hear a dispute is neither intended to be an appeal against a decision nor Under Article 52 of Law No 48, against the enforcement of sentence or the parties to the dispute are waived judgment, and therefore it is not sub­ payment of any legal fees to the Court, ject to the prescribed mandatory per­ since they are deemed not to be res­ iods which usually apply. ponsible for a conflict which if it remains unresolved is an impediment Once the request is presented to to the proper administration of justice. the Supreme Constitutional Court proceedings before the two conflicting The Court’s Powers to Designate judicial bodies are suspended j u j in re Competence (de plein droit) until final adjudication of the dispute. Any final judgment on In determining which of two judi­ the merits of either of the pending cial bodies is competent to consider cases rendered subsequent to this the merits of the particular case, prefe­ mandatory suspension will be viewed rence is given to that body which by the Court as having not occurred according to the applicable jurisdictio­ and having no effect on its own judg­ nal rules, has the exclusive power to ment on competence.37 entertain the claim on the merits.40

A request for adjudication shall be Normally, the enactment of juris­ inadmissible where the jurisdiction on dictional rules is carried out at the dis­ merits is claimed by one judicial body, cretion of the legislature, unless the and the other body neither claimed the Constitution itself specifies the juris­ competence to decide the case, nor fol­ diction of a particular judicial body, lowed the prescribed proceedings for for example the State Council which, its adjudication.38 under Article 172 of the Constitution, is

37 Paragraph (2) of Article 31 of Law No 48 of 1979. 38 Request No 9, Judicial Year 4, (Conflict) decided 11 June 1983, Collection ofDecisions, Vol 2, 267. 39 Request No 5, Judicial Year 4, (Conflict) decided 7th January 1984, Collection o f Decidionti, Vol 3, 367. 40 Request No 1, Judicial Year 5, (Conflict) decided 21st January 1984, Collection of Decisions, Vol 3, 380. accorded the exclusive power to decide ther the subject-matter of the claim administrative controversies and falls within the jurisdiction of the disciplinary disputes. However, a pre­ respective judicial body or not. cedent was set by the Supreme Moreover, the Supreme Constitutional Constitutional Court in Case No 18 of Court is the only which can determine Judicial Year 9. A conflict of compe­ constitutional issues and only then in tence arose between an ordinary court accordance with its own procedures/1 and a disciplinary court concerning the annulment of an administrative Where the subject-matter of the decision dismissing the claimant from two cases before the conflicting judi­ a job. The Supreme Constitutional cial bodies is not the same or where Court concluded that his dismissal two cases dealing with the same sub­ was not effected in the course of disci­ ject-matter are considered by two plinary proceedings, but based on courts from the same judicial body, the facts directly linked to his professional request for the designation of the com­ incapacity which rendered him unfit petent court cannot be admitted.42 to discharge his duties. Since the clai­ mant was, at the time of his dismissal, employed by a public sector corpora­ The Legal Effect of the Court’s tion whose employees were not public Decision servants and hence subject to private law, the Court held that the case fell Decisions of the Court are final. within the exclusive domain of the Therefore it is impossible for the ordinary courts. Court to be viewed as being in conflict with other courts concerning compe­ Article 25 of Law No 48 of 1979, tence, nor can its judgments be reversed requires that the subject-matter before upon allegations of having contrave­ the conflicting judicial bodies must be ned the rule of law or contradicted the same for there to be an adjudica­ judgments rendered by other courts.43 tion by the Court. “Subject-matter” whilst covering the claimants The Courts decision designating demands which are considered at the the competent judicial organ to dispose merits phase, excludes constitutional of the case, bestows on that body a issues since adjudication of these new mandate to decide the case not­ directly affects the law to be applied to withstanding any final judgment the merits of the claim, but does not which it might have delivered prior to involve any decision concerning whe­ that decision.44

41 Case No 2, Judicial Year 5, (Conflict) decided 16 June 1984, Collection o f Decutu>tu, Vol 3, 415. 42 Request No 1, Judicial Year 6, (Conflict) decided 21st December 1985, Collection of DecutioM, Vol 3, 428. 43 Request No 5, Judicial Year 6, (Conflict) decided 3rd January 1987 (not yet published). 44 Request No 17, Judicial Year 1, (Conflict) decided 7th March 1981, Collection of Decutionj, Vol 1, 284. Decisions on competence bind no b) B y the tim e the conflict is decided others than the parties concerned. by the Supreme Constitutional Court the two independent judicial bodies have been amalgamated/6 Contradictory Judgments c) If it can be shown that the execu­ The Supreme Court has also been tion of both judgments would have given the competence to resolve dis­ the same effect or where evidence putes which can arise from attempts to shows that either or both of the two enforce judgments which are in judgments are not final or have conflict. been fully executed before the sett­ lement of the conflict.

Requests for the Settlement of d) The subject-matter of the two Conflicts contradictory judgments is not the By virtue of Articles 25 and 32 of same. Law No 48 of 1979, the Court may e) The interests of the party who lodged adjudicate on disputes arising from the request are not affected by the the execution of two contradictoiy execution of the judgment of which final judgments passed by courts he complains. belonging to two different judicial bodies. A request has be lodged with 1) Two formal copies of the two alle­ the Registry of the Court indicating ged contradictory judgments are the contention concerning the execu­ not enclosed with the request by tion of the two respective judgments the claimant.47 and their alleged contradiction.

The settlement of a conflict may be Suspension Orders requested at any time. Requests will In order to avoid irreparable dama­ be deemed inadmissible if: ge being sustained by either party to the conflict by one or both of the judg­ a) Contradictory final judgments are ments complained of being executed rendered by two courts from the against his interests, the Chief Justice same judicial body since internal of the Supreme Constitutional Court applicable rules within that body may, at the request of the interested will provide the means for the sett­ party, and in accordance with lement of that conflict.45 paragraph 3 of Article 32 of Law No

45 Request No 12, Judicial Year 8, (Conflict) decided 4 February 1989, CoLlection of Decuioru, Vol 4, 469. 46 Request No 4, Judicial Year 6, (Conflict) decided 5 March 1988, Collection ofDecuwnd, Vol 4, 439. 47 Request No 6, Judicial Year 2, (Conflict) decided 7th November 1981, CoLlection o f Decision,!, Vol 2, 231. 48 of 1979, make a mandatory order means for reversing judgments on the suspending the execution of either or basis of errors of fact or law, but is to both of the two conflicting judgments be determined according to the rules pending the final adjudication of the laid down for the allocation of conflict. The suspension order sought cases amongst the different judicial requires the applicant to show prim a bodies.49 fade, which of the two conflicting judicial bodies has jurisdiction to decide the Thirdly, the Court s power to decide case on its merits. conflict is confined to judgements rendered by national judicial bodies. It Upon such an order being issued, does not extend to foreign judgments. no enforcement measure can be taken to It also excludes alleged conflicts bet­ execute the suspended judgment until ween final judgments and advisory the Supreme Constitutional Court has legal opinions. Decisions passed by reached its final decision on the the Court are final and bind only the conflict. The order is not subject to parties to the case. review.

The suspension order has no effect Internal Disputes on the outcome of the Court's final As a general rule, the Supreme decision on the conflict at issue. Constitutional Court does not decide the merits of a case. An exception Approach o£ the Court to concerns disputes arising out of Contradictory Judgments the application of Article 16 of Law No 48, which determines that the The Court has formulated a three­ following shall fall within the exclusi­ fold rule for the exercise of its jurisdic­ ve jurisdiction of the Court. Firstly, tion: cases submitted by any of the Court’s members if the subject-matter of the Firstly, preference has to be given claim is either the annulment of an to the judgment of the judicial body administrative decision relating to which has the jurisdiction to decide their service or the relevant compen­ the merits of the subject-matter of the sation concerning damages resulting 48 ’ case. therefrom. Secondly, cases concerning salaries, remuneration and pensions Secondly, a request for the settle­ due to be paid to them or to their ment of a dispute is not deemed to be a dependants. As with all other disputes

48 Request No 22, Judicial Year 1, (Conflict) decided 5 January 1985, Collection of Decisions, Vol 3, 421. 49 at421. 50 Request No 1, Judicial Year 7, (Conflict) decided 7th March 1987, Collection of DecLfioru, Vol 4, 431, Request No 4, Judicial Year 8, decided 2 January 1988, Collection of Decu/ionj, Vol 4, 434. The International Bill of Human a way that obligates that organ to res­ Rights calls upon those who create pect democratic practices and human constitutional orders to establish a"" rights when carrying out its particular “democratic society.”1 It calls for the functions. These principles also help creation of an elected representative to define a democratic system irres­ assembly2and for governmental insti­ pective of whether the constitution tutions and processes to provide for creates a presidency, parliamentary, the realisation of universal suffrage constitutional monarchy, or some and fair and frequent elections.3 It other system of government. The prin­ calls for the establishment of indepen­ ciples call for institutions of govern­ dent courts mandated and adequately ment that will promote and protect: empowered to protect human rights. At a deeper level of analysis, the International Bill of Human Rights 1. Redpect for the dovereignty of the people, and other'basic United nations human secured, in part, by establishing the rights Conventions prescribe adheren­ supremacy of a constitution that is ce to a body of constitutional prin­ derived from the exercise of rights ciples, which facilitate democratic of political participation5 and self- governance and which should be used to determination,6 which expresses structure each organ of government in the “will of the people” and which

1 The International Bill of Human Rights assumes, the existence of a “democratic society." See E.g. Universal Declaration Art 29(2), which states: In the exercise of his rights and freedoms, everyone shall be subject only to such limi­ tations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just require­ ments of morality, public order and the general welfare in a democratic society. Id. (emphasis added). For analogous provisions in the Covenants, see ICCPR, arts. 14(1), 21, 22; ICESCR, Art. 4: and more recently, United Nations World Conference on Human Rights, Vienna Declaration and programme ofAction (Ju n e 25, 1993) pt. 1, pmnl. pt. 2. X X 5, 15, 21 in 32 Int’l Legal Materials 1661 (1993). 2 The Universal Declaration states: 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right to equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elec­ tions which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Universal Declaration, Art. 21; see also ICCPR, Art 25; Women's Convention, Art. 8. 3 See supra note 2. 4 Universal Declaration, Art. 8 (“Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted to him by the constitution or by law.’’) i2). Art 10 “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him."), id. Art. 11; ICCPR, arts. 2, 6(2), 9, 13, 14, 26; Women’s ' Convention, arts 2(c), 15. 5 See supra note 2 and accompanying text. 6 ICESCR, Art 1(1), (3), ICCPR, Art. 1. provides for continuing opportuni­ and the rights of women and per­ ties to express that will;7 sons of different ethnic, cultural, or religious backgrounds to enjoy 2. Participation in governance, secured equal access to employment in all through recognition of a wide array organs of government and to of political rights including free­ demand fair representation in doms of association, assembly, government;11 speech and press; the rights to vote and participate in free electoral A. Equality of opportunity, secured not processes; and the right of access to only through bills of rights and responsible officials in all agencies legislation, but through processed of government in order to present that require each organ of govern­ grievances, demands, and propo­ ment to hear claims challenging the sals, or to seek information;8 legality of its actions or the actions of its personnel, and through laws 3. Repredentation in governance, secured that empower courts or other tri­ not only through the popular exer­ bunals to impose adequate reme­ cise of the right of participation, dies when these claims are shown noted above, and the right to a to be valid and unredressed by the representative legislative organ,9 wrongdoing agencies;12 but also through respect for the right of groups to present their 5. Equality of treatment to all elements of views on matters of concern to the population, secured through res­ relevant agencies of government pect for the right of all persons to and to have these fairly heard;10 enjoy equal access to positions of

7 Seedupra note 2 and accompanying text; Universal Declaration Art. 18 “Everyone has the right of thought, conscience and religion.”) id. Art. 19 (“Everyone has the right to freedom of opi­ nion and expression....”); Id. Art. 20 ("Everyone has the freedom of peaceful assembly and association”). 8 Universal Declaration, Art 19 (stating [t]he right...to seek, receive and impart information”): ICCPR, dupra note 10, Art.2. 9 Universal Declaration Art. 21 (3) (“The will of the people shall be the basis of the authority of govern­ ment...”). Seedupra note 2. 10 See dupra note A. 11 Universal Declaration, Art. “(“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction...such as race, colour, sex, language, [or] religion...”); id Art. 7 ("All are equal before the law and are entitled without any discrimination to equal protection of the law.”) ICESCR Art. 2(2); ICCPR, Art. 2(1) ; ivomen'd Convention, arts 3,7,8. 12 See ICCPR Article 1(3), which states: Each State Party to the present Covenant undertakes: (a) To insure that any per­ son whose rights or freedoms as herein recognised are violated shall have effecti­ ve remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority.... ICCPR Art. 1(3). government and through appro­ including the security forces, of priate actions to remove historic laws designed to assure the peace­ patterns of discrimination practised ful, democratic character and inte­ against them;13 grity of all stages of the electoral process;15 6. Transparency in the conduct of gover­ nance, secured through the imposi­ 8. Imposition of accountability on all offi­ tion of obligations to conduct law­ cials who violate these principled, secu­ making, adjudicatory, and red through recognition of the regulatory proceedings in public; rights of people to demand the dis­ obligations to make and preserve ciplining, removal, and imposition prescribed records of official of criminal and civil liability on all actions and to make these records offending officials, with appropriate readily available to the public; and powers and duties vested in the obligations imposed on designated courts and other departments of officials in all organs of govern­ government to enforce these sanc­ ment to meet with the press and tions against offending officials;16 public to explain decisions affec­ ting particular citizens or groups, 9. Respectfor the constitution and the rule of or the country as a whole;14 law ad a transcendent obligation impo­ sed on all officials, secured by requi­ 7. Free, fair, and frequent elections secu­ ring solemn commitments from all red through the rights of peoples public officials to support the to demand fair enforcement by constitution and to obey the law as a impartial agencies of government, condition for office holding,17 and

13 See supra note 11 and accompanying text; WomenConvention, Art. 2(f) (“[T]ake all appro­ priate measures, including legislation, to modify or abolish existing- laws, regulations, cus­ toms and practices which constitute discrimination against women.”); id. Art 3 (“State Parties shall take...in the political, social, economic and cultural fields, all appropriate measures...to ensure full development and advancement of women...”); see also S. arts .4-6. 14 See supra note 7, and particularly ICCPR Art 25(b) ('[GJenuine periodic elections... shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”) 15 See supra note 2 and accompanying text. 16 ICCPR, Art2.(3)(a) ("[E]sure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”); id. Art 2(3)(c) ("[E]nsure that the competent authorities shall enforce such remedies when granted."). 17 Paragraph three of the Preamble to the Universal. Declaration declares that “it is essential...that human rights be protected by the rule of law.” Universal Declaration, pmbl X X 3. The ICCPR, Article 2(2), imposes the obligation on each State “to take the necessaiy steps, in accordance with its constitutional processes...to adopt such legislative or other measures as may be necessaiy to give effect to the rights recognised in the present Covenant.” ICCPR Art. 2(2). The obligation to take steps to ensure protection runs through the ICCPR and is emphasised in the requirement of Article 2(3) (b) of a legal system that provides remedies, see supra note 12, and “ensures that the competent authorities shall enforce such remedies.” Id. Art. 3(c). through processes of recruitment projection of an important part a and training, codes of conduct, and country's constitutional order. other methods that emphasise loyalty to these principles above all An illustrative Draft Code of other loyalties, including loyalties Universal Principles (Draft Code), to owed to the regime in power or to supply such a framework, is appen­ one 's party, ^ patron,4- or superior. -18 ded. This Draft code is not intended as an idiosyncratic statement of personal A key problem is how to adapt and preferences. Rather, provisions of apply these prescriptions to the securi­ existing international human rights ty forces. The first step may be to law were the sources of the principles create a general framework of prin­ proposed, demonstrating that the law ciples, which in turn can be used to already calls for the action proposed. draft the following: (i) provisions of In addition to the International Bill of the constitution relating to the security Human Rights, the Draft Code draws forces; (ii) the basic legislation, to be on the United Nations Conventwtu on enacted at a later point, providing for the Elimination of All Fornu of their establishment, organisation, Didcrimination Againdt Women19 and the finance, management, and oversight, Convention on the Elimination ofAll Fornu and for the required standards of of Racial Dbcrimination.20 Important conduct, discipline, transparency, and parts of the Draft Code are derived accountability; and (iii) regulations also from other international instru­ promulgated by the relevant ministries ments, adopted unanimously by the to implement and adapt these legal United Nations General Assembly, commands to the army, police, and that set out standards necessary for other law enforcement agencies. humane law enforcement, such as the Viewed in this light, the proposed fra­ United Nations Code o f Conduct for Law mework of principles can be seen as a Enforcement Officers.21

18 The obligation to develop a civic culture that values and respects universal rights is often overlooked. Paragraph 8 of the Preamble to the Universal Declaration “proclaims” the Declaration, “as a common standard of achievement...to the end that every...organ of socie­ ty...shall strive by teaching and education to promote respect for these rights. “ Universal Declaration, pmbl. XX8. Further, “education shall be directed to the ...strengthening of respect for human rights.” Id. Art. 26(2). Seed Abo ICESCR, Art. 13(1). “Everyone is entitled to a social... order in which...his. rights...can be fully realised." Universal Declaration, Art. 28. The obligation of the State to ensure respect for universal rights surely includes an obligation of the State to ensure respect for universal rights surely includes an obligation to establish stan­ dards of conduct, training, and systems of accountability directed towards that objective. 19 Womens Convention. 20 G.A. Res. 2106, U.N. GAOR, 20th Sess., Supp. No. 14, at 47, U.N. Doc. A/6014 (1965). 21 G.A. Res. 169, U.N. GAOR, 34th Sess., Annex, U.N. Doc A/34/169 (1979). The Draft Code addresses a num­ no way should preclude or deter ber of subjects, including the follo­ the legislature and the executive wing: from discharging their obligation to preview and remedy systematic 1) The Fundamental MLuwn of the abuses and other faults in the Security Forced. The security forces governance or operation of security are created not simply to provide forces. Even so, a basic commit­ for “law enforcement” in the abs­ ment to the rule of law as the tract, or law enforcement m blind means to secure democracy and obedience to the commands of the government of the day, but law rights implies that the courts or a enforcement subject to, and carried counterpart independent tribunal on in accordance with, the com­ must enjoy the power to protect mands of the constitutional order. rights when other organs fail to do The overriding obligation of law so.24 enforcement is to protect and pre­ serve that constitutional order. 4) Executive Control. The civilian chief executive, as well as his ministers 2) Legislative control. The power to and other delegates, should enjoy establish and abolish, organize, powers of command over the secu­ empower and limit powers, and rity forces, but these powers must provide for the financing and main­ be exercised in accordance with the tenance of all security forces must limitations imposed by the consti­ reside in the elected legislative tution and legislation governing the branch, which must also enjoy security forces and the decisions of powers of continuing oversight and the courts interpreting those laws. review over all security forces in This concept of dependent and order to maintain its and the conditional executive control peoples’ sovereignty over them.23 should replace the historic practice of exclusive and autonomous executive 3) Judicial Control. The courts must be control in order to assure vindica­ adequately empowered to hear and tion of the democratic and human determine all cases alleging abuses rights principles set out above.25 of power by the security forces; to impose civil and criminal reme­ 5) Coded o f Conduct. The legislature dies on wrongdoers; and, when should enact a fundamental law necessary, to provide other reme­ prescribing both the standards of dies requiring the correction of sys­ conduct expected of every person tematic abuses by particular units. in the various security forces and These powers of judicial control in the processes of enforcing these

22 See D raft Code, Art. 1(a)(2), (3). 23 Sec u l art. II, 111(b). 24 See S . arts. III(c), IX(d). 25 See u). art. Ill (a) (interpreted in the context of Art.IX). standards. The legislation should 8) Liability, Criminal and Civil'. Liability require the relevant ministries to must be imposed on all ranks implement this law by promulgating for violations of codes of conduct detailed codes of conduct for each of or any other laws that impose the various branches. One purpose of duties designed to protect the these codes is to promote the protec­ rights and the security of civil tion of human rights in law enforce­ society. Defences such as “obedien­ ment by imposing strict discipline on ce to superior orders” or “ignoran­ those who violate or condone viola­ ce of the law” must be recognized tions of the code. A second is to use only in regard to mitigation, not the code as a basic element in the trai­ liability.29 ning and orientation of all ranks and elements, a point which may be crucial 9) Empowering Civil society. The law to the reorganisation and reorientation governing the security forces of the future security forces.26 should enable the press, non­ governmental organisations, and 6) Recruitment, Training, and other groups in civil society to Orientation. These processes, as monitor the governance and already suggested, must reflect conduct of the security forces commitments to the principles of and to demand accountability for equality of access and opportunity unlawful actions in accordance and to the duty to protect the with the principles set out above.30 constitutional order and to educate all persons with respect to its com­ mands and the commands of the relevant codes of conduct.27 Ill - The Importance of these 7) Transparency. Security forces must Principles in Light of the be required to keep — and make Ethiopian Experience available to the public—prescribed records, such as records of arrests, Cynics or critics may suggest, of detentions, and indeed of all other course, that all this is aspirational and activities which plainly affect the academic - that the enactment of these rights of the peoples. Designated laws cannot effectively change the officials must be available to the ways of armies, police, and unscrupu­ public to answer questions regar­ lous political leaders who use force to ding these operations and other gain or maintain power. There are matters of public concern.28 several answers to that charge. The

26 See (d. arts. IV, V(b). 27 See id. Art. V. 28 See id. Art. VII. 29 See i2. Art.'VIII. 30 See id. Art.X(c). need for principles is not academic. It is This body of law can be characterised in based on the requirements of interna­ general terms as follows: tional human rights law. It is also 1. Centralized Executive Control exerci­ based on the lessons of experience: the sed directly by the Emperor or by history of military rule and past abuse of ministers and officers who, in turn, rights by the army and police. were appointed and dismissed by him; Under the Ethiopian constitutions of 1931 and 1955,31 the Emperor com­ 2. Autonomy, in the sense that, subject to manded the armed forces and the poli­ the control of the Emperor, the ce, and he retained exclusive executive security forces were left free to powers to determine their size, organi­ govern themselves in accordance zation, and cost; to establish the law with their own regulations; governing their leadership and disci­ pline; to decree emergency powers 3. Lack of Accountability to Civil Society and martial law; and to deploy security in the sense that governance of forces, as he deemed necessary, to both the police and the army were, assure the integrity of the Empire. for all effective purposes, beyond These powers were elaborated by the reach of Parliament, and that various executive and legislative ins­ these forces were also able to truments promulgated over the years, evade, or simply ignore, with impu­ though much of the detailed law nity the orders of courts and governing the security forces seems enjoyed considerable de facto (if not de obscure and unrevealed to the public. ju re) immunity from the civil law;32

31 The Constitution of 1931 (Ethiopia’s first written constitution) is reprinted in I Ethiopian Constitutional Development: A Source Book 326 (James C.N. Paul & Christopher Clapham es., 1967), along with an unpublished commentary. Id. at 331. See articles 11-13, reserving the Emperor's prerogative to command the armed forces, determine their size, and appoint and dis­ miss all officers. Id. The Revised Constitution of 1955 is reprinted in id. at 1. For provisions in the Constitution of 1955 that are similar to those in the 1931 Constitution, see Article 27 (The Emperor “determines the organisation, powers and duties of Ministers...and appoints, pro­ motes...and dismisses officials of the same.”): Article 29 (It is the Emperor’s prerogative to declare war,” to decide what armed forces shall be maintained”[;] to act as “Commander-in- Chef”[;] to “organise” armed forces; to “confer military rank” on all officers; to “declare a state of siege, martial law or a national emergency” [;] and to take "such measures as are necessary to meet a threat to the defence or integrity of the Empire.”). See ab o 2 Eth'u>pian Constitutional Development: A Source Book 498-505 (Jam es C.N. Paul & Christopher Clapham ees., 1971) (commentary on these powers). While neither constitution treats explicitly with the police, it would appear that these forces are equated with the armed forces for the purpose of determining constitutional powers to organi­ se and control them. See Proclamation No. 6 (actually an executive order) establishing the police. See abo A Proclamation to Provide the Edtabluthment and Government of a Force Styled the Imperial Army, Proclamation No. 68, Negarit Gazeta, Mar. 11, 1944 (Eth.) (establishing the Imperial Army and creating military law governing army); Imperial Territorial Army Order, Order No. 21, Negarit Gazeta, Feb. 18, 1958 (Eth.) (creating the "Territorial Army” under the Ministry of Interior). 32 Seeju pra note 31. A. The Absence o f Law, in the sense that autonomy and political separateness. rules requiring respect for human The very fact that members of the rights, obedience to the rule of law, security forces live, to some extent and the constitution hardly figured in at least, in a distinct society of their either the professional codes gover­ own, isolated from the civil society ning the security forces, or in the they are supposed to police, creates training and accountability of the risks of potentially hostile relation­ security forces. ships between them and the public. These risks increase when the Experience in many countries sug­ suppression of political discontent gests that this kind of legal structuring becomes a major internal security - the combination of the above charac­ concern, when accountability to the teristics - helps to create conditions public for the exercise of security within the security forces that lead not powers is diminished, and when only to military intervention when the leaders of the security forces come government of the day weakens, but to believe that civil society is infested to military rule - sustained military with political and professional elites rule based on force - which can easily and others who become ideologically lead to systematic repression, and then suspect when they appear to be hostile to all the other abuses that ultimately to the regime in power. Thus, attend rule by force of arms. professionals, intellectuals, students, and other particular groups, including Centralised executive control, cou­ ethnic groups, come to be seen by pled with autonomy from the legisla­ the security forces as potential ene­ ture and civil society, means that the mies to be watched carefully, repres­ security forces can become increasin­ sed by overt force, and controlled gly politicised if and when the leadership by terror, if necessary. The legitimacy of the chief executive falters or of this kind of force against fellow becomes controversial and disputed. citizens is more readily assumed by In this situation, loyalties tend to soldiers and police when their training become divided; conspiracies emerge. and leaders appear to condone it, and In the face of political uncertainty, and when the powers of civil society when the army enjoys autonomy, the and the legal system to protest abuses temptation to seize government and and control the police and military are control its resources with little weak.33 accountability becomes strong. These concerns are reflected in Legal autonomy for the security a candid, thoughtful paper apparently forces often breeds a sense of social prepared under the aegis of the

33 On these phenomena, see, e.g. Jerome H. Skolnick & James J. Fyfe, Above the Law : Police and the Exceddive Ude of Force 89-171 (1993): dee aldo Robin Luckham, The Nigerian Military: A Sociological Analydid of Authority Revolt 161-67 (1971). Ministry of Defense for the February respect for human rights and the rule 1993 Bujumbura Conference, of law while performing the difficult “Democratisation in Africa: The Role security tasks which may confront of, the Military.”34 The paper makes them. Training to respect human the following points: 1) in a democracy, rights means learning new techniques civil society must enjoy an ultimate in crowd control that reflect forbea­ power to govern the army; 2) the army rance and strict limitations on the use of must be a truly national army composed force, particularly excessive retaliato­ of people from all regions and ethnic ry force. So, too, there may be the groups, so that all elements of the need for recruitment policies designed to population will see it as “their” army; secure the effective integration of dif­ 3) insofar as the army engages in local, ferent groups into cohesive, discipli­ internal security operations, it should ned units, including the integration of enlist the participation of affected women into all ranks. It is doubtful people in concerned communities in that these and similar objectives can devising appropriate strategies to pro­ be realised in the absence of law man­ tect them; 4) the army must be com­ dating them. The very existence of pletely separated and disengaged from such law empowers civil society to politics and political parties; 5) the demand its effective implementation. army must be under the control of, and accountable to, the civil organs of In a broader context, confidence in government; and 6) the overriding the possibilities of democracy can be mission of the army must be to sustain strengthened, perhaps greatly, to the the country’s constitution, and its extent that there is a pubhc belief that loyalties must be rooted in that objecti­ those entrusted with weapons and ve.36 powers to use them can be held accountable to civil society through In this context, then, the need may the legislature, the courts, the press, be urgent for security forces accultu- and other processes of political partici­ rated and trained to show scrupulous pation.

34 See Tsadkan Gebre Tensae, The Unique Experience of Army-Building in Ethiopia 4 (Feb. 1, 1993).This paper was presented to the February 1993 Bujumbura Conference, “Democratisation in Africa: The Role of the Military.” by Tsadkan Gebre Tensae, Chief of Staff of the Armed Forces of Ethiopia. The Transitional Charter is silent on the organisation and gover­ nance of the security forces for the TGE. While the Council of Representatives of the TGE has enacted laws calling for the encampment and demobilisation of the military forces of other “liberation fronts,” notably the OLF, and for the ultimate reorganisation of the security forces of the TG E and its successor, this legislation is silent on the organisation and governance of this future army. See Proclamation No. 8. This paper was revised and presented as Tsadkan Gebre Tensae, “A Vision of a New Army for Ethiopia,” at the Inter Africa Group's Symposium on the Making of the New Ethiopia Constitution in Addis Ababa on May 17-21, 1993. 35 See Tsadkan, dupra note 34, at 8 (“I would like to stress the point that the relationship between the constitution and the military must be defined on the basis of clear principles.”). General Tsadkan’s views are striking in that, as far as I know, few military leaders in Sub-Saharan Africa have been so outspoken and explicit in setting out principles governing the constitutio­ nal position of the armed forces in a country undertaking establishment of democratic system. IV - Strategies for Developing order can be seen as a resource for and Implementing the the people; as something that they P rin ciples can use to define, defend, and pro­ mote widely shared social interests; Obviously, it is not enough to for­ as a law empowering the people to mulate general principles concerned demand protections against recur­ with the governance of security forces. rence of the abuses of the past. The principles must be translated into specific legislative provisions, Certainly, the historic behaviour and they must be reinforced and and role of the security forces in implemented by detailed regulations. governance is a subject that may Further, this “law in the books” must provide a fertile source of popular be given visibility and public support; it grievances, of shared public must become known and respected. concerns to be addressed. In the same way, discussion of new ways Several suggested strategies for to organize, govern, and impose realising these goals are briefly outli­ accountability on the security ned. They are directed toward: forces may be a matter of great interest to ordinary people. 1. The proceeded employed to develop public participation in the new constitutional 2. The proceeded employed to reorganise, order. It repeatedly has been sug­ reorient, and retrain the decurity forced. gested that the new constitutional “Human rights education” has order must reflect a popular become a popular international consensus developed through activity to be promoted by the extensive public participation in its United Nations and other agencies. making. The principles embodied It may be doubtful, however, that in the International Bill of Human “human rights education” in the Rights calling for "self-determina­ abstract produces much meaning­ tion” and a legal order based on ful effect on human behaviour. If “the will of the people”36 the purpose of this education is to change behaviour and cultures in One way to enlist participation is the police and the military, the to encourage full discussion of education attempted must be fully widely shared public grievances integrated with the rules of concerned with past and present conduct and the customs that modes of governance — grievances actually govern the security forces, to be redressed by the new consti­ and with the systems of discipline tutional order. The very process of and accountability that are addressing historic grievances may employed to enforce those rules. help to create a popular understan­ The central purpose of this training ding that the new constitutional must be to secure both respect for

36 Seedupra note 31 and accompanying text.

The Review — N° 60 — Special Issue / 1998 and obedience to commands of the they carry an uncertain meaning, thus law that governs them. Training little legal effect. and discipline - education and the creation of new values and loyalties Another way to use directive prin­ - must all be seen as interrelated, ciples is to cast them in the form of interdependent means and ends to specific commands to the future enforce the law. government to enact legislation on designated subjects that will incorpo­ All this underscores the importance rate certain principles deemed crucial of mandating not only codes of to the ongoing development of the conduct and discipline grounded in future constitutional order. In this human rights law to govern all approach, the directive principles pro­ ranks of the security forces, but vide an important framework for the mandating a system of education, further development of the constitu­ training, and retraining designed to tional order, a set of imperative direc­ give effect to the codes. tions for the ongoing evolution of essential institutions, processes, and principles of governance. Further, the 3. Techniques to elaborate principles that courts can be empowered to use these will put the security forced under the principles for guidance in constitutio­ Rule of Law It is essential that atten­ nal interpretation. tion be given to the need for prin­ ciples controlling the governance of Directive principles of this character the security forces. Guidance could have the virtue of providing a propo­ be provided, and action mandated, sed map depicting steps necessary to by appending to the constitution a complete the transition. They also pro­ body of “directive principles” that vide a text that can be used by public call upon the government to adopt leaders and activists in the ongoing legislation addressing subjects of processes of developing that kind of major, enduring concern and that popular civic education and political set out basic principles to be secu­ participation that may be essential to red through that legislation. sustain the transition over time.

Directive principles have been The appended Draft Code was pre­ incorporated in some constitutions in pared on the assumption that the prin­ a form that gives them an effect similar ciples of the kind prescribed by it are to a preamble. In this approach, the mandated by international human directive principles are cast in the rights law. Experience the world over form of abstract, aspirational goals of surely suggests we should no longer social justice to which the State is tolerate unregulated police or armies pledged. These kinds of directive prin­ as semiautonomous organs of govern­ ciples are often treated as “soft” law in ment. Putting the army and the police the sense that, unlike other constitu­ under a rule of law may be a task of tional prescriptions, they are regarded as the highest priority to those commit­ unenforceable by the courts and often ted to the cause of building human are written in such general terms that rights and democracy. Appendix legislative provisions and subsidiary legrslation - rules and regulations - that create, organise, and empower an Draft Code of Universal Principles ISF and provide for its governance to Govern the Structure and and accountability to the rule of Accountability of Internal Security human rights law and to civil society. Force Operating in all States The Code is hardly a novel enter­ prise. The United N ations Code o f Conduct for Law Enforcement Officials was intended by the UN General Introductory Note Assembly, without dissent, to have universal applicability. That Code o f The proposed Code sets out a body Conduct, combined with other interna­ of principles to govern the legal struc­ tional human rights instruments adop­ ture "of the police and all other organi­ ted within the United Nations system, sations, including military units, that shows us how ISFs must be structu­ regularly exercise police powers to red to make them accountable to the protect the internal security of a coun­ goals sought. This proposed Code is try. These principles are drawn from simply intended to synthesise these sources of international human rights existing mandates. law and are intended to reflect univer­ sal norms that should be followed in This Code is simply a draft. The all countries committed to the esta­ principles stated are suggestions. The blishment and maintenance of a demo­ purpose is to promote wider interest cratic constitutional order, protection and debate over the need for a body of of widely recognised international universal principles of the character of human rights, and the rule of law. those proposed here to be developed as an important additional body of The fundamental premise of the international human rights law. Code is that international human rights law mandates the creation of Article 1. governmental organs that will promote and protect internationally recognized The Nature, Purposes, and Scope of human rights, not subvert them, and this Code that a ll organs of government must be legally structure so as to assure this a) The Principles set out in this objective insofar as possible. Since the Code: police and other internal security forces (ISFs) are such important 1) are derived from existing organs of government, exercising International Human Rights powers that, if abused, so obviously law; may lead to serious subversions of human rights, particular care must be 2) are designed to assure that all taken in drafting constitutional and Internal Security Forces (as that term is defined below) of Commentary all states will be established in accordance with, governed by, ISFs are established to protect the and held accountable to rules constitutional order of the State and of law that secure the protec­ the rights of its people. They are not tion of universally recognized created to maintain the regime of the human rights; day in power or to advance its inter­ ests. 3) should be incorporated into the constitutions and/or other The principles enumerated herein laws that create, organize, should be incorporated into the laws empower, and otherwise provi­ relating to the establishment and de for the existence of all ISFs governance of ISFs so as to make established by the State or by them accountable to the people at all any o f its subsidiary organs. times and to reinforce the obligations of all ISF personnel to protect the rule of law and human rights. b) The term Internal Security Forces (ISFs) as used in this Code refers to all police, military, The definition of ISF organisations in this Code is purposely made broad intelligence gathering, custodial enough to include military organisa­ and other organizations that are tions that are regularly used to main­ authorised to exercise any of the tain internal security by exercising following police powers: police powers as defined above. 1) arrest or detention of persons (including emergency powers of detention); Sources 2) surveillance of persons or pre­ United Nations Universal Declaration mises, or search for or seizure of Human RightJ, 1 Art. 28. of evidence from persons or premises; "Law enforcement officials shall at 3) interrogation of people in all times fulfil the duty imposed upon order to secure evidence; them by law, by serving the communi­ ty and by protecting all persons 4 ) custodial functions, such as the against illegal acts, consistent with the administration of prisons or high degree of responsibility required places of detention and the by their profession.” United Nations2 guarding or care of prisoners. A rt.l.

1 G.A. Res. 217A. UN GAOR, 3rd Sess., pt, at 71 UN Doc A/180 (1948) [hereinafter Universal Declaration of Human Rights). 2 G.A. Res. 169, U.N. GAOR, 34th Sess. Annex, U.N. doc A/34/169 (1979); reprinted in 18 U N Resol. 185 (Dusan J. Djonovich ed., 1985) [hereinafter Code o f Conduct fo r Law Enforcement O fficiab]. “(a) The term 'law enforcement Article II. officials' includes all officers of the Source of Organic Legislation law, whether appointed or elected, Establishing and Empowering ISF who exercise police powers, especially Organisations the powers of arrest or detention, (b) In countries where police powers are a) Organic legislation. The law esta­ exercised by military authorities, whe­ blishing and setting forth the ther uniformed or not, or by State functions and powers of every security forces, the definition of law ISF organization (or expanding enforcement officials shall be regarded its functions and powers should as including officers of such services.” be: Code o f Conduct fo r Law Enforcement Officiab, supra note 2, art. 1 cmts. (a), (b). 1) enacted by the representative, elected legislative organ of the “The armed forces owe respect to Government, and never by the political order determined by the decree promulgated by the sovereign will of the people and all executive organ without the political order determined by the sove­ advice and consent of the legis­ reign will of the people and all political lative body; or social changes generated by that will, in accordance with democratic 2) the product of political partici­ procedures consistent with the pation, including processes Constitution.” Peace Agreement Between enabling transparency and the Government of El Salvador and the public debate; Frente Farabundo M arti para la Liberacion nacional,3 ch. 1(1) (C). 3) consonant with the principles of universal human rights law “[The National Civil Police’s] mis­ and the provisions of this sion shall be to protect and safeguard Code. the free exercise of the rights and free­ doms of individuals, to prevent and b) Subsidiary legislation. Rules, combat all types of crimes, and to regulations, and all other subsi­ maintain internal peace, tranquillity, diary legislation promulgated by order and pubhc security in both the Executive Branch (or by urban and rural areas.” Peace the Chief Officer of an ISF) Agreement, dupra note 3, ch. II(I)(A ). pertaining to the organization,

3 The Situation in Central America: Threats to International Peace and Security and Peace Initiatives, U.N. GAOR, 46th Sess., Annex, Agenda Item 31, at 1, U.N. Doc. A/46/864 81992) [hereinafter Peace AgreementJ. empowerment, governance, and hearing so as to enhance the ability to monitoring o£ an ISF should be: revise rules governing an ISF, when appropriate in light of experience. 1) published in the official government journal that records legislation; Sources

2) made subject to legislative “Everyone is entitled to a social... review; and order in which the rights and free­ doms set forth in this Declaration can be fully realised.” Universal Declaration of 3) clearly consistent with the Hum an Rights,

A G.A. Res 2200A, U.N. GAOR, 21stSess., Supp. No. 16, at 52, UN Doc A/6316 (1966)), reprinted in 6 In t’lL e g a lMa.teria.Lt 58 (1982). 5 O.A.U. Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 Int’l Legal MateriaL 58 (1982). 6 O.A.S. Off. Rec. OER/Ser.L/V/II.23/Doc. 21/Rev. 6 (1979). "(b)...[T]he effective maintenance 3) exercise financial oversight of ethical standards among law over their activities; enforcement officials depends on the existence of a well-conceived, popu­ A) investigate their activities in larly accepted and humane system order to determine whether of law s...” Code o f Conduct fo r Law they are operating in accor­ Enforcement Officials, dupra note 2, dance with the principles set pmbl. out in this Code.

c) Judicial Control. Courts should be vested with all judicial powers Article III. necessary to assure that all prin­ cipals set out in this Code are Principles Governing Control of followed. ISFs by the Basic Organs of Government Commentary a) Executive Control. Ultimate exe­ cutive authority over all ISF Each branch of government should organizations should be vested in a have powers of oversight and control civil officer who is immediately over ISF organisations consistent with accountable to the head of its essential constitutional role. By government. This civilian officer establishing a clear chain of command should have the power to appoint, over ISFs, their operations will be remove, and order the discipline less able to avoid accountability for of all officials of whatever rank wrongdoing. Continuing legislative within ISF organizations, and oversight is necessaiy and appropriate such powers should be subject to because the legislature represents the the oversight of the executive voice of the people, who provide both head of government, so that he or the funds, and authority for all organs of she can be held accountable for government in a democratic State systematic failures to comply committed to the protection of human with the Code. rights. Thus, the ISFs remain responsi­ ve to the people they are supposed to b) Legislative Control. The elected protect. representative legislative body should be vested with power to: Sources 1) determine the size, functions, "States...should enact and enforce, powers, and organization of all if necessary, legislation proscribing ISF s; acts that constitute serious abuses of political or economic power, as well as 2) enact a budget and appropriate promoting policies and mechanisms funds for their equipment and for the prevention of such acts, and operations; should develop and make readily available appropriate rights and reme­ and protection of the rights dies for victims of such acts.” prescribed. Declaration of Basic Principled of Justice for Victims of Crime and Abuse of Power? 3) The Code of Conduct should Art. 21. provide for internal discipli­ ne and punishment of viola­ “(a)...[E]very law enforcement tors of those rights. agency should be representative of A) Internal sanctions impo­ and responsive and accountable to the sed under the Code of community as a whole...(d)...[T]he Conduct should reflect actions of law enforcement officials the gravity of the offense should be responsive to public scruti­ and should be publicized ny...” Code o f Conduct fo r Law both within and without Enforcement Officials, supra note 2, the ISF organization, so pmbl. as to maximise the deter­ rent effect. B) Such sanctions should Article IV. never preclude civil or Enactment of a Code of Conduct as criminal liability in the Part of the Law Governing All ISFs courts, when necessary in order to vindicate and a) The legislative body should enact a redress the rights of per­ Code of Conduct governing the sons injured by violation internal operations of all ISF of the Code. organizations and prescribing the 4) No ISF official should be disci­ conduct of each individual ISF plined, either officially or member. unofficially, for refusing to fol­ 1) The obligations and restric­ low an order that he or she tions set forth in the Code of reasonably believes would lead Conduct should be clear and to a violation of the Code of specific, so that all ISF per­ Conduct or to a violation of sonnel are aware of the human rights protected by the limits on their power. laws of the land. 2) The Code of Conduct should b) Members of ISFs should have a incorporate all relevant duty under the Code of Conduct human rights standards and to report violations of the Code impose clear duties to assure or violations of any other law adherence to these standards applicable to the ISF, to superior

7 G.A. Res. 40/34, U.N. GAOR, 40th Ses. Supp. No. 53 at 213, U.N. Doc. A/40/53 (1985), reprinted in 24 UN RESOL. 419 (Dusan J. Djonovich ed., 1988). officers and, if necessary, to res­ rights law regarding surveillance, ponsible civil officers of the search, arrest, detention, imprison­ government and to persons char­ ment, the use of force, and other rights ged with ISF oversight. limiting the exercise of police powers. 1) Failure to report known viola­ The requirement of reporting tions should be grounds for human rights violations emphasises punishment under the Code of the overriding importance of protec­ Conduct. ting human rights as a paramount 2) The duty to report should duty of all law enforcement officials. It transcend all other obligations must be recognized that the observan­ grounded in loyalty and disci­ ce of basic human rights and the main­ pline. tenance of the rule of law transcends norms commanding loyalty to the ISF. 3) No ISF official should be disci­ In furtherance of this, an official who plined, either officially or reports such violations by fellow offi­ unofficially, for good faith cials cannot be punished for doing so, attempts to discharge the whether by losing his job; not being duties imposed by this Article promoted; being assigned only to less and the Code of Conduct. desirable, menial duties; or in any other way designed to penalise him or c) The civil officer with ultimate her. authority over an ISF should take appropriate steps to assure that the Code of Conduct will be Sources understood and strictly enforced at all levels within the organiza­ “[EJvery law enforcement agency, tion. in fulfilment of the first premise of every profession, should be held to the duty of disciplining itself in complete Commentary conformity with the principles and Without a Code of Conduct gover­ standards herein provided.” Code of ning the internal operations of ISF Conduct for Law Enforcement Officials, organisations, ISF members are left dupra note 2. pmbl., cmt. (d). unrestrained and unguided in their enforcement of the laws. A Code of “Law enforcement officials shall Conduct that sets forth the steps respect the law and the present Code. necessary to enforce rules that reco­ They shall also to the best of their gnise, protect, and reinforce basic capability, prevent and rigorously human rights and that explains the oppose any violations of them. Law consequences for violations of these enforcement officials who have reason to rights is necessary to provide guidance believe that a violation of the present for all ISF personnel. The Code of Code has occurred or is about to occur Conduct governing ISF members shall report the matter to their super­ should incorporate all relevant human ior authorities and, where necessary, to other appropriate authorities or 3) that all full participation of organs vested with reviewing or reme­ women and their equal oppor­ dial power.” Id. Art. 8. tunity to be promoted to all ranks be ensured. “Governments shall prohibit orders from superior officers or public autho­ b) Training. The law governing each rities authorising or inciting other IS F should provide: people to carry out any such extra­ legal, arbitrary or summary execu­ 1) that education and sensitisa­ tions. All persons shall have the right tion regarding human rights, and the duty to defy such orders. and the obligation of ISF per­ Training of law enforcement officers sonnel to respect those rights, be fully incorporated into all shall emphasize the above provisions.” relevant aspects of basic trai­ Principled on the Effective Prevention and ning; Invedtigation of Extra-Legal, Arbitrary and Summary Executions.8 Art. 3. 2) that additional training on the human rights obligations of ISF officials be repeated and emphasised throughout an ISF Article V. member’s period of service. Recruitment and Training a) Recruitment. The law governing each ISF should provide: ISF memberships often consist pri­ marily, or solely, of male members of a 1) that no person be barred from majority (or a particular) ethnic, serving or advancing in any racial, or cultural group. This fact often tends to reinforce prejudices bet­ ISF organisation because of ween ISFs and other groups and race, ethnicity, color, sex, reli­ increases the risk of discrimination in gion, or other status; the enforcement of laws against mino­ rities and women. ISF organisations 2) that procedures be initiated to should strive for equality among the encourage the equitable repre­ different groups and genders. By sentation of all racial, ethnic, recruiting members from varying and cultural groups at every backgrounds, the ISF forces not only level of the ISF organisation; become ethnically mixed, but their and members should become more sensitive

8 E.S.C. Res. 1989/65, U.N. ESCOR, 1st Sess., Supp. No. 1, at 52, U.N. doc. E/1989/89 (1989) (endorsed by the General Assembly Dec. 15, 1989). to the need to respect cultural, linguis­ that all public authorities and public tic, religious, and gender differences. institutions, national and local, shall This should result in more equal act in conformity with this obligation.” enforcement of the laws and diminish International Convention on the abuses against minority groups and Elimination of All Fornu of Racial women. Didcriminaiion? Art. 2(1)(a).

Proper training should also serve "State Parties shall take all appro­ to sensitise members to the need to priate measures to eliminate discrimi­ respect all citizens and to reinforce nation against women in the political human rights obligations under exis­ and public life of the country and, in ting international law. particular, shall ensure, on equal terms with men, the rights[]...[t]o participate in the formulation of government poli­ Sources cy and the implementation thereof and "Everyone is entitled to all the to hold public office and perform all rights and freedoms set forth in this public functions at all levels of govern­ Declaration, without distinction of ment.” Convention on the Elimination of any kind, such as race, colour, sex, ALL Formd of Dutcrimination Agairuft language, religion, political or other women}® A rt. 7(b). opinion, national or social origin, pro­ perty, birth or other status.” Universal "Each State Party shall ensure that Declaration of Human Rights, dupra note education and information regarding 1, Art. 21(2). prohibition against torture are fully included in the training of law enfor­ "Every citizen shall have the right cement personnel, civil or military... and the opportunity...[t]o have access, and other persons who may be invol­ on general terms of equality, to public ved in the custody, interrogation or service in his country.” International treatment of any individual subjected Covenant on Civil and Political Rightd, to any form of arrest, detention or dupra note 4. Art. 25(c). A similar pro­ imprisonment.” Convention Againdt vision appears m American Convention Torture and Other Cruel, Inhuman or on Human Rightd, dupra note 5. Art. Degrading Treatment of Punishment.11 23(1) (c). Art. 10(1).

"Each State Party undertakes to "(e)...[S]tandards as such lack engage in no act or practice of racial practical value unless their content discrimination against persons, groups and meaning, through education and of persons or institutions and to ensure training and through monitoring.

9 G.A. Res. 2106, U.N. GAOR, 20th Sess. supp. No. 14, at 47, U.N. Doc A/6014 (1965). 10 G.A. Res. 34/180 (XXXIV), 34, U.N. GAOR, Supp. No. 46, At 194, U.N. Doc A/34/830 (1979), reprinted in 19 Int’l Legal Materials 33 (1980) (adopted at New York, Dec. 18, 1979). 11 G.A. Rs. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984), reprin­ ted in 2ZInt'l Legal Materials 1028(1984). become part of the creed for every law Commentary enforcement official." Code o f Conduct for Law Enforcement Officiald, dupra note Currently there is a problem in 2, pmb. many countries concerning “unoffi­ “Police...and other personnel cial” security forces that operate outsi­ concerned should receive training to de the existing laws of the country. sensitise them to the needs of victims, Sometimes ISF officials are members and guidelines to ensure proper and of, or associated with, these extra­ prompt aid.” Declaration of Bajic legal groups; sometimes they condone Principled of Justice for Victims of Crime and cooperate with them. Officials and Abude o f Power, dupra note 7, Art. 16. must understand that the obligations to which they are bound while working as an officer bind them when they are off duly. Any officer caught Article VI. cooperating in any way with an extra­ Prohibition of Extra-Legal Security legal security organisation or encoura­ Forces ging its activities should be punished.

None of the police powers defi­ ned in Article 1(b), should be performed by any individual who is Article VII. not a member of an authorised ISF Duty to Keep and Release Records organization. 1) Exercise of police powers by a) Laws governing ISFs should: persons other than members of an ISF organisation, created in 1) mandate the keeping of accordance with this Code, complete records regarding should be a criminal offense all arrests, detentions, interro­ under State law. gations, and other security 2) No ISF official should be permitted activities directly affecting the to request that another person, rights of particular persons; other than a member of an ISF, perform the functions defined in 2) require records on the internal Article 1(b). The making of such a standing orders of the ISF; request should be a crime under State law, as well as grounds for 3) provide for public access to internal discipline. these records; and 3) No ISF official should be permitted to perform functions while off- 4 ) provide for sanctions against duty that he or she would be responsible ISF officials for prohibited from performing failure to comply with these while on-duty. provisions. b) Privileges protecting ISF records Sources from public access or disclosure should not be allowed: “ 1. There shall be duly recorded: (a) The reasons for the arrfest; (b) The 1) to protect records concerning time of the arrest and the taking of the the arrest, detention, or sur­ arrested person to a place of custody veillance of any person under as well as that of his first appearance any circumstances; before a judicial or other authority; (c) The identity of the law enforcement 2) to protect records concerning officials concerned; (d) Precise infor­ the internal operations and mation concerning the place of custo­ policies of ISF organisations dy. “. Such records shall be communi­ unless there is a bona, fid e cated to the detained person, or his concern for national security counsel, if any, in the form prescribed by or for the safety or protection law. ” Body of Principled for the Protection of the basic rights of a third Of All Persoiw under Any Form of party. Detention or Imprisonment,12 princ. 12.

c) The Courts should be adequately "1. The duration of any interroga­ empowered to secure enforce­ tion of a detained or imprisoned ment of this Article. person and of the intervals between interrogations as well as the identity of the officials who conducted the inter­ Commentary rogations and other persons present shall be recorded and certified in such Security forces often are allowed to form as may be prescribed by law. 2. A operate behind a veil of secrecy. This detained or imprisoned person, or his protection, often enabling conceal­ counsel when provided by law, shall ment of wrongdoing, must be remo­ ved, and ISF organizations must be have access to [this] information.” Id. princ. 23. made to operate more transparently. Rules requiring certain record-kee­ ping will assist concerned people and "(1) In every place where persons relevant government officials to main­ are imprisoned there shall be kept a tain proper oversight and keep ISFs bound registration book with numbe­ accountable. Privileges allowing the red pages in which shall be entered in withholding of certain records from respect of each prisoner received: (a) the public should be few and should Information concerning his identity; be only allowed where clearly necessa­ (b) the reasons for his commitment ry to protect national security or the and the authority therefor; (c) The basic rights of persons. All limitations to day and hour of his admission and public access to these records should release. (2) No person shall be recei­ be narrowly construed. ved in an institution without a valid

12 G.A. Res. 43/173, U.N. GAOR, 43d Sess., Supp. No. 49, at 297, U.N. Doc A/43/49 (1988). commitment order of which the details 2) Defences such as “superior shall have been previously entered in order” should not be allowed. the register.” Standard Minimum Ruled for the Treatment of Pridonerd.13 rule 7. 3) Mitigation of sanctions can only come after determination “Governments shall ensure that of guilt, and then only in accor­ persons deprived of their liberty are dance with criteria that reflect held in officially recognised places of the gravity of the human rights custody and that accurate information violations. on their custody and whereabouts, including transfers, is made promptly available to their relatives and lawyer 4) Amnesty or impunity should or other persons of confidence.” not be granted for violations Principled on the Effective Prevention and committed under predecessor Investigation of Extra-Legal, Arbitrary governments. and Summary Executions, dupra note 8, princ.6. 5) Once the guilt of an offender has been admitted or establi­ shed, the tribunal trying him or her (or the Executive Article VIII. Official with power to commute Liability of Officials for Violation of punishments) may, after a Rights proper and full apology and a commitment regarding the a) The penal laws of a country offender’s future conduct, sus­ should contain explicit provisions pend any punishment when it criminalising the clear violation is determined that this course of the basic human rights of citi­ is in the public interest and zens by ISF officials acting under will not subvert the basic pur­ color of law. poses of this Article or allow a grave violation of human 1) Punishments imposed by a rights to go unpunished. court or other tribunal should reflect the gravity and depravi­ ty of the offense committed, b) The civil laws of a country should the complicity of the perpetra­ provide adequate remedies, inclu­ tor, the role and culpability of ding the award of compensatory the perpetrator for the crime and punitive damages, for victims or crimes committed, and the of families of victims of human need to deter such conduct. rights violations by ISF officials.

13 E.S.C. Res. 663 (XXIV) C. 24 U.N. ESCOR, Supp. No. 1 at 11, U.N. Doc E/3048 (195 7). c) The award of a civil remedy same shall apply to an attempt to com­ should never preclude the possi­ mit torture and to an act by any per­ bility of criminal liability, and the son which constitutes complicity or imposition of criminal sanctions participation in torture.” Convention, on should never preclude the availa­ Torture and Other Cruel, Inhuman or bility o f a civil remedy. Degrading Treatment of Punishment, dupra note 11, Art. 4(1)

Commentary “The Contracting Parties confirm that genocide, whether committed in One of the most important ways to time of peace or in time of war, is a ensure that human rights are protec­ crime under international law which ted is accountability. ISF officials can they undertake to prevent and to puni­ only be held accountable if a variety of sh.” Convention on the Prevention and civil and criminal penalties face them Punishment of the Crime of Genocide}^ if they are found to violate this Code Art. 1. or citizens’ rights. Without a method of enforcement, including adequate “International criminal responsibi­ punishment for the wrongdoer, the lity shall apply, irrespective of the gravity of the violations is lost on the motive involved, to individuals, mem­ ISF officials, both the wrongdoer and bers of organisations and institutions his or her colleagues. Proper remedies and representatives of the State, [com­ must exist to serve as a deterrent fac­ mitting, participating in, directly inci­ tor for other ISF officials. Full enfor­ ting, conspiring, abetting, encoura­ cement of human rights law is only ging, or cooperating in the crime of possible where a meaningful remedy is apartheid].” International Convention on available to the victims of such viola­ the Suppreddion and Punidhment of the tions. These remedies, either criminal Crime of “Apartheid, ”15 Art. III. or civil in nature, must be available against any and every violator of “Governments shall prohibit by human rights or the fundamental rule law all extra-legal, arbitrary and sum­ of law, and be unable to blame their mary executions and shall ensure that misbehaviour on a higher, possibly any such executions are recognized as unknown, officer by claiming “super­ offences under their criminal laws, ior order.” and are punishable by appropriate penalties which take into account the Sources seriousness of such offences.” Principles on the Effective Prevention and Crim inai liability. “Each State Party Invedtigation of Extra-Legal, Arbitrary shall ensure that all acts of torture are and Summary Executions, dupra note 8, offences under its criminal law. The princ.l

14 G.A. Res. 260 U.N. GAOR, 3d Sess., pt. 1, Annex, at 174 U.N. Doc A/810 (1948) (adopted at New York, Dec. 9, 1948). 15 G.A. Res. 3068 (XXVIII), 28 U.N. GAOR, Supp. No. 30, at 75, U.N. Doc A/9030 (1974). No immunity: “Each State Party to no circumstances, including a state of the present Convention under­ war, siege or other public emergency, takes... W o ensure that any person shall blanket immunity from prosecu­ whose rights or freedoms as herein tion be granted to any person allegedly recognized are violated shall have an involved in extra-legal, arbitrary effective remedy, notwithstanding that of summary executions.” Principles the violation has been committed by of the Effective Prevention of Extra-legal, persons acting in an Official capacity." Arbitrary of Summary Executions, supra International Covenant on Civil and note 8, princ. 19. Political Rights, supra note A, Art. 2(3)(a). No Defences-. “[N]or may any law enforcement official invoke superior “Persons committing genocide or orders or exceptional circumstances any of the other acts enume­ such as a state of war or a threat of rated... shall be punished, whether war, a threat to national security, they are constitutionally responsible internal political instability or any rulers, public officials or private indi­ other public emergency as a justifica­ viduals.” Convention on the Prevention and tion of torture or other cruel, inhuman Punishment o f the Crime o f Genocide, supra or degrading treatment or punish­ note 14, art IV.“The law must be ment.” Code o f Conduct fo r Law Enfor­ enforced fully with respect to any law cement Officials, supra note 2, Art. 5. enforcement official who commits an act of corruption, as governments can­ “(2) No exceptional circumstances n ot expect to enforce the law among whatsoever, whether a state of war or their citizens if they cannot, or will threat of war, internal political instabi­ not, enforce the law against their own lity or any other pubic emergency, agents....” Code o f Conduct fo r Law may be invoked as justification of tor­ Enforcement Officials, supra note 2, Art. ture. (3). An order from a superior 7, cmt.(a). office or a public authority may not be invoked as a justification of torture.” “The authorities which arrest Convention Against Torture and Other a person, keep him under detention or Cruel, Inhuman or Degrading Treatment or investigate the case shall exercise only Punishment, supra not 11, Art. 2(2), (3). the powers granted to them under the law and the exercise of these powers “Governments shall prohibit orders shall be subject to recourse to a judi­ from superior officers or public autho­ cial or other authority.” Body of rities authorising or inciting other per­ Principles for the Protection of A ll Persons sons to carry out any such extra-legal, Under Any Form of Detention or arbitrary or summary executions. All Imprisonment, supra note 12, princ.9. persons shall have the right and the duty to defy such orders. Training of “Superiors, officers or other public law enforcement officers shall emphasize officials may be responsible for act the above provisions.” Principles o f the committed by officials under their Effective Prevention of Extra-legal, authority if they had a reasonable Arbitrary of Summary Executions, supra opportunity to prevent such acts. In note 8, princ. 3. Civil liability. “Anyone who has "The families and dependent of vic­ been the victim of unlawful arrest or tims of extra-legal, arbitraiy or sum- detention shall have an enforceable maiy executions shall be entitled to right to compensation.” International fair and adequate compensation Covenant on. Civil and Political Rightd, within a reasonable period of time.” d u p ra note 4, Art. 9(5). Principled of the Effective Prevention of Extra-legal, Arbitrary of Summary “Where public officials or other Executions, dupra note 8, princ. 20. agents acting in an official or quasi­ official capacity have violated national criminal laws, the victims should receive restitution from the State Article IX. whose officials or agents were respon­ Principles Governing the Moni­ sible for the harm inflicted. In cases toring and Maintenance of the where the government under whose Continuing Accountability of All authority the victimising act or omis­ ISFs by the Legislative, Executive sion occurred is no longer in existence, and Judicial Branches the State or government successor in title should provide restitution to the a) The Legislature. Legislative over­ victims.” Declaration of Badic Principled sight for regular ISF operations of Justice for Victims of Crimed and Abode of should be established and conti­ Power, dupra note 7, princ. 11. nuously maintained. This over­ sight should include powers to “Damage incurred because of acts compel the production of records or omissions by a public official and the giving of testimony before contrary to the rights contained in the legislative body or its commit­ these principles shall be compensate tees. The law should narrowly according to applicable rules on liabi­ define and delimit privileges to lity provided by domestic law.” Body o f withhold evidence from the Principled for the Protection of A ll Perdond legislature. under Any Formd of Detention or Impri- donment, dupra note 12, princ. 35(1). b) The Executive. The law should “Each State Party shall ensure in require the executive responsible its legal system that the victim of an for ISFs duties of oversight act of torture obtains redress and has and powers to take all appro­ an enforceable right to fair and ade­ priate steps necessary to enforce quate compensation, including the these Principles. The executive means for as full rehabilitation as pos­ responsible for ISF's should be sible. In the event of the death of the nder a legal obligation to main­ victim as result of an act of torture, his tain a close watch over daily ope­ dependants shall be entitled to com­ rations. pensation.” Convention on Torture and Other Cruel, Inhuman or Degrading c) The Attorney or Procurator Treatment or Punishment, dupra note 11, General. The attorney or procu­ Art. 14(1). rator general should be vested with duties and powers to investi­ Commentary gate and enforce criminal sanc­ All branches of government should tions for violations of this Code be involved in maintaining daily over­ and all other legislation pertai­ sight of ISF activities. This system of ning to ISFs. This office must continuing checks and balances pre­ be empowered to maintain inde­ vents one branch from taking over the pendence and objectivity in the ISF organisations and defeating the enforcement of its duty. democratic objectives of the people. Ensuring accountability on all levels d) The Courts. Courts should be will serve to keep the ISFs in line. vested not only with the usual powers to hear cases and provide The independence of supervising remedies, but with additional offices is vital to insure objective powers to assure adherence to the investigation of complaints and principles of this Code. These abuses. The ombudsman, while ser­ ving as an independent officer, also powers should include the power serves to allow access to ISF organisa­ to appoint commissions to inves­ tions. Designating a single individual tigate allegations of systematic to speak on behalf of the ISF will eli­ abuse and other serious condi­ minate one aspect of the accountability tions and practices. Courts problem - the fact that no one ever is should be able to frame appro­ available to speak about complaints. priate remedial and equitable orders, when appropriate; to pre­ vent ongoing abuses; and to compel Sources individuals to comply with these “States should periodically review remedial measures. existing legislation practices to ensure their responsiveness to changing cir­ e) Internal Ombudsman. An cumstances, should enact and enforce, ombudsman or other independent if necessary, legislation proscribing official and office should be created acts that constitute serious abuses of within each ISF. This office political or economic power, as well as should maintain independence promoting policies and mechanisms from external forces. It should for the prevention of such acts and should develop and make readily avai­ serve as a liaison between lable appropriate rights and remedies individual officials and their for victims of such acts.” Declaration of supervisors, other branches of Basic Principled of Justice for Victinu of government, or the public and Crime and Abuse o f Power, supra note 7, should be available to receive Art. 21. reports of misconduct regarding ISF officials or superiors officers “[P] laces of detention shall be visited and to investigate such allega­ regularly by qualified and experienced tions. persons appointed by, and responsible to, a competent authority distinct from of this function. The inspectors shall the authority directly in charge of the have unrestricted access to all persons in administration of the place of deten­ such places of custody, as well as to all tion or imprisonment.” Body o f their records.” Id. princ. 7. Principled for the Protection of A ll Perdons Under Any Form of Detention or “[States undertake t]o adopt legis­ Imprisonment, dupra note 12, princ 29. lative, judicial and administrative mea­ A similar provision appear in Standard sures to prosecute, bring to trial and Minimum Ruled for the Treatment of punish...persons responsible for, or Prisonerd, dupra note 13, rule 55. accused of, the acts defined...” Internat'wnal Conventwn on the Suppred- "Each State Party shall keep under dion and Punishment of the Crime of systematic review interrogation rules, “Apartheid,” dupra note 15, Art. IV (b). instructions, methods and practices as well as arrangements for the custody “[T]he actions of law enforcement and treatment of persons subjected to officials should be responsive to public any form of arrest, detention or impri­ scrutiny, whether exercised by a sonment in any territory under its review board, a ministry, a procuracy, jurisdiction, with a view to preventing the judiciary, an ombudsman, a citi­ any cases of torture.” Convention zens' committee or any combination Againdt Torture and Other Cruel, Inhuman thereof, or any other reviewing agen­ or Degrading Treatment or Punishment, cy.” Code of Conduct for Law Enforcement dupra note 11, Art. 22. Officials, dupra note 2, pmbl. “In order to prevent extra-legal, arbitrary and summary executions, “There shall be a thorough, prompt Government shall ensure strict and impartial investigation of all control, including a clear chain of suspected cases of extra-legal, arbitrary command over all officials responsible and summary executions... Govern­ for apprehension, arrest, detentron, ments shall maintain investigative custody and imprisonment, as well as offices and procedures to undertake those officials authorised by law to use such inquiries.” Principled of the Effective force and firearms.” Principles of the Prevention of Extra-legal, Arbitrary of Effective Prevention of Extra-legal, Summary Executions, dupra note 8, Arbitrary of Summary Executions, dupra princ. 9. note 8, princ. 2. “[States undertake t]o ensure that “Qualified inspectors, including any person claiming such a remedy medical personnel, or an equivalent shall have his right thereto determined independent authority, shall conduct by competent judicial, administrative inspections in places of custody on a or legislative authorities,...and to regular basis, and be empowered to develop the possibilities of judicial undertake unannounced inspections remedy.” International Covenant on Civil on their own initiative, with full gua­ and Political Rights, dupra note 4, Art. rantees of independence in the exercise 2(3) (b). “Everyone has the right to an effec­ rights.” American Declaration of the tive remedy by the competent tribu­ Rig hid and Duties of Man, 16 Art:. 18. nals for acts violating the fundamental rights guaranteed him by the constitu­ “Governments shall make every tion or law/’ Universal Declaration of effort to prevent extra-legal, arbitrary Human Rights, dupra note 1, Art. 8. and summary executions through measures such as diplomatic interces­ “Any form of detention or impri­ sion, improved access of complainants to sonment and all measures affecting the intergovernmental and judicial bodies, human rights of a person under any and public denunciation." Principled of form of detention or imprisonment the Effective Prevention of Extra-Legal, shall be ordered by, or be subject to Arbitrary of Summary Executions, dupra the effective control of, a judicial or note 8, princ. 8. other authority.” Body of Principled for the Protection of Perdons Under Any Form of Detention or Imprisonment, dupra note 12, princ. 4. Article X. “Whenever the death or disappea­ Principles Governing the rance of a detained or imprisoned per­ Monitoring and Maintenance of the son occurs during his detention or Continuing Accountability by Press imprisonment, an inquiry into the and the Public cause of death or disappearance shall be held by judicial or other authority, a) The Press. The role of the press either on its own motion or at the ins­ in monitoring ISF violations tance of a member of the family of should be protected and encoura­ such a person or any person who has ged, and standards and processes knowledge of the case.” Id. princ. 34. should be established to enable any member of the public to secu­ “Judicial and administrative re access to official records, detai­ mechanisms should be established and nees, and responsible officials. strengthened where necessary to enable victims to obtain redress through formal or informal proce­ 1) The law should establish a dures that are expeditious, fair, inex­ press privilege to protect pensive and accessible.” Declaration of informants. Basic Principled for Victims of Crime and Abuse of Power, dupra note 7, princ.5. 2) The office created under Article IX(e), should serve as “Every person may resort to the liaison to the public and the courts to ensure respect for his legal press, who is available and

16 O.A.S. Off. Rec. OER/Ser. L/V/II. 23/Doc. 21/Rev.6 (1979), reprinted in International Human Rights Irutrumentd: A Compilation of Treaties, Agreements and Declarationd of Especial Interest to the United Stated 430.1 (Richard B. Lillich ed., 1990). knowledgeable to answer ques­ central to long term efforts to control tions which m ay arise. ISFs. In a rights-sensitive political system, citizen groups, peoples organi­ b) Independent Tribunal. Human sations, and the press are integral rights commissions or ombud­ components of the political system and sman agencies should be created constitutional order. Educating the and adequately empowered to public in human rights is perhaps the monitor ISFs, investigate abuses, most effective tool in promoting obser­ expose wrongdoing, refer cases vance of those rights. Together with a for prosecution, and propose government that is accountable to the legal and administrative reforms people, the public can work to develop that may enhance the accountabi­ principles and guidelines and effect lity system. These commissions changes for the internal operations of and its members should be sepa­ ISF s. rate and independent of all other branches of the government. Sources c) Public Participation and the Role “In some countries, the mass media of Citizen Organisation. The law may be regarded as performing com­ should protect and encourage the plaint review functions....” Code of rights and power of citizens to Conduct for Law Enforcement Officials, form organisations to monitor supra note 2, Art. 8, cmt. (d ). ISFs; to publicise citizens’ rights and ISF abuses of those rights; to “An African Commission on represent victims of abuses befo­ Human and Peoples' Rights... shall be re any investigative body; to established within the Organisation of bring class, as well as individual, African Unity to promote human and actions before the courts to pre­ peoples’ rights and ensure their pro­ vent or secure remedies for tection in Africa.” The African Charter abuses; and to publicise grie­ on Human and Peoples’ Rightd, supra note vances concerning the conduct of 5, Art. 30; see also id. arts. 45, 46. ISF personnel or of the organiza­ tion as a whole. “In cases in which the established investigative procedures are inadequa­ Com m entary te because of lack of expertise or impartiality, because of the importan­ Currently citizens have virtually ce of the matter or because of the no input into how ISFs are created apparent existence of a pattern of and governed. ISFs thus operate abuse, and in cases where there are without fear of public opposition or complaints from the family of the victim any public control. They become insu­ about these inadequacies or other sub­ lated from the very people they are stantial reasons. Governments shall designed to protect. The establishment pursue investigations through an inde­ of public powers over ISFs are therefore pendent commission of inquiry or similar procedure. Members of suck a “(a)... [E] very law enforcement commission shall be chosen for their agency should be representative of recognized impartiality, competence and responsive and accountable to and independence as individuals. In the community as a whole....(d)... particular, they shall be independent [T]he actions of law enforcement of any institution, agency or person officials should be responsive to public that may be the subject of the inquiry.” scrutiny, whether exercised by...a Principled on the Effective Prevention and citizens' committee...or any other Investigation of Extra-Legal, Arbitrary reviewing agency.” Code o f Conduct fo r and Summary Executions, dupra note 8, law Enforcement Officials, dupra note 2, princ. 11. pmbl. Election and Electoral Sydtenid in Africa: Purposed,

Problemd and Prodpectd

Amare Tekle *

Africa has been gripped by an elec­ The post-colonial African State tion mania since the beginning of this was an artificial entity bedevilled by decade. This election mania and, ethnic, religious and regional diffe­ consequently, the search for genuine rences and rivalry, if not outright anta­ and pragmatic electoral systems, can­ gonism. More often than not, it was not be understood in isolation from ruled by one or other ethnic or reli­ the democracy movement and the gious group at the expense of the democratisation process that have pre­ others, thus making no moral or politi­ sumably been triggered on the conti­ cal sense to the majority of its citizens. nent. This may be either as a result of Governments were not bestowed the pressure of bona fide African social legitimacy by, and could not concei­ movements for political change or the vably expect the allegiance of, such conditionalities imposed by aid-giving populations. Cross-border loyalties countries or institutions. Rightly or were common which made ruling wrongly, the commitment to, and the very difficult. Under the circum­ holding of, elections have become the stances, the rulers almost invariably litmus test of a sincere commitment to had to mobilise support on a narrow democratic governance. Needless to ethnic and religious basis and to resort say, it was to be affected by the to brutal repression in the absence of choices and constraints that have broad, consensual support. More accompanied the democratisation pro­ often than not, they did need external cess. support.

Reference to the post-colonial They were also incompetent, pre- Africa State is imperative since its bendal and woefully anti-developmen­ nature, and failures, have informed tal. Being both the indispensable whe­ the debate on the democratisation pro­ rewithal for wealth and honour and cess and because of its relevance to the the only instrument to safeguard it, examination of elections and electoral those who controlled the State and systems. their supporters were determined to

* Amare Tekle is an expert on Constitutionalism and Elections, Eritrea.

The Review — N° 60 — Special Issue / 1998 cling to power indefinitely at all costs. territory and people or to control the Consequently, the State was almost spillover from external crises (refugee invariably privatised to meet the flows, migration etc.) demands of the ruling ehte which created the political systems and Any examination of the purposes of State institutions which enabled African elections and electoral sys­ them to monopolise power and to tems, the challenges that face them perpetuate their stranglehold of the State. Conversely they rejected and their future, must therefore be democratic values, principles and made against this background. processes in the name of nation- building, social harmony and rapid It becomes immediately evident economic growth. that African elections and electoral systems have more missions and func­ Yet, the institutions and systems tions than their counterparts in they created not only failed to Western countries. The function of the solve these problems but actually latter is, by and large, to organize, ended up exacerbating them. This administer and supervise elections excessive autonomy of the African which reflect the will of the population State, coupled with the fragmentation and ensure a fair representation of the of society into small social units popular will in government. Elections separated from the state and from in Western democracies also confer each other along ethnic, linguistic, power on the winner. By doing so, religious and geographical lines, wea­ kened governments and, in some they ensure the smooth transfer of cases, caused the collapse of the State. power from one party (or coalition of It also made it relatively easy for small parties) to another party (or coalition but well-organized groups (both of parties) or legitimise continued rule civilian and military) to seize power if those already in government return and to rule brutally, since autonomy to office. implied that the group in power could depend only on violence to implement African elections and electoral sys­ its programmes. Inevitably, such a tems have, at this juncture of history, soft State had to marginalise the majo­ a) the additional onus of ensuring the rity of its people, particularly those smooth transition to democratic on the periphery. governance and b) conflict resolution, broadly defined. This paper will It was also inevitable that the State attempt to present these two facets, to was plagued by economic deteriora­ tion, social dislocation, instability and indicate the challenges and dangers endless conflicts which challenged the that face African election authorities, legitimacy not only of governments to suggest some solutions to some of but also of the State. Such a weak the problems and to formulate certain State did not have the capabihties to basic principles which can make future either exercise authority over its own elections meaningful. Elections and the Transition to the whim of the ruling elite. Democratic Governance Considered thus morally bankrupt, they have lost public support and sym­ Electoral systems and elections pathy and are viewed as being inca­ constitute a crucial component of the pable of fulfilling the people’s wish for dynamics of transition to democratic popular and democratic governance. governance. The dynamics of transi­ Under the circumstances, it was diffi­ tion raise certain fundamental ques­ cult for political parties and other tions both related to the dismantling of organisations seeking democratic the political systems, principles and change to accept that the State and its institutions, which had propped up institutions would be impartial enough dictatorial rule, and to their replace­ to write an acceptable electoral law ment by principles, systems and insti­ and they insisted on the formation of a tutions, which were more conducive group that would be representative of a to a more open and competitive sys­ wide spectrum of political views. In tem. The tension that necessarily this way important decisions about the exists between the defenders of the nature and content of the electoral law status quo and the champions of chan­ could have been taken away from the ge, and the creation, on the basis of State and its institutions, thus paving mutual interest and mutual consent, of the way for the creation of an indepen­ a stable new political order is here a dent commission and ensuring free given. The new order, cooperative or and fair elections. adversarial as the case may be, creates new rules of politics and, in some ins­ tances, access to resources to those out b ) Constitutional rights and gua­ of government. The type of electoral rantees-. In Western democracies, the system and election is at the heart of constitutional freedom of association such a struggle. The most common is considered the minimum guarantee issues raised in relation to the content of for free and fair elections. It is also the electoral law which, in effect, taken for granted that this freedom is determines the nature of the electoral expressed by the formation of political system include the following: parties through which the people can propagate their beliefs and enunciate a) Authorship of the electoral, law. programs without any interference In Western democracies, the electoral from the State or any other party or law is usually drafted by the executive individual. Thus, political parties, branch and adopted by the legislative which have integrative functions, are assembly. This has not been quire pos­ considered to have pivotal roles in sible in Africa during what is popular­ mobilising citizens to participate in ly known as the second era of inde­ governance. A party system is consi­ pendence. A consensus has emerged dered a structural requirement of that the African State and its institu­ democracy and government must tions are as illegitimate as they are accept its existence as an indicator of irresponsible and completely servile to official tolerance of dissent. Although generally endorsed in In July 1994, a group on inexpe­ Africa, two exceptions to this view rienced young army officers over­ have been evident in the evolution of threw the government of Daouda recent African electoral systems. In Jawara, in a military coup and created the first instance, political parties have the Armed Forces Provisional Ruling been proscribed outrightly on the Council (AFPRC) under Captain basis of the age-old fear that they are Yahya J. Jammeh. Its human rights likely to be divisive since they would record was thoroughly condemned by be formed only along ethnic, religious, Western countries although it seemed linguistic and regional lines. However, to have popular support because the all the other constitutional guarantees socio-economic reforms it had inaugu­ relating to elections and the right to rated and the determined action it had contest elections on an individual basis taken to weed out corruption, had have been scrupulously respected. endeared it to the population. When Uganda, which is a good example of the military junta decided to hold such a no-party State, has recently elections in September 1996, its mem­ conducted presidential and parliamen­ bers resigned their military commis­ tary elections. Although its constitu­ sion, turned themselves into a political tion is sure to provide for the forma­ party - The Alliance for Patriotic tion of political parties, it is almost Re-orientation and Construction certain that Eritrea too will prohibit (APRC) - and decided to participate the creation of political parties based in the elections in spite of their pre­ on ethnicity, region, language or reli­ vious protestations. gion. They also banned those parties res­ In some other countries, the right ponsible for bad governance and old to form political parties is guaranteed politicians (and their allies) were constitutionally although some are detained and charged with corruption. denied active political participation by Every other provision of the electoral subsequent government action or law was scrupulously adhered to, made almost meaningless by the domi­ although some parties had accused it nance of one popular mass party (or of unequal use of government facilities movement) as in early Indian or (the electronic media) and resources Mexican political life. Gambia is an (equipment, vehicles etc.). The US example of the first while Eritrea can and the UK not only protested the be cited as a good example of the government’s action but declared in second. advance that, in the absence of the banned parties and individuals, they The case of Gambia deserves fur­ would not participate in election moni­ ther attention because, more likely toring and would not consider the than not, it may be repeated in some elections free and fair. Sweden deci­ other African countries. It will also ded to observe the elections. shed light on the predicament of some African countries and their relation Two questions must be asked; is with Western donor countries. the government action justified? And is the position taken by the US and State. To the extent that the public is the UK correct? The answer seems to cynically aware that, in a privatised me that the merit of each decision State, there is hardly any distinction must be seen within the contest of his­ between the ruling elite and the State, torical time and space. Eritreas deci­ and that consequently electoral policy sion to prohibit the formation of politi­ will be unilaterally determined to cal parties that do not meet certain ensure that the elite remains the sole criteria - and possibly Uganda's action beneficiary, State institutions are to create a no-party State - may be vie­ considered illegitimate. wed with approbation. Yet, it must also be noted in the same breath that It is certain that it is not possible to in some Eastern European countries conduct free and fair elections in the members of the old ruling communist absence of a competent, dedicated and parties participate actively and mea­ impartial group of persons of unques­ ningfully in political life - and win tioned integrity who enjoy the respect elections - while in others they have and broadest possible support of the been banned. The decision to unreser­ population. Under the circumstances, vedly insist on unlimited participation the persons, who have championed without taking the objective reality of change to democratic order, have a given country into account would insisted on the creation of independent not only be an act in reductio ad abdur- electoral commissions composed of diitn but will, in fact, unwittingly pro­ rndependent-minded experts in the mote the return of undemocratic field of election administration who governance by democratic means. On are committed not only to administer the contrary, it is not only detrimental to free and fair elections but who, in the the future of democracy but also dan­ process, will also contribute to the gerous to the State to allow the unlimi­ promotion of democratic culture in ted participation of parties only to society. Such a commission must of annul results if they are not acceptable course be legally enabled with executi­ to the incumbent, as in Algeria. ve, legislative and judicial powers.

c) The existence of an impartial d) Free and fa ir elections'. In addi­ electoral authority. In most Western tion to the ability of the electorate to democracies, the organisation, admi­ articulate its wishes and interests by nistration and supervision of elections is joining political parties, a free election the preserve of the civil service. This also consists of the voters’ ability to can hardly be acceptable in the pre­ express their choice of party or candi­ sent African State because it is not date without interference. This means considered to be a neutral body that voting should take place in an capable of impartially executing its environment free of any threat, intimi­ task. The experience of the last three dation or other influence. This is and a half decades of African history is possible only when the vote is secret a monumental testimony against the and unassisted. Due to this reason neutrality and impartiality of the the Open B allot or one of its variants practised in certain African countries the opportunity to win the support of (e.g.. Nigeria, Gambia) in spite of a the electorate in an honest way. The U N declaration against it, lias been acceptance of the principle of equal hazardous to free elections. The Open rights to all parties is a basic require­ Ballot has hitherto been employed in ment in electoral fairness and conse­ the belief and hope of minimising mal­ quently each contesting party must be practice such as vote inflation, technical taken as a bona fid e principal in the rigging and other electoral offences. electoral scheme of things. Not only has it not achieved the expected objective, but it has endan­ Similarly, the principles of free gered voters and definitely destroyed speech and assembly acknowledge the the integrity of the vote. Many right of political parties to communi­ African voters have consequently cate their ideas without any hindrance shied away from voting because they and to have access not only to poten­ knew they would not be able to tial voters but also to public facilities express their electoral preferences which would facilitate communication openly. Experience had taught them with the electorate. the danger of recrimination from spouses (usually husbands), village However, two predicaments beco­ chiefs or elders, peer groups, me immediately evident in the African employers and benefactors if their electoral setting. First, many an preferences did not meet their appro­ African incumbent has been too ready to val. It had also become a scandalous violate the letter or spirit (and some­ practice during the Open B allot voting times both) of the constitution and to switch lines (sometimes more than electoral law, by constant amendment once) on the basis of monetary or to the latter or even direct executive other forms of bribes. order, if he/she perceived that he/she would gain or deny his/her opponent The fairness of an election is jud­ possible advantages. This constitutes ged by the capacity of the electoral the crudest form of electoral fraudu- system and law to enable parties - all lence. The use of public facilities and legitimate parties - to compete for the resources is the second - and much electorate s vote without any interfe­ knottier - problem and a more subtle rence or obstacles. More often than issue since it may not involve illegality not, the electoral law and system will and can even be explained by the cir­ be perfect, but the application of the cumstances surrounding it. letter and spirit of such a law may be woefully lacking. An election can be The African media, and particularly considered fair only when it is ascer­ its electronic component, is largely tained that the spirit and the letter of owned, or controlled, by the State. As in the law are scrupulously adhered to the rest of the world, the media has an both by the electoral authorities and important role in campaigning and the government of the day and when voter education. This empowers it to there exists an enabling atmosphere highlight the issue of the election and which renders all contesting parties to influence public opinion. We need to concern ourselves with the worst of itself not extensive and also because, conditions where incumbents deny in multilingual societies, it cannot their opponents the use of the public adequately reach the whole popula­ (government owned or controlled) tion within the available air-time. media. In the best of cases, the electoral Secondly, access to air-time by all par­ law and subsequent regulations and ties, unless equitably distributed, may guidelines provide for fair access to, inadvertently give advantage to small and equitable use of, the media. In parties which do not command wides­ most instances, these regulations and pread support. guidelines make arrangements for free air-time to be available on public The use of State institutions and radio and television for all parties resources is a more serious issue since its and, in some cases, impose financial abuse is more flagrant. The first limits on parly pohtical advertising concerns the relationship between, even in privately-owned electronic and respective roles of, the police and media. Additionally, guidelines have other security forces and the election sometimes been issued to ensure that authorities of a country. Incumbents the public media distinguishes the have used the police and intelligence genuine news value of action taken by units not only to harass leaders of the government in its official capacity politrcal parties and candidates but from extensive coverage which may be also to intimidate the electorate, espe­ an abuse of the position of incumbency cially during public rallies. O f particu­ in an election period. Enforcement, lar importance has been the issue of however, has been impossible. In this prompt cooperation of the police over respect, African leaders (and their any question of permission needed ministers) have not been any different for political activity in public spaces from their Western counterparts. such as marches, demonstrations and What is different is, of course, that rallies. Often, permission is not given the media in the West is either private promptly for a variety of reasons used as or (as in Britain) totally independent delaying tactics to frustrate the oppo­ and immune to government influence. sition. Then, there is also the related issue of the neutrality of the police However, two caveats are in order. and the security forces and the need Firstly in Africa, where the literacy for them to abide by the instructions rate is low, the electronic media is of election authorities on electoral more important than the print media matters. This has all too often been and, among the electronic media, ignored by them. radio plays if not a more significant role then at least a more accessible The second involves the use of one. Perhaps this is why most African State resources for political ends. The electoral guidelines on media use focus issue is particularly relevant to on electronic air time and, more incumbents which may abuse privi­ importantly, on radio. Yet, the impor­ leges related to office (vehicles, office tance of even radio cannot be overesti­ equipment, official visits outside the mated if only because general air-time is capital with travel allowances etc.). This has been as rampant in Africa as preferred principle but it too traces elsewhere. itself so an identity established by Ju s Solis. Thus “an Eritrean” was the off­ In both instances, it is evident that spring of an Eritrean mother or father there is the dire need for campaign who can trace lineage to a progenitor reforms to combat corruption in the who inhabited the Italian colony of financing of campaigns and to ensure Eritrea when the Eritrean Nationality transparency and accountability. In Proclamation of 1937 enacted that all the case of the media, it may be the inhabitants of the territory (except suggested that air-time should be Italians) were Eritrean subjects. That accorded in proportion to the support enabled an assortment of non-indige- enjoyed by parties. Yet, any such nous (Ethiopians, Nigerians, Yemenis, estimation is bound to be subjective Greeks, Indians etc.) individuals to (possibly the view of electoral authori­ claim citizenship and a right to vote in ties) if made in advance of an election, the independence referendum of 1993. particularly if it is being conducted for In Eritrea, as elsewhere in Africa, the first time. In the second case, the grave difficulties were confronted in suggestion that the state finance all identification, despite the use of different parties seems to be impractical in view methods. Identification by village of the financial conditions of African chiefs was the most important method States. used.

The fairness of voting will also Once citizenship is ascertained, the depend on two other major issues. next question arises: who can vote? Is These are: residency a feasible requirement? Is it morally and politically defensible to disenfranchise a sizeable number of e) Voter eligibility'. Most Africanthe population (refugees, exiles, seaso­ electoral laws make citizenship the nal migrants and nomads which necessaiy prerequisite for the right to constitute a sizeable percentage of the vote. The determination of citizenship, population)? Do you allow long-term however, becomes an extremely daun­ refugees and guest-workers in a coun­ ting task because of factors like the try to vote? What should be the criteria existence of ethnic groups across seve­ for allowing them to vote? Do you ral international boundaries, seasonal allow criminals to vote? Do you allow migration and nomadism, refugees teenagers to vote? and guest workers. Under the circum­ stances, many questions arise in the These and other questions were determination of citizenship and diffe­ answered differently by different rent countries have established diffe­ States. Eritrea arranged for the distri­ rent sets of conditions for awarding bution of citizenship identity cards citizenship based essentially on the and voter registration cards in Eritrea, principles of Ju s Solis and Ju s the refugee camps in the Sudan, and Sanguinis or both. In Eritrea, for the Diaspora. It was able to register example, Jus Sanguinis has been the almost 100 per cent of eligible voters. South Africa and Zimbabwe did not genuinely reflecting the views of the keep voter registers even within the electorate and its right to use the vote as country. South Africa successfully a political weapon. allowed long-time Mozambican, Zairian, and other mine-workers, as In Africa, the determinants that well as those who had resided in must impact upon the choice of an the homelands, to participate in the electoral system must go beyond voting. Eritrea allowed known crimi­ representativeness, accountability and nals (common criminals as well as accessibility to include reconciliation those Eritreans who had committed and inclusively. If existing ethnic, reli­ crimes against the people by collabo­ gious, linguistic and regional hostili­ rating the enemy) to vote because ties are to be effectively restrained, it they had not been tried and convicted then becomes important that electoral by a court of law and the whole world systems facilitate the creation of an agreed that violent acts against environment that will foster coopera­ Apartheid did not constitute a crime. tion. Mutual appreciation of opposing South Africa, following the example views must be accepted and the of Nicaragua, allowed, on the basis of conviction that losers lose everything the principle that those who were old while winners take it all can no longer enough to fight and die for their be the norm. It must be recognised country were old enough to vote in that, in a democracy, winners and some cases in practice, the vote to losers are partners and not enemies sixteen-year olds. But the Eritrean who must destroy each other. Referendum Commission wrongly Electoral systems must advance this in decided not to amend the Referendum law and in practice. Proclamation to allow teenage free­ dom fighters in the belief that it may The choice of an electoral system be considered discriminatory against may vary from country to country if non-fighters of the same age. only because of differing objective rea­ lities and experiences. However, they must all have the common objective of f) The Electoral Systems: In the making it necessary for political renewed African drive at, and experi­ groups and individuals to create politi­ mentation with, democratic governance, cal parties based on ideology and the electoral system adopted by any having distinct programs rather than given country will have grave implica­ on ethnicity, religion, language or tions not only for the political system region. They must in fact create the that it will create, and the structure circumstances which will make the lat­ and processes that will consequently ter politically and otherwise unrewar­ evolve, but also for social harmony, ding. peace and stability. In view of the morbidity of the present African State, It is encouraging to note that some it is urgent that the electoral system African countries have, because of the advance the cause of harmony in bad experiences of one-party govern­ society and the government while ments in two and a half decades, adopted inclusionaiy, cooperative stage) of conflict resolution. However, electoral systems containing some it is important to recognise that the form of genuine power sharing type of electoral system (and particu­ with the view to avoiding bloody larly the provisions of the electoral conflicts. law relating to the rules of competi­ tion, distribution of power etc.) have been major items on the agendas of Elections and Conflict Resolution negotiations and have been incorpora­ ted in the resulting agreements. These Most literature on elections and agreements have usually contained the electoral systems has hitherto concen­ principles and institutions for a stable trated on their role in the introduction cooperative relationship which have or restoration of democratic governan­ become the foundations for trust and ce and has neglected their equally consensus. significant function in conflict resolu­ tion. Yet, elections have also served as useful mechanisms nor only between Then, too, the promise of elections conflicting groups within a State but have facilitated communication bet­ also among States, particularly among ween the State and the institutions of those not directly involved in the civil society thus strengthening lin­ conflict. Thus, in Africa, elections kages and contribution to the realistic have been useful in solving long-stan­ appreciation of each others ideals and ding conflicts in Ethiopia (Eritrea), the proper understanding of each Angola, Mali and South Africa. As others’ objectives and plans. Such such elections have become the essential linkages have, more often than not, agencies for cooperative relations bet­ enhanced mutual trust and confidence ween States and/or conflicting groups which forsake their long-held values thus resulting in the acceptance of and interests in favour of a set of the electoral rules of the game, crea­ mutually acceptable values and prin­ ting the proper environment for ciples designed to promote mutual cooperation and the incentive to abide interests. Peace that is thus achieved by the rules if only because of the pro­ not only has had the chance to be mise of the assumption of power in the enduring but has succeeded m ope­ future. ning new avenues of cooperation bet­ ween erstwhile enemies. The case of Naturally, elections which were to Eritrea and Ethiopia is a good be conducted within such an environ­ example. ment have lessened group fear and The commitment to hold elections tensions, instilled confidence in mino­ may have been the result of negotia­ rities and, coupled with the promise tions and, in the scheme of things, for some meaningful form of represen­ elections may constitute only a part of tation, have led to their acceptance of the last stage (i.e. the implementing the rules of the electoral game. C onclusion But there is also the important and urgent need to expand the scope of In spite of the cynicism that has enquiry beyond the study of elections accompanied them, African elections to the critical consideration of the have understandably been given pro­ electoral systems most suitable to the minence as important agents in the needs of African States. Electoral sys­ transition to democracy. They have tems have been viewed by some after all, enabled Africans - and parti­ experts as the most critical mecha­ cularly excluded groups - to enjoy nisms in the manipulation of politics their long-forgotten rights to self­ and, while the electoral system itself determination (broadly defined) at will not be able to ensure the creation of several societal levels. In many ins­ a stable and democratic order in any tances, they have also been used as given State, it has contributed signifi­ mechanisms for conflict resolution, cantly to it. thus effecting political transformation within or rearranging the map of a Most African States have State. Elections have thus become employed the majoritarian (or First- a critical component of negotiation Past-the-Post) system that they have processes aimed at ushering in politi­ inherited from colonialism. It may not, cal and social changes in Africa. in view of the heterogeneity of their societies as well as the perils of implo­ Yet, it is essential to make some sion and disintegration facing them, be precautionary generalisations on the unwise to consider the Proportional structural weaknesses and strengths of Representation (PR) system which African elections and the assumptions has proved to be effective in conflict that must be made, conditions that resolution and in promoting coopera­ must be met, principles that must be tion. upheld and rules that must be accep­ ted if elections are to become the effec­ At the minimum, however, African tive vehicles for democratic governance electoral systems must, at this stage of and conflict resolution that they history, provide for a) an independent promise - and we desire them - to be. electoral commission, b) the promo­ These are: tion of tolerance, cooperative effort and common stakes, c) the creation of strong, viable political parties which 1 The “fallacy of electoral'um”•. can meaningfully mobilise popular African elections have brought regime action, d) equitable use of State changes. They have not in all ins­ resources, e) the neutrality of the tances ushered in a radical transfor­ security and armed forces, f) the pro­ mation of the State and democratic motion of the creation of strong insti­ governance or resolved conflicts. If tutions of civil society and g) a develo­ anything, they may have only introdu­ ped civil education system. ced an era of the game, and the incentive for cooperation, in an interactive politi­ cal game. To date, the evidence in 2 The consolidation of democracy. Africa has been encouraging. Despite the holding of elections - and in most cases only one election kas unintended, indeed dangerously anti­ taken place so far - and tke apparent thetical objections. In few cases there­ espousal of relatively liberal and open fore, it may not have been a bad idea political systems, only some tentative and has indeed been necessary to desi­ steps have been taken towards gn electoral laws with a view to avoi­ the achievement of truly democratic ding legitimation of the undemocratic States. This is understandable. by democratic means. Elections, even when they are free and fair, must only be regarded as the initial In this respect, it may be incum­ measures in the process of democrati­ bent on the international community sation. Bona fide democratic States, which reflect the sovereign will of to be interested in long-term results the governed, respect their rights rather than short-term procedures and allow their full participation in and to focus on the content (and the affairs of the State will come into purpose) rather than the form of existence only as a result of the overall elections. While free and fair elections development of society, including the are surely a criteria by which to judge creation of viable institutions of civil the democratisation process, it may be society, a free press and an indepen­ necessary to insist on electoral laws dent, dedicated and resolute judiciary, that will bring about basic behavioural as well as a sound legislature. Any changes that will democratise African African system must be geared toward politics. the institutionalisation process which will contribute to the strengthening Also, donor countries must exami­ of such a democratisation process. ne carefully the prevailing political conditions in each African Country before determining support for demo­ 3 Africa and the international com­ m unity. It is a truism that any society cratic governance initiatives, setting must uphold certain principles if it is conditions, and prescribing out and to be considered truly democratic. dried criteria for free and fair elections Among these, the most important be to be applied in all African countries. the right to vote and the right to seek This matter becomes extremely office through free and fair elections. serious if only because it would affect However, the second imperative not only the relationship of African (i.e. the right to seek office) must be States with the major global actors considered in the context of time and but, more importantly, the very demo­ space if elections are not to achieve cratisation process on the continent. The Evolving Doctrine of

Democratic Legitimacy

Bertrand G. Ramcharan *

Introduction I - The Conception of the State in the African Charter The 1990s have seen dramatic innovations in African international The African Charter on Human law and practice for the prevention of and Peoples Rights (1981) commits its conflicts and for the entrenchment of Member States to upholding freedom, the principle of democratic legitimacy justice, equality and dignity; the equality on the part of African governments. of peoples; self-determination; protec­ This is to be seen in a spectacular tion of the family; the right to participate fashion in the establishment and func­ in government; the independence of tioning of the OAU Conflict the judiciary; non-discrimination; the Prevention Mechanism; the SADC right to peace; the right to develop­ Organ on Politics, Defence and ment; the right to a satisfactory envi­ Security; the policies and pronounce­ ronment; and a series of specific rights ments of the Economic Community of on equality before the law, equal pro­ West African States; and in the efforts of ECOWAS and I GAD to develop tection of the law, inviolability and their capacity for conflict prevention. dignity of the human person, liberty In the following essay, we shall seek to and security of person, the right to present the salient parts of the practice have one's cause heard, freedom of of these organizations and to distil conscience and religion, the right to from them some general principles of receive information, the right to the emerging African international express and disseminate opinions, law on conflict prevention. To set the freedom of association, freedom of ongoing efforts for conflict prevention in assembly, freedom of movement, the perspective, we shall first call in aid right to property, the right to work, the vision of the African Charter on the right to health, and the right to Human and Peoples Rights and look education. The salient provisions on at the conception of the State in the the conception of the State in the African Charter. African Charter are set out below:

a Dr. Bertrand G. Ramckaran, a national of Guyana, is the Director for Africa in the UN Department of Political Affairs, New York; and Adjunct Professor at Columbia University. He is also a member of the International Commission of Jurists. Commitment to Freedom, its physical and moral health. The Equality, Justice and Dignity State shall have the duty to assist the family which is the custodian of The Preamble to the Charter morals and traditional values recognized recalls the stipulation in the Charter of by the community. the OAU that “freedom, equality, justi­ ce and dignity are essential objectives for the achievement of the legitimate The Right to Participate in aspirations of the African peoples.” It Government also recognises that fundamental human rights stem from the attributes of Article 13 of the Charter states that human beings, which justifies their every citizen shall have the right to international protection, and that the participate freely in the government of reality and respect of peoples' rights his country, either directly or through should necessarily guarantee human freely chosen representatives in accor­ dance with the provisions of the law. rights. Every citizen shall have the right of equal access to the public service of Equality of Peoples his country. Article 19 of the Charter stipulates that all peoples shall be equal; they Independence of the Judiciary; shall enjoy the same respect and shall National Institutions have the same rights. Nothing shall Article 26 provides that States par­ justify the domination of a people by ties to the Charter shall have the duty to another. guarantee the independence of the Courts and shall allow the establish­ Self-Determinatio ment and improvement of appropriate national institutions entrusted with Article 20 of the Charter states that the promotion a protection of the all peoples shall have the right to exis­ rights and freedoms guaranteed by the tence. They shall have the unquestio­ Charter. nable and inalienable right to self­ determination They shall freely determine their political status and Recognition of Rights shall pursue their economic and social Article 1 provides that the States development according to a policy parties shall recognize the rights, they have freely chosen. duties and freedoms enshrined in the Charter and shall undertake to adopt The Fam ily legislative or other measures to give effect to them. Furthermore, the Article 18 of the Charter lays down preamble reaffirms their adherence to that the fa m ily shall be the natural unit the principles of human and peoples’ and basis of society. It shall be protec­ rights and freedoms contained in the ted by the State which shall take care of declarations, conventions and other instruments adopted by the OAU, the The Right to Development Movement of Non-Aligned Countries Article 22 holds forth that all and the United Nations peoples shall have the right to their economic, social and cultural develop­ Non-Discrimination ment with due regard to their freedom and identity and in the equal enjoy­ Article 2 provides that every indivi­ ment of the common heritage of dual shall be entitled to the enjoyment of mankind. States shall have the duty, the rights and freedoms recognized individually or collectively, to ensure and guaranteed in the Charter without the exercise of the right to develop­ distinction of any kind such as race, ment. Article 21 had already specified ethnic group, colour, sex, language, that all peoples shall freely dispose religion, political or any other opinion, of their wealth and natural resources. national and social origin, fortune, This right shall be exercised in the birth or other status. Article 18 adds exclusive interest of the people. In no case shall a people be deprived that the State shall ensure the elimina­ of it. In case of spoliation the dispos­ tion of every discrimination against sessed people shall have the right women and also ensure the protection of to the lawful recovery of its property the rights of the woman and the child as as well as to adequate compensation. stipulated in international declarations States parties shall individually and and conventions. The article further collectively exercise the right to free adds that the aged and the disabled disposal of their wealth and natural shall also have the right to special resources with a view to strengthening measures of protection in keeping African unity and solidarity. with their physical or moral needs.

Right to a Satisfactory The Right to Peace Environment Article 23 provides that all peoples Article 24 provides that all peoples shall have the right to national and shall have the right to a general, satis­ international peace and security. The factory environment favourable to principle of solidarity and friendly their development. relations implicitly affirmed by the Charter of the United Nations and Against the background of the reaffirmed by that of the OAU shall vision of the African Charter1, we govern relations between States. shall now turn to the conflict

1 On the African Charter generally, see Evelyn A. Ankumah, The African Commufdion on Human and Peopled Rights Practice and Procedures. The Hague: Martinus Nijhoff Publishers, 1996. prevention mechanisms of the OAU right to independent existence the and subregional organizations: peaceful settlement of disputes as well as SADC, ECOWAS and IGAD. the inviolability of borders inherited from colonialism. It would also func­ tion on the basis of the consent and the cooperation of the parties to the II - The OAU Conflict conflict. Prevention Mechanism The primary objective of the Mechanism would be the anticipation At the fifty-sixth ordinary session and prevention of conflicts. In circum­ of the OAU Council of Ministers in stances where conflicts do occur, it June-July 1992, the OAU Secretary- would be its responsibility to undertake General submitted a report on the peacemaking and peace-building func­ establishment within the OAU, of tions in order to facilitate the resolu­ a Mechanism for Conflict Prevention, tion of those conflicts. In this respect, Management and Resolution. Subse­ civilian and military missions of obser­ quently, the Assembly of Heads of vation and monitoring of limited scope State and Government adopted “in and duration may be mounted and principle, the establishment, within deployed. the framework of the OAU, and in keeping with the objectives and prin­ In setting these objectives, the ciples of the Charter of a Mechanism Assembly was fully convinced that for Preventing, Managing and prompt and decisive action in these Resolving Conflict in Africa.” The spheres could, in the first instance, Assembly requested the Secretary- prevent the emergence of conflicts and General to undertake an in-depth where they did inevitably occur, stop study on all aspects relating to such a them from degenerating into intense Mechanism. or generalised conflicts. Emphasis on anticipatory and preventive measures, In June 1993, the Heads of State and concerted action in peacemaking and Government of the OAU, meeting and peace-building would, it was in Cairo, considered the situations of hoped, obviate the need to resort to conflict in the continent and, formally complex and resource-demanding established, within the OAU, a peace-keeping operations, which Mechanism for preventing, managing African countries found difficult to and resolving conflicts in Africa. The finance. Assembly decided that the Mechanism would be guided by the objectives and In the event that conflicts degene­ principles of the OAU Charter, in par­ rated to the extent of requiring collective ticular: the sovereign equality of international intervention and poli­ Member States, non-interference in cing, the assistance or, where appro­ the internal affairs of States, respect of priate, the services of the United the sovereignty and territorial integrity Nations would be sought under the of Member States, their inalienable general terms of its Charter. In this instance, African countries would exa­ Heads of State and Government. mine ways and modalities through The Central organ is convened by which they could make practical the Chairman at the request of the contributions to such a United Secretary-General, or of any Member Nations undertaking and participate State. It should meet at least once a effectively in the peace-keeping opera­ year at the level of Heads of State tions in Africa. and Government; twice a year at the Ministerial level; and once a month at The OAU Mechanism is built Ambassadorial and duly authorised around a Central Organ, with the representatives level. The quorum Secretary-General and the Secretariat of the Central Organ is two-thirds as its operational arm. The Central of its members. In deciding on Organ of the Mechanism is composed its recommendations, and without of the State members of the Bureau prejudice to the decision making of the Assembly of Heads of State methods provided for in the Rules and Government elected annually, of Procedure of the Assembly of bearing in mind the principles of Heads of State and Government, it equitable regional representation and shall generally be guided by the rotation. In order to ensure continuity, principle of consensus. The Central the States of the outgoing Chairman Organ reports on its activities to the and (where known) the incoming Assembly of Heads of State and Chairman are also members of Government. the Central Organ. Between Ordinary Sessions of the Assembly the Central Organ assumes overall direction and In establishing the Mechanism, the coordinates the activities of the Assembly specifically stated that the Mechanism. OAU shall also cooperate and work closely with the United Nations, not The Central Organ functions at the only with regard to issues relating level of Heads of State as well as of to peacemaking but, and especially, Ministers and Ambassadors accredi­ also those relating to peace-keeping. ted to the OAU, or duly authorised Where necessaiy, recourse would be representatives. It may, where neces­ had to the United Nations to provide sary, seek the participation of other the necessary financial, logistical and OAU Member States in its deli­ military support for the OAU s activities berations, particularly neighbouring in Conflict Prevention, Management countries. It may also seek, from and Resolution in Africa in keeping within the continent, such military, with the provisions of Chapter VIII of legal and other forms of expertise the UN Charter on the role of regional as it may require in the performance of organizations in the maintenance of its functions. international peace and security. In like manner, the Secretary-General of The proceedings of the Central the OAU is expected to maintain close Organ are governed by the pertinent cooperation with other international Rules of Procedure of the Assembly of organizations. The .Mechanism has so far held Primary Responsibility for almost 50 Ordinary Sessions, as well Maintenance of IPS Rests with as some Extraordinary Special and the UN Security Council Summit Sessions. It has blazed a new The First Meeting of the Chiefs of trail in efforts for conflict prevention Staff recognized that the primary res­ in Africa as we shall see from its emer­ ponsibility for the maintenance of ging policies and doctrines as set out international peace and security parti­ below. cularly in the area of peacekeeping rests with the United Nations Security Primary Responsibility of OAU Council. At the same time the meeting for Anticipation and Prevention recognized that certain exceptional circumstances can arise which may o f Conflicts lead to the deployment of limited The First Meeting of the Chiefs of peace-keeping or observation by the Staff of Member States of the Central O A U .3 Organ of the OAU Mechanism based itself on the principle that the primary Relationship Agreements responsibility of the OAU should lie with the anticipation and pre­ The First Meeting of the Chiefs of vention of conflicts in accordance Staff, for purposes of strengthening with the relevant provisions of the coordination between the OAU the Cairo Declaration.2 Secretary- and the UN in peace-related issues, General Salim, in January 1996, also recommended that the relationship noted in similar vein that “... while between the two Organizations should recognising the overall and main res­ be formalised. It also recommended ponsibility of the United Nations, ... that the OAU should continue to Africa also has its role to play in the coordinate closely with subregional maintenance of international peace Organizations in its peace support and security in the regions whether in operations taking advantage of exis­ support of the United Nations efforts ting arrangements with the subre­ or through its own initiatives. In this gio n s/ context the OAU is convinced of the need to work closely with the Sovereignty and Territorial United Nations and of the importance Integrity of putting in place a coordinating Mechanism to enhance cooperation The Central Organ has undersco­ between the two Organizations and in red the need for the respect of the car­ pursuance of the common goals." dinal principle of territorial integrity

2 5 Ju n e 1996. 3 5 Jun e 1996. 4 5 Ju n e 1996. of Member States and the inviolability panel of renowned personalities to of their borders.5 It has also expressed investigate the 1994 genocide in its commitment to the unity cohesion Rwanda and surrounding events.9 and respect of the sovereignty and ter­ ritorial integrity of States undergoing internal conflicts, e.g. Zaire, in accor­ OAU Refugee Convention dance with the OAU Charter and in The Central Organ has recognized particular the Cairo Declaration of the crucial importance of the refugees 1964 on territorial integrity and invio­ problem to particular crises and has lability of national boundaries as inhe­ called upon all concerned to respect rited at independence.6 the relevant provisions and the spirit of the 1969 OAU Convention on the Inalienable Rights Specific Aspects of Refugee Problems in Africa and other related International The Central Organ has reaffirmed Instruments.10 the inalienable rights of all peoples within their internationally recognized territorial boundaries as stipulated in Convention of Government the OAU Charter on Human and In dealing with one internal Peoples’ Rights, and other internatio­ conflict, the Central Organ reaffirmed nal Conventions relevant to the right its unequivocal support for the of citizenship and nationality/ The “Convention of Government”, particu­ Central Organ has urged the parties to larly the principle of power-sharing as seek a peaceful solution to their diffe­ enshrined in that Convention.11 rences through dialogue and negotia­ tions in conformity with the principles enshrined in the Charter of the OAU National Debate and the African Charter on Human and Peoples’ Rights.8 On 21 The Central Organ has reiterated, November 1997, the Central Organ on occasions, the need to engage in called for a study to be made on the national debates for the resolution of idea of establishing an international conflict.12

5 Twenty Fifth Ordinary Session, 31 October 1996. 6 Fourth Extraordinary Session, 11 November 1996. 7 Fourth Extraordinary Session, 11 November, 1996. 8 Twenty Fifth Ordinary Session, 31 October, 1996. 9 Seventh Ordinary Session at Ministerial level, 21 November 1997. 10 Twenty Fifth Ordinaiy Session, 31 October, 1996. 11 Third Extraordinary Session, 11 September, 1995. 12 Third Extraordinary Session, 11 September, 1996. Support for Moderate Political Diplomatic Representations Leaders On 2 January 1998. the Secretary- The Central Organ has expressed General of the OAU Dr. Salim Ahmed strong support for the efforts of mode­ Salim announced that he was rate political leaders in particular conflicts and unreservedly condemned dispatching a high-level OAU mission the extremist forces.13 to Uganda, Burundi and Tanzania, from 3-14 January 1998, composed of the representatives of the three International Conference on Member States of the Central Peace, Security and Stability organ of the OAU Mechanism for Conflict Prevention, Management and The Central Organ, dealing with Resolution accompanied by a Senior the Great Lakes Region, underscored Political Officer of the General the importance and urgency of finding a durable and lasting solution to the Secretariat to convey the concerns crisis and in this context reaffirmed its expressed by the Central Organ of support for the convening as soon as the OAU Mechanism for Conflict possible of the International Confe­ Prevention, Management and Reso­ rence on Peace, Security, and Stability lution during its Seventh Ordinary in the Great Lakes Region as already Session held in Addis A baba from 20-21 agreed upon by the OAU.1^ November 1997, on the situation in Burundi The Mission would “unders­ core the need for the urgent resump­ Separating Intimidators from tion of the Earache Process and the Bona Fide Refugees participation of all the principal actors In one instance, the Central Organ within and outside Burundi in the reiterated the crucial importance of negotiations, as well as the need to separating intimidators from bona fide defuse the tension between Burundi refugees and requested the Security and Tanzania”. During the Mission, Council to consider this issue as a vital the delegation would also hold consul­ component of the efforts to ensure the tations with the leaders of the coun­ safe and voluntary return of the refu­ tries to be visited and other personalities, gees to Rwanda and create conditions to consider the best ways and means conducive to the resolution of the cri- of giving a new impetus to the peace process in Burundi.

13 Third Extraordinary Session, 11 September, 1995. 14 Fourth Extraordinary Session, 11 September, 1996. 15 Fourth Extraordinary Session, 11 September, 1996. 16 Press Release NY//PR/002/98. 2 January 1998. Peace-Keeping Defence of Democratic Legitimacy The First Meeting of Chiefs of On 26 May 1997, the Central Staff accepted the principle of standby Organ of the OAU Mechanism met to arrangements and earmarked contin­ consider developments in Sierra gents on a voluntary basis. Such ear­ Leone, especially the reported over­ marked contingents could serve either throw of the democratically elected under the aegis of the United Nations or government of that country. The the OAU or under subregional arran­ Central Organ recalled that it was gements. only 14 months previously that the people of Sierra Leone had held general In a dramatic development on 6 elections declared by Africa and the November 1997, the Central Organ international community as a whole to of the Mechanism for Conflict be free and fair. That democratic process Prevention, Management and Reso­ had resulted in the election of lution authorised the deployment of President Tejan Kabbah and the natio­ military observers in the Comoros to nal Parliament. The Central Organ avert a worsening of the situation and further recalled that those elections restoration of confidence among the represented the determination of the people.18 Pursuant to this decision, people of Sierra Leone to take charge of the conflict prevention centre said it their own destiny even in the midst of would deploy military observers des­ very difficult circumstances. They had pite objections from secessionists on been hailed as a triumph not only for the island of Anjouan. the people of Sierra Leone but also for the process of democratisation in the continent. Neutral Force The Central Organ considered it In one instance, the Central Organ all “saddening and shocking that a underscored the position that the group of military officers have taken setting up of a neutral Force as upon themselves to overthrow the recommended by a regional summit duly elected Government of Sierra would have been the most effective Leone led by President Kabbah. This manner in facilitating the creation act by elements of the Sierra Leonean of safe corridors and temporary military constitutes a clear violation of sanctuaries and ensuring an effective the constitution of that country and an African contribution to such a unacceptable rebuff to the democratic Force.19 choice of the people of Sierra Leone.

17 5 June, 1996. 18 Fortieth Ordinaiy Session, 6 November 1997, UN documents S/1997/869. 19 Fourth Extraordinary Session, 11 November, 1996. The Central Organ unequivocally Ill - SADC Organ on Politics, condemned the reported coup d’Etat Defence and Security in Sierra Leone and called for the immediate restoration of constitu­ The Summit of Heads of State or tional order in the country. It called Government of the Southern African on all African and non-African coun­ Development Community (SADC), tries not to take any action which meeting at Gaborone, the Republic of would have the effect of giving Botswana, on 28 June 1996, launched comfort or strength to the leaders the SADC Organ on Politics, Defence of the coup d’Etat. The Central Organ and Security. Earlier, the Heads of appealed to the leaders of the State or Government, at their meeting in ECOWAS sub-region to pursue May 1996, had endorsed recommen­ efforts aimed at assisting the people dations of SADC Ministers respon­ of Sierra Leone in the restoration of sible for Foreign Affairs, Defence and constitutional order. It further appea­ Security proposing the establishment led to all African countries and the of a SADC Organ on Politics, international community at large to Defence and Security. The Gaborone support those efforts.”20 Summit reaffirmed that the SADC Organ constituted an appropriate ins­ Forms of Action titutional framework by which SADC countries would coordinate their policies The Central Organ has, on diffe­ and activities in the areas of politics, rent occasions, expressed its: grave defence and security. concern; profound regret; undersco­ red the urgent need to act; called for immediate cessation of hostilities; Principles urged peaceful solution of differences through dialogue and negotiations in The Gaborone Summit agreed that conformity with the principles enshrined pursuant to Article A of the SADC in the Charter of the OAU and the Treaty, the following shall be the gui­ African Charter on Human and ding principles for the SADC Organ Peoples’ Rights; called upon the on Politics. Defence and Security: Political Leaders, the civil society and all concerned; and appealed for humani­ a) sovereign equality of all member tarian assistance. States;

20 Thirty-Third Ordinary Session, 26 May 1997. 21 On the Mechanism generally, see Secretariat "Resolving Conflicts in Africa. Implementation Options (1993): S.B. Ibok and W.G. Nhara. Le Systems d’Alerte RapSe de L’OUA

22 On the SADC Organ, see JVL Malan & J. Cilliers, SADC Organ on Politics, Defence and Security: Future Development. ISS Paper No. 19 March 1997, issued by the Institute for Security Studies Halfway House. South Africa. shed on 28 May 1992 the Standing V - Economic Community of Advisory Committee on Security West African States Ouestions in Central Africa to promo­ (ECOWAS) te confidence-building measures, ease regional tensions and thus further The Economic Community of West disarmament and development in the African States (ECOWAS) must be Central African sub-region. Some of credited with one of the first attempts in the main achievements of the the history of international peace­ Committee, since its establishment, keeping at the use of peace-keeping have been the signing of a Non­ forces for preventive purposes, some­ Aggression Pact designed to prevent thing that was later to earn the United future armed conflicts and strengthen Nations credit with its preventive confidence among the States of the deployment in the Former Yugoslav sub-region, the organization of a trai­ Republic of Macedonia (FYROM). ning seminar on peace operations for The Yamoussoukro IV Agreement, Central African States to prepare concluded under the auspices of senior military and civilian officials as ECOWAS on 29 and 30 October instructors to train, upon their return 1991, a full year before the U N ’s pre­ home, the special units within their ventive deployment in the FYROM respective national armed forces to was initiated, provided, inter alia, for participate in United Nations or the following tasks for ECOM OG: peace-keeping operations. Future pro­ jects include: a) a sub-regional confe­ - Eliminate external threat to allow rence on democratic institutions and the encampment and disarmament peace in Central Africa; b) the esta­ programme to be smoothly and blishment of an early warning mecha­ effectively carried out. nism in Central Africa; c) the organi­ zation of training programmes on - Monitoring of all possible avenues governance and human rights issues of approach into Liberia by patrols for security forces; d) a joint meeting and static guards ...24 of ministers of defence and interior of Member States of the Committee to Later on, the Cotonou Agreement elaborate measures to control the illicit of 25 July 1993, would similarly task proliferation of arms in the sub- the ECOMOG peace-keeping force, region.23 as follows:

23 See United Nations document S/1996/1006, 4 December 1996 for the Declaration of the Summit meeting of Heads of State and Government of the members of the United Nations Standing Advisory Committed on Security Questions in Central Africa, 2-3 December 1996. In paragraph 26 of the Declaration, the Standing Committee called for “practical steps to establi­ sh the sub-regional early warning mechanism as a basic tool of preventive diplomacy in Central Africa”. In paragraph 12, they reiterated the urgent need for “participatoiy systems of government and to promote human rights and the rule of law as means of preventing conflicts and ensuring the stability of States”. 24 S/24815, p. 6 ECOMOG shall create zones or elected Government of Sierra Leone otherwise seal the borders, whichever is on 25 May 1997.26 militarily feasible, of Liberia-Guinea, Liberia-Sierra Leone and Liberia- This followed up on this at an Cote d’Ivoire to prevent cross-border extraordinary summit meeting of the attacks, infiltration or importation of ECOWAS in December 1997, when arms. There shall be deployed United West African leaders agreed in prin­ Nations observers in all of such zones to ciple to set up an autonomous and monitor, verify and report on any and all transparent mechanism for conflict of the foregoing and the implementa­ prevention and resolution. The ECO­ tion thereof. WAS Heads of State reaffirmed their commitment to strengthening security All points of entry including sea­ and opposing acts of subversion or ports, airfields and roads shall be destabilisation in any Member State monitored and supervised by ECO­ and underlined the necessity of redu­ MOG. There shall be deployed cing and finally eliminating the known United Nations observers to monitor, causes of regional confhct. Follow-up verify and report on the implementa­ work will ensue on the establishment tion of the foregoing activities.26 of the mechanism.27

More recently, at their Summit meeting in the summer of 1997, the Heads of State and Government of VI - Inter-Governmental Authority ECOWAS, addressing issues of regional on Development (IGAD) peace and security, reaffirmed their determination to create within West The Inter-Governmental Authority Africa the peaceful and stable environ­ on Development (IGAD) has also ment necessary for sustained develop­ been engaged in efforts to develop a ment and regional integration. capacity for conflict prevention, Recalling the ECOWAS Declaration management and resolution. Follo­ of Political Principles adopted at wing an IGAD Summit on 25­ Abuja in July 1991, they reiterated 26 November 1996, IGAD Heads of their unwavering commitment to the State and Government emphasised establishment and smooth functioning that Conflict Prevention, Management of democratic institutions in each and Resolution and Humanitarian ECOWAS member State. They Affairs is the subregions priority. expressed unreserved condemnation The Summit reviewed and adopted of the violent and unconstitutional projects that had been submitted for overthrow of the democratically- consideration in the key priority areas of

25 S/26272, pp. 3-4 26 See the Communique of the ECOWAS Summit, 17 December 1997. 27 On ECOWAS generally, see I. Gambari, The Economic Community of West African States (19J- conflict prevention, management and The first meeting of the Chiefs of resolution and humanitarian affairs. Defence Staff of the Central Organ of UNDP has provided financial support the Mechanism recommended the for the development of IGAD’s principle of standby arrangements and conflict prevention capacity.28 earmarked contingents on a voluntary basis with a view to such contingents serving under the aegis of the United Nations or under subregional arrange­ VII - Peace Observation and ments. Secretary-General Salim, for Peace-Keeping his part, consistently advocated coope­ ration in the areas of standby arrange­ In the initial proposal on the esta­ ments, ready contingents, and the pre­ blishment of the conflict prevention positioning of non-lethal equipment of mechanism submitted by the logistic depots, joint training, and staff Secretary-General to the Assembly of exchanges between military and Heads of State and Government, a peace-keeping academies. component on peace-keeping had been keenly discussed. In the end The second meeting of the Chiefs result, emphasis was placed on the of Defence Staff, which was held from detection and prevention of conflicts. 24-25 October 1997 in Harare, took It subsequently became apparent, the development of thinking on an however, that there would be need, African capacity for peace-keeping to also, to develop Africa’s capacity for a new stage. In their recommenda­ peacekeeping. At the Summit in Tunis in tions, the Chiefs recommended that all 1994, the Secretary-General pointed Peace Support Operations in Africa to the need to earmark ready contin­ should be conducted in a manner gents within African national armies consistent with both the UN Charter and security structures for possible and the Cairo Declaration with a view deployment in peace-keeping opera­ to enabling them to mobilise for action tions, first and foremost by the United and to acquire UN support for any Nations and, in exceptional circum­ initiative. The Chiefs of Staff considered stances, through the deployment of that the conflict situation should guide observation missions of limited scope the level of involvement. In an emer­ and duration. This proposal was sub­ gency situation, they should underta­ sequently approved by the 1995 sum­ ke preliminary preventive action while mit in Addis Ababa, which authorised preparing for more comprehensive the convening of a meeting of defence action, which may include UN invol­ chiefs of staff of the members of the vement. The Chiefs placed emphasis Central Organ of the mechanism to on speed of action and deployment. look into technical aspects of African They felt that, as a principle, they peace-keeping. should take the first initiative in

28 On IGAD generally, see P. Woodward, The Horn of Africa: State Politic,! and International Relations, 1996. I.B. Tauris Publishers. London, New York. approaching the U N to deploy a peace appropriate measures against coun­ operation in response to an emergency tries that breach principles in the in the continent. If the U N was unres­ area of peace support. Furthermore, ponsive, they must take preliminary the selection of national contingents action while continuing efforts to elicit for participation in Peace Support a positive response from the world Operations should not pose a threat body. to mission success because of the real or perceived lack of impartiality of The concept for Peace Support countries with a direct interest in the Operations, in the view of the Chiefs, conflict. Member States, individually should be firmly linked to the opera­ or as part of subregional organizations tionalisation of its Early Warning should supply the Conflict Mana­ System, including a network linking gement Division of the Secretariat each of the Early Warning cells of the with the same data on strengths, tables various subregional organizations in or equipment as that which they pro­ Africa. Moreover, they felt, that all vide to the UN Department of Peace­ Peace Support Operations conducted keeping Operations. by subregional organizations in Africa should be endorsed by them. They In the view of the Chiefs, they recognized, however, that not all could, as a starting point, earmark a subregional organizations were in a brigade-sized contribution to standby position to conduct Peace Support arrangements from each of the five Operations. African subregions, which could then be adjusted upwards or downwards In the judgment of the Chiefs, according to evolving circumstances. where there is a deployment of peace If the prevailing situation in a given operations, these should be conducted subregion did not allow for this, bila­ by an all-African force. In the event of teral agreements should be reached a UN operation in Africa, the UN with the countries of the region indivi­ principle of universality should be res­ dually. Furthermore, they should pected. Where Africa provides the identify about 500 trained military and majority of troops the Force civilian observers (100 from each Commander must be an African. In subregion) as an appropriate starting addition, the UN should consult them on the formulation of mandates, mis­ point for standby capacity. They sion leadership and force composition should also devise a standard structure when it deploys Peace Support for battalions, brigades, and perhaps Operations in Africa. even a division for future deploy­ ments. Training should be conducted The Chiefs noted that while the according to UN doctrine and stan­ recent trend has been to focus on the dards, and should draw on the avai­ problems of intra-State conflict, capacity lable training materials, training must also be utilised in the event of a aids and courses available through the need to engage in Peace Support UN system. UN training manuals Operations to prevent or resolve inter­ should be complemented by African state conflicts. They should take specificity. The Chiefs thought that Member operations excluding peace enforce­ States should be encouraged to inclu­ ment with a mandate from the Central de basic training in the concept and Organ and/or within the framework of conduct of Peace Support Operations joint operations with the UN and as part of the training curriculum subregional organisations.29 for all troops, individuals, units and officers in staff colleges, as well as various civilian role players and the police. Such training should include International Humanitarian Law. VIII - Cooperation Between the Member States should be encouraged UN, the OAU and to use the expertise of international Subregional Organizations humanitarian organizations and agencies. Moreover, they should be Having regard to the rapid deve­ involved in the planning of all exer­ lopment of conflict prevention mecha­ cises conducted at the subregional nisms in Africa and bearing in mind level. efforts to develop an African peace­ keeping capacity, the question may be The Chiefs were of the view that an asked how the United Nations is kee­ African peace-keeping identity must ping pace in its cooperation with the be established through, for example, UN and subregional organizations. A the use of insignia, and accoutrements, long-standing programme of coopera­ and the drafting of an code of conduct tion between the UN and OAU has for African peacekeepers. This would emphasize the importance of African been in existence since 1965. The unity over national identity. modalities of cooperation were spelt out in a cooperation agreement that Finally, taking into consideration the two organizations signed in 1965 the Charter and the 1993 Cairo and amended in 1992, and involves Declaration of the Assembly of Heads cooperation in the economic, social, of State and Government establishing scientific and political areas. With few the Mechanism for Conflict Pre­ exceptions, the programmes are deve­ vention, Management and Resolution, loped by the agencies and organiza­ the Chiefs were of the view that they tions of the UN system in consultation could undertake Peace Support with the OAU.30

29 See the Report of the Second Meeting of the Chiefs of Defence Staff of the Central Organ of the Mechanism for Conflict Prevention, Management and Resolution, document, DCO/MEC/MIN/7 (VII). 30 For the latest report of the UN Secretary-General on cooperation between the United Nations and the, see U N document A1521374. For a similar report on cooperation between the UN and SADC, see A/52/400, 29 September 1997. In recent years, cooperation bet­ their senior advisors, to discuss priori­ ween the two Organizations has had ty areas of cooperation and to coordi­ to adapt to the changing world situa­ nate their efforts. In February, tion. The end of the Cold W ar increased Mr. Annan wrote to Mr. Salim and not only the opportunity but also the proposed that the two of them consi­ need for regional organizations to der meeting twice a year, immediately assume greater responsibility for the following the OAU Summits and early maintenance of peace and security during the General Assembly. At the in their respective areas. It became first meeting. Mr. Salim's senior col­ necessaiy and opportune, therefore, leagues would participate and at the for the UN and the OAU to review second Mr. Annan would be accompa­ the scope and modalities of their pro­ nied by his senior advisors. This gramme of cooperation. The review arrangement is being implemented was called for because the areas currently. At the first meeting, stress of cooperation could be expanded was placed on the development of beyond the traditional economic and cooperation in support of law, demo­ social issues to include cooperation cracy, the rules of and respect for in conflict prevention, peacemaking human rights. peace-keeping and democratisation areas which are also outside the man­ In addition to this, regular mee­ dates of the large majority of partici­ tings between the secretariats of pants from both the UN system and the UN and the OAU, exchanges OAU. also take place between the UN Secretariat and those of subregional A common vehicle for working out African organizations. The Depar­ specific programmes of cooperation, tment of Political Affairs of the United assessing their implementation and Nations Secretariat has extended invi­ outcome as well as elaborating on tations to the, SADC, IGAD, and new measures to strengthen and ECOWAS to send representatives for broaden them has been the annual on-the-spot briefings on the conflict meetings between the secretariats prevention activities of the United of the UN system and the OAU. Such Nations and has offered to reciprocate meetings have been held since 1980. in turn. Furthermore, the Department mostly in Addis Ababa but also in of Political Affairs has arranged for Geneva, Nairobi and New York. The the establishment, from the beginning of General Assembly has approved the 1998, of a Political Affairs Liaison convening of a meeting in Addis Officer at the whose functions would Ababa in 1997. be:

Following the assumption of office a) to facilitate the exchange of infor­ of Secretaiy-General Annan in mation and the coordination of ini­ Januaiy 1997, he and Secretary- tiatives and efforts in the areas of General Salim met that very month preventive diplomacy and peace­ and agreed that it would be a good making as well as in the democrati­ idea to meet twice a year, along with sation process in Africa: i) to follow closely the deliberations of the OAU and sub-regional institu­ of the Mechanism for the tions. The mechanisms, policies and Prevention, Management and doctrines are transforming the African Resolution of Conflicts and advi­ public order as never before seen since se Headquarters of political the advent of decolonisation. The initiatives of concern to the doctrine of democratic legitimacy United Nations discussed by the upheld in cases such as Sierra Leone Mechanism; and Burundi are breaking new ground. The preventive deployment of ii) to liaise with the Division for peace-keeping forces foreseen by Conflict Resolution and the ECOM OG in 1991 foreshadowed the Political Department at large United Nations' own preventive with a view to enhancing coope­ deployment in the Former Yugoslav ration on specific political issues of Republic of Macedonia a year later. priority concern to the United Nations and; If one compares the dynamism of the Central Organ of the OAU iii) to support the activities of joint Mechanism with the inactivity of the United Nations/ special repre­ OAU Committee on Mediation that sentatives; has lain dormant for years, one would realise the breathtaking nature of the b) to coordinate the implementation developments of recent years. It is also of the programmes of cooperation extraordinary that the OAU, SADC, between the United Nations sys­ the Standing Committee on Central tem and agreed to at the annual Africa, ECOWAS, and IGAD have all meetings between their secreta­ explicitly and repeatedly affirmed riats; democracy, the rule of law and respect for human rights as the indispensable foundations for preventive action. A c) to perform such representational recent conference on conflict preven­ functions as may be required and tion in Africa held in Earaches in necessary at relevant meetings in January of 1998 has urged that consi­ Addis Ababa.31 deration be given to the establishment of an OAU instrumentality such as the OSCE High Commissioner on National Minorities. The conference Concluding Observations also urged the development of national capacities for early-warning and That Africa continues to be riven conflict prevention. Within the OAU, by internal conflicts does not gainsay the idea of the establishment of an the extraordinary creativity that we African Court of Human Rights to have reviewed in this essay on the part complement the activities of the

31 See UN document E/AC.51/1997/L.4/Add.4. 11 July 1997. African Commission is also at an the deployment of military observers advanced stage. or peace-keepers if conflict is to be averted or minimised. Africa is develo­ Outside of the OSCE area, the ping its capacity to contribute to developments in Africa are far ahead peace-keeping operations whether in of anything else in the developing the continent or elsewhere. Where it world. The ASEAN regional forum is, needs assistance most is with logisti­ cal, transport, and financial assistance to for the time being only an annual, deploy its peace-keepers. For the time diplomatic event. The OAS does have being, the economic state of the majority procedures to meet urgently in case of of African countries would make it need, but they are not as pro-active as difficult for them to deploy and sustain those of the OAU Mechanism. their trained forces in peace-keeping operations. The international commu­ Africa is thus not short of capacity nity must come to their assistance. for prevention, or for peacemaking. This will be the true test of the inter­ Unfortunately, difficult situations such national community’s solidarity with as those in the former Zaire require Africa for conflict prevention. Victimd ofAbiue o f Power,

with Special Reference to Africa

Daniel D. Ntanda Ndereko1

I - Introduction II - Victims of Abuse of Power

The Seventh United Nations Who are victims of abuse of Congress on Prevention of Crime and power? The Declaration (in s. 18) Treatment of Offenders meeting at defines victims of abuse of power as: Milan, Italy, in 1985, adopted the United Nations Declaration of Basic Persons who, individually or Principles of Justice for Victims of collectively, have suffered harm, Crime and Abuse of Power. It did including physical or mental so in response to a recommendation injury, emotional suffering, of the Sixth Congress that the United economic loss or substantial impairment of their fundamen­ Nations “continue its present work on tal rights, through acts or omis­ the development of guidelines and sions that do not yet constitute standards regarding abuse of econo­ violations of national criminal mic and political power."2 The laws but of internationally reco­ Declaration comprises twenty-one gnised norms relating to human sections, divided into Parts A and B. rights. Part A consists of seventeen sections and deals with victims of ordinary or Conspicuously missing from the street crimes. Part B consists of only Declaration is a definition of the four sections, and deals with victims of concept of abuse of power. This omis­ abuse of power. In this paper we deal sion is attributable to the political sen­ with Part B concerning victims of sibilities of the national delegations at abuse of power, and our primary focus the Milan congress and to their desire to will be on Africa. avoid finger-pointing, which the

1 Daniel D. Ntanda Nsereko, Professor of Law, University of Botswana. 2 Sixth United Nations Congress on Prevention of Crime and Treatment of Offenders. (United Nations Publication, Sales No. F.91.IV.4). Chap. 1. Set. 1 “The Declaration was unanimous­ ly approved by the United Nations General Assembly by Resolution No. A/RES/40/N of 11 December 1985. concept abiue of power engenders. self-fulfilment and development. That Indeed, the majority of delegations is the reason why when asked why he might have preferred to dispense with was running for the office of President this category of victims altogether. of the United States, John F. Kennedy They were more concerned with the replied, "Because that s where power • i » non controversial victims of ordinaiy is! crimes. It was only at the instant urging of a few Third World delega­ Power, when abused, becomes a tions and experts that they vouchsafed curse. Power is abused when it is used to its inclusion in the Declaration. So, for selfish, illegitimate, or illegal ends. it was not by accident that they rele­ Abuse of public power is particularly gated victims of abuse of power to a evil, because it results in the victimisa­ separate Part, containing only four out tion of people on whose behalf it is of the twenty-one sections. It must, wielded. It is a gross abuse of trust. however be stressed that the original primary concern of the Sixth According to a United Nations Congress was with victims of “abuse Working Paper, abuse of power of economic and political power." includes “(a) the use of power to avoid the imposition or application of legal What, then is a “abuse of power"? sanctions or controls on certain beha­ and what is “power”? In the context of viour which may occur at high levels the Declaration, power means autho­ of the socioeconomic and political rity or influence over other people. order, and (b) its use to avoid the pro­ This authority or influence may be secution of offenders in highpositions, political, economic, social and even even for ordinaiy offences.” We shall marital. It may, in turn, be private or now proceed to consider some of the public. It is public when it is vested in manifestations of abuse of power. one person or group of persons, to be exercised on behalf of the whole com­ A. Laws or Decrees munity. Power in this sense is essential that Violate Human Rights to the veiy existence of any civil socie­ ty. When used legitimately, power can In the first instance, persons in be a blessing to the public at large. It positions of authority use their posi­ can be used to protect members of the tions to enact laws or issue decrees public and their property. It can be that violate universally recognised used to vindicate the innocent; punish human rights. Their motive in so the wrongdoer; and promote peace, doing may be to entrench or perpetua­ harmony, justice and happiness for all. te themselves in positions of power by It can also be used to create an envi­ eliminating real or imagined rivals, or ronment within which individuals can to gain social or economic advantages exert their energies and faculties to over those that they strip of those

3 Crime andAbiue ofPower: Officer ant) OffenderBeyond the Reach o f the Law ? (Working Paper prepared by the Secretariat) U.N. doc. A/CONF. 1980. rights. For example, international who dare exercise them. Thus, for human rights law forbids the enact­ refusing to join the ruling Malawi ment and application of penal laws Congress Party, Jehovah’s Witnesses with retroactive effect.4 In spite of this in Malawi were outlawed. They were prohibition some African regimes publicly insulted by the President have enacted and used such laws to Banda as “the devil's witnesses.” With incarcerate and execute political the full knowledge and consent of the adversaries. This was done in Ghana,5 Malawi government, ruling-party Uganda6 and Nigeria/ Again, interna­ youth (the Young Pioneers) rampaged tional human rights law requires that through towns and the countryside, any person charged with a criminal setting fire to Witnesses' homes, offence be accorded certain procedu­ looting and destroying their properly ral guarantees that are considered and crops and leaving whole Witness’ essential to a fair trial.8 Nevertheless, villages desolated. They caused all African regimes have set up special "kangaroo” tribunals to summarily try Witnesses in the employment of and execute political opponents or cri­ government or private firms to be dis­ tics. This has happened in Ethiopia, missed from their jobs. They also Ghana, Liberia, Uganda,9 Sudan,10 assaulted and tortured them, resulting in and Nigeria.11 Lastly, international hundreds of deaths. To escape further human rights law guarantees every tyranny, over ten thousand Witnesses individual freedom of speech, freedom fled to neighbouring countries as r of conscience, and freedom of move­ efugees.12 Needless to say, the Malawi ment. Sad to say, some African Congress Party militants were not regimes have passed laws annulling prosecuted for these crimes against these freedoms and punishing citizens the Witnesses.

A See Article II (2) of the Universal Declaration of Human Rights. Also see Article 15 of the International Covenant on Civil and Political Rights; Article 7 (B) of the African Charter on Human and Peoples’ Rights, Article 9 of the American Convention on Human Rights, and Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 6 Under Special Crimes Decree of 1978. See /1979) in Int’L Comm. Jar. Rev. 5. 6 Trial by Military Tribunal Decree, Decree No. 12 of 1973. 7 Decree No. 55 of 1992. 8 See Article 10 of the Universal Declaration of Human Rights; Article 14 of the International Covenant on civil and Political Rights; Article 7 of the African Charter on Human and Peoples’ Rights; Article 8 of the American Convention on Human Rights, and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 9 See generally D.D.N. Nsereko, “Arbitrary deprivation of Life controls on the Permissible Deprivations “ in B.G. Ramcharan ed., The Right to Life in International law (Dordrecht, The Netherlands: Martinus Nijhoff, 1985). 10 ’’Army Officers Executed After Summary Trial” (1990) 10:6 Amnesty International Newsletter 1. 11 "Nigeria: Military Injustice” (1991) 5:5 Africa Watch. 12 See D.D.N. Nsereko, "Religion, the State, and the Law in Africa” (1986) 28 Journal of Church and State 269. In 1977 Idi Amin of Uganda pros­ by costly waste-disposal requirements in cribed about twenty-seven religious their home countries, have taken denominations, saying that there were advantage of these lacunae in African too many religions in the country and law and have enticed corrupt African that this was a threat to national unity. officials into deals that permit the cor­ Many would not be intimidated into poration to export and dump highly giving up long-cherished beliefs. They toxic and radioactive industrial waste held to them, worshipping secretly. in Africa. It is estimated that over 20,000,000 tonnes of such waste are exported to African and to other Another dictator, Macias Nguema Third-World countries annually.14 of Equatorial Guinea, similarly perse­ The waste includes highly flammable cuted and finally outlawed the chemicals, corrosive toxins and carci­ Catholic Church, to which 80 percent of nogens such as polychlorinated bipha- the population belonged. Before that rols (PCBs), as well as incinerator he had harassed the Church's clergy ash. Some of these chemicals are hard to and arrogated to himself the right to eliminate once they have seeped into censor their sermons. Nguema even the underground water table.15 The ordered them to begin mass “in the danger that these substances pose to name of the President and his Son.” the environment and to all forms of life is incalculable, for example, soon after an American company from B. Conduct Injurious to the Philadelphia dumped 15,000 tonnes of Public incinerator ash into abandoned mines on Kassa Island, off the coast of In the second instance, persons in Guinea, the vegetation on the island authority take advantage of lacunae in began to change colour and the air the law to perpetrate or condone became noxious.16 Contracts permit­ conduct beneficial to them but inju­ ting importation of these dangerous rious to others or to the public at substances, for periods varying from large.13 For example, many African three to ten years, are often negotiated countries do not yet have adequate and signed secretly so that members of legislation regulating the disposal of the public cannot object. They have industrial waste. Avaricious transna­ been concluded between corporations tional corporations that feel burdened and officials of such countries as

13 One commentator has referred to this type of abuse in "immoral abuse of power” See L.L. Lamborn “The United Nations Declaration on Victims The Scope of Coverage" in M.C. Bassiouni, ed. International Protection of Victims (Association internationale de droit penal, Pres. 1988). 14 See “Toxic Waste Exports Initiatives to Control Dumping” (October 1988) Keedingj Record of World Eventd 16250; see also C.M. Peter "The Right to a Clean and Satisfactory Environment: A Note on the Export of Toxic Waste To Africa "(1990) 6 Lesotho L .J. 15 Italy dumped such materials in Hendel State, Nigeria in 1988, See Peter, ibid. 16 Ibid. Nigeria, the Congo, Benin, Guinea C. Illegal Conduct Bissau, the Central African Republic, Guinea (Conakry), Sierra Leone In the third instance, persons in positions of authority use their posi­ and Equatorial Guinea.17 Alarmed by tions to commit or condone the com­ the ever increasing number of coun­ mission of conduct that is criminal tries entering into these contracts, the under the laws of their respective Council of Ministers of the countries. Such acts usually include Organisation of African Unity adop­ crimes against national economics, ted a resolution in 1988 declaring torture, extrajudicial executions, the dumping of nuclear and industrial disappearances, and police and military wastes in Africa to be “a crime against excesses. Since persons in power are Africa and the African people.” It the actors or principals of the actors also condemned "all transnational and are at the same time the ones corporations and enterprises involved charged with law enforcement, they in the introduction, in any form, of ensure that their conduct is not investi­ nuclear and industrial wastes in gated, prosecuted, or punished. They Africa” and demanded that “they ensure that evidence incriminating clean up the areas that have already them is destroyed and that potential been contaminated by them.” Quite witnesses to their conduct are intimi­ remarkably, the Council did not dated or killed. They also threaten and condemn those African governments sometimes even kill defence lawyers that entered into the contracts with who dare question their conduct or the transnational corporations! The the judges who agree to entertain Council was content simply to calL upon such questions.19 They are apparently them to “put an end to these transac- above the law or beyond the reach of tions.^ "18 the law.

17 IbQ. 18 Organisation of African Unity, Council of Ministers' Resolution on Dumping of Nuclear and Industrial Waste in Africa, CM/Res. 1153(XI.VII) (23 May 1989). The OAU has since follo­ wed up the resolution with the Bamako Convention on the Ban on the Import into Africa and Control of Transboundaiy Movement and Management of Hazardous Wastes Within Africa (29 January 1991). 19 Generally see R. Brody, ed. Attacks on Justice; The Harassment and Persecution of Judges and Lawyers July 1989-1990 (Geneva: Centre for the Independence of Judges and Lawyers of the International Commission of Jurists). The report reveals that between 1 July 1989 and 30 June 1990, 430 judges or lawyers in 44 countries were victimised for carrying out their pro­ fessional duties. Of these 67 were killed, 165 were detained, 40 were attacked, 67 received threats of violence and 54 were officially barred from carrying out their duties. Crimes against national economics Torture has been condemned as manifest themselves in such corrupt “an offence to human dignity" and is practices as bribery, smuggling, over­ proscribed under international human invoicing, currency irregularities, and rights law and under the laws of most the importation of obsolete and often nations of the world.23 Yet it is practised useless products.20 For example, it was routinely all over Africa, especially in reported in 1990 that up to 30 per cent of countries with unstable regimes. It is Zaire's coffee, the country’s top agricul­ perpetrated by highly-placed govern­ tural product, was being smuggled out of mental officials, usually members of the country every year, resulting in loss the security forces or intelligence of tax revenue and badly needed foreign agencies. The victims are usually poli­ currency. The smugglers included top tical opponents of the regime in power industrialists, ex-ministers and mem­ or are ordinary citizens from whom bers of the security forces. The smug­ the regime wishes to extort informa­ gling was in addition to the salting tion. H undreds of victims often die in away of millions of dollars by the Head custody as a result of torture; but of State to bank accounts in Europe.21 such deaths are usually explained Unfortunately nothing can be done to away as “suicide, ” “natural causes, ” or the culprits when they are in power. “wounded in the course of attempted Even after they have been removed escape.” For example, early in 1990 from power they usually cannot be suc­ the Sudanese Security of the cessfully prosecuted, because they Revolution agency arrested and held often destroy records, leaving behind in incommunicado detention Dr. Ali no trace of evidence on which such Fadul who had led a doctors' strike prosecutions could be based.22 towards the end of 1989. He died

20 Zaire is one of the countries that have been notorious for these practices. See ‘Zaire Salvaged But Not Saved” (1980) Africa Confidential. It was alleged that Lukusa, President .Mobutu s uncle and the director of Zaire’s metal marketing company played a key role in juggling the company's books in September 1979 so as to enable Mobutu to pocket one mil­ lion U S dollars. See also “Zaire: Mobutu’s Millions” (1989) Africa Confidential. There it was repor­ ted that President Mobutu maintained personal funds at a branch of the Banque Indosuez Paris and that he gave a cheque of five million French Francs to King Hassan II of Morocco as his personal contribution towards the King’s grandiose Casablanca Mosque. The cheque was drawn on that account. See also “Zaire Coffee Smuggling" (1990) Africa Confidential. The Practice of importing old useless machinery from questionable overseas “suppliers” has been reported in Uganda "The Mehtas: Monkey Tricks Continue?" (2r9 August 1993)39 Uganda Confidential. 21 Ibid. 22 Ibid. 23 See the 1986 United Nations Convention Against Torture, Article 1(1) of the Convention defines torture to mean “any act by which severe pain or suffering, whether physical or men­ tal, is intentionally inflicted on a person for such purpose as obtaining from him or a third per­ son information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from inherent in or incidental to lawful sanctions.” whilst in detention and the authorities where this evil is practised it is com­ attributed his death to “malaria.” mon to find bodies of victims dumped However, according to an Amnesty on the streets, in lakes or rivers and in International report, Dr. Fadul had forests to intimidate the living. actually died of internal haemorrha­ ging and of a fractured skull - all Army and police excesses, which evidence of torture by his captors.24 are a related form of abuse of power, also account for thousands Extrajudicial execution is murder of deaths, maiming and other outrages par excellence and is at least as old as the in the countries where they occur. medieval English King Henry U s dis­ They usually take place in the context posal by thugs of Archbishop Thomas a of political tension or armed opposi­ Becker. It is carried out by and on tion to the government in power. behalf of the government, by official The army and the police, in a bid to or semi-official security services, suppress the opposition, often youth sections of the ruling party and commit indescribable atrocities and other secret death-squads. It is carried horrors against the civilian population, out with impunity, the perpetrators devastating entire villages and being fully aware that they are towns.25 All this is done in violation of untouchable or are immune from the Geneva Conventions and the prosecution. Targeted population Protocols thereto. Millions upon mil­ groups, such as tribes, religious mino­ lions of Africans have perished or rities, and members of opposition parties been left homeless in recent years in are often wiped out. In countries such countries as Uganda,26 Angola,27

24 See "Sudan: Doctor Tortured to Death" (1990 Amnesty International Newsletter). More recent reports of torture have been made with respect to Senegal. "Torture in Casamance Region. ” Amnesty International Newsletter, ibid. and with respect to Uganda: "Uganda: Torture in Text’’ (1996) 11:6 Africa Confidential 8. 25 Supra note 9. 26 See e.g. Amnesty International Human Rights in Uganda (1998); Amnesty International Human Rights Violations in Uganda (1982); Yusutu Lule "Human Rights Violations in Uganda Under Obote” in Manger Africana Notes (Pasadena: California Institute of "Technology, T. Lansner, "Army Brutality Pushes Uganda into Tribal War” The Observer (London) November 1981 14: M. Caisman "Obote’s Uganda Plunges Back into Bloodshed” The Sunday Times (London (29 August 1982) 8 R. Righner, "Massacre in the Camps of Death’’ The Sunday Times (London) (5 June 1983) 9: C. Rand "Uganda: Like Nazi Germany all Over Again" [] Pictorial (Britain)(24 July 1983); C. Tessill "Terror of Army that Writes its Own Rules" The Times (London) (21 August 1983). 27 See Amnesty International "Angola: Assault on the Rights to Life" (August 19xx) AI Index: AI 12/04/93, Distr: SC/CO/GR. Also see "Angola: The Worst War in the World" (1993) Africa Confidential'. "In what diplomats and relief agency officials currently believe to be the world’s bloo­ diest conflict, the human tragedy is unremitting despite a reported death toll of 1.000 people a day. Western and United Nations policy towards Angola appears paralysed. The horrendous conditions in Cuno, where dogs feed on corpses in the streets and medical and power supplies are virtually non existent would shock even those viewers acclimatised to the atrocities in Bosnia and Herzegovina.” Zaire,28 Burundi,29 Liberia,30 to the dictator through the post. Of Rwanda,31 the Sudan,32 and course nothing became of the report. Somalia.33 As a result of all these forms of The phenomenon of disappea­ victimisation linked to abuse of power, rances is akin to that of extrajudicial millions of Africans are forced to flee executions in that the victims disap­ their home countries in search of pear at the hands of government freedom or economic survival. There agents. As has been the practice in are currently over 7,000,000 refugees Latin America, the authorities deny roaming the African continent (mostly knowledge of the whereabouts of the from Angola, Burundi, Ethiopia, disappeared persons even when it is Liberia, Mali, Mozambique, Rwanda, known that they were last seen in Sierra Leone, Somalia, and the official custody 4 Enforced disappea­ Sudan). The United Nations High rance is commonplace in Africa. It has Commissioner for Refugees estimated been particularly widespread in that during 1991-1992 over 5,000 per­ Uganda. Thousands of Ugandans, sons fled their homes each day in including politicians, journalists, cler­ search for freedom and safety.35 gymen, businessmen, lawyers and judges perished this way. A result of Because their flight is unplanned, pressure from the international com­ refugees encounter enormous pro­ munity Idi Amin appointed a judge to blems, and suffer untold hardships in inquire into these disappearances. their countries of asylum. Penniless Fearing what might happen to him on and jobless, they are often the subject of submitting a report that was bound to public ridicule and social ostracism. displease Amin, the judge decided to Faced with an unfamiliar and inhospi­ flee the country and to send the report table environment and often exposed

28 See “Zaire Inciting Hatred: Violence Against Kasiens in Shaba" (19)3) 5:10 Africa Watch. 29 See “Burundi: The Terror Behind the Putsch" (199x) 1-125 Africa Confidential: "Inside the country bands of soldiers continue to massacre civilians. Outside, some 800,000 refugees. Rwanda, Tanzania and Zaire face chronic food shortages and will starve to death unless food reaches their makeshift camps soon." 30 See "Liberia; Waging War to Keep Peace: The ECOM OG Intervention and Human Rights" (1993) 5:6 Africa Watch. 31 See "Beyond the Rhetoric Continuing: Human Rights Abuses in Rwanda" (1993) 5:7 Africa Watch. 32 See "Sudan: The Politics of Human Rights” (1992) Africa Confidential. “There are now an esti­ mated two million displaced Southerners living mainly in shanty towns, in and around Khartoum, virtually half of the capital’s population. Their mainly cardboard and sacking huts have been subject to sporadic bulldozing by a series of governments.” 33 See “Somalia: Ways to End the Slaughter" (1992) 11:2 Africa Confidential. 34 For a classic case see Velasquez Rodriguez v. Honduras (1988) Annual Report of the Inter- American Court of Human Rights, Annex VI (1988). 35 Office of the United Nations High Commissioner for Refugees, UNHCR, Activities Financed by Voluntary Funds: Report for 1991-1992, and Proposed Programmes and Budget for 1993 U.N. doc. A/AC/96/796 (Part I) 1992. to the elements and to squalid and safety.37 others who do not manage to unsanitary living conditions, they flee also need relief from repression. often fall prey to epidemic diseases But as is often the case, victims of and various forms of exploitation and abuse of power have no peaceful ave­ human degradation. On the other nues of recourse at the national level. hand, the sudden, unplanned, and And, in the past, they would have no often uncontrollable influx of forei­ recourse at the international plane gners on the asylum country's borders is either. According to the traditional bound to create enormous economic, conception of sovereignty treatment of ecological, social, political and securi­ citizens by their State remained an ty problems for it. To a developing internal affair. To discuss, let alone country whose government can barely question, the way that a State treated feed, house, educate, employ and its citizens was to interfere in its inter­ provide health and other social nal affairs. Individuals and their rights services and amenities for its own were not part of the international legal people, the sudden appearance of tens of system. They were the object, not the thousands of refugees from other subject of international law. This posi­ countries can be unsettling. Therefore, tion has now changed. According to much as the country of asylum may R. Nicolussi: wish to assist the asylum seekers, it is often unable to do so. If it does not While the States were conside­ turn the refugees back to their perse­ red the only subjects of cutors it leaves them to live in abject, International Law, individuals inhuman conditions referred to above. and their rights were juridically Like Shakespeare's Orlando, the neglected. But already a dawn African refugee may bemoan his of a new idea is in sight where plight of double victimisation: governments are reminded that States are not celestial bodies Thus must I from the smoke but products of man for man.38 into the smother From a tyrant duke unto a This idea is slowly but surely beco­ tyrant brother!36 ming concrete reality. It has been particularly so since the birth of the United Nations. The UN Charter lists as one lofty objective the promotion of Ill - Redress “universal respect for, and observance of, human rights and fundamental Victims of abuse of power need jus­ freedoms for all without distinction as to tice. They need redress. Refugees race, sex, language or religion. For want to go back home and to live in this reason the UN Charter requires

36 A j Y o u Like I t ( act 2, scene 2, line 280). 37 See D.D.N. Nsereko, "The Right to Return Home” (1981) 21 Indian J. Int’lL 445. 38 F. R. Nicolussi, "Displaced Persons and International Law”, (1948) 77>Red. de<> count. States to respect and to ensure realisa­ Do States also have a right or, tion of human rights by their inhabi­ indeed a duty, to physically intervene tants. It requires them to treat them in in each other’s territory in order to accord with accepted international stop gross and flagrant violations of standards. human rights? Or are they limited to asking questions, conducting debates, These standards are already in and passing resolutions, while the place. They are found in myriad world watches population groups instruments, some of which are being massacred or wiped out by fami­ contractual in nature while others are ne? It has been argued that short of binding as part of customary inter­ responding to an armed attack, by national law. States may now be called exercising the right of self-defence to account on the way they treat under Article 51 of the UN Charter, or their inhabitants before such fora participating in enforcement measures as the Human Rights Commission,39 mandated by the Security Council the Human Rights Committee,40 under Chapter VII, a State has no The Committee Against Torture/1 right to physically intervene in the ter­ The Committee on the Elimination of ritory of another.44 Racial Discrimination,42 and before the U N Security Council, if the situation With due respect, current inter­ within its borders threatens or is likely national legal opinion and practice to threaten international peace and have rendered this view obsolete. security.43 States may similarly be States may be justified to intervene required to render an account under on another State’s territory to save life regional arrangements. Thus, States, and to stop or alleviate human individually and collectively under the suffering. Indeed, States have in the international human rights system, past asserred the right of humanita­ have not only a right but also a duty to rian intervention to protect their be vigilant: to ask each other questions citizens on the territory of another about the way they treat their inhabi­ State when the lives of those citizens tants. In matters of human rights other appeared to be in mortal danger. The States no longer have a duty to remain right of humanitarian intervention is silent or not to intervene. predicated on the State’s right of

39 Under ECOSOC Resolution (XI.VIII) of 27 May 1970. 40 Under the International Covenant on Civil and Political Rights, Articles 40 and 41, and under the Optional Protocol thereto. 41 Under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Articles 19, 21,22. 42 Under the International Convention on the Elimination of All Forms of Racial Discrimination, Articles 9, 11, 14. 43 Under Articles 34 and 35 of the UN Charter. 44 See V. Sandoz “Droit" or "devoir d’ingerence" and the Right to Assistance: the Issues Involved" (May-June 1992) International Review of the Red Cross 215. protection.45 A new right that entitles thanks to the watchful eye of the States to intervene on the territory of ever-vigilant world news media. another on behalf of people who are Consequently, publicity of such not its citizens has also recently emer­ outrages will arouse international ged. It is the right to intervene on humani­ public sympathy and, sometimes, spur it tarian grounds. This right is asserred to action on behalf of the victims. when it manifestly appears to the Thus, as the General Assembly in one of intervening States that the lives of sec­ its resolutions recently asserred, “the tions of the civilian population in ano­ abandonment of the victims of natural ther country are in peril. The basis for disasters and similar emergency situa­ this right are considerations of huma­ tions without humanitarian assistance nity and international solidarity constitutes a threat to human life and engendered by the "global village” that an offence to human dignity.46 World the world has become today. No leaders, including Pope John Paul II outrage occurring at any spot of the have supported the right to intervene globe completely escapes notice, on humanitarian grounds/7 So have

45 For example Israel intervened in Uganda in 1976 to rescue her nationals held hostage from a Hijacked Air France plane and the United States intervened in Iran in 1980 in an attempt to rescue American citizens detained in Tehran. Again the United States intervened in Liberia in 1990 to rescue U S citizens and certain other foreign nationals. The U S did the same thing in Somalia in 1991. France and Belgium also intervened in Zaire in 1991 to rescue their nationals whose lives were at risk. Their right to intervene was not seriously questioned by other States. Generally see R.B. Lillich “Forcible Self Help to Protect Human Rights’’ (1970 ) 52 Iowa. L. Rev. 144. 46 See the preamble to Resolution 43/131 of 8 December 1988 entitled “Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations.” The resolution was reaffirmed and strengthened by Resolution 43/100 of 14 December 1990. 47 President Francois Mitterrand of France is reported to have said on 14 July 1991 that “France has taken the initiative of this new right, rather extraordinary in the history of the world, which Q in a way the right of intervention within a country, when a part of its popula­ tion is victim of persecution.” Hans Dietrich Genscher of Germany similarly told the United Nations General Assembly that "where human rights are trampled upon, the family of nations cannot be confined to a role of spectator. It can, and should interfere.” The Belgian Foreign Minister is reported to have told the same session that "the international community should help States to respect human rights, and to help them to do so if necessary.” Pope John Paul II is also reported to have told an international conference in Rome in December 1992, days after the UN deployed troops in Somalia, that "the conscience of humanity requires that humanitarian intervention be obligatory in situations that seriously endanger the survival of people and entire ethical groups. It is the obligatory duty of nations and of the international community. See M. Bettati "The Right of Humanitarian Intervention or the Right of Free Access to Victims?" (1992) 49 Int’l Comm.Jur. Rev. See also B.G. Ramcharan "The Security Council: Maturing of International Protection of Human rights” (1992) 48 In t’l comm. Ja r . Rev. writers and international professional unimpeded access to victims for the bodies.48 The right has been invoked UN and other relief workers to incrementally by the UN Security victims, but also condemned and Council in authorising humanitarian threatened to hold responsible persons operations in Iraq, Somalia, Bosnia in those countries who deliberately and Herzegovina, and Rwanda - prevented relief supplies reaching the countries beset with gross and massive victims.53 violations of human rights. In the case of Rwanda, when the United Nations The action in Liberia in 1990 of the was slow to act, France took the Economic Community Cease Fire initiative, intervening in June 1994 Monitoring Group (ECOMOG), ahead of the United Nations force under the Economic Community of (UNAMIR) to protect the civilian West African States (ECOWAS), is Rwandans from further massacres.49 further evidence of the right of inter­ By this time over 500,000 Rwandans vention on humanitarian grounds. had been slaughtered by rival Although ECOM OG’s success has to ethnic armies. France’s humanitarian date been limited, it managed to bring a initiative billed as Operation Turquoise, halt to ethnic-based killings and bruta­ had the blessing of the Security lity in the capital of Monrovia, and to Council.50 It is noteworthy that in all remove obstacles to the delivery of these cases the Security Council not relief supplies and the re-establish­ only “insisted”51 or “demanded”52 ment of civil order in that city.54

48 See M. Bettati, ibid. B.G. Ramcharan, ibid. W.M. Reiseman "Sovereignly and Human rights in Contemporary International Law” (1990) 84 AJIL 866 K.K. Pease & D.P. Forsyth "Human Rights, Humanitarian Intervention, and World Politics" (1993) 15 Hum.Rht.Q.2 See also the docu­ ment entitled "Guiding Principles on the Right to Humanitarian Assistance adopted by the Council of the International Institute of Humanitarian Law . Principle 7 explicitly states that "(1) the competent United Nations organs and regional organisations may undertake necessa­ ry measures, including coercion in accordance with their respective mandates, in the event of severe, prolonged and mass suffering of populations, which could be alleviated by humanitarian assistance. These measures may be resorted to when an offer has been refused without justifi­ cation, or when the provision of humanitarian assistance encounters serious difficulties.” (Nov-Dec 1993) International Review of the Red Crodd 539. 49 See Security Council Resolution 925 (1994) of 8 June 1994. 50 See Security Council Resolution 929 (1994) of 22 June 1994. See also "French Troops Headed for Rwanda “The Globe andMaU(23 June 1994) A6: The French deployment, which will begin today, comes after nearly three months of what many consider international inaction in the face of widespread slaughter. "The grave humani­ tarian crisis m that country demands a swift response from the international communily, and we commend the French for acting to address the need”. Madeline Albright the US Ambassador to the UN told the Council. 51 See Resolution 688 of 5 April 1991 on Iraq. 52 See Resolutions 770 and 771 on Bosnia and Herzegovina and Resolution 929 (1994) on Rwanda. 53 See Resolution 794 of 3 December 1992 on Somalia. 54 "Liberia: Waging War to Keep Peace: The ECOMOG Intervention and Human Rights’ (1993) Africa Watch. following the abortive coup d’Etat must, however, be emphasised that and outbreak of ethnic violence in sovereignty or the consent of the Burundi in October 1993, the authorities in question does not seem Organisation of African Unity also to have been considered a bar to inter­ voted to send a force (the national action on behalf of the popula­ International Mission of Protection tions concerned. After all, what is and Observation in Burundi) to that sovereignty without the people? The country to help restore order and end issue is not sovereignty. The issue is the senseless killings. humanity and the right to life. Sovereignty must not stand up as the Does the right to intervene on impregnable vail behind which States humanitarian grounds abrogate State commit crimes against humanity with sovereignty? No! In all resolutions in impunity.56 which they invoked the right to inter­ vene, the General Assembly and the To guard against abuse of the right to Security Council acknowledged the intervene on humanitarian grounds, sovereignty of the States concerned. the following safeguards are sugges­ They also recognised and emphasised ted: (1) as a general rule intervention the primary responsibility of those should not be undertaken militarily. States to remedy the unsavoury situa­ It should, whenever possible, be tions within their borders.55 It is only undertaken under the mandate of when it is abundantly clear that the the United Nations or a regional State concerned is either unable or organisation; (2) intervention should unwilling to remedy the situation, be undertaken only in cases of natural that other States or the international or man-made disasters involving community are entitled to intervene. gross, flagrant or massive violations In recent UN humanitarian actions of human rights; (3) the objectives the consent of the established authori­ of the intervention should always be ties, if there were any, was sought. It clearly spelt out in the enabling

55 For example, operative paragraph 2 of General Assembly Resolution 43/131 of 1988 reads as follows: Reaffirms also the sovereignly of affected States and their primary role in the initiation, orga­ nisation, coordination and implementation of humanitarian assistance within their respective ter­ ritories. Preambular paragraph 7 of Security Council Resolution 688 of 1991 reads as follows: Reaffirming the commitment of all Member States to the sovereignty and political indepen­ dence of Iraq and of all States in the area. 56 In situations of armed conflict the International Committee of the Red Cross may carry out huma­ nitarian operations in areas not under the control of the government of the country concerned without the consent of that government. It did so in Nigeria during the Nigerian Biafran war. See L.S. Wiseberg "Humanitarian Intervention: Lessons from the Nigerian War” (1974) Hum Rts. J. 61. See also M. Torrelli "From Humanitarian Assistance to Intervention on Humanitarian Grounds?” (May June 1992) International Review o f the Red Cross. instrument;57 (4) the intervention humanity as well as the arrest, must be for a limited duration, long extradition and punishment of enough to ensure the safety of the persons guilty of such crimes population on whose behalf it was wherever they may have been undertaken. committed...and the establish­ ment of criteria for determining Stopping the killings and other compensation to the victims of outrages against a people is the essential such crimes [are] important ele­ step towards ending the victimisation ments in the prevention of similar of that people. It is, however, not the crimes now and in the future, end of the matter. The victimisers and also in the protection of must be brought to justice. They must human rights and fundamental be prosecuted and, if convicted, puni­ freedoms...and the safeguarding shed. The importance of prosecution of international peace and secu­ and punishment is that it meets the rity. demand of retributive justice. It also usually has a deterrent effect and the­ Indeed in cases in which victims of reby helps prevent a recurrence of the criminal conduct are aliens, a States victimisation, and generally contri­ failure to take prompt and efficient butes to the protection of human action to apprehend, prosecute and rights. The General Assembly unders­ adequately punish an offender has cored this point in its Resolution 2712 been held to constitute a denial of jus­ (XXV) of 15 December 1970 on the tice, amounting to an international question of the punishment of war cri­ delinquency, and giving rise to the minals and of persons who have com­ delinquent State's liability to pay com­ mitted crimes against humanity. In the pensation to the victim or, in case of fifth preamble paragraph the death, to the victim's estate.58 Assembly asserted that: For reasons already noted, prose­ ...a thorough investigation of cution of persons responsible for war crimes and crimes against crimes related to the abuse of power at

57 The objectives should primarily be limited to protecting human life; preventing and allevia­ ting human suffering (in particular, by supplying food, medicines and health care, and sanita­ tion systems); creating conditions of safety for relief operations (including use of force where necessaiy); restoring civil society by maintaining law and order, and by assisting national authorities to re-establish civil institutions such as the police, the courts and penitentiary sys­ tems, promoting reconciliation between the warring parties, and generally assisting national autho­ rities to create conclusions conducive to a return to normalcy and observance of human rights. 58 For example, see United Stated (Laura B. Jane) v. Mexico (1927), a U.N. Rep. In t’LArb. Awards 84. Note may also be made of a statement by the expert appointed to probe the fate of Missing and Disappeared Persons in Chile when he asserted that the Government of Chile had obligation "to punish those responsible for the disappearances, to compensate the relatives of the victims and to take measures to prevent such acts form recurring in the future.” See U.N. Doc. A/14/136 (1980). the national level is generally out of Unfortunately, there is as yet no the question. Unless the offending such court with universal jurisdiction. regime is overthrown it is well nigh But the ends of justice demand it. The impossible to enforce the law against continued existence of an internatio­ its members. Promise for an effective nal legal order justifies it.60 Urging the appHcation of the remedy therefore establishment of such a court, Pieter lies at the international level. N.Drost Wrote: International criminal law may be invoked against those who commit If they are not to go... free and genocide, apartheid, crimes against to remain outside and above the peace, war crimes, and crimes against law, the principals and agents of humanity. There is no doubt that the State are to be subject to inter­ atrocities committed in many parts of national criminal law and juris­ the world, particularly Africa, qualify diction. Besides, they are them­ as crimes against humanity and fall selves the keepers of the law of within the competence of an interna­ the land. The national custo­ tional criminal court. Crimes against dians of the criminal law and humanity can be committed indepen­ penal system, main machinery dently of war situations. They have of governmental cruelly and been defined by the International law oppression, must be held at bay Commission as: by a superior legal force which is to be found in an international Inhuman acts such as murders, penal enforcement system. extermination, enslavement, International criminal law and deportation or persecutions, jurisdiction should afford a committed against any civilian measure of protection against population on social, political, the worst abuses and perver­ racial religious or cultural sions of the international penal grounds by the authorities of a system.61 State or by private individuals acting at the instigation or with As long as the Cold War raged the the toleration of such authori­ court could not be established, since ties.59 many dictators and possible criminal

59 See Draft Code of Offences Against the Peace and Security of Mankind, G.A.O.R. Ninth Sess. Supp. No. 8; also see D. Thiam h'irjt Report o f the D raft Code of Offences A gaitut the Peace and Security o fMankind A/CN/164/1984. 60 As the Nuremberg International Military Tribunal observed “crimes against international law are committed by man, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” In re Goering and Other '(1946) 92Ann D ig. 202. $1 The Crime o f iS’&zfefJLeiden. I.A.W. Sythoff, 1959); see also J.A . Leach & M. C Bassiouni, An International Criminal Court, Parliamentarians for Global Action, Occasional Paper I, (New York, 1992). defendants were sheltered by one or Compensation has been referred to the other of the Superpowers. In this in General Assembly Resolution 2712 respect one remembers with sorrow (XXV) as one remedy that should be the distinction that President Reagan available to persons who’s human made between authoritarian regimes, rights are violated. Indeed it is a which he supported, and despotic general principle of law that he who regimes, which he opposed. He classi­ violates a right or an obligation incurs a fied the apartheid regime in South duty to make reparation. And to us in Africa as merely authoritarian and Africa compensation is the heart and was favourably inclined towards it, soul of criminal justice. Article 3 of the while he classified the communist regi­ 1907 Hague Regulations Respecting me in Cuba as despotic and did every­ thing in his power to destabilise it. the law and Customs of War reco­ Luckily, the Cold War is no more, and gnises this principle when it provides it will not be long before an internatio­ that: ' nal criminal court is established. By Resolution 82 of 25 May 1993 the A belligerent party which vio­ Security Council established the lates the provisions of the said International Tribunal for the regulations shall, if the case Prosecution of Persons Responsible demands, be liable to pay com­ for Serious Violations of International pensation. It shall be respon­ Humanitarian Law Committed in the sible for all acts committed by Former Yugoslavia Since 1991.62 On persons forming part of its 23 November 1993 the General armed forces. Assembly also passed a resolution noting the substantial progress made The peace treaties following the by the International Law Commission of first and second World Wars also the draft statute for an international criminal court and urging the required the defeated powers to pay Commission “to continue its work as full compensation to victims of the war matter of priority... with a view to ela­ crimes and crimes against humanity borating a draft statute.” These perpetrated by their forces on the ter­ actions should sound a warning to vio­ ritories of Allied and Associated lators in all parts of the world that the Powers.63 Iraq was similarly required hand of the law may one day reach to pay compensation to victims of its them. atrocities during the Gulf War.64

62 See J.C. O’Brien “Current Developments; The International Tribunal for Victims of International Humanitarian Law in the Former Yugoslavia” (1993) 87 AJIL 639. 63 For a detailed discussion on the criteria for determining compensation to victims of war crimes and crimes against humanity, see the Secretary General’s Report on the Question of the Punishment of War Criminal) and of Persons who Have Committed Crimed Against Humanity (U.N. Doc. A/N345 (1971). See Also B.B. Ferencz "Compensating Victims of the Crimes of War” (1972) 12 Va. J . In t’l L. 64See Security Council Resolution 687 (1991), 706 (1991) and 706 (1991). In a non-international setting it is their citizens who might have been so the primary responsibility of the grievously wronged. The international government of the errant State to pro­ community's duty to assist flows from its vide effective remedies, including legal obligation to protect human compensation, to its victims. Thus, rights. Should anyone consider the soon after World War II Germany ins­ basis of this duty tenuous, social soli­ tituted a compensation scheme, the darity could be used as an alternative Wiedergutmachung, under which it paid basis. and continues to pay compensation to victims of Nazi tyranny. However, to most African countries that are bede­ villed by chronic economic ills, such a IV - P revention scheme may not be feasible. For example, at the downfall of the Obote government in Uganda in 1985, there As noted earlier, power or authority were hundreds of thousands of displa­ is essential to the existence of civil ced people in the country. Once pros­ society. It is vested in the hands of a perous and productive villages and select few with the view that they communities had been devastated and exercise it for the attainment of certain left desolate. There were thousands of common societal goals. Uppermost orphans whose parents had been mur­ among these goals is the securing dered by the Obote regime who nee­ of liberty. However, Montesquieu ded care and protection. There were observed, 'Political liberty is to be also thousands of citizens who had found only when there is no abuse of been dispossessed of their property, power. But constant experience shows had been incarcerated without trial, us that every man invested with power and had suffered physical and mental is liable to abuse it, and to carry his injury and anguish. The national eco­ authority as far as it will go. As nomy had also been left in shambles. Lord Acton also remarked, “power Quite clearly, the new government corrupts - absolute power corrupts could not do much to do justice to all absolutely.” There is no denying that these victims. It did set up a victims victimisation linked to abuse of power fund and invited private citizens and is most rampant in countries where other people and organisations of executive firm of government wields goodwill to contribute to the fund. excessive power. There are no adequa­ However, not much was collected, and te legal limits to such power. Where a the majority of the victims did not and semblance of limitation of governmen­ probably will never be able to obtain tal power exists there are no remedies any redress for the wrongs wrought against the erring officials, hence the unto them. Here, again, the internatio­ rampant and unchecked misuse of nal community should step in and power and the concomitant victimisa­ assist poorer States to do justice to tion of citizens.

65 Montesquieu L 'E sp rit d u laid chap. XI.

The Review — N° 60 — Special Issue / 1998 Therefore, one way to prevent victi­ others to form a strong united nation, misation linked to abuse of power is to rarely give up their cultural identity or limit the powers of the executive bran­ the desire to manage their own inter­ ch of government. To achieve this nal affairs (self-determination). In one there is an urgent iieed to establish in form or another they wish to be able Africa governments based constitu­ to preserve their cultural institutions, tions that impose restraints on the speak their language, and practise powers of the executive, that embody their religion without hindrance. They justiciable bills or charters of rights desire unity in diversity. Forms of and that require prirhacy of the rule of governments that ignore this truism law. sow seeds for discontent, discord, and instability. In many parts of the world The revolutionary ideas of gUutrwdt where mass victimisation occurs it is and peredtroika initiated by Mikhail usually linked to the peoples' yearning Gorbachev in the former Soviet for self-determination and the central Union have already had beneficial government's attempt to throttle that impact in Eastern Europe and have yearning. Armed conflicts in the West resulted in the dismantling of repressi­ Sahara region of Morocco, the ve political systems. The influence of Southern Region of the Sudan, the those ideas in Africa is a slowly but Casamance region of Senegal and surely starting to be felt. Several until recently, Eritrea in Ethiopia, are all countries, such as Benin, Burundi, attributable to this yearning for self­ Cameroon, Gabon, Lesotho, Kenya, determination. The spontaneous asser­ Malawi, Mozambique, Swaziland, tion of independence or greater auto­ Tanzania and Zambia have aban nomy by the various republics and doned. or are in the process of aban­ regions that constituted the former doning one-party systems in favour of Soviet Union, including the Russian democratic pluralism. If these changes Federated Republics, and the on­ were given chance to take root in the going conflict in the former hearts of the people particularly the Yugoslavia, vividly demonstrate how political actors, then there is bound to be difficult it is to extinguish this year­ a considerable reduction in the rate of ning for self-determination. abuse of political power. Resistance or liberation wars will be reduced. A further measure for preventing Victimisation and the tide of refugee or reducing victimisation linked to movements that follow will also be abuse of power in ethnically or cultu­ reduced. rally diverse societies must, therefore, be to promote the principle of internal Akin to the problem of absolute self-determination or the right to power is the problem of over centralised internal autonomy. This is the right to be power, particularly in countries that different and to be left alone, and the are ethnically, culturally, linguistically right to preserve, protect, and promote and religiously diverse. The diverse values that are beyond the legitimate groups that make up a country, reach of the rest of society. This prin­ although desirous of uniting with the ciple, already recognised under various international human rights alluded by the General Assembly. It instruments, should be enshrined in should be recalled that it is politicians the constitutions of the countries and others bent on pursuing and hol­ concerned as one of the fundamental ding on to power for pow er’s sake who principles of those constitutions. It can turn these agencies into handy tools be expressed in the form of federalism, for victimising others. They sway quasi-federalism, or devolutionism. them form their accepted course of The choice of the form will depend on conduct to irregular and illegal the historical, economic, social, cultu­ practices. They establish networks of ral, and political forces operating in spies to monitor the activities of or each country concerned. Whatever to eliminate their opponents. They the form, however, this principle can follow this up with the establishment and should act as a check against of special security units and death genocidal conflicts within the country squads to torture, maim, dispossess, and against central government ten­ and liquidate opponents or entire dencies to absolutism and tyranny.66 communities that they perceive to be unsympathetic to their causes. With regard to law enforcement, Promotion must therefore be pursued military, and other public agencies simultaneously with political liberali­ whose members are used to carry out sation and constitutional reforms the abuses, the United Nations along the lines suggested above. These General Assembly urged member reforms must aim at, among other States to endeavour, inter alia-. things, guaranteeing the independen­ ce, impartiality and accountability of To promote observance of codes of the security and other agencies men­ conduct and ethical norms, in particular tioned in the cited General Assembly international standards, by public ser­ recommendation.68 vants, including law enforcement, cor­ rectional, medical, social service and Territorial asylum, recognised as a military personnel, as well as the staff of peaceful and humanitarian institution, economic enterprises.67 has also been extremely useful to vic­ tims of abuse of power. Without asy­ This recommendation is salutary as lum the millions of victims populating fer as it goes, but unless the political refugee camps in Africa, would have ambience within which these agencies perished. The institution must therefo­ operate is cleansed, it will be nearly re be preserved and strengthened at impossible for them to observe the all costs. Other States must be willing to codes of conduct and ethical norms assist countries of first asylum by

Generally see C. Palley Constitutional Law and Minorities, Minority Rights Group Report No. 16 •! (London 1976). See supra note 2. See D.D.N. Nsereko, “The Police, Human Rights and the Constitution: An African Perspective" (1994) 16 Hum, Rts.Q. 466. resettling refugees who swarm their of Hutus in Burundi in 1974 might frontiers. This helps ease the econo­ have been averted.69 The United mic, social and administrative burdens Nations has established the office of on those countries that have to look UN High Commissioner for Human after so many refugees. It also helps Rights.70 The mandate of the High ease the security risk that the admis­ Commissioner is broad and flexible sion of refugees entails. Again, when enough to enable the monitoring of States of origin launch cross-border potentially dangerous human rights incursions and attack refugee camps and humanitarian situations and to in the countries of asylum, the interna­ alert the States concerned as well as tional community should be able to the international community at large respond more concretely than it has of any impending disasters so that been willing to do in the past. they can be addressed before they erupt/1 It is unfortunate that the fact­ Other existing international finding is not included within the mechanisms for protecting victims of High Commissioner’s mandate. If abuse of power can be further aug­ used impartially and non-selectively mented. For example, for long there fact-finding would be a vital element has been a need for an international in the international human rights pro­ early-warning system to monitor and tection mechanism. alert the international community on impending occurrences of massive vio­ lations anywhere on the globe. As the saying goes, “to be forewarned is to be forearmed.” If the international com­ V - Concluding Remarks munity knew beforehand of some of these occurrences, it might be able to The United Nations Declaration of prevent them or at least minimise their Basic Principles of Justice for Victims impact. If such a system existed, it is of Crime and Abuse of Power possible that the death roll of attempts, among other things, to defi­ Ethiopians who perished in the famine ne who are victims of abuse of power. of the early 1980s would have been A serious flaw in the definition is the reduced. The Western media came to exclusion of persons who suffer as a know of that disaster after over a million result of conduct that, although linked people had already died. If an early- to abuse of power, is already crimina­ warning system existed the massacre lised under the laws of a given State.

69 See Selective Genocide: Burundi Minority Rights Group Report No. 29 (London 1974). 70 Resolution 48/141, 20 December 1993. 71 The High Commissioner’s mandate includes “(a) Promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights... (f) Playing an acti­ ve role in removing the current obstacles and in meeting the challenge to the full realisation of all human rights and in preventing the continuation of humcin rights violations throughout the world...(g) Engeiging in a dialogue with all Governments in the implementation of his/her mandate with a view to securing respect for all human rights...” This means that the majority of per­ victimisation it is important that sons who suffer as a result of the the international community assist abuses outlined in this paper are not governments of poor countries to victims of abuses of power! Surely, “make good” the harm and damage this cannot be so. Although, technical­ wrought upon the victims of abuse ly, these persons qualify as victims of power. Additionally, with the Cold of crime they cannot be adequately War behind us, it is now propitious to dealt with on the same footing as establish an international criminal victims of ordinaiy crimes. They court to tiy and to punish persons encounter problems that ordinaiy who believe that they are above the victims do not encounter. It is often law. Such a court will lend teeth to the impossible for them to identify their international human rights protection individual victimisers or to garner the regime. evidence necessaiy to prove a case against them. The cause of this diffi­ Lastly, prevention is always better culty has been indicated in this paper. than cure! An early-warning system to Their victimisers are people with monitor and alert the international power and who apparently are above community about impending disasters is or beyond the reach of the law. Their a preventive measure that needs to be victims number in the thousands, put in place. At the national level, indeed hundreds of thousands in bridling executive power by constitu­ some countries. That is why they are tional mechanisms, by recognizing the sometimes referred to as “collective right to internal self-determination victims.” and by ensuring transparency at all levels of government are important It has been noted that as long as measures that can be employed to pre­ the victimising regime is in power, vent abuse of power by government victims have virtually no avenues of officials. Depoliticising and professio­ recourse at the national level. In this nalising the army and the police might respect the international remedies also help prevent these services from become supremely important. The being abused by power-hungiy politi­ right of intervention on humanitarian cians. Ultimately, however, inculcation grounds holds some hope to millions of the virtues of the rule of law in the of victims threatened with annihilation minds of the rulers and ruled alike, by governments or by natural disas­ remains the strongest fortress against ters. Again, with the cessation of the tyranny and abuse of power.

M m Review - N° 60 - Special Issue / 1998 M UNITED n atio ns

Distr. Economic and Social GENERAL Council E/CN.4/1994/103 3 February 1994

Original: ENGLISH

COMMISSION ON HUMAN RIGHTS Fiftieth session Items 10 and 12 of the provisional agenda

QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT

QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORIES

Letter dated 28 January 1994 from the Permanent Representative of the Transitional Government of Ethiopia to the United Nations Office at Geneva addressed to the Assistant Secretary-General for Human Rights

I have the honour to request you to have your office circulate the inclosed statement by the Special Prosecutor's Office of the Transitional Government of Ethiopia as the official document of the fiftieth session of the jUnited Nations Commission on Human Rights.

'■ (Signed) Yousuf Imbrahim Omar " Ambassador THE QUESTION OF THE IMPUNITY OF PERPETRATORS OF HUMAN RIGHTS VIOLATIONS

1. Political Background

At the end of May 1991 the EPRDF (Ethiopian Peoples' Revolutionary Democratic Front), who had allied with other multi-ethnic political I organizations, took control of Addis Ababa, the Ethiopian capital, and ended ^ Mengistu's 17-year rule.

The Transitional Period Charter of Ethiopia, which will serve as the j supreme law of the land during the period of transition, was adopted on S July 1991.

The principles enunciated in Part One of the Charter are of particular interest to the democratization process during the transitional period.

In its preamble, the Charter asserts that "freedom, equal rights and self-determination of all the peoples shall be the governing principles of political, economic and social life" in Ethiopia and the adoption of a "proclamation of a democratic order is a categorical imperative," in order to, realize such aspirations and to ensure the prevalence of peace within the country.

The framework adopted by the Charter in order to realize these objective; is two-pronged: the protection of individual rights, based on the Universal Declaration of Human Rights of the United Nations, as stated in Article One, and the protection of the right of nations, nationalities and peoples to. self-determination, as stated in Article Two.

The Transitional Government will be holding elections on 5 June 1994 to elect members of the constituent assembly. This body will discuss and finalize the constitution. Once the constitution is finalized, in late 1994 or early 1995, elections will follow shortly thereafter.

Ethiopia has no democratic heritage. Democratic institutions for the first time are now being constructed. This is a complex process and it is clear it will take years to fully develop a democratic culture in Ethiopia. None the less, the Transitional Government has made progress toward this goal

2. The human rights record of the ousted regime

The existence of a pattern of systematic human rights violations and of grave breaches of humanitarian law under the former Ethiopian regime is well known to several human rights bodies of the United Nations system.

It is sufficient to cite the annual reports of several thematic organs the Commission on Human Rights, such as the reports of the Working Group on Enforced or Involuntary Disappearances, the reports of the Special Rapporteui on extrajudicial, summary or arbitrary executions and the reports of the Special Rapporteur on the question of torture. This situation was a matter of concern for many countries in the world during the long years of the Mengistu regime as demonstrated by parliamentary bearings and diplomatic complaints.

The international human rights community is also aware of this record, as stated in numerous reports elaborated by prestigious human rights and humanitarian non-governmental organizations.

According to an Africa Watch report 1/ members of the Mengistu Government bear responsibility for the deaths of at least half a million Ethiopian civilians. Under Mengistu's regime, the Ethiopian army and air force killed tens of thousands of civilians. The notorious urban "Red Terror" of 1977/78 where thousands died was matched by indiscriminate violence against rural populations, especially in Eritrea and Tigray. Counter-insurgency strategies involved forcibly relocating hundreds of thousands of rural people and cutting food supplies to insurgent areas. These military policies were instrumental in creating famine and the former Government used relief supplies as weapons to further its war aims.

3. The creation of the Special Prosecutor's Office, its purposes and organization

The Special Public Prosecutor's Office (S.P.O.) was established on 8 August 1992, as an Office accountable to the Prime Minister of the Transitional Government. The Office, in accordance with the law, has the power to conduct investigations and institute proceedings against those it suspects of committing crimes and/or abusing their positions of authority in the -former regime.

■ Laws concerning criminal investigations and criminal proceedings that apply to ordinary prosecutors also apply to the activities undertaken by the g.P.O.

At present the S.P.O. is investigating the global phenomenon of human Sights violations and abuse of authority that transpired during the Mengistu regime. Specifically, the S.P.O. presently has 1,200 detainees under its Jurisdiction, all of whom are being held in accordance with the Ethiopian Criminal Procedure Code and are suspected of particularly serious offences. Heme 1,000 out of the 2,000 former officials who were detained after the fall of the Mengistu regime have been released on bail since the S.P.O. was established.

' In terms of the current status of our work, the investigations are moving fSfward. The computerization process has begun. For example, the S.P.O. has Sired well over 400 people to search for and collect the numerous government tocuments relating to human rights violations that can still be found throughout the country. The S.P.O. will probably add an additional 200 people ^J^finalize the search and to facilitate the computer coding process. He i , t. ■ « 3 T ------: ■ . j**jA/ EVIL DAYS, Thirty Years of War and Famine in Ethiopia. An Africa Report. Human Rights Watch. New York/Washington/Los Angeles/London, IMl. expect usable reports by mid-March. Thereafter, we will make the final policy decisions regarding who we will be charging and for what. Barring any major unforeseen problems, trials shall commence in the first quarter of the year.

4. The issue of impunity

The fight against impunity is a legitimate concern of the international community as stated in the Vienna Declaration adopted by the World Conference on Human Rights:

"91. The World Conference on Human Rights views with concern the issue of impunity of perpetrators of human rights violations (...)"

“60. States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law. "

"62. (...). The World Conference on Human Rights reaffirms that it is the duty of all States, under any circumstances, to make investigations whenever there is reason to believe that an enforced disappearance has taken place on a territory under their jurisdiction and, if allegations are confirmed, to prosecute its perpetrators."

According to these principles, it is the duty of the Transitional Government of Ethiopia to bring to justice those persons with respect to whom there are serious reasons for considering that they are responsible for serious violations both of international law and domestic law that can be assimilated in some cases to crimes against humanity. .

5. The problem of the victims .

As stated in the preliminary report on the question of the impunity of perpetrators of human rights violation prepared by Mr. Guisse and Mr. Joinet (E/CN.4/Sub.2/1993/6), although action to combat impunity has its roots in the need for justice, it cannot be reduced to the sole objective of punishing the' guilty. It must conform to three requirements: the punishment of those responsible according to the judicial guarantees, satisfying the victim's right to know and to obtain redress, and enabling the authorities to fulfil their mandate as the public agency which guarantees law and order.

The crimes committed under the former regime were not only crimes agains the victims and the Ethiopian people; in many cases they were crimes against humanity - crimes that the international community has a particular interest to prevent, to investigate and to punish.

The Transitional Government of Ethiopia is aware of its obligations concerning the duty to prosecute the systematic violations of human rights am the grave breaches of humanitarian law. It has also decided to respect and guarantee the right of the families to know the fate of their relatives and ti receive restitution. The TGE has encouraged the families to give testimonies for the establishment of a historic record on the past human rights violations, which also constitutes a prior measure for the prosecution of those considered responsible for heinous crimes. g _ The rights of the defendants

These trials shall be an important step in the construction of the rule of law in Ethiopia. The TGE vows to enforce the principle enshrined in the Universal Declaration of Human Rights, according to which everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of all rights and obligations and of any criminal charge against such person.

Therefore, defendants will be brought before the Courts in full respect of the judicial guarantees, established by the main international instruments of human rights and humanitarian law. The trials, which shall begin in the next few months, will be opened to the press, the public and the broadest international monitoring.

The TGE is currently working on a bill to improve the provisions of law concerning fair trial and due process of law. The complexity, coupled with the potential historic import of these trials, cannot be underestimated. Specifically, the TGE intends to comply fully with international standards in these proceedings to demonstrate its commitment to and fortify the establishment of the rule of law in Ethiopia.

7 . The Judiciary in the ongoing process towards democratization

Article Nine (f) of the Charter provides that "the Courts shall, in their work, be free from any governmental interference with respect to (individual rights)". To implement the principle of an independent judiciary, Proclamation No. 23/1992 entitled "A Proclamation to Provide for the Independence of Judicial Administration" was enacted on 8 August 1992. Article 4 of this proclamation provides for the complete independence of judges in the discharge of their judicial functions and states that judges are to abide by international treaties, customs and laws that are not inconsistent with the Charter. .

8. Balancing the rights of the victims, the rights of the defendants, the values of -justice and reconciliation

The Office of the Special Prosecutor has been mandated to create a historical record of the abuses of the Mengistu regime and to bring those criminally responsible for human rights violations and/or corruption to justice.

The ambitious nature of this task has been clear from the beginning, given the scope and legal complexities involved. We must balance many factors: our international and domestic legal obligation to investigate and bring to justice gross human rights violators, our international and domestic legal obligations to respect due process, and our role in the construction of a society based upon the rule of law. There is no easy or apparent magic balance of these factors. We must consider our legal obligations, our moral obligations, the future of our country and the resources and potential not only of this office but also the court, defence and prison systems.

The assistance of the international community is necessary to enable the S.P.O. to fully consider and balance all of these factors.

9. Role of the international community

Cognizant of its obligations and painfully aware of its resource limitations, shortly after it began working the S.P.O. formally requested assistance from the international community.

While it took some time for the international community to respond to the Transitional Government's appeal for assistance, by December of 1993 the following Governments had committed financial and/or technical support: Sweden, Denmark, the United States of America, Norway, the Netherlands, Canada and France. At present, there are international experts from Argentina, Denmark, France, the United Kingdom, Norway and the United States working with the S.P.O. Further, NGOs like the Carter Center, the Argentine Anthropological Forensic Team, and the American Bar Association are providing assistance. And finally, S.P.O. will soon host the Attorney General of France and a mission of United Nations experts.

The recent influx of resources has played an important role in moving the S.P.O. towards compliance with international standards. For example, the Transitional Government, with the assistance of the Danish Government, has recently established an Office of Public Defence to provide an advocate for those S.P.O. defendants who are not at present represented by counsel. It is clear that continued international support will be essential, in order that the process fully contributes to the democratization of Ethiopia. African Charter on Human and Peoples’ Rights

P r e a m b l e

The African States members of the Organization of African Unity, parties to the present convention entitled “ African Charter on Human and Peoples’ Rights” ; Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of “ a preliminary draft on an African Charter on Human and Peoples’ Rights providing inter alia for the establishment of bodies to promote and protect human and peoples’ rights” ; Considering the Charter of the Organization of African Unity, which stipulates that “ freedom, equality, justice and dignity are essential objec­ tives for the achievement of the legitimate aspirations of the African peoples” ; Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to co-ordinate and intensify their co-operation and efforts to achieve a better life for the peoples of Africa and to promote international co-operation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights; Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights; Recognizing on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their international pro­ tection and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights; Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone; Convinced that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights;

I t e Review — N° 60 — Special Issue /1998

S r Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine in­ dependence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, Zionism, and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, colour, sex, language, religion or political opinion; Reaffirming their adherence to the principles of human and peoples’ rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations; Firmly convinced of their duty to promote and protect human and peoples’ rights and freedoms taking into account the importance tradi­ tionally attached to these rights and freedoms in Africa;

H a v e a g r e e d a s f o l l o w s :

P a r t I RIGHTS AND DUTIES

C h a p t e r I. Human and Peoples’ Rights

Article 1 The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.

Article 2

Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinc­ tion of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

Article 3

1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law.

Article 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Every individual shall have the right to the respect of the dignity in­ herent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Article 6

Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and con­ ditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

Article 7 1. Every individual shall have the right to have his cause heard. This comprises: (a) The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conven­ tions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a com­ petent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Article 8 Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.

Article 9

1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law. 1. Every individual shall have the right to free association provided that he abides by the law. 2. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association.

Article 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

Article 12

1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the laws of those coun­ tries and international conventions. 4. A non-national legally admitted in a territory of a State party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass ex­ pulsion shall be that which is aimed at national, racial, ethnic or religious groups.

Article 13

1. Every citizen shall have the right to participate freely in the govern­ ment of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2. Every citizen shall have the right of equal access to the public ser­ vice of his country. . 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law. The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the com­ munity and in accordance with the provisions of appropriate laws.

Article 15 Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.

Article 16

1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

Article 17 1. Every individual shall have the right to education. 2. Every individual may freely take part in the cultural life of his community. 3. The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.

Article 18 1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health. 2. The State shall have the duty to assist the family which is the custo­ dian of morals and traditional values recognized by the community. 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.

Article 19 All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another. 1. All peoples shall have right to existence. They shall have the un­ questionable 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. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the States par­ ties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural. Article 21 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic co-operation based on mutual respect, equitable exchange and the prin­ ciples of international law. 4. States parties to the present Charter shall individually and col­ lectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practised by inter­ national monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.

Article 22

1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

Article 23 1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a) Any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; (b) Their territories shall not be used as bases for subversive or ter­ rorist activities against the people of any other State party to the present Charter.

Article 24 All people shall have the right to a general satisfactory environment favourable to their development.

Article 25 States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.

Article 26

States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and im­ provement of appropriate national institutions entrusted with the pro­ motion and protection of the rights and freedoms guaranteed by the present Charter.

C h a p t e r II. D u t i e s

Article 27

1. Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community. 2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

Article 28

Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at pro­ moting, safeguarding and reinforcing mutual respect and tolerance. The individual shall also have the duty: 1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need; 2. To serve his national community by placing his physical and in­ tellectual abilities at its service; 3. Not to compromise the security of the State whose national or resi­ dent he is; 4. To preserve and strengthen social and national solidarity, par­ ticularly when the latter is threatened; 5. To preserve and strengthen the national independence and the ter­ ritorial integrity of his country and to contribute to its defence in accord­ ance with the law; 6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society; 7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-being of society; 8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

P a r t II MEASURES OF SAFEGUARD

C h a p t e r I . Establishment a n d O rganization o f t h e A f r ic a n C o m m is s io n o n H u m a n a n d P e o p l e s ’ R ig h t s

Article 30 An African Commission on Human and Peoples’ Rights, hereinafter called “ the Commission” , shall be established within the Organization of African Unity to promote human and peoples’ rights and ensure their pro­ tection in Africa.

Article 31

1. The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience. 2. The members of the Commission shall serve in their personal capacity.

Article 32 The Commission shall not include more than one national of the same State.

Article 33 The members of the Commission shall be elected by secret ballot by the Assembly of Heads of State and Government, from a list of persons nominated by the States parties to the present Charter.

Article 34

Each State party to the present Charter may not nominate more than two candidates. The candidates must have the nationality of one of the States parties of the present Charter. When two candidates are nominated by a State, one of them may not be a national of that State.

Article 35 1. The Secretary-General of the Organization of African Unity shall invite States parties to the present Charter at least four months before the elections to nominate candidates. 2. The Secretary-General of the Organization of African Unity shall make an alphabetical list of the persons thus nominated and communicate it to the Heads of State and Government at least one month before the elec­ tions.

Article 36

The members of the Commission shall be elected for a six-year period and shall be eligible for re-election. However, the term of office of four of the members elected at the first election shall terminate after two years and the term of office of three others, at the end of four years.

Article 37 Immediately after the first election, the Chairman of the Assembly of Heads of State and Government of the Organization of African Unity shall draw lots to decide the names of those members referred to in Article 36.

Article 38

After their election, the members of the Commission shall make a solemn declaration to discharge their duties impartially and faithfully. 1. In case of death or resignation of a member of the Commission, the Chairman of the Commission shall immediately inform the Secretary- General of the Organization of African Unity, who shall declare the seat vacant from the date of death or from the date on which the resignation takes effect. 2. If, in the unanimous opinion of other members of the Commis­ sion, a member has stopped discharging his duties for any reason other than a temporary absence, the Chairman of the Commission shall inform the Secretary-General of the Organization of African Unity, who shall then declare the seat vacant. 3. In each of the cases anticipated above, the Assembly of Heads of State and Government shall replace the member whose seat became vacant for the remaining period of his term unless the period is less than six months. Article 40 Every member of the Commission shall be in office until the date his successor assumes office.

Article 41 The Secretary-General of the Organization of African Unity shall ap­ point the Secretary of the Commission. He shall also provide the staff and services necessary for the effective discharge of the duties of the Commis­ sion. The Organization of African Unity shall bear the cost of the staff and services. Article 42

1. The Commission shall elect its Chairman and Vice-Chairman for a two-year period. They shall be eligible for re-election. 2. The Commission shall lay down its rules of procedure. 3. Seven members shall form the quorum. 4. In case of an equality of votes, the Chairman shall have a casting vote. 5. The Secretary-General may attend the meetings of the Commis­ sion. He shall neither participate in deliberations nor shall he be entitled to vote. The Chairman of the Commission may, however, invite him to speak.

Article 43 In discharging their duties, members of the Commission shall enjoy diplomatic privileges and immunities provided for in the General Conven­ tion on the Privileges and Immunities of the Organization of African Unity. Provision shall be made for the emoluments and allowances of the members of the Commission in the Regular Budget of the Organization of African Unity.

C h a p t e r II. M andate of the Commission

Article 45

The functions of the Commission shall be: 1. To promote Human and Peoples’ Rights and in particular: (a) To collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organize seminars, sym­ posia 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; (b) To formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations; (c) Co-operate with other African and international institutions con­ cerned with the promotion and protection of human and peoples’ rights. 2. Ensure the protection of human and peoples’ rights under con­ ditions laid down by the present Charter. 3. Interpret all the provisions of the present Charter at the request of a State party, an institution of the Organization of African Unity or an African organization recognized by the Organization of African Unity. 4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.

C h a p t e r III. Procedure of the Commission

Article 46 The Commission may resort to any appropriate method of investi­ gation; it may hear from the Secretary-General of the Organization of African Unity or any other person capable of enlightening it.

COMMUNICA TION FROM STA TES

Article 47

If a State Party to the present Charter has good reasons to believe that another State party to this Charter has violated the provisions of the

L* Charter, it may draw, by written communication, the attention of that State to the matter. This communication shall also be addressed to the Secretary- General of the Organization of African Unity and to the Chairman of the Commission. Within three months of the receipt of the communication the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible relevant information relating to the laws and rules of procedure applied and applicable and the redress already given or course of action available.

Article 48 If within three months from the date on which the original communi­ cation is received by the State to which it is addressed, the issue is not settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful procedure, either State shall have the right to sub­ mit the matter to the Commission through the Chairman and shall notify the other State involved.

Article 49 Notwithstanding the provisions of Article 47, if a State party to the present Charter considers that another State party has violated the pro­ visions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary-General of the Organization of African Unity and the State concerned.

Article 50 The Commission can only deal with a matter submitted to it after mak­ ing sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.

Article 51

1. The Commission may ask the States concerned to provide it with all relevant information. 2. When the Commission is considering the matter, States concerned may be represented before it and submit written or oral representations.

Article 52 After having obtained from the States concerned and from other sources all the information it deems necessary and after having tried all ap­ propriate means to reach an amicable solution based on the respect of human and peoples’ rights, the Commission shall prepare, within a reasonable period of time from the notification referred to in Article 48, a report stating the facts and its findings. This report shall be sent to the States concerned and communicated to the Assembly of Heads of State and Government.

Article 53 While transmitting its report, the Commission may make to the Assembly of Heads of State and Government such recommendations as it deems useful.

Article 54

The Commission shall submit to each Ordinary Session of the Assembly of Heads of State and Government a report on its activities.

OTHER COMMUNICATIONS

Article 55 1. Before each session, the Secretary of the Commission shall make a list of the communications other than those of States parties to the present Charter and transmit them to the members of the Commission, who shall indicate which communications should be considered by the Commission. 2. A communication shall be considered by the Commission if a simple majority of its members so decide.

Article. 56 Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission, shall be considered if they: 1. Indicate their authors even if the latter request anonymity; 2. Are compatible with the Charter of the Organization of African Unity or with the present Charter; 3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity; 4. Are not based exclusively on news disseminated through the mass media; 5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged; 6. Are submitted within a reasonable period from the time l^cal remedies are exhausted or from the date the Commission is seized of the matter; and 7. Do not deal with cases which have been settled by these States in­ volved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the pro­ visions of the present Charter.

Article 57 Prior to any substantive consideration, all communications shall be brought to the knowledge of the State concerned by the Chairman of the Commission. Article 58 1. When it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the ex­ istence of a series of serious or massive violations of human and peoples’ rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases. 2. The Assembly of Heads of State and Government may then re­ quest the Commission to undertake an in-depth study of these cases and make a factual report, accompanied by its finding and recommendations. 3. A case of emergency duly noticed by the Commission shall be sub­ mitted by the latter to the Chairman of the Assembly of Heads of State and Government who may request an in-depth study.

Article 59 1. All measures taken within the provisions of the present Charter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide. 2. However, the report shall be published by the Chairman of the Commission upon the decision of the Assembly of Heads of State and Government. 3. The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.

C h a p t e r IV. Applicable Principles

Article 60 The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the parties to the present Charter are members.

Article 61 The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special inter­ national conventions, laying down rules expressly recognized by Member States of the Organization of African Unity, African practices consistent with international norms on human and peoples’ rights, customs generally accepted as law, general principles of law recognized by African States as well as legal precedents and doctrine.

Article 62 Each State party shall undertake to submit every two years, from the date the present Charter comes into force, a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized and guaranteed by the present Charter.

Article 63

1. The present Charter shall be open to signature, ratification or adherence of the Member States of the Organization of African Unity. 2. The instruments of ratification or adherence to the present Charter shall be deposited with the Secretary-General of the Organization of African Unity. 3. The present Charter shall come into force three months after the reception by the Secretary-General of the instruments of ratification or adherence of a simple majority of the Member States of the Organization of African Unity.

P a r t III GENERAL PROVISIONS

Article 64 1. After the coming into force of the present Charter, members of the Commission shall be elected in accordance with the relevant Articles of the present Charter. 2. The Secretary-General of the Organization of African Unity shall convene the first meeting of the Commission at the Headquarters of the Organization within three months of the constitution of the Commission. Thereafter, the Commission shall be convened by its Chairman whenever necessary but at least once a year. For each of the States that will ratify or adhere to the present Charter after its coming into force, the Charter shall take effect three months after the date of the deposit by that State of its instrument of ratification or adherence.

Article 66 Special protocols or agreements may, if necessary, supplement the pro­ visions of the present Charter.

Article 67 The Secretary-General of the Organization of African Unity shall in­ form Member States of the Organization of the deposit of each instrument of ratification or adherence.

Article 68 The present Charter may be amended if a State party makes a written request to that effect to the Secretary-General of the Organization of African Unity. The Assembly of Heads of State and Government may only consider the draft amendment after all the States parties have been duly in­ formed of it and the Commission has given its opinion on it at the request of the sponsoring State. The amendment shall be approved by a simple ma­ jority of the States parties. It shall come into force for each State which has accepted it in accordance with its constitutional procedure three months after the Secretary-General has received notice of the acceptance. Adopted by the eighteenth Conference of Heads of State and Government of the Organization of African Unity, June 1981— Nairobi, Kenya. Protocol to the African Charter on Human and Peoples7 Rights on the Establishment o f an African Court on Human and Peopled’ Rights

The Member States of the rights since its inception in 1987; Organization of African Unity herei­ nafter referred to as the OAU, States Recalling resolution AHG/Res.230 Parties to the African Charter on (XXX) adopted by the Assembly of Human and Peoples’ Rights: Heads of State and Government in June 1994 in Tunis, Tunisia, reques­ Considering that the Charter of ting the Secretary-General to convene a the Organization of African Unity Government experts’ meeting to pon­ recognizes that freedom, equality, jus­ der, in conjunction with the African tice, peace and dignity are essential Commission, over the means to enhan­ objectives for the achievement of the ce the efficiency of the African legitimate aspirations of the African Commission and to consider in parti­ peoples; cular the establishment of an African Court on Human and Peoples’ Rights; Noting that the African Charter on Human and Peoples’ Rights reaffirms Noting the first and second adherence to the principles of human Government legal experts’ meetings and peoples’ rights, freedoms and held respectively in Cape Town, South duties contained in the declarations, Africa (September, 1995) and conventions and other instruments Nouakchott, Mauritania (April, adopted by the Organization of 1997), and the third Government African Unity, and other international Legal Experts meeting held in Addis organizations; Ababa, Ethiopia (December, 1997), which was enlarged to include Recognizing that the twofold Diplomats; objective of the African Charter on Human and Peoples’ Rights is to ensu­ Firmly convinced that the attain­ re on the one hand promotion and on ment of the objectives of the African the other protection of human and Charter on Human and Peoples’ peoples’ rights, freedoms and duties; Rights requires the establishment of an African Court on Human and Recognizing further, the efforts of Peoples’ Rights to complement and the African Commission on Human reinforce the functions of the African and Peoples’ Rights in the promotion Commission on Human and Peoples’ and protection of human and peoples’ Rights. Have Agreed as Follows: Article A - Advisory Opinions 1. At the request of a Member State of the OAU, the OAU, any of Article 1 - Establishment of the its organs, or any African organiza­ Court tion recognized by the OAU, the There shall be established within Court may provide an opinion on the Organization of African Unity any legal matter relating to the an African Court on Human and Charter or any other relevant Peoples’ Rights hereinafter referred human rights instruments, provi­ to as “the Court”, the organization, ded that the subject matter of the jurisdiction and functioning of which opinion is not related to a matter shall be governed by the present being examined by the Protocol. Commission.

2. The Court shall give reasons for its Article 2 - Relationship Between advisory opinions provided that the Court and the Commission every judge shall be entitled to deli­ ver a separate or dissenting deci­ The Court shall, bearing in mind sion. the provisions of this Protocol, com­ plement the protective mandate of the African Commission on Human and Article 5 - Access to the Court Peoples’ Rights hereinafter referred to 1. The following are entitled to sub­ as “the Commission”, conferred upon mit cases to the Court it by the African Charter on Human and Peoples’ Rights, hereinafter referred a. The Commission; to as “the Charter”. b. The State Party which has lod­ ged a complaint to the Article 3 - Jurisdiction Commission;

1. The jurisdiction of the Court shall c The State Party against which extend to all cases and disputes the complaint has been lodged at submitted to it concerning the the Commission; interpretation and application of d. The State Party whose citizen is a the Charter, this Protocol and any victim of human rights violation; other relevant Human Rights ins­ trument ratified by the States e African Intergovernmental Orga­ concerned. nizations.

2. In the event of a dispute as to whe­ 2. When a State Party has an interest in ther the Court has jurisdiction, the a case, it may submit a request to Court shall decide. the Court to be permitted to join. 3. The Court may entitle relevant Non Governmental Organizations The Court may try to reach an ami­ (NGOs) with observer status befo­ cable settlement in a case pending re the Commission, and individuals before it in accordance with the provi­ to institute cases directly before it, sions of the Charter. in accordance with Article 34 (6) of this Protocol. Article 10 - Hearings and Representation Article 6 - Admissibility of Cases 1. The Court shall conduct its procee­ 1. The Court, when deciding on the dings in public. The Court may, admissibility of a case instituted however, conduct proceedings in under Article 5 (3) of this Protocol, camera as may be provided for in may request the opinion of the the Rules of Procedure. Commission which shall give it as soon as possible. 2. Any party to a case shall be entitled to be represented by a legal repre­ 2. The Court shall rule on the admissi­ sentative of the party’s choice. Free bility of cases taking into account legal representation may be provi­ the provisions of Article 56 of the ded where the interests of justice so Charter. require.

3. The Court may consider cases or 3. Any person, witness or representa­ transfer them to the Commission. tive of the parties, who appears before the Court, shall enjoy pro­ tection and all facilities, in accor­ Article 7 - Sources of Law dance with international law, necessaiy for the discharging of The Court shall apply the provi­ their functions, tasks and duties in sions of the Charter and any other relation to the Court. relevant human rights instruments ratified by the States concerned. Article 11 - Composition

Article 8 - Consideration of Cases 1. The Court shall consist of eleven judges, nationals of Member States The Rules of Procedure of the of the OAU, elected in an indivi­ Court shall lay down the detailed dual capacity from among jurists of conditions under which the Court high moral character and of reco­ shall consider cases brought before it, gnized practical, judicial or acade­ bearing in mind the complementarity mic competence and experience in between the Commission and the the field of human and peoples’ Court. rights. 2. No two judges shall be nationals of sentation of the main regions of the same State. Africa and of their principal legal traditions.

Article 12 - Nominations 3. In the election of the judges, the 1. States Parties to the Protocol may Assembly shall ensure that there is each propose up to three candi­ adequate gender representation. dates, at least two of whom shall be nationals of that State. Article 15 - Term of Office 2. Due consideration shall be given to 1. The judges of the Court shall be adequate gender representation in elected for a period of six years and the nomination process. may be re-elected only once. The terms of four judges elected at the first election shall expire at the end of Article 13 - List of Candidates two years, and the terms of four more judges shall expire at the end of 1. Upon entry into force of this four years. Protocol, the Secretary-General of the OAU shall request each State Party to the Protocol to present, 2. The judges whose terms are to within ninety (90) days of such a expire at the end of the initial periods request, its nominees for the office of two and four years shall be chosen of judge of the Court. by lot to be drawn by the secretary- general of the OAU immediately 2. The Secretary-General of the OAU after the first election has been shall prepare a list in alphabetical completed. order of the candidates nominated and transmit it to the Member 3. A judge elected to replace a judge States of the OAU at least thirty whose term of office has not expi­ days prior to the next session of the red shall hold office for the remain­ Assembly of Heads of State and der of the predecessor’s term. Government of the OAU hereinafter referred to as “the Assem bly”. 4. All judges except the President shall perform their functions on a part-time basis. However, the Article 14 - Elections Assembly may change this arrange­ 1. The judges of the Court shall be ment as it deems appropriate. elected by secret ballot by the Assembly from the list referred to Article 16 - Oath of Office in Article 13 (2) of the present Protocol. After their election, the judges of the Court shall make a solemn declaration 2. The Assembly shall ensure that in to discharge their duties impartially the Court as a whole there is repre­ and faithfully. concerned has been found to be no longer fulfilling the required condi­ 1. The independence of the judges tions to be a judge of the Court. shall be fully ensured in accordan­ ce with international law. 2. Such a decision of the Court shall become final unless it is set aside by 2. No judge may hear any case in which the same judge has previous­ the Assembly at its next session. ly taken part as agent, counsel or advocate for one of the parties or as Article 20 - Vacancies a member of a national or interna­ tional court or a commission of 1. In case of death or resignation of a enquiry or in any other capacity. judge of the Court, the President of Any doubt on this point shall be the Court shall immediately inform settled by decision of the Court. the Secretary General of the Organization of African Unity, 3. The judges of the Court shall enjoy, who shall declare the seat vacant from the moment of their election from the date of death or from the and throughout their term of office, date on which the resignation takes the immunities extended to diplo­ effect. matic agents in accordance with international law. 2. The Assembly shall replace the judge whose office became vacant A. At no time shall the judges of the unless the remaining period of the Court be held liable for any deci­ term is less than one hundred and sion or opinion issued in the exerci­ eighty (180) days. se of their functions.

3. The same procedure and conside­ Article 18 - Incompatibility rations as set out in ALrticles 12, 13 and 14 shall be followed for the The position of judge of the Court filling of vacancies. is incompatible with any activity that might interfere with the independence or impartiality of such a judge or the Article 21 - Presidency of the Court demands of the office, as determined in the Rules of Procedure of the 1. The Court shall elect its President Court. and one Vice-President for a period of two years. They may be re-elected only once. Article 19 - Cessation of Office 1. A judge shall not be suspended or 2. The President shall perform judi­ M removed from office unless, by the cial functions on a full-time basis ^' Unanimous decision of the other and shall reside at the seat of the judges of the Court, the judge Court. 3. The functions of the President and 2. The seat of the Court may be chan­ the Vice-President shall be set out ged by the Assembly after due in the Rules of Procedure of the consultation with the Court. Court. Article 26 - Evidence Article 22 - Exclusion 1. The Court shall hear submissions If a judge is a national of any State by all parties and if deemed neces­ which is a parly to a case submitted to sary, hold an enquiry. The States concerned shall assist by providing the Court, that judge shall not hear the relevant facilities for the efficient case. handling of the case.

Article 23 - Quorum 2. The Court may receive written and oral evidence including expert tes­ The Court shall examine cases timony and shall make its decision brought before it, if it has a quorum of on the basis of such evidence. at least seven Judges.

Article 27 - Findings A rticle 2 4 - Registry of the Court 1. If the Court finds that there has 1 The Court shall appoint its own been violation of a human or Registrar and other staff of the peoples’ right, it shall make appro­ registry7 from among nationals of priate orders to remedy the viola­ Member States of the OAU accor­ tion, including the payment of fair ding to the Rules of Procedure. compensation or reparation.

2. In cases of extreme gravity and 2. The office and residence of the urgency, and when necessary to Registrar shall be at the place avoid irreparable harm to persons, where the Court has its seat. the Court shall adopt such provi­ sional measures as it deems neces­ Article 25 - Seat of the Court sary.

1. The Court shall have its seat at the place determined by the Assembly Article 28 - Judgement from among States parties to this 1. The Court shall render its judge­ Protocol. However, it may convene ment within ninety (90) days of in the territory of any Member having completed its deliberations. State of the OAU when the majori­ ty of the Court considers it desi­ 2. The judgement of the Court deci­ rable, and with the prior consent of ded by majority shall be final and the State concerned. not subject to appeal. 3. Without prejudice to sub-article 2 by the Court and to guarantee its exe­ above, the Court may review its cution. decision in the light of new evidence under conditions to be set out in Article 31 - Report the Rules of Procedure. The Court shall submit to each 4. The Court may interpret its own regular session of the Assembly, a decision. report on its work during the previous year. The report shall specify, in parti­ 5. The judgement of the Court shall cular, the cases in which a State has be read in open court, due notice not complied with the Court s judge­ having been given to the parties. ment.

6. Reasons shall be given for the jud­ gement of the Court. Article 32 - Budget Expenses of the Court, emolu­ 7. If the judgement of the Court does ments and allowances for judges and not represent, in whole or in part, the budget of its registry, shall be the unanimous decision of the determined and borne by the OAU, in judges, any judge shall be entitled accordance with criteria laid down by to deliver a separate or dissenting the OAU in consultation with the opinion. Court.

Article 29 - Notification of Article 33 - Rules O f Procedure Judgement The Court shall draw up its Rules 1. The parties to the case shall be and determine its own procedures. notified of the judgement of the The Court shall consult the Court and it shall be transmitted to Commission as appropriate. the Member States of the OAU and the Commission. Article 54 - Ratification 2. The Council of Ministers shall also 1. This Protocol shall be open for be notified of the judgement and signature and ratification or acces­ shall monitor its execution on sion by any State Party to the behalf of the Assembly. Charter. 2. The instrument of ratification or Article 30 - Execution of Judgement accession to the present Protocol shall be deposited with the 1,1 The States parties to the present Secretary-General of the OAU. ftlllocol undertake to comply with the Judgement in any case to which they 3. The Protocol shall come into force •WB parties within the time stipulated thirty days after fifteen instruments of ratification or accession have shall transmit copies thereof to the been deposited. State parties.

4 . For any State Party ratifying or Article 35 - Amendments acceding subsequently, the present Protocol shall come into force in 1. The present Protocol may be respect of that State on the date of amended if a State Party to the the deposit of its instrument of rati­ Protocol makes a written request fication or accession. to that effect to the Secretary- General of the OAU. The 5. The Secretary-General of the OAU Assembly may adopt, by simple shall inform all Member States of majority, the draft amendment the entry into force of the present after all the States Parties to the Protocol. present Protocol have been duly informed of it and the Court has 6. At the time of the ratification of given its opinion on the amend­ this Protocol or any time thereafter, ment. the State shall make a declaration accepting the competence of the 2. The Court shall also be entitled to Court to receive cases under article propose such amendments to the 5 (3) of this Protocol. The Court present Protocol as it may deem shall not receive any petition under necessary, through the Secretary- article 5 (3) involving a State Party General of the OAU. which has not made such a declara­ tion. 3. The amendment shall come into force for each State Party which has 7. Declarations made under sub­ accepted it thirty days after the article (6) above shall be deposited Secretary-General of the OAU has with the Secretary General, who received notice of the acceptance. Harare Declaration o f Human Rightd

A p r il 1989

Between 19 and 22 April 1989 The participants were: there was convened in Harare, Chief Justice E. Dumbutshena, Zimbabwe, a high level judicial collo­ Zimbabwe (Convenor) quium on the Domestic Application of International Human Rights Norms. Justice A. Ademola, Nigeria The colloquium followed an earlier Chief Justice E. O. Ayoola, the meeting held in Bangalore, India, in Gam bia February 1988 at which the Bangalore Justice P. N. Bhagwati, India Principles were formulated. The ope­ rative parts of the Principles are an Chief Justice B. P. Cullinan, annexure to this Statement. Lesotho Justice A. R. Gubbay, Zimbabwe As with the Bangalore colloquium, Justice M. D. Kirby, CMG, the meeting in Harare was administe­ Australia red by the Commonwealth Secretariat on behalf of the Convenor, the Hon. Justice Rajsoomer Lailah, Mauritius Chief Justice E. Dumbutshena, Mr. Recorder Anthony Lester, QC, (Chief Justice of Zimbabwe) with the United Kingdom approval of the Government of Chief Justice E. Livesey Luke, Zimbabwe and with assistance from Botswana the Ford Foundation and INTER- IGHTS. Chief Justice F. L. Makuta, Malawi Chief Justice Cecil H. E. Miller, The colloquium was honoured by Kenya &£ attendance at the first session of Chief Ju stice F. L. Nyalali, Tanzania His Excellency the Hon. R. G. Mugabe, President of Zimbabwe, who Justice E. W. Sansole, Zimbabwe djpffcned the colloquium with a speech Chief Justice E. A. Seaton, IS'which he reaffirmed the commit­ Seychelles ment of his Government to respect for Chief Justice A. M. Silungwe, l&Enan rights, the independence of the Zam bia judiciary, the rule of law and a bill of which is justiciable in the Justice J. N. K. Taylor, Ghana Justice L. E. Unyolo, Malawi The participants examined a num- - enlargement, at an appropriate ber of papers which were presented time, of the machinery provided by for their consideration. These included the Charter for the consideration of papers which reviewed the develop­ complaints and the provision of ment of International Human Rights effective remedies in cases of viola­ Norms particularly in the years since tion. 1945; a paper which examined the domestic application of the African In I; particular the participants noted Charter on Human and Peoples’ t]that: Rights; a paper on personal liberty and reasons of State and a paper on - " the opening recital of the Charter ways in which judges, in domestic of the United Nations contains a jurisdiction, may properly take into ringing re-affirmation of ‘faith in account in their daily work the norms of fundamental human rights, in the human rights contained in internatio­ dignity and worth of the human nal instruments whether universal or person and in the equal rights of regional. men and women’;

The participants paid especially - ' the Charter of the Organisation of close attention to the provisions of the African Unity includes reference to African Charter on Human and “freedom, equality, justice and legi­ Peoples’ Rights. That Charter was timate aspirations of the African adopted as a regional treaty by the peoples”; Organisation of African Unity in 1981 and entered into force on 21 October - ' the Preamble to the African 1986. At the time of the Harare mee­ Charter of Human and Peoples’ ting, 35 African countries had ratified or Rights proclaims that fundamental acceded to the Charter. human rights stem from the attri­ butes of human beings and that this Various opinions were expressed justifies their international protec­ by the participants concerning ways of tion; strengthening the implementation of the Charter including: - ' the freedom movement in Africa has had as a central tenet the total - the interpretation of the provisions in liberation of Africa, the peoples of the light of the jurisprudence which are still struggling for their which has developed on similar dignity and genuine independence provisions in other international which dignity and independence and regional statements of human can only be realised fully if the rights; internationally recognised human rights norms Eire observed and fully - the clarification and strict interpre­ protected; tation of some of the provisions which are derogating from impor- - there is a close inter-linkage bet­ tant human rights; and ween civil and political rights and economic and social rights; neither legislation and principles of com­ category of human rights can be mon law and customary law of fully realised without the enjoy­ each country. They are also expres­ ment of the other. Indeed, as sed in customary international law, President Mugabe said at the ope­ international instruments on ning of the colloquium: “The denial human rights and in the developing of human rights and fundamental international jurisprudence on freedoms is not only an individual human rights. tragedy, but also creates conditions of social and political unrest, 2. The coming into force of the sowing seeds of violence and African Charter on Human and conflict within and between socie­ Peoples’ Rights is a step in the ever ties and nations.” widening effort of humanity to pro­ mote and protect fundamental The participants were encouraged in human rights declared both in uni­ their work by the declaration of versal and regional instruments. President Mugabe that the nations of The gross violations of human Africa, having freed themselves of rights and fundamental freedoms colonial rule and the derogations from which have occurred around the respect for human rights involved in world in living memory (and which such rule, have a particular duly to still occur) provide the impetus in a observe and respect the fundamental world of diminishing distances and human rights for which they have growing interdependence, for such sacrificed so much to win, including effort to provide effectively for the struggle against racial discrimina­ their promotion and protection. tion in all its aspects. The ultimate achievement of the freedom struggle 3. But fine statements in domestic in Africa will not be complete until the laws or international and regional attainment throughout the continent instruments are not enough. of proper respect for the human rights Rather it is essential to develop a of everyone as an example and inspi­ culture of respect for international­ ration to humankind everywhere. In ly stated human rights norms the words of Nelson Mandela, to which sees these norms applied in which President Mugabe drew atten­ the domestic laws of all nations and given full effect. They must not be tion, “Your freedom and mine cannot seen as alien to domestic law in be separated”. national courts. It is in this context that the Principles on the Domestic The participants agreed Application of International as follows: Human Rights Norms stated in Bangalore in February 1988 are 1. Fundamental human rights and warmly endorsed by the partici­ freedoms are inherent in human­ pants. In particular, they reaffir­ kind. In some cases, they are med that, subject always to any expressed in the constitutions, clearly applicable domestic law to the contrary, it is within the proper Protection of Human Rights) was nature of the judicial process for especially welcomed. But to facili­ national courts to have regard to tate the domestic application of international human rights norms - international human rights norms whether or not incorporated into more needed to be done. So much domestic law and whether or not a was recognised in the Principles countiy is party to a particular stated after the Bangalore convention where it is declaratory Colloquium which called for new of customary international law - for initiatives in legal education, provi­ the purpose of resolving ambiguity sion of material to libraries and bet­ or uncertainty in national constitu­ ter dissemination of information tions and legislation or filling gaps about developments in this field to in the common law. m e partici­ judges, lawyers and law enforce­ pants noted many recent examples ment officers in particular. There is in countries of the Commonwealth also a role for non-government where this had been done by courts of the highest authority - including in organisations in these as in other Australia, India, Mauritius, the regards, including the development United Kingdom and Zimbabwe. of public interest litigation.

A. There is a particular need to ensure 5. As a practical measure to carrying that judges, lawyers, litigants and forward the objectives of the others are made aware of appli­ Principles stated at Bangalore, the cable human rights norms - stated participants requested that the in international instruments and Legal Division of the otherwise. In this respect the parti­ Commonwealth Secretariat arran­ cipants endorsed the spirit of ge for a handbook for judges and Article 25 of the African Charter. lawyers in all parts of the Under that Article, States Parties Commonwealth to be produced, to the Charter have the duty to containing at least the following: promote and ensure through tea­ ching, education and publication, - the basic texts of the most rele­ respect for the rights and freedoms vant international and regional (and corresponding duties) expres­ human rights instruments; sed in the Charter. The participants looked forward to the Commission - a table for ease of reference to and established by the African Charter developing its work of promoting comparison of applicable provi­ an awareness of human rights. The sions in each instrument; and work being done in this regard by the publication of the - up to date references to the juris­ Commonwealth Law Bulletin, the Law prudence of international and Reports of the Commonwealth and the national courts relevant to the bulletin of INTERIGHTS (the meaning of the provisions in such International Centre for the Legal instruments. 6. If the judges and lawyers in Africa - dence of human rights. So far as and indeed of the Commonwealth they may lawfully do so, they have a and of the wider world - have duty to reflect the basic norms of ready access to reference material human rights in the performance of of this kind, opportunities will be their duties. enhanced for the principles of international human rights norms In this way the noble words of inter­ to be utilised in proper ways by national instruments will be translated judges and lawyers performing into legal reality for the benefit of the their daily work. In this way, the people we serve but also ultimately for long journey to universal respect of that of people in every land. basic human rights will be advan­ ced. Judges and lawyers have a H arare duty to familiarise themselves with Zimbabwe the growing international jurispru­ 22 April 1989 Harare Commonwealth Declaration

20 October 1991

1. The Heads of Government of the Those principles have stood the test of countries of the Commonwealth, mee­ time, and we reaffirm our full and ting in Harare, reaffirm their confi­ continuing commitment to them today. dence in the Commonwealth as a In particular, no less today than 20 voluntary association of sovereign years ago: independent States, each responsible for its own policies, consulting and - we believe that International peace cooperating in the interests of their and order, global economic deve­ peoples and in the promotion of inter­ lopment and the rule of international national understanding and world law are essential to the security and peace. prosperity of mankind;

2. Members of the Commonwealth - we believe in the liberty of the indi­ include people of many different races vidual under the law, in equal and origins, encompass every stage of rights for all citizens regardless of economic development and comprise a gender, race, colour, creed or politi­ rich variety of cultures, traditions and cal belief, and in the individual's institutions. inalienable right to participate by means of free and democratic politi­ 3. The special strength of the cal processes in framing the society Commonwealth lies in the combina­ in which he or she lives; tion of the diversity of Its members with their shared inheritance in lan­ - we recognise racial prejudice and guage, culture and the rule of law. The intolerance as a dangerous sickness Commonwealth way Is to seek and a threat to healthy develop­ consensus through consultation and ment and racial discrimination as the sharing or experience. It is unique­ an unmitigated evil; ly placed to serve as a model and as a catalyst for new forms of friendship - we oppose all forms of racial and cooperation to all in the spirit of oppression, and we are committed the Charter of the United Nations. to the principles of human dignity and equality; 4. Its members also share a commit- ifitent to certain fundamental prin- - we recognise the importance and CCples. There were set out in a urgency of economic and social Bfcelaration of Commonwealth development to satisfy the basic ftitMiples agreed by our predecessors at needs and aspirations of the vast their Meeting in Singapore in 1971. majority of the peoples of the world, and seek the progressive 8. Only sound and sustainable deve­ removal of the wide disparities in lopment can offer theses millions living standards amongst our mem­ the prospect of betterment. bers. Achieving this will require a flow of public and private resources 5. In Harare, our purpose has been from the developed to the develo­ to apply those principles in the ping world, and domestic and contemporary situation as the international regimes conducive to Commonwealth prepares to face the realisation of these goals. the challenges of the 1990s and Development facilitates the task of beyond. tackling a range of problems which affect the whole global community such as environmental degradation, 6. Internationally, the world is no lon­ the problems of migration and ger locked in the iron grip of the refugees, the fight against commu­ Cold War. Totalitarianism is giving nicable diseases, and drug produc­ way to democracy and justice in tion and trafficking. many parts of the world. Decolonisation is largely complete. 9. Having reaffirmed the principles to Significant changes are at last which the Commonwealth is under way in South Africa. These committed, and reviewed the pro­ changes, so desirable and hearte­ blems and challenges which the ning in themselves present the world, and the Commonwealth as world and the Commonwealth with part of it, face, we pledge the new tasks and challenges. Commonwealth and our countries to work with renewed vigour, 7. In the last twenty years, several concentrating especially in the fol­ Commonwealth countries have lowing areas: made significant progress in econo­ mic and social development. There is • the protection and promotion of increasing recognition that com­ the fundamental political values mitment to market principles and of the Commonwealth; openness to international trade and - democracy, democratic processes investment can promote economic and institutions which reflect progress and improve living stan­ national circumstances, the rule dards. Many Commonwealth of law and the independence of countries are poor and face acute the judiciary, just and honest problems, including excessive government; population growth, crushing poverty, debt burdens and environ­ - fundamental human rights, inclu­ mental degradation. More than ding equal rights and opportuni­ half our member States are particu­ ties for all citizens regardless of larly vulnerable because of their race, colour, reed or political very small societies. belief; • equality for women, so that they - the development of human may exercise their full and equal resources, in particular through rights; education, training, health, cultu­ re, sport and programmes for • provision of universal access to strengthening family and commu­ education for the population of nity support, paying special atten­ our countries; tion to the needs of women, youth and children; • continuing action to bring about the end of apartheid and the esta­ - effective and increasing pro­ blishment of a free, democratic, grammes of bilateral and multila­ non-racicJ and prosperous South teral operation aimed at raising Africa; living standards;

• the promotion of sustainable • extending the benefits of deve­ development and the alleviation lopment within a framework of respect for human rights; of poverty in the countries of the Commonwealth through: • the protection of the environment - a stable international economic through respect for the prin­ framework within which grow­ ciples of sustainable develop­ th can be achieved; ment which we enunciated at Langkawi; - sound economic management recognising the central role of • action to combat drug trafficking the market economy; and abuse and communicable diseases, - effective population policies and programmes; • help for small Commonwealth - sound management of technolo­ States in tackling their particular gical change; economic and security problems, - the freest possible flow of multi­ • support of the United Nations lateral trade on terms fair and and other international institu­ equitable to all, taking account tions in the world’s search for of the special requirements of peace, disarmament and effective developing countries; arms control; and in the promo­ tion of International consensus - an adequate flow of resources on major global political, econo­ from the developed to develo­ mic and social issues. ping countries, and action to alleviate the debt burdens of 10. To give weight and effectiveness to developing countries most in our commitments we intend to need; focus and improve Common-wealth 1

cooperation in these areas. This organisations to play their full part in would include strengthening the promoting these objectives in a spi­ capacity of the Commonwealth to rit of cooperation and mutual sup­ respond to requests from members port for assistance in entrenching the practices of democracy, accoun­ 13.In reaffirming the principles of the table administration and the rule of Commonwealth and In committing law. ourselves to pursue them in policy and action in response to the chal­ 11 .We call on all the intergovernmental lenges of the 1990s, in areas where institutions of the Commonwealth we believe that the Commonwealth to seize the opportunities presented has a distinctive contribution to by these challenges. We pledge offer, we the Heads of Government ourselves to assist them to develop express our determination to renew programmes which harness our and enhance the value and impor­ shared historical, professional, cul­ tance of the Commonwealth as an tural and linguistic heritage and institution which can and should which complement the work of strengthen and enrich the lives not other international and regional only of its own members and their organisations. peoples but also of the wider com­ munity of peoples of which they 12.We invite the Commonwealth are a part. Parliamentary Association and non-governmental Commonwealth 20 October 1991 Judicial Colloquium on the Domestic Application of International Human Rights Norms: Freedom of Expression and Non-Discrimination

Bloemfontein, South Africa

3-5 September 1993

The Bloemfontein Statement Commission of the European Communities, the Kagiso Trust, 1. Between 3-5 September 1993, a the Canadian Embassy Dialogue significant event took place in Fund and the British Council. Bloemfontein, South Africa, when for the first time senior judicial A. The participants reaffirmed the figures from around the general principles stated at the Commonwealth and the United conclusion of the Commonwealth States of America joined with judicial colloquium in Bangalore, South African judges and jurists in India in 1988, as developed by a judicial colloquium on the subsequent colloquia in Harare, domestic application of international Zimbabwe in 1989, in Banjul, The human rights norms. Gambia in 1990, in Abuja, Nigeria in 1991 and at Balliol College, 2. The colloquium, the sixth in a Oxford, England in 1992. series, was held in South Africa in response to the wishes of a broad g The participants welcome the section of South Africans, who ’ movement towards a non-racial wished to use the opportunity it democracy in South Africa devoid of presented to assist the transition process by furthering informed apartheid and discrimination, with discussion on the interpretation a constitution which guarantees and implementation of human the protection of fundamental rights provisions. human rights.

The colloquium was administered Participants were keenly aware ;■ by INTERIGHTS (the Interna- that their own meeting, attended u ■ tional Centre for the Legal as it was by a large preponderance j*' Protection of Human Rights) with of males, itself reflected a legacy of assistance from the Common­ discrimination against women wealth Secretariat and with financial over many generations and in ‘ ' support from the British Overseas many societies, and which needs A-j ‘'Development Administration, the urgent remedial action. 7. The participants believe that the affirmative action to diminish and provision of equal justice requires eliminate conditions which cause a competent and independent judi­ or perpetuate discrimination and ciary trained in the discipline of to ensure equal access to and the law and sensitive to the needs enjoyment of basic human rights and aspirations of all the people. and freedoms. Such affirmative They stressed their conviction that action must be appropriate and it is fundamental for a country’s necessary to achieve equality. judiciary to enjoy the broad confi­ Discrimination takes many forms dence of the people it serves; to the in all societies. It may be indirect extent possible, a judiciary should and unconscious as well as direct be broadbased and therefore not and deliberate. The principle of appear (rightly or wrongly) behol­ equal treatment forbids not only den to the interest of any particu­ intentional discrimination. It also lar section of society. They saw forbids practices and procedures this as being of special relevance in which have a disparate adverse cases involving complaints of dis­ impact upon particular groups and crimination in all their countries which have no objective justifica­ and so of being of the highest tion. It is essential to secure the eli­ importance in the context of the mination of indirect discrimination judiciary which will interpret and of this kind. enforce a new South African constitution with a justiciable Bill 11. In democratic societies funda­ of Rights. mental human rights and free­ doms are more than paper aspira­ 8. The Colloquium affirmed the tions. They form part o f the law. importance both of international And it is the special province of human rights instruments and judges to ensure that the law’s international and comparative case undertakings are realised in the law as essential points of reference daily life o f the people. In a society for the interpretation of national ruled by law, all public institu­ constitutions and legislation and tions and officials must act in the development of the common accordance with the law. The law. judges bear particular responsi­ bility for ensuring that all 9. The specific subject matter of the branches of government - the Bloemfontein Colloquium was the legislature and the executive, as effective protection through law of well as the judiciary itself conform the fundamental rights to equal to the legal principles of a free treatment without any discrimina­ society. Judicial review and tion and to freedom of expression. effective access to courts are indispensable, not only in normal 10. There was substantial consensus times, but also during periods of that the principle of equality public emergency threatening the requires public authorities to take life of the nation. It is at such times that fundamental human weakening the substance of the rights are most at risk and when rights and freedoms themselves, courts must be especially vigilant and only to the extent demonstra­ in their protection. bly necessary in an open and democratic society. 12. Where derogations from funda­ Bloemfontein mental human rights and freedoms are permissible they must be South Africa strictly construed so as to avoid 5 September 1993 The Windhoek, Declaration on Democratic Institutions and the Transition to Democracy in Africa

25 Augu*ft 1 9 9 3

[Excerpts] The military has, on many occasions, exceeded its true role and usurped African parliamentarians, it was reco­ that which is rightfully accorded to gnised, knew above all other col­ others. The role of the army is to protect leagues the world over the scourge of and defend the nation from external economic injustice, with resulting threat or danger; it is not to use the poverty and famine for the peoples power entrusted to it for internal and they represent. A precondition of sectional purposes. The internal use of democracy was the meeting of mini­ power by the army fosters political mum basic human needs. They appea­ instability. In those countries which led to all parliamentarians in develo­ have suffered thus, the army must ped countries to respond to the return to its traditional role as a neu­ economic plight of Africa and urge tral guardian of the body politic. their governments to advance fairer policies to finally conclude agreements on debt relief for African countries and support for increased financial flows. At the same time, they recognised Strategy that the goal of economic development cannot be used as a pretext for thwar­ The Special Task Force on Africa the­ ting or delaying the democratic aspira­ refore agreed upon a strategy to far­ tions of the people. ther the cause of democracy and eco­ nomic recovery in the region. The essential aim is to: Governing parties must resist any temptation to abuse the power and privileges of office for the purpose of • defend democracy in those coun­ political dominance or electoral tries which have attained it; advantage. Opposition parties must • regenerate the democratic process work within the bounds of proper in those countries which have suf­ political criticism and dignified parlia­ fered recent setbacks; mentary and public behaviour. Both • assist those countries in the early must avoid any manipulation of the stages of the transition process; electoral process and respect the out­ come of free and fair elections, publi­ • encourage those countries that cly pledging this in advance of the have not yet commenced the demo­ event. cratic transition, to do so. Political support Through Non-Member Assistance Twinning A sub-committee should be establi­ A sub-network of parliamentarians shed to investigate the possibility of should be established in countries of developing contacts with appropriate Africa and of the North to maintain persons in countries with no democra­ regular and frequent contact, such tic institutions and assisting them in that any parliamentarian member the commencement of the transition during a crisis in his or her country process, as resources would allow. may be in immediate contact with col­ leagues in other countries in and outsi­ de Africa. Monitoring Against Military Intervention Economic Recovery A sub-network should also be establi­ shed to monitor political developments The Task Force agreed to develop a closely in transitional countries, to political action plan to create a more ensure that new democracies suffer n enabling environment for African eco­ regression to military rule. The net­ nomies in terms of debt relief, open work would undertake appropriate markets in the industrialised coun­ action in response to any violations. tries, and increased capital flows to Africa. Conclusion Election Observation and The Task Force undertook to do eve­ Assistance rything within its resources to defend A sub-network of members, in Africa and promote democracy and economic and in the North, should be establi­ recovery within Africa through the shed for the purpose of election obser­ above means. vation in response to requests from African countries, whether such requests might come from govern­ ments, parliamentarian colleagues or Signed - The Global Action Task other sources. Force on Africa Conference in Support of • The development of citizenship and Democratic Opportunities in the democracy in the countries of the African Great Lakes Region region is a matter of concern for all their citizens; all the vital forces within their societies should there­ Objectives fore have the opportunity to parti­ cipate. The main objective of this Conference was to begin in-depth consideration of • In all three of these countries issues related to democracy on the women usually bear the heaviest basis of the experience of actors in burden caused by hostilities and authoritarian rule; special attention civil society. This is to be accompli­ should therefore be taken to ensure shed by identifying obstacles and that they participate democratically adopting a Plan of Action designed to in all aspects of society. strengthen democracy in Zaire, Burundi, and Rwanda by: • Any foreign involvement should support the initiatives taken by the • supporting the work of non­ democratic forces within these governmental organizations; countries, and should be designed and implemented in collaboration with said forces. • encouraging government to establi­ sh democratic processes; • Any local or international measures should include the concept of • helping to advise groups that wish human rights and be intended to to create conditions for genuine strengthen efforts on the local democracy in the region. level.

Highlights from the Plan of Action Guidelines for Analysis and Measures Defined in the Plan of Action For the entire Great Lakes region: • There is an intrinsic link between democracy and respect for human • The international community must rights, which must be considered assume a political role to settle this as priorities for any involvement in crisis, by ensuring that the United the region. Nations and the Organization of African Unity give on-going sup­ port to that process, notably by • Consensus building in the coun­ creating a “Group of friendly coun­ tries of the region must be based on tries.” adherence to an inclusive concep­ tion of citizenship; on that, without • Civil society must participate in the disregarding them, goes beyond debates towards finding a peaceful regional, ethnic, or other ties. solution. • All parties involved in the hostili­ • The Conference condemns the ties should agree to observe an coup d’Etat of July 1996. immediate cease-fire and to engage in negotiations aimed at achieving • The Government and all parties should observe a cease-fire and peace. start negotiations to find a peaceful solution leading to anew transitio­ • The international community nal accord. should declare a full arms embargo for the region. • The embargo on Burundi should be lifted. • The next session of the UN Commission of Human Rights • All parties should support the for­ should dedicate a full day's discus­ mer President of Tanzania, Julius sion to the situation in the region. Nyerere, in his attempt to move towards a peaceful solution.

For Zaire • Those in power should ensure that the judiciary is fair, independent, • The Government and the rebels and represents the ethnic make-up should declare an immediate cease­ of society. fire and begin a dialogue to find a • Those in power should provide for peaceful end to the conflict. the security and reintegration of displaced people. • All parties should respect the norms of international humanita­ rian law. F o r Rwanda:

• The Government should make a • The rights of all Rwandans, inclu­ commitment to hold elections ding the human rights of women, within a reasonable period of time. must be respected, notably their right to life and physical secu­ • The international community rity. should encourage the creation of a structure to monitor the democra­ • Local organizations should be tic process. assisted in monitoring the Government’s observance of its • The Government should promptly international commitments. begin to put the country’s economy back on its feet, particularly by • The Government should recognize curbing corruption. the right of all parties to participate in national political life and should begin a dialogue to reach national For Burundi: reconciliation. To ensure that national recon­ human rights NGOs by supporting ciliation takes place, the judiciary them with respect to the power should be fair; those accused of structures in their own countries. crimes should be entitled to proper and complete means of defence; • These NGOs should exert pressure and the victims of the genocide on the regimes presently in power should have access to legal and in the region to encourage them to rehabilitation assistance. find peaceful solutions to their conflicts and move toward demo­ Refugees who have come back to cracy. the country should be accompanied so that they can recover their • These NGOs should urge their belongings, and reintegrate into Governments to increase public society. development assistance for demo­ cratic institutions and organiza­ For the International tions in the Great Lakes region. Community:

It should strengthen the action of African development and Recent ICJ/CIJL Publications

Tibet : Human Rights and the Rule of Law

Published by the ICJ in English, 370pp. Geneva 1997, 25 Swiss francs (US$17.00) plus postage

The ICJ has recommended that China allow a United Nations supervised referendum in Tibet to determine the future of the region which it invaded in 1950 and occupied since. In this 370-page report, the ICJ describes the Tibetans as a “people under alien subjugation”, and entitled under interna­ tional law to the right of self determination. It is found that the autonomy which China claims Tibetans enjoy, is “fictitious”, as power is really, in effect, in Chinese hands. Chinese repression in Tibet has escalated since the beginning of 1996, together with the widespread use of torture and other forms of violence. Choekyi Nyima, the eight year old boy designated by the Dalai Lama as the reincarnation of the Panchen Lama, the second most important figure in Tibet’s Buddhist hierarchy, remains in detention. At the same time, Chinese leaders have begun a campaign against certain aspects of traditional Tibetan culture identified as both obstacles to development and links to Tibetan nationalism. China has sought to suppress Tibetan nationalist dissent and extinguish Tibetan culture by encouraging and faci­ litating the mass movement of ethnic Chinese population into Tibet, where they dominate the region’s politics, security as well as the economy. According to the report, Tibetans and other persons resident in Tibet befo­ re 1950 and their descendants, as well as Tibetan refugees and their des­ cendants should be eligible to vote in the referendum.

Economic7 Social and Cultural Rights - A Compilation of Essential Documents

Published by the ICJ in English, 103pp. Geneva 1997, 12 Swiss francs, plus postage

The purpose of this compilation of essential documents of economic, social and cultural rights, is to provide lawyers, inter-governmental organisations, non-governmental organisations, governments and academics with a ready reference tool when taclding problems in the field of economic, social and cultural rights. Reproduced in e x te n so in this compilation, is the International Covenant on Economic, Social and Cultural Rights - together with State reservations and dates of accession -, the current draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, the Limburg Principles on the implementation of the Covenant, the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, and the ICJ Bangalore Declaration and Plan of Action.