Africa’s Human Rights Architecture First published in 2008 by Fanele – an imprint of Jacana Media (Pty) Ltd Jacana Media (Pty) Ltd 10 Orange Street Sunnyside Auckland Park 2092 South Africa (+27 11) 628-3200 www.jacana.co.za © Centre for Confl ict Resolution, 2008 All rights reserved. ISBN 978-1-920196-07-3 Cover image by Kult Creative, Cape Town, South Africa Set in Sabon 10/12pt Printed by CTP Book Publishers, Cape Town Job No. 000665 See a complete list of Jacana titles at www.jacana.co.za Africa’s Human Rights Architecture Edited by John Akokpari and Daniel Shea Zimbler Contents Contributors . vii Foreword . xi Acknowledgements . xiv Terms, Acronyms and Abbreviations . xvi INTRODUCTION: Human Rights Actors and Institutions in Africa John Akokpari . 1 PART ONE: CONCEPTUAL ISSUES AND AFRICA’S HUMAN RIGHTS FRAMEWORK Chapter 1: The Conundrum of Development and Human Rights in Africa Paul Tiyambe Zeleza . .24 Chapter 2: Humanitarian Intervention and the Responsibility to Protect in Africa Jeremy Sarkin . .45 Chapter 3: Human Rights and Human Security in Post-9/11 Africa John Akokpari . 68 Chapter 4: Aluta Continua: The Struggle for Human Rights and Democratic Governance in Africa Siphamandla Zondi . .89 Chapter 5: Women’s Rights as Human Rights in Africa Yaliwe Clarke . 104 PART TWO: NATIONAL INSTITUTIONS, CIVIL SOCIETY ACTORS AND HUMAN RIGHTS Chapter 6: Between the Insidious and the Sanitised: National Human Rights Institutions and Human Rights Language in Africa Daniel Shea Zimbler . 120 Chapter 7: National Human Rights Institutions and the Promotion of Democracy and Development in Africa Cameron Jacobs . 149 Chapter 8: Civil Society and the Promotion of Human Rights in Africa Nobuntu Mbelle . 163 PART THREE: CONTINENTAL AND SUB-REGIONAL HUMAN RIGHTS INSTITUTIONS Chapter 9: The African Commission and Court under the African Human Rights System Muna Ndulo . 182 Chapter 10: The African Commission on Human and Peoples’ Rights Mireille Affa’a Mindzie . 204 Chapter 11: African Sub-regional Human Rights Courts: the ECOWAS Court of Justice, the SADC Tribunal and the EAC Court of Justice in Comparative Perspective Abdul Rahman Lamin . 233 PART FOUR: EXTERNAL ACTORS AND HUMAN RIGHTS IN AFRICA Chapter 12: The United Nations and Human Rights in Africa James OC Jonah . 246 Chapter 13: The United States ‘Global War On Terror’, Human Rights, and The Responsibility to Protect in Africa Mwesiga Baregu . 262 CONCLUSION: Africa: Towards an Effective Human Rights Architecture? Daniel Shea Zimbler . 284 Contributors Mireille Affa’a Mindzie holds a Doctorate in International Law from the University of Strasbourg, France. She is currently a Senior Project Offi cer at the Centre for Confl ict Resolution (CCR) in Cape Town, South Africa. She works on the Human Rights and Confl ict Management Project and specialises in the African Union’s human rights frameworks and in children’s rights. Before joining CCR, she worked as a Legal Offi cer for the Gambia-based Institute for Human Rights and Development in Africa where she coordinated the organisation’s Child Rights Project. She was also involved in capacity building, research and publications, as well as legal advocacy and litigation before the African Commission on Human and Peoples’ Rights. John Akokpari holds a Doctorate from Dalhousie University, Nova Scotia, Canada. He has taught and researched in Dalhousie University, St. Mary’s University (both in Canada), the University of Lesotho and is currently Senior Lecturer in the Department of Political Studies at the University of Cape Town, South Africa. He was a Visiting Research Fellow at the Japan External Trade organisation’s Institute of Developing Economies between January and June 2007. Dr. Akokpari has published widely on a variety of topics on African politics, including civil society, democratisation, development, foreign policy, globalisation, international migration and confl icts management. Mwesigu Baregu is Professor of Political Science and International Relations at the University of Dar-es-Salaam, Tanzania. Until early 2003 he headed the Peace and Security Research Program at SAPES Trust in vii Africa’s Human Rights Architecture Harare, Zimbabwe. He is a member of the Executive Council of the International Peace Research Association (IPRA) and the Africa Peace Research and Education Association (AFPREA). Professor Baregu is editor of Preventive Diplomacy and Peacebuilding in Southern Africa; The Confl ict Matrix and Research Agenda; and co-editor of From Cape to Congo: Southern Africa’s Evolving Security Challenges. Yaliwe Clarke is Lecturer at the African Gender Institute at the University of Cape Town, South Africa. She was previously a Senior Project Offi cer in the Confl ict Intervention and Peacebuilding Support (CIPS) project at the Centre for Confl ict Resolution, Cape Town, South Africa. Before joining CCR, she worked as a Network Coordinator at the Southern African Confl ict Prevention Network (SACPN), was a Programme Coordinator of the Zambia Civic Education Association (ZCEA), and has extensive training experience in gender and peacebuilding. She has also worked as a part-time lecturer at the Mindolo Ecumenical Foundation Peace Centre in Kitwe, Zambia. Cameron Jacobs is a Senior Researcher in the Economic and Social Rights (ESR) Unit at the South African Human Rights Commission (Commission). He holds a Sociology Honours as well as an MPhil degree in Public Policy from the University of Cape Town, South Africa, and has a background in law. He is currently working towards a book publication on land tenure reform in South Africa. His research interests include land tenure reform, culture and identity, and human rights. James OC Jonah is former UN Undersecretary-General for Political Affairs and holds a Doctorate from the Massachusetts Institute of Technology in Boston, United States. He is currently a Senior Fellow at the Ralph Bunche Institute for International Studies at the City University of New York (CUNY) Graduate Center. In 2001, Dr. Jonah won a Carnegie Scholar Grant to prepare his memoirs. Prior to this, he served his country, Sierra Leone, as Minister of Finance, Development and Economic Planning, and as Permanent Representative of Sierra Leone to the United Nations. Abdul Rahman Lamin is a Senior Lecturer in the Department of International Relations at the University of the Witwatersrand in Johannesburg, South Africa. Dr Lamin has published widely on West African confl ict and governance issues. He has also published monographs on the confl ict in Cote d’Ivoire and the politics of reconciliation in West Africa’s Mano Basin. viii Contributors Nobuntu Mbelle is a consultant for the African Division of Human Rights Watch and acts as the Coordinator for the African Coalition for an Effective African Court on Human and Peoples’ Rights (ACC). The Coalition advocates for an effective, effi cient, independent and credible African Court and consists of civil society organisations and African national human rights institutions. In her capacity as coordinator, she manages a network of organisations throughout Africa and consults at the African Union and with state representatives at the AU in Addis Ababa, Ethiopia. Muna Ndulo is Professor of Law at Cornell Law School and Director of the Institute for African Development at Cornell University in the United States. Prior to this, he taught at the University of Zambia Law School, where he served as Dean of the School of Law; Director of the Law Practice Institute; and Chair of the Law Development Commission. In 1986 he joined the United Nations and served as Legal Offi cer in the secretariat of the United Nations Commission on International Trade in Vienna, Austria (UNCITRAL). He has also served as Chief Political Advisor to the United Nations Observer Mission in South Africa, 1992-1994 (UNOMSA); Legal Adviser to the United Nations Mission in East Timor, 1999 (UNAMET); Legal Adviser to the United Nations Mission in Kosovo, 2000 (UNAMIK); and Legal Expert to the United Nations Mission in Afghanistan, 2003 (UNAMA). He serves on the Advisory Committee of Human Rights Watch’s (HRW) Africa Committee. Jeremy Sarkin is a Professor of Law at the University of the Western Cape in Cape Town, South Africa, and Visiting Professor of International Human Rights at the Fletcher School of Law and Diplomacy at Tufts University in the United States. In March 2008, he was appointed by the United Nations Human Rights Council as Special Rapporteur for Enforced or Involuntary Disappearances. He has been admitted to practise as an attorney in the United States and South Africa. His present areas of research, falling broadly within the constitutional and human rights fi elds, include: the role and functioning of national human rights institutions; transitional justice; reparations for historical human rights violations; human rights culture; and the role of the courts. He has worked on constitutional and transitional issues in various countries including Rwanda, the Democratic Republic of the Congo (DRC), Sierra Leone, Ethiopia, Angola, Namibia and Burma. ix Africa’s Human Rights Architecture Paul Tiyambe Zeleza is an historian, literary critic, novelist and short- story writer. He has authored scores of articles and essays and more than twenty books. He is the Liberal Arts and Sciences Distinguished Professor and Head, Department of African American Studies at the University of Illinois at Chicago. He is also Honorary Professor at the University of Cape Town and Adjunct Professor of History and African American Studies at the Pennsylvania State University. Most recently he taught at the Pennsylvania State University, and was Professor of History and African Studies and Director of the Center for African Studies at the University of Illinois at Urbana-Champaign. Prior to that he was Professor and college principal at Trent University in Canada, and he has also taught at universities in the Caribbean, Kenya and Malawi. Daniel Shea Zimbler is a researcher at the Centre for Confl ict Resolution, Cape Town, South Africa. He received his MPhil in International Relations at the University of Cambridge, England.