Human Rights in Africa Legal Perspectives on their Protection and Promotion Edited by Anton Bösl and Joseph Diescho 2009 This publication would not have been possible without the generous financial support of the Konrad Adenauer Foundation. Please note that the views expressed herein are not necessarily those of the Konrad Adenauer Foundation. Konrad Adenauer Foundation P.O. Box 1145 Windhoek [email protected] www.kas.de/namibia © Konrad-Adenauer-Stiftung and the Authors 2009 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. Cover design: Anton Bösl and John Meinert Printing Cover image “Mother Earth” by Helen Lieros from Gallery Delta, Harare, Zimbabwe Content editors: Anton Bösl and Joseph Diescho Language editor and layout: Sandie Fitchat Publication design: Anton Bösl, Joseph Diescho & Christian Roschmann Printing: John Meinert Printing (Pty) Ltd Publisher Macmillan Education Namibia PO Box 22830 Windhoek Namibia Tel. (+264 61) 232165 ISBN 978-99916-0-915-7 Foreword Foreword Freedom, justice and peace in the world are founded on the recognition of the inherent dignity of all members of the human family, and of their equal and inalienable rights This pronouncement in the Preamble of the 1948 Universal Declaration of Human Rights means that human rights serve to protect and promote the dignity of human beings worldwide Human rights can be seen as a legal codification of the concept of human dignity. Despite different regional perceptions and arguments relating to cultural relativism, the concept of human rights and their universality are generally accepted, although these always have to be seen in their specific contexts. Human rights as a legal concept and codification of human dignity was late to arrive in Africa Its evolution on this continent is to be seen against the background of the dynamic development of human rights within the United Nations system and that of international law, although the impetus of this evolution is owed to the struggles within African states in the colonial and post-independence eras The role of the Organisation of African Unity (OAU) and its successor, the African Union (AU), must also be acknowledged here Since the OAU’s inception in 1963, several organisations, instruments and mechanisms have come to the fore, aiming at promoting and protecting human rights in Africa The adoption of the African Charter on Human and Peoples’ Rights in 1981 is considered a milestone in this regard, as are the establishment of the African Commission on Human and Peoples’ Rights and the associated African Court of Human and Peoples’ Rights In addition, regional economic communities have set up their own organisations and instruments aiming at promoting human rights in their respective regions These regional and continental provisions should not blur the fact that any state in the world is considered a prime agent in promoting and protecting human rights: the benchmark of any civilised society is taken as its state´s commitment to protect the dignity of its citizens Despite the consensus in, amongst other forums, academic literature that African human rights systems are weak and ineffective, the fact that a protection and promotion system is in place needs to be acknowledged However, such systems have to be filled with life and blood, with serious commitment and professional efficiency. v Foreword A publication on human rights in Africa will, therefore, enhance the understanding of this crucial paradigm, its system and its legal perspectives The various articles presented here attempt to expose and analyse Africa’s numerous achievements and challenges in this regard May this publication nobly serve the purpose of deepening the understanding of human rights, strengthening the rule of law, and protecting and promoting the dignity of the people of Africa Desmond Mpilo Tutu Archbishop Emeritus of Cape Town South Africa vi Introduction Introduction Anton Bösl and Joseph Diescho To protect the inviolability of human dignity worldwide is the ultimate objective of the concept of human rights. Human rights are considered and officially accepted as universal – regardless of their genesis or cultural manifestation History and experience show, however, that respect for the dignity and rights of human beings cannot be taken for granted: they must be constantly nurtured and vigorously guarded It is against this background that this publication evolved Its contents stem from the conviction that, amongst several means, legal instruments and institutions can contribute to the advancement of human rights Human rights as a legal concept arrived in Africa relatively late The United Nations (UN) System, international law and the African Union have certainly all contributed to the establishment of a human rights system in Africa, which has positively and indispensably impacted on the advancement of human rights and of justice Yet some of the promises made about such rights being guaranteed under global, continental, regional and national legal instruments have remained unfulfilled. Therefore, this publication on human rights on the continent tries to capture the current status of the African human rights protection system and the various legal instruments, institutions and mechanisms at its disposal It summarises, from a legal perspective, the achievements gained and challenges faced when it comes to respecting human rights in Africa SECTION I, entitled “The paradigm of human rights and its relevance for Africa”, is discussed from a general perspective In his article, “Human rights between universalism and cultural relativism?”, Manfred Hinz pleads for the need for anthropological jurisprudence in the globalising world Despite the universality of human rights and their principles, different cultural norms place universal human rights in relation to their cultural context, hence leading to ‘soft’ universalism or ‘soft’ relativism This concept is elaborated on in the article from a jurisprudential perspective informed by anthropology vii Introduction The article by Charles Villa-Vicencio entitled “Transitional justice and human rights in Africa” discusses the dichotomy of traditional African mechanisms of reconciliation and Western notions of conflict resolution. It identifies the limitations of prosecutorial justice as witnessed in the dominant transitional justice debate, and ponders the origins and parameters of the transitional justice debate in Africa In his article, “Human rights education in Africa”, Nico Horn argues for the importance and necessity of human rights education in implementing and advancing human rights effectively in Africa He refers especially to the UN declaration of a Decade of Human Rights Education (1995–2004), to which African states gave scant attention This Decade was followed by another declared by the UN, namely the World Programme for Human Rights Education (2005–ongoing) Horn proposes that human rights institutions, treaty bodies and civil society need to collaborate more effectively in human rights education in Africa SECTION II is dedicated to the theme “The international justice system and human rights in Africa” In his article entitled “The United Nations and the advancement of human rights in Africa”, Wilfred Nderitu focuses on the issue of poverty as a violation of human rights, elaborates on definitions of poverty in various international human rights documents, and describes various UN efforts in this regard as human-rights-related regimes or initiatives Synergies between and among different international institutions and actors in the fight against poverty are debated, and the responsibility of the State in alleviating poverty is considered from a juristic perspective The article by Francois-Xavier Bangamwabo, entitled “International criminal justice and the protection of human rights in Africa”, examines the current prosecution of international crimes perpetrated in Africa Judicial institutions are explored, like the ad-hoc UN International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the International Criminal Court (ICC) Bangamwabo looks at the creation, mandate, legality and jurisdiction of these bodies and their relevance for the protection of human rights in Africa He describes the dilemma that, on the one hand, these international judicial institutions have provoked criticism over their potential (political) impact, their pursuit of ‘abstract justice’ and – with regard to the ICC – the perceived viii Introduction prioritisation of Africa On the other hand, these international institutions often complement weak and/or unwilling domestic legal institutions in Africa In SECTION III, entitled “The African Union and the regional protection of human rights”, the article “The African Union: Concepts and implementation mechanisms relating to human rights” by Bience Gawanas explains the different human rights premises of the Organisation of African Unity (OAU), which was preoccupied with human rights as a right to self-determination and independence in the context of the struggle for the decolonisation of Africa, and that of the African Union (AU), which – in contrast to the OAU – made human rights an explicit part of its mandate and officially