A HUMAN RIGHTS FRAMEWORK TOWARDS THE PROTECTION OF MINORITY LANGUAGES AND LINGUISTIC MINORITIES IN AFRICA: CASE STUDIES OF SOUTH AFRICA AND ZIMBABWE BY INNOCENT MAJA A THESIS SUBMITTED IN FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE DOCTOR LEGUM (LLD) PREPARED UNDER THE SUPERVISION OF PROFESSOR MICHELO HANSUNGULE AT THE CENTRE FOR HUMAN RIGHTS, FACULTY OF LAW, UNIVERSITY OF PRETORIA OCTOBER 2016 DECLARATIONS I, the undersigned INNOCENT MAJA, do hereby solemnly state that this work is presented in its original state and has not been submitted to any other institution of learning for consideration in fulfilment of an academic requirement. While I acknowledge that some of the views used herein were taken from writings of other scholars, the sources have been fully acknowledged. Signature of student: ____________________________________ Signature of supervisor: _________________________________ Date of signature: ______________________________________ i DEDICATION To my wife Florence and daughters Eliora and Netania And to all marginalised and discriminated speakers of minority languages in Africa The God of justice will surely vindicate your struggle for substantive equality in the fullness of time. ii ACKNOWLEDGMENT The LLD journey has been for me a long one. A myriad of special people significantly assisted me in the process. My colossal gratitude goes to my supervisor, Professor Michelo Hansungule, for his expert guidance throughout the (re)writing of this thesis. He always encouraged me even when I sometimes lost some steam. He patiently encouraged me throughout the process of coming up with this version of the thesis. I was always assured of thorough comments on my work within the shortest period of time of submission of my drafts. I have indeed grown as a scholar and as a person through your polishing. I salute you, sir and may God richly bless you. Professor Frans Viljoen deserves a special mention for his encouragement and guidance throughout this journey. You kept the rays of hope alive even when all hope seemed lost. You were very meticulous in detail looking at the content, the gramma and the style. Words fail me. May God supply all your needs according to His riches in glory. I wish to thank the Centre for Human Rights for giving me an opportunity to embark on this journey and supporting me throughout the whole process. Only God can repay you for your assistance. My adorable wife Florence and wonderful daughters Eliora and Netania deserve special mention for sacrificing their filial comfort by allowing daddy to undertake this research. You always supported and encourage me never to give up but to keep working on the thesis against all odds. I don’t know what I could have done without you. Above all, I thank the Most High God – the quintessential fountain of my limited wisdom – for enabling me to successfully walk through this journey. iii ABSTRACT This thesis examines and defends the use of a human rights framework for the protection of minority languages and linguistic minorities in Africa as an effective means to eliminate discrimination against linguistic minorities, protect minority languages, preserve linguistic minority identity and foster substantive equality between linguistic majorities and linguistic minorities. The argument that runs throughout the thesis is that in order to effectively integrate linguistic minorities, while allowing them to preserve their linguistic identity, the human rights framework should have two pillars with two clusters of rights. The first pillar consists of individual human rights of special relevance to linguistic minorities that ensure that linguistic minorities are placed on a substantially equal footing with other nationals of the state. Key rights are the rights to equality and non-discrimination on the basis of language. Other individual rights include freedom of expression, the right to culture, the right to participation, the right to a name, the right to family, the right to fair trial and the right to education. The second pillar consists of minority- specific standards (rights and measures) designed to protect and promote the separate identity of minority language groups. These include prevention of assimilation, the right to identity and the right to use a minority language in the public and private spheres. This study argues that even though the international, regional and national human rights standards are general and often qualified and have some gaps and deficiencies, they provide a human rights framework for the protection of minority languages and linguistic minorities in Africa. The study recommends two approaches to assist in clarifying the normative content of minority language rights in Africa. On the one hand, there is the progressive interpretation approach, which does not introduce new standards for the protection of minority languages and linguistic minorities in Africa but allows the African Commission on Human and Peoples’ Rights and African Court on Human and Peoples Rights to use articles 60 and 61 of the ACHPR to draw inspiration from the UN, European, Inter-American and national human rights systems to imply or infer minority language rights from the rights to equality and non-discrimination on the basis of language, right to identity, freedom of expression, right to culture, right to work, right to education, right to the protection of the family, the right of every child to a name and the right to a fair trial in the African Charter on Human and Peoples’ Rights. On the other hand, there is the standard setting approach which entails the drafting of a specific treaty setting new standards iv for the protection of minority languages and linguistic minorities. To this end, the thesis suggests and provides a draft framing for a Protocol to the African Charter on Human and Peoples’ Rights on Minority Language Rights in Africa. v ABBREVIATIONS ACHPR African Charter on Human and Peoples’ Rights ACRWC African Charter on the Rights and Welfare of the Child AHRLJ African Human Rights Law Journal AU African Union CAT Convention Against Torture, Inhuman or Degrading Treatment or Punishment CMW Convention on the Rights of Migrant Workers and Members of their Families CRC Convention on the Rights of the Child DRC Democratic Republic of Congo ECHR European Court on Human Rights HRC Human Rights Committee IACHR Inter-American Commission on Human Rights CCPR International Covenant on Civil and Political Rights CESCR International Covenant on Economic, Social and Cultural Rights ILO International Labour Organisation LSZ Law Society of Zimbabwe vi MDC Movement for Democratic Change NCA National Constitutional Assembly OAS Organization of American States OAU Organisation of Africa Unity OSCE Organisation for Security and Co-operation in Europe PANSALB Pan South African Language Board SA South Africa SERAC Social and Economic Rights Action Centre UANC United African National Council Universal Declaration Universal Declaration of Human Rights UN United Nations UNHRC United Nations Human Rights Committee UNESCO United Nations Educational, Scientific and Cultural Organisation WGIP Working Group on Indigenous Populations ZANU PF Zimbabwe African National Union Patriotic Front ZAPU Zimbabwe African Peoples Union ZIM Zimbabwe vii TABLE OF CASES African Commission on Human and Peoples’ Rights Amnesty International & Ors v Sudan (2000) AHRLR 297 (ACHPR 1999) Amnesty International v Zambia (2000) AHRLR 325 (ACHPR 1999) Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007) Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACHPR 1995) Constitutional Rights Project & Anor v Nigeria (2000) AHRLR 191 (ACHPR 1998) Gunme and others v Cameroon (2009) AHRLR 9 (ACHPR 2009) Katangese Peoples’ Congress v Zaire (2000) AHRLR 72 (ACHPR 1995) Legal Resources Foundation v Zambia (2001) AHRLR 84 (ACHPR 2001) Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000) Media Rights Agenda and others v Nigeria (2000) AHRLR 200 (ACHPR 1998) Communication 379/09 Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan (ACHPR 2014) 14 March 2014 Organisation Mondiale Contre la Torture and others v Rwanda (2000) AHRLR 282 (ACHPR 1996) Prince v South Africa (2004) AHRLR 105 (ACHPR 2004) Purohit & Another v The Gambia (2003) AHRLR 96 (ACHPR 2003) viii Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) Sudan Human Rights Organisation and another v Sudan (2009) AHRLR 153 (ACHPR 2009) Union Interafricaine des Droits de l’Homme & Others v Angola (2000) AHRLR 18 (ACHPR 1997) Zimbabwe Lawyers for Human Rights and Another v Zimbabwe (2008) AHRLR 120 (ACHPR 2008) Botswana Attorney General Botswana v Dow (1998) HRLRA 1/ (2001) AHRLR 99 (BwCA 1992) Canada Ford v Quebec (Attoney-General) [1988] 2 S.C.R. 712 Mahe v Alberta 1 SCR 342 (1990). Societe des Acadiens du Nouveau-Brunswick v Association of Parents for Fairness in Education (1986) 1 S.C.R.549 Canada European Court of Human Rights and European Commisison of Human Rights Airey v Ireland ECHR (9 October 1979) Ser A 16 Bideault v France [1986] ECHR 232 Birk-Levy v France ECHR (6 October 2010) Burghartz v. Switzerland (1994) EHRR 101 ix Campbell v UK, ECHR (25 March 1992), Series A 233 Case “relating to certain aspects of the laws on the use of languages in education in Belgium” ECHR (23 July 1968) Ser A 10 Chassagnou v France (1999) EHRR 112 Christine Godwin v UK No. (2002) EHRR Clerfayt, Legros and others v Belgium [1986]