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The human and peoples' rights and armed conflicts in Africa 1989

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THE HUMAN AND PEOPLES1 RIGHTS AND ARMED CONFLICTS IN AFRICA By MOSES KAJOBA LLB, Makerere University, Uganda, 1985 Dip. Legal Practice, Uganda, 1986 A THESIS SUBMITTED IN PARTIAL FULFILLMENT THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA February 1989 © M o s e s Kajoba, 1989 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada Date Ffefegoam 14* ' DE-6 (2/88) A B S T R A C T Armed c o n f l i c t and the s y s t e m a t i c v i o l a t i o n o f human r i g h t s have been c h a r a c t e r i s t i c s o f l i f e i n much of A f r i c a . The i n t e r r e l a t i o n s h i p between these two phenomenon i s ex p l o r e d ; armed c o n f l i c t i s both the r e s u l t o f the d e n i a l of such human r i g h t s as the r i g h t o f p o l i t i c a l p a r t i c i p a t i o n , and a cause of f u r t h e r d e n i a l o f human r i g h t s both by S t a t e s and by armed g u e r r i l l a movements. The cases o f E t h i o p i a , Sudan and Uganda are d i s c u s s e d i n d e t a i l . In the f i r s t two cases the d e n i a l o f the r i g h t t o autonomy and s e l f - d e t e r m i n a t i o n have c l e a r l y been major f a c t o r s i n the armed c o n f l i c t and i n the f u r t h e r d e n i a l o f human r i g h t s . The c l e a r e s t f a i l u r e i n Uganda has been the con t i n u e d f a i l u r e o f regimes t o ensure reasonable p o l i t i c a l p a r t i c i p a t i o n o f the people i n government. In t h e l i g h t o f the s i t u a t i o n , the adequacy of the A f r i c a n C h a r t e r o f Human and Peoples' R i g h t s , the A f r i c a n Commission on Human and Peoples' R i g h t s , and the machinery a v a i l a b l e through the U n i t e d Nations and e x i s t i n g Non- Governmental O r g a n i z a t i o n s i s examined. The A f r i c a n system, i n comparison t o the human r i g h t s systems i n Europe or the Americas, i s e x c e s s i v e l y dominated by S t a t e p o l i t i c a l l e a d e r s , l e a d i n g t o doubts whether the new A f r i c a n Commission on Human R i g h t s w i l l be a b l e t o be e f f e c t i v e . F or v a r i o u s reasons, the U n i t e d N a tions organs have not addressed the human r i g h t s s i t u a t i o n i n much of i i i b l a c k A f r i c a , c o n c e n t r a t i n g c o n c e r n o n S o u t h e r n A f r i c a a n d A p a r t h e i d . The s t u d y c o n c l u d e s t h a t t h e A f r i c a n human r i g h t s m a c h i n e r y s h o u l d b e a l t e r e d t o make t h e C o m m i s s i o n more i n d e p e n d e n t a n d t o a d d a c o u r t o r a n a r b i t r a t i o n t r i b u n a l . I t i s a l s o n e c e s s a r y t o d e v e l o p i n d i g e n o u s N o n - G o v e r n m e n t a l O r g a n i z a t i o n s c o n c e r n e d w i t h human r i g h t s i n A f r i c a . F o r e i g n S t a t e s c o u l d c o n d i t i o n t h e i r f o r e i g n a i d o n S t a t e r e s p e c t f o r human r i g h t s , a n d s h o u l d a v o i d armed s u p p o r t f o r p a r t i c u l a r f a c t i o n s , a s h a s o c c u r e d i n E t h i o p i a , A n g o l a a n d M o z a m b i q u e . B u t h u m a n i t a r i a n i n t e r v e n t i o n i n g e n u i n e c a s e s o f g r o s s human r i g h t s a b u s e s s h o u l d b e p r o v i d e f o r , a s w i t h t h e T a n z a n i a n e n t r y i n t o U g a n d a i n 1 9 7 9 . i v T A B L E O F C O N T E N T S ABSTRACT i i LIST OF TABLES v i i i ACKNOWLEDGEMENT i x INTRODUCTION Scope of Study 1 Objective of Study 12 Divisions of Study 15 Footnotes 17 PART ONE: AFRICAN ARMED CONFLICTS AND HUMAN RIGHTS 1. GENERAL OVERVIEW OF ARMED CONFLICTS IN AFRICA 21 Footnotes 32 2. HUMAN RIGHTS AND ARMED CONFLICTS IN SELECTED COUNTRIES 36 Ethiopia 3 6 Sudan 53 Uganda 64 Footnotes ., 80 V PART TWO: INTERNATIONAL PROTECTION OF HUMAN RIGHTS 3. UNITED NATIONS AND HUMAN RIGHTS. 96 Individuals and Groups under International Law.. 96 Role of the United Nations 101 The United Nations Charter, 1945 105 The International B i l l of Human Rights 107 Footnotes I l l 4. THE UNITED NATIONS MACHINERY FOR ENFORCEMENT OF HUMAN RIGHTS 116 The General Assembly 116 The Economic and Soc i a l Council 118 Other United Nations Organs 122 Role of Human Rights Non-governmental Organizations 123 Footnotes 13 0 PART THREE: AFRICA AND HUMAN RIGHTS 5. AFRICAN CONCEPTIONS OF HUMAN RIGHTS 134 Tr a d i t i o n a l Views. 134 Afr i c a n Values and Cultural Relativism. 136 Footnotes 144 v i 6. PRIORITIES AMONG HUMAN RIGHTS 146 International Categorization of Human Rights 14 6 A f r i c a n P r i o r i z a t i o n of Rights 149 One Party States and Human Rights i n A f r i c a 159 Footnotes 165 PART FOUR: THE ORGANIZATION OF AFRICAN UNITY AND HUMAN RIGHTS 7. THE OAU DOUBLE STANDARDS APPROACH TO HUMAN RIGHTS 170 Footnotes 176 8. THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 179 Rights and Duties i n the Af r i c a n Charter 179 Why Duties and Peoples' Rights i n the Charter... 183 Meaning of "Peoples" i n the Charter 186 Commission on Human Rights 191 Footnotes 193 v i i 9. THE AFRICAN MACHINERY FOR ENFORCEMENT OF HUMAN RIGHTS 197 The Human and Peoples' Rights Commission 197 Comparison of the Afr i c a n Machinery with other Regional Systems 203 Comparison with UN Human Rights Committee 213 Assessment of the Af r i c a n Human Rights Enforcement Machinery 218 Footnotes 220 CONCLUSION 2 24 BIBLIOGRAPHY 236 Books and Texts 236 A r t i c l e s , 240 Newspapers and Magazines 244 APPENDIX 250 v i i i L I S T O F T A B L E S Table I: Summary of the four Human Rights Regimes 217 i x ACKNOWLEDGEMENT Many people have contributed, either d i r e c t l y or i n d i r e c t l y , to the success of t h i s work. I am very grea t f u l to a l l of them. I t i s ju s t not possible to acknowledge each of them i n d i v i d u a l l y . My deepest thanks go to my Professors i n the Faculty of Law. In p a r t i c u l a r , I am very grea t f u l to the head of the Law Graduate program, Marilyn MacCrimmon, and to my two supervisors, Douglas E. Sanders and William B. Black. Without t h e i r constant supervision, encouragement and academic support, t h i s thesis would never have been what i t i s . My classmate and friend, Alexander Black, (now Lecturer University of Glasgow, Scotland), was very much h e l p f u l . His e f f o r t s i n introducing me to the computer have enabled me to put t h i s work i n i t s current form. I am very much indebted to the Law Foundation of B r i t i s h Columbia, and to Makerere University and the Ford Foundation. In the absence of t h e i r f i n a n c i a l assistence, my masters studies and t h i s work would never have been undertaken. 1 I N T R O D U C T I O N SCOPE OF STUDY. A f r i c a i s marked by a prevalence of various armed c o n f l i c t s and g u e r r i l l a wars. This paper i s an attempt to i d e n t i f y the s a l i e n t l e g a l issues involved i n these insurgencies as they r e l a t e to human ri g h t s and fundamental freedoms, and vic e versa. Human rig h t s v i o l a t i o n s of one sort or another have led, or otherwise contributed, to the commencement of various g u e r r i l l a wars on the continent. Conversely, these g u e r r i l l a wars and the government responses thereto have led to, and continue to e l i c i t further v i o l a t i o n s of human r i g h t s . Consequently, t h i s study s h a l l focus on both the human ri g h t s abuses and armed c o n f l i c t s , i n p a r t i c u l a r g u e r r i l l a wars, because the two are in t e r r e l a t e d and a f f e c t one another. V i o l a t i o n of human ri g h t s , and the various armed c o n f l i c t s , have become a common feature of the Afr i c a n continent p a r t i c u l a r l y i n the seventies and eig h t i e s . Most of A f r i c a i s deeply involved i n t h i s quagmire. While the degree of resistance i s not uniform and i s manifested more in some countries than i n others, a majority of the governments i n black A f r i c a appear to be r e s i s t e d by g u e r r i l l a movements. 2 In l i g h t of the above, one scholar has c o r r e c t l y observed that the vast continent of A f r i c a i s f u l l of trouble; there e x i s t s "oppression, poverty, starvation, drought, disease and p o l i t i c a l unrest". 1 S i m i l a r l y , i t has been noted that: There have Ibeen large-scale breaches (of human rights) i n a number of countries since independence was achieved. M i l i t a r y intervention i n p o l i t i c s and i t s dubious legitimacy has had a d e s t a b i l i s i n g e f f e c t i n many countries. I t has also resulted i n the watering down of co n s t i t u t i o n a l guarantees. Armed c o n f l i c t s , often based on ethnic differences, (have) encouraged large-scale desecration of human ri g h t s e i t h e r by government agents or by ethnic chauvinists whom t h e i r governments could not contro l . The root causes for t h i s state of a f f a i r s may be found i n the continent's h i s t o r i c a l , p o l i t i c a l , and c u l t u r a l background. A f r i c a ' s a r b i t r a r y p a r t i t i o n during the c o l o n i a l period and on the eve of independence 3 f a i l e d to take into account t r i b a l , ethnic, communal, c u l t u r a l , r e l i g i o u s , ' p o l i t i c a l ' and other A f r i c a n i n t e r e s t s . 4 Thus various t r i b e s with almost nothing i n common save for a c o l o n i a l master were brought together into single countries while other t r i b e s were divided up and put into two or more countries. In many cases, t h i s h i s t o r i c a l , p o l i t i c a l , and c u l t u r a l background has played a large part i n the v i o l a t i o n s of human r i g h t s on the continent. This i s not to mean that human ri g h t s can only be respected i n c u l t u r a l l y homogeneous states. In any case, there are very few c u l t u r a l l y homogeneous states i n the world. 5 3 Nevertheless, i n the case of A f r i c a t r a d i t i o n a l l y h o s t i l e t r i b e s which had been kept separate i n d i f f e r e n t administrative units, and which had not learned to to l e r a t e one another, were for the f i r s t time put together within the same boundaries and under the same administration, which almost immediately revived or sparked o f f old t r i b a l r i v a l r i e s . These boundaries have been maintained by the Afr i c a n governments upon attainment of independence despite t h e i r a r b i t r a r i n e s s allegedly for the purpose of maintaining s t a b i l i t y , as well as being enforced by international law. 6 Thus i n the recent f r o n t i e r dispute between Burkina Faso and M a l i , 7 the International Court of J u s t i c e held that the p r i n c i p l e of u t i possidetis j u r i s , and i t s exceptional importance f o r the Af r i c a n continent could not be disregarded. I t was stated that: [although the] p r i n c i p l e appeared to c o n f l i c t with the r i g h t of peoples to self-determination....the maintenance of t e r r i t o r i a l status quo i n A f r i c a was often seen as the wisest course. The es s e n t i a l requirement of s t a b i l i t y i n order to survive and develop had induced A f r i c a n states to consent to the maintenance of c o l o n i a l f r o n t i e r s . This p a r t i t i o n , together with the seemingly deliberate p o l i c y of the c o l o n i a l masters, p a r t i c u l a r l y but not li m i t e d to the B r i t i s h , to keep the peoples separated from one another within t h e i r t r a d i t i o n a l u n i t s , 9 helped to maintain and perpetuate t r i b a l i s m , e t h n i c i t y , and regionalism i n A f r i c a . 1 0 We must however not be interpreted as saying that t h i s p o l i c y had no advantages at a l l ; i n the short run 4 i t helped to stop i n t e r - t r i b a l wars, each country gained a common language and common administration, and a national and dependent economy was created. Notwithstanding these exigencies, the p o l i c y helped perpetuate t r i b a l differences by co-opting t r a d i t i o n a l leadership i n support of the c o l o n i a l master and preventing i n t e r - t r i b a l a l l i a n c e s . This was achieved through encouraging each t r i b e to continue looking to i t s e l f as a complete unit or en t i t y and not the whole country, and people had l i t t l e meaningful communication with t h e i r neighbouring t r i b e s . This negated the advantages of the po l i c y and meant serious repercussions f o r A f r i c a . The rather 'premature' granting of independence to the t e r r i t o r i e s earmarked by these a r b i t r a r y boundaries aggravated an already bad s i t u a t i o n - i t was a l l too sudden because A f r i c a n involvement i n p o l i t i c s had been completely discouraged; and true to the de facto p o l i c y of divide and rule, no attempts had been made to unite the various heterogeneous t r i b e s and communities l i v i n g i n each of the t e r r i t o r i e s . Thus i t has been noted that: decolonization did not necessarily follow the path prescribed by the General Assembly i n i t s resolution of 1952; People were r a r e l y consulted and the Af r i c a n states followed the a r b i t r a r y boundaries of the colonizers. ...In the haste to bring freedom and Independence to the c o l o n i a l peoples, a grave and l a s t i n g i n j u s t i c e was done to m i l l i o n s the world over not only outside the c o l o n i a l sphere, but also within the c o l o n i a l sphere i t s e l f . 1 Unequal d i s t r i b u t i o n of the meagre resources within these t e r r i t o r i e s i s another factor helping to make an 5 already bad s i t u a t i o n worse because t r i b a l i s m and s c a r c i t y of resources have led to nepotism and favouritism to the detriment of peoples, t r i b e s and regions not i n power. This i s made worse by corruption which i s rampant on the continent, as well as by the involvement of the m i l i t a r y i n p o l i t i c s . I t i s these (and perhaps other factors) which have combined to create discontent and opposition among the neglected and oppressed peoples, t r i b e s and regions. A f r i c a n leaders and p o l i t i c i a n s , who are sometimes referred to as 'professional' heads of state or ' l i f e ' p r e s i d e n t s , 1 2 have responded to t h i s discontent by resorting to b r u t a l and ruthless methods, e s p e c i a l l y using the p o l i c e and m i l i t a r y organs, so as to destroy a l l opponents and crush a l l opposition and thereby stay i n power without s a t i s f y i n g the interests of the discontented peoples, t r i b e s and regions. Blatant human ri g h t s v i o l a t i o n s are a t r a g i c r e s u l t of these measures, hallmarked by such abuses as p o l i t i c a l k i l l i n g s , a r b i t r a r y arrests, torture and imprisonment. Denial of the r i g h t to p o l i t i c a l self-determination, which takes various fcrms such as rigging of elections or not holding them at a l l , i s the order of the day. In many countries some regions are economically neglected, while i n others t r i b a l and ethnic s o c i a l and c u l t u r a l values, including r e l i g i o n and language, are being suppressed. As a counter to t h i s oppression and v i o l a t i o n of human righ t s , g u e r r i l l a movements have developed among the 6 oppressed and deprived peoples so as defeat t h i s " i n t e r n a l c o l o n i a l i s m " 1 3 and assert the r i g h t to so-called " i n t e r n a l s e l f - d e t e r m i n a t i o n " . 1 4 This denotes such r i g h t s as p o l i t i c a l p a r t i c i p a t i o n and freedom from oppression of disadvantaged ethnic, r a c i a l , and r e l i g i o u s communities by the central government. 1 5 G u e r r i l l a movements i n A f r i c a today may be not i o n a l l y divided into four categories e s p e c i a l l y i f they are c l a s s i f i e d i n terms of t h e i r goals. F i r s t are those l i b e r a t i o n movements struggling for self-determination (independence). Examples of such movements include the struggles i n Western Sahara and Namibia, and the b a t t l e against apartheid i n South A f r i c a . The secessionist movement i n E r i t r e a may also f i t i n t h i s category. A few of these are recognized i n that capacity by the United Nations (U.N.) and the Organization of A f r i c a n Unity (O.A.U.). The second category are those seeking democratic p a r t i c i p a t i o n , arid opposing tyranny and oppression, whether of a t r i b e , region, or the majority people i n a country, by the r u l i n g classes. This i s also termed " i n t e r n a l s e l f - determination" . Good examples of t h i s category are the movements which have taken place i n Uganda, and the underground movements i n Kenya and Zaire. The t h i r d category comprises those movements, seeking regional autonomy. Save for autonomy, the aims of these movements and those i n the second category are s i m i l a r ; they 7 are a l l seeking democratic p a r t i c i p a t i o n , and opposing tyranny and oppression. I t i s only the means through which t h i s i s to be achieved which d i f f e r . Examples of t h i s category are the SPLA i n Sudan, and the Tigrean movement i n Ethiopia. There are a few other movements which do not f i t i n either category and should therefore be grouped into t h e i r own category. These are the i r r e d e n t i s t movements seeking to bring together people of the same ethnic background but who are found i n d i f f e r e n t countries as a r e s u l t of the p a r t i t i o n of A f r i c a by the c o l o n i a l i s t s . The Somali movements i n Eastern Ethiopia and northern Kenya, and the "Casamancaous Maquisards" i n Senegal f a l l i n t h i s category. Many of the g u e r r i l l a wars on the continent have also come to be influenced by regional and global p o l i t i c s e i t h e r d i r e c t l y or i n d i r e c t l y through t h i r d p a r t i e s . Super power r i v a l r y has played a big part i n the horn of A f r i c a and i n southern A f r i c a . Regional p o l i t i c s i s to be seen i n North A f r i c a , as well as i n Central A f r i c a and some parts of Southern A f r i c a . To a large extent these g u e r r i l l a movements have resulted from the various human ri g h t s abuses and the former tends to lead to further v i o l a t i o n s of human r i g h t s . This happens not only on the side of the government which i s attempting to crush the movements, but also on the side of the g u e r r i l l a s themselves which makes the whole s i t u a t i o n a vic i o u s c i r c l e . Many people are tortured, i l l e g a l l y 8 detained, raped, or k i l l e d while many areas are s o c i a l l y and economically destroyed. This i s not to mention the creation of i n t e r n a l and external r e f u g e e s , 1 6 as well as s o c i a l , economic, and p o l i t i c a l i n s t a b i l i t y . Designing measures for solving and avoiding these blatant human righ t s abuses i s the problem facing a l l Afr i c a n human righ t s scholars and well wishers since the governments which could have done so from the domestic l e v e l are themselves deeply involved i n the rampant abuses. The attempts so f a r made do not seem to be very successful. The U.N. established a human r i g h t s machinery comprising the U.N. Commission on Human Rights and i t s a f f i l i a t e organs. I t has been argued that i n spi t e of a l l "the o r i g i n a l intentions of se t t i n g up an enforcement machinery", t h i s mechanism has understandably turned out to be more of a 1 standard-sett i n g 1 body rather than an implementation machinery. 1 7 However, whether or not t h i s was the o r i g i n a l intention i s highly debatable. I t could be argued that the United Nations only set out to set human rig h t s standards and not an enforcement machinery e s p e c i a l l y since i t i s very hard to enforce international law. Whatever the o r i g i n a l intentions, the fac t i s that the machinery i s a "standard-setting" mechanism. Worse s t i l l , the majority of Afr i c a n human ri g h t s abuses are exempted from c r i t i c i s m . This i s possibly because the U.N. i s influenced by p o l i t i c a l factors. The States attacked at the U.N. are the great powers or those within t h e i r hegemony. 9 Thus c r i t i c i s m w i l l be made a g a i n s t c o u n t r i e s l i k e U n i t e d S t a t e s , USSR, C h i l e , Guatemala, A f g h a n i s t a n and Cambodia, and not a g a i n s t the A f r i c a n and A s i a n c o u n t r i e s . The m a j o r i t y o f the A f r i c a n and A s i a n c o u n t r i e s are c u r r e n t l y not S t a t e s where t h e r e i s i n t e n s e p o l i t i c a l c o m p e t i t i o n between the g r e a t powers. They are exempted because the g r e a t powers, p a r t i c u l a r l y U n i t e d S t a t e s and USSR, and t o some exte n t China, have hopes o f i n c r e a s i n g t h e i r i n f l u e n c e i n the r e g i o n . Other hindra n c e s i n c l u d e UN fundi n g and s t a f f i n g problems, and t h e f a c t t h a t the machinery i s q u i t e slow. Moreover, the i n t e r p r e t a t i o n g i v e n t o the term " s e l f - d e t e r m i n a t i o n 11 by the U.N. i s r e s t r i c t e d t o the s t r u g g l e a g a i n s t a p a r t h e i d and c o l o n i a l i s m a l l geared towards the attainment o f independence. Worse s t i l l , t he m a j o r i t y v o i c e i n the U.N. happens t o i n c l u d e the v e r y p e r p e t r a t o r s o f these human r i g h t s abuses who, more o f t e n than not, h i d e under A r t i c l e 2 ( 7 ) of the U.N. C h a r t e r - t h e non- i n t e r f e r e n c e i n the domestic a f f a i r s o f member s t a t e s . T h i s i s c l e a r l y m a n i f e s t e d i n the s o - c a l l e d "Try OAU f i r s t " p r i n c i p l e . However, i t must be p o i n t e d out t h a t by m a j o r i t y v o t e we mean numbers and not vet o powers and oth e r d e t e r m i n i n g f a c t o r s . Where v e t o powers and o t h e r d e t e r m i n i n g f a c t o r s come i n t o p l a y , the s o - c a l l e d ' m a j o r i t y v o i c e ' o f the t h i r d world may not be of much use. Ne v e r t h e l e s s , one p o i n t we must not o v e r l o o k i s the f a c t t h a t governments say they are committed t o the 10 observance and respect of human ri g h t s . Likewise, human rig h t s have become a part of international values upon which int e r n a t i o n a l a i d many times depends. Moreover, r h e t o r i c can sometimes lead to actual changes. Better s t i l l , although states may avoid blaming themselves or one another f o r human rig h t s abuses, they cannot perpetually hinder p o s i t i v e developments i n the human ri g h t s d i r e c t i o n . The O.A.U.'s attitude toward these human ri g h t s abuses has been a dichotomous one - i t has always c r i t i c i z e d abuses i n South A f r i c a and perhaps Namibia which i s occupied by South A f r i c a , but not the abuses i n independent Af r i c a n countries. ° However, i n 1981 the Af r i c a n member states adopted an Af r i c a n Charter on Human and Peoples' Rights which l a t e r came into force i n October, 1986. This Charter establishes an Af r i c a n human ri g h t s enforcement machinery, constituted during the 1987 Assembly of Heads of State and Government Meeting. 1 9 A f r i c a ' s problem however remains since t h i s machinery i s pegged upon the O.A.U. wherein s i t s the very perpetrators of these human right s abuses. Worse s t i l l , the p r i n c i p l e of "non-interference i n the int e r n a l or domestic a f f a i r s of member states" i s very much a l i v e and kicking i n the O.A.U. more than anywhere else; the int e r p r e t a t i o n given to the ri g h t to self-determination i s the same as i n the U.N.; and the general view of the O.A.U. member states seems to be that a l l other human ri g h t s should be s a c r i f i c e d f or the attainment of "economic r i g h t s and development". 11 The other bodies which have been instrumental i n the human ri g h t s f i e l d are the international human ri g h t s non- governmental organizations (N.G.O.s). These have played a very important r o l e i n promoting human r i g h t s p a r t i c u l a r l y through carrying out investigations and compiling data about human r i g h t s abuses, as well as p u b l i c i z i n g such abuses. They also help to disseminate ideas about human right s e s p e c i a l l y through organizing seminars and conferences for the promotion of human r i g h t s . Better s t i l l , they have played a very important, though perhaps sometimes i n d i r e c t , r o l e i n the d r a f t i n g and signing of the various human ri g h t s instruments. 2 0 Nevertheless, t h e i r work depends upon the a v a i l a b i l i t y of finances; also, there i s an imbalance i n the geographical d i s t r i b u t i o n of these human right s N.G.O.s21 - f a r les s work has been done i n A f r i c a than i n Lat i n America or some countries i n the developed world. Worse s t i l l , a large section of those human ri g h t s N.G.O.s which operate i n A f r i c a tend (perhaps understandably) to concentrate t h e i r work i n South A f r i c a leaving much of the human ri g h t s abuses in the res t of A f r i c a uncatered f o r . 2 2 However, t h i s trend i s l i k e l y to change with the formation of a new " A f r i c a Watch" as part of "Asia Watch, Americas Watch, and Hel s i n k i Watch". The A f r i c a Watch intends to promote human ri g h t s i n other A f r i c a n countries where l i t t l e work i s being done, having r e a l i z e d that i n t e r n a t i o n a l focus on South A f r i c a alone has serious 12 consequences for human ri g h t s i n A f r i c a . This i s because i t tends to ignore or leave underreported South A f r i c a ' s d e s t a b i l i z a t i o n p o l i c i e s i n the region of Southern A f r i c a , as well as other human ri g h t s abuses i n the r e s t of A f r i c a . 2 3 This may f a c i l i t a t e the resolution of A f r i c a ' s quagmire. Of course we are not overlooking the very valuable work done i n A f r i c a by such organizations as Amnesty International, the International Commission of J u r i s t s , the Minority Rights Group, the International Committee of the Red Cross, and recently, that of Survival International which has began expanding i t s concern to black A f r i c a . 2 4 I t i s j u s t that the magnitude of the problem requiring N.G.O.s attention i n A f r i c a i s so big that i t makes the work already done seem almost i n s i g n i f i c a n t . Therefore, the need to devise ways and means of preventing these armed c o n f l i c t s and human ri g h t s abuses seems to be axiomatic. I f the end r e s u l t of t h i s study i s to provide these remedies, our motive for undertaking t h i s study s h a l l be accomplished with maximum s a t i s f a c t i o n . OBJECTIVE OF STUDY. Our stand i n t h i s work i s that armed c o n f l i c t s or g u e r r i l l a wars and human ri g h t s abuses i n A f r i c a are i n t e r r e l a t e d ; human ri g h t s v i o l a t i o n s lead, or otherwise contribute, to the commencement of g u e r r i l l a wars and v i c e 13 versa. I f human right s abuses can be stopped or otherwise reduced, less and less g u e r r i l l a movements, i f at a l l , w i l l take place on the" continent. We believe that better respect and protection of human rig h t s , e s p e c i a l l y through a better human ri g h t s enforcement machinery, w i l l help solve or otherwise reduce A f r i c a ' s quagmire. The object of t h i s work, therefore, i s to analyze the causes, scope and nature of human ri g h t s abuses i n A f r i c a i n l i g h t of the p r e v a i l i n g armed c o n f l i c t s , as well as the in t e r r e l a t i o n s h i p between the two. We s h a l l also examine whether or not the e x i s t i n g human ri g h t s law both at the inter n a t i o n a l and Af r i c a n l e v e l s , i s well equipped to contain or otherwise solve these abuses and the resultant armed c o n f l i c t s , and i f not, what measures could help improve t h i s s i t u a t i o n . Thus, i n addition to examining the human r i g h t s abuses and a few armed c o n f l i c t s on the continent, we s h a l l s p e c i f i c a l l y look at U.N. and O.A.U. made laws i n respect to human r i g h t s . It; w i l l be pointed out that the U.N. and Afr i c a n human ri g h t s enforcement machineries are not f u l l y equipped to solve the human ri g h t s abuses i n A f r i c a . I t w i l l further be argued that there i s no 'African' conception of human r i g h t s as such; human ri g h t s are u n i v e r s a l . 2 5 The alleged 'African' conception of human ri g h t s upon which many Af r i c a n scholars and p o l i t i c i a n s base t h e i r theory of p r i o r i z a t i o n of ri g h t s - that i s , economic and development r i g h t s taking p r i o r i t y over c i v i l and p o l i t i c a l 14 rig h t s - i s a pretext used for purposes of maintaining the e l i t e and p o l i t i c i a n s perpetually i n power at the expense of everybody else. This has i n fact cost A f r i c a dearly not only i n terms of l i v e s but also of property, money and development. My conclusions are based upon a systematic analysis of the facts and circumstances p r e v a i l i n g i n A f r i c a as contained i n text books, a r t i c l e s , journals, newspapers, magazines, and other information sources, or within the knowledge of the writer. I w i l l also take into account the relevant e x i s t i n g law and that which i s s t i l l i n i t s formative stages and draw my conclusions based on that analysis. Inevitably the study s h a l l take into account some •weak' c u l t u r a l r e l a t i v i s m i n l i g h t of the various cultures i n A f r i c a which are to a greater extent heterogeneous despite the alleged existence of an 'African culture'. This i s i n s p i t e of our contention that human r i g h t s are universal and not c u l t u r a l r e l a t i v e as s u c h . 2 6 Personal views w i l l also be expressed where necessary and j u s t i f i c a t i o n s f or such views made, though none of these s h a l l adversely influence the general flow of the analysis and the conclusions reached. 15 DIVISIONS OF THE STUDY. This study s h a l l comprise nine chapters, and a Conclusion, as well as t h i s Introduction. However, for convenience the nine chapters s h a l l be grouped into FOUR parts as follows: Part One - Afr i c a n Armed C o n f l i c t s and Human Rights - s h a l l introduce the problem at hand, namely the various armed c o n f l i c t s on the Af r i c a n continent which to a large extent have arisen from or otherwise been fueled by various human r i g h t s abuses. Part Two - International Protection of Human Rights i n A f r i c a - s h a l l endeavour to show the l e v e l at which human rig h t s are protected within the int e r n a t i o n a l system as well as the r o l e played i n t h i s by non-governmental human righ t s organizations. We s h a l l also attempt to show the extent to which the international system can go i n protecting human rig h t s i n A f r i c a , and therefore avoiding g u e r r i l l a wars. Part Three - A f r i c a and Human Rights - s h a l l introduce various concepts used i n A f r i c a i n reference to human righ t s as well the manner i n which A f r i c a has so f a r treated human rig h t s and the alleged j u s t i f i c a t i o n s f o r such treatment. Part Four - The Organization of A f r i c a n Unity and Human Rights - s h a l l deal with the past, present as well as the intended OAU approach to human righ t s i n A f r i c a . I t s h a l l also concern i t s e l f with the Human Rights enforcement machinery established by the OAU, and whether t h i s machinery i s well equipped to contain the various human r i g h t s abuses 16 on the continent and thereby avoid g u e r r i l l a movements and wars. In t h i s regard a comparison with the European and America Human Rights regimes, as well as with the U.N. Committee on Human Rights, s h a l l be made for the purpose of judging the e f f i c a c y of the Af r i c a n regime. Part One s h a l l be preceded by the Introduction while Part Four s h a l l be followed by the Conclusion. The Afr i c a n Human Rights Charter, 1981, s h a l l form the Appendix of t h i s work. 17 FOOTNOTES Emmanuel Bello, Human ri g h t s ; The rule of law i n A f r i c a 30 I n t ' l and comp. L. Q. (July, 1981) 628, 629. Umozurike U.O, The present state of human ri g h t s i n A f r i c a , i n Ginther and Benedek (eds) New perspectives and conceptions of International Law. An Afro-European Dialogue. 1983, 112-130 at 114. See Yilma Makonnen, International law and the New States of A f r i c a . 1983 esp. 9, 439, 441, and 456-457. Ibid. The i d e a l conditions for respect of human ri g h t s , which of course do not e x i s t any where i n the world, are a "free" and stable society which i s also c l o s e l y k n i t through culture, language and r e l i g i o n . Umozurike U.O, i n : Ginther and Benedek (eds) New Perspectives and Conceptions of International Law. An Afro-European Dialogue, supra, at 114, seems to suggest that A f r i c a abuses human ri g h t s due to the non-existence of these conditions. Nevertheless, many countries i n the world which comprise c u l t u r a l l y p l u r a l s o c i e t i e s have quite good records for respect of human ri g h t s while many others which are more or les s homogeneous s o c i e t i e s have r e l a t i v e l y bad human ri g h t s records. See the O.A.U. Charter, a r t i c l e 111(3) on sovereign equality and t e r r i t o r i a l i n t e g r i t y ; and O.A.U. Resolution on boundaries which declared that " a l l member states pledge themselves to respect f r o n t i e r s e x i s t i n g on t h e i r achievement of National Independence" [AMG/RES.16(1) of 17-21 July, 1964]. See also Yilma Makonnen, supra, 459-462; and Ian Brownlie, A f r i c a n Boundaries. A Legal and Diplomatic Enyclopaedia, London, 1979, 9-12. Of course, any attempts at a l t e r i n g these boundaries at the time of independence would have le d to the collapse of these already f r a g i l e states, and a l t e r a t i o n a f t e r several decades would create problems because c e r t a i n lands have come to be i d e n t i f i e d as belonging to p a r t i c u l a r countries i n spi t e of the differences. Decision of 22 December,1986. See Frontier Dispute (Burkina Faso/Mali) Commonwealth Law B u l l e t i n , Vol.13 (No 1 January, 1987) 208-211. Ibid 209. Some Af r i c a n Scholars have termed t h i s "the divide and rule p o l i c y " . However, i t should be noted that although i t turned out to be so i n fact, t h i s was never a stated 18 p o l i c y . I t was used as a means of carrying on with the already e x i s t i n g p o l i t i c a l and s o c i a l i n s t i t u t i o n s for purposes of expediency. Nayar K.G.M, Sel f determination beyond the c o l o n i a l context: B i a f r a i n retrospect 10 Texas I n t ' l . L.J. (1975) 321, 324. He suggests that t r i b a l i s m i s the scourge of A f r i c a but that A f r i c a ' s t r i b a l problems have been i n t e n s i f i e d by the borders i t inherited from i t s c o l o n i a l masters. Moses Moskowitz, The Roots and Reaches of United Nations Actions and Decisions. S i j l h o f f and Noordhoff, Netherlands, 1980, 32-33. This pattern i s not r e s t r i c t e d to A f r i c a . I t i s a 3rd world pattern which was only recently occurring i n Europe i n such countries as Spain and Greece, and i s now on a decline i n Latin America. I t can also be seen i n Asia. I t could therefore be argued that t h i s phenomenon arises form the weakness of the state structure. A l t e r n a t i v e l y , i t could be argued that the t r a d i t i o n a l ideas of l i f e t i m e r u l e r s , common everywhere i n the world, had not been displaced by the ideas of i n s t i t u t i o n a l i z e d p o l i t i c a l competition hence the phenomenon of absolute leadership. However, i t would also that the reliance placed upon the m i l i t a r y by the various leaders plays a rather important r o l e i n t h i s . Sornarajah M, Internal colonialism and Humanitarian intervention 11 Ga. J . I n t ' l and comp. L. 45-77 (Winter 1981) esp 46. Cassesse, P o l i t i c a l self-determination - old concepts and new Developments, i n Cassesse, ed, U.N, law/Fundamental Rights (1979) at 137. Ibid. See, f o r example, Peter Woodward, P o l i t i c a l factors contributing to the refugees i n the horn of A f r i c a , I n t ' l r e l a t i o n s IX No2 (Nov.1987), 111-121; and Ugboaja Ohaegbulom F, Human ri g h t s and the refugee s i t u a t i o n i n A f r i c a , i n Shepherd and Nanda, Human r i g h t s and Third world development, Connecticut, 1985, 197-230 esp 200. Jack Donnelly, Recent trends i n U.N, human righ t s a c t i v i t y : Description and Polemic 35 I n t ' l Organization 635, 653 (1981). 19 See, among others, Monica N. H a l l , The Curious Blind Spot of the O.A.U.. 9 Human Rights 32 (Summer 1981); and A. Glenn Mower, J r , Human Rights i n Black A f r i c a : A Double Standard? 9 Human Rights J . (Jan.-March 1976) 39-70. See Richard N. Kiwanuka, The Meaning of "People" i n the Af r i c a n Charter on Human and Peoples' Rights, 82 American J . I n t ' l Law, 100-101 (1988); and Roger Chongwe, Af r i c a n Charter on Human and Peoples' Rights. Commonwealth Law B u l l e t i n , October, 1987, 1605. See, among others, Virgnia Leary, A new r o l e for non- governmental organization i n human r i g h t s : A case study of non-governmental p a r t i c i p a t i o n i n the development of inter n a t i o n a l norms on torture, i n Cassesse A. U.N. Law ... et a l , supra, 197-210 Blaser A.W,, Human ri g h t s i n the t h i r d world and the development 1 of international non-governmental organizations, i n Shepherd and Nanda, Human r i g h t s and t h i r d world development, supra, 274-276. H. M. Soble, Human right s N.G.O.s i n black A f r i c a : Their problems and prospects i n the wake of the Banjul charter, i n Human ri g h t s and development i n A f r i c a (Welch and Meltzer, ed, 1984) 177-203; H. Thoolen and B.Verstappen, Human ri g h t s missions. A study of f a c t - finding practices of N.G.O.s. 1986; and David Weissbrodt, The contribution of inte r n a t i o n a l N.G.O.s to the protection of human ri g h t s , i n T. Meron, ed, Human ri g h t s i n international law. 1984, 403. Human Rights Watch Number 2, May-June 1988, 9, AN AGENDA FOR AFRICA WATCH. Human Rights Watch Begins F e a s i b i l i t y Study. Survival International, A f r i c a : Unnatural Disasters, August 1988. For a supportive view see Donnelly Jack, Cultural r e l a t i v i s m and Universal human ri g h t s 6 H. R. Q.400-419 (Nov.1984) esp 401. 26 Ibid. 20 P A R T O N E A f r i c a n Armed C o n f l i c t s and Human Rights 21 C H A P T E R O N E GENERAL OVERVIEW OF ARMED CONFLICTS IN AFRICA A majority of the Af r i c a n countries are involved i n armed c o n f l i c t s of one sort or another. Across the length and breadth of t h i s vast continent, there i s oppression, poverty, starvation, drought, disease, and p o l i t i c a l u nrest. 1 These c o n f l i c t s are not l i m i t e d to the horn and southern A f r i c a but extend to central and eastern A f r i c a , and i n some cases to the west and north of A f r i c a . However, the magnitude of these c o n f l i c t s varies - i n some cases the movements are s t i l l underground. In t h i s chapter, we s h a l l deal with a few of these c o n f l i c t s , although i n a cursory manner, so as to i l l u s t r a t e the extent of the problem. The war i n Western Sahara i s among the most notable c o n f l i c t s i n A f r i c a . Fighting has gone on between the P o l i s a r i o g u e r r i l l a s and the Moroccans ever since the withdrawal of the Spanish i n 1975. The root cause of t h i s c o n f l i c t i s the denial of the Saharaoui people's r i g h t to self-determination and independence. Even before the withdrawal of the Spanish r u l e r s , the issue of Western Sahara was always considered by the United Nations and the OAU as a decolonization problem - one where people were seeking self-determination and independence through the regular decolonization process. 2 22 In t o t a l disregard of United Nations resolutions and the advisory opinion of the International Court of J u s t i c e , 3 Morocco and Mauritania occupied Western Sahara upon the withdraw of the Spanish i n 1975. The two countries alleged that the t e r r i t o r y formed part of t h e i r countries before col o n i z a t i o n by the Spanish. In 1979, Mauritania withdrew from the t e r r i t o r y a f t e r signing a peace agreement, but Morocco proceeded to annex the whole t e r r i t o r y . Fighting has gone on ever since then between the Moroccans and the Saharaoui people who are now based i n A l g e r i a and c a l l themselves the P b l i s a r i o g u e r r i l l a s . 4 Chad has experienced a g u e r r i l l a war f o r the l a s t three or so decades and i s only punctuated by changes i n government. The hand of the Libyans and the French, among others, i s always to be found behind these Chadian developments. Just l i k e Chad, the c o n f l i c t s i n Ethiopia, e s p e c i a l l y i n the regions of E r i t r i a , Tigre, the Haud, Ogaden, and Oromoland, have transpired for the l a s t three or so decades. The causes of these Ethiopian c o n f l i c t s are to be traced back to p o l i t i c a l repression as well as encroachment upon s o c i a l and c u l t u r a l r i g h t s including r e l i g i o n and language. 5 In 1983, following the imposition of s h a r i 1 a law throughout the whole country i r r e s p e c t i v e of r e l i g i o u s denomination as well as the watering down of the autonomous status of the sbuth, Sudan saw the resurrection of the g u e r r i l l a war which had been resolved i n 1972 a f t e r 17 years 23 of f i g h t i n g . The majority of the people i n the north profess Islam and are b a s i c a l l y composed of Arab blood, while the south i s c h r i s t i a n and animist, and b a s i c a l l y A f r i c a n . 6 The introduction of s h a r i 1 a was an interference with the r e l i g i o u s b e l i e f s of the southerners and non-Muslim northerners while the reduction of the autonomous status of the south was an encroachment upon the p o l i t i c a l r i g h t s of the southerners. The Somali N a t i o n a l i s t Movement which i s r e s i s t i n g Siad Barre's oppressive regime i n Somalia i s the expression of the d i s a f f e c t i o n of northern clans a r i s i n g from the imbalance i n development and other opportunities. Mogadishu (ca p i t a l c i t y of 1 Somalia) and the south have received the biggest share of, the development budget, e s p e c i a l l y since President Siad Barre took power i n the 1969 m i l i t a r y coup and i n s t i t u t e d a one-party s o c i a l i s t system. 7 Like many Af r i c a n leaders, Siad Barre attempts to suppress opposition and resistance through detentions. One writer has termed t h i s - the " p o l i t i c s of detention". 8 There i s therefore a denial of economic, as well as p o l i t i c a l r i g h t s , among others. I t i s said that the Somali N a t i o n a l i s t Movement i s supported by Ethiopia, while Somalia i n turn supports the Western Somali Liberation Front i n the Ogaden region of Ethiopia which i s populated by ethnic Somalis. 9 In Uganda, f i g h t i n g has existed since the allegedly rigged elections i n 1980 despite various changes of government. The rigging of the elections which was 24 tantamount to denial of p o l i t i c a l r i g h t s and i n p a r t i c u l a r , p o l i t i c a l p a r t i c i p a t i o n , sparked o f f g u e r r i l l a f i g h t i n g which has led to or otherwise contributed to the f a l l of several governments. I t has also led to various abuses of human r i g h t s on both sides - g u e r r i l l a and government. 1 0 In Mozambique and Angola, g u e r r i l l a wars have continued to be waged despite the attainment of independence i n 1975, while the l i b e r a t i o n wars i n Namibia and South A f r i c a against the apartheid regime continue unabated. 1 1 There are also some g u e r r i l l a movements which are being waged underground such as the Mwakenya i n Kenya; the M.F.D.C. (Mouvement des forces democratiques de l a Casamance) i n Senegal; and the MNC-L (Mouvement National Congolais- Lumumba) and i t s m i l i t a r y wing APL (Armee Patriotique Lumumba) i n Zaire. The MNC-L i s coming into the open and i s said to have c a r r i e d out a series of attacks i n Eastern Zaire i n March and A p r i l of 1988. 1 2 Mwakenya started soon a f t e r the 1982 c o n s t i t u t i o n a l changes which established a de jure one-party state i n Kenya. I t has support among i n t e l l e c t u a l s and farmers i n the highlands which were the home of the Mau Mau i n the 1950s. I t has much i n common with i t s predecessor, the Mau Mau, including the secret oaths and the support of the Kikuyu farmers save that i t has support from more than one t r i b e including the Luo. Although the Kenyan government i s a f r a i d of Mwakenya, i t has t r i e d to turn the threat to i t s own advantage by l a b e l l i n g a l l opposition as Mwakenya subversion. J In 1986, scores of people were arrested, detained or executed on suspicion of belonging to Mwakenya, the allegedly marxist movement seeking to overthrow President Daniel Arap Moi's 14 regime. x In s p i t e of being one of the very few remaining multi- i party democracies i n A f r i c a , Senegal has problems i n i t s Casamance region. The MFDC (Mouvement des forces democratiques de l a Casamance), which was created i n 1947 but remained quiescent u n t i l 1982, organized demonstrations as a separatist movement i n December, 1982. As a r e s u l t of these r i o t s , many people were arrested, tortured and detained while many others hid i n the bushes/forests and became the f i r s t "Casamancaous Maquisards". In 1983 there were further r i o t s as those arrested i n 1982 were being t r i e d . November, 1986, and January, 1987 saw even more r i o t s but t h i s time for outright Independence of Casamance. 1 5 In the l a s t two years, there has been increasing t a l k of separation i n the Casamance region of Senegal. This t a l k has been buttressed by rumours that the "Maquisards" have t r a i n i n g camps i n the forests and i n neighbouring Guinea- Bissau. Casamance region was a Portuguese colony u n t i l 1888, and the same ethnic groups l i v e i n Casamance and Guinea- Bissau, another ex-Portuguese colony. In lower Casamance the people even speak Portuguese Creole as t h e i r lingua f r a n c a . 1 6 They therefore f e e l more attached to t h e i r "cousin brothers" i n Guinea-Bissau than with the rest of Senegal. 2 6 The central factor behind a l l these g u e r r i l l a wars and movements on the continent i s the v i o l a t i o n of human right s including but not l i m i t e d to, the r i g h t to s e l f - determination. In the words of one writer, with whom we agree: ....Violations of human r i g h t s , e s p e c i a l l y where there i s a consistent pattern of gross v i o l a t i o n s , can be a cause of war although of course not the only cause. ...War and the fear of war are reasons and sometimes pretexts for suspending the exercise of c e r t a i n r i g h t s . 1 7 The decolonization movement, sanctioned by the Declaration on the granting of independence to c o l o n i a l countries and pe o p l e s , 1 8 equated self-determination with the ri g h t to statehood. Consequently the resolution did, and has continued to, i n h i b i t the United Nations from even as much as paying nodding attention to the r a c i a l , r e l i g i o u s , l i n g u i s t i c , and ethnic d i v e r s i t y of the Af r i c a n peoples. Thus, on the one hand small countries which were unable to stand on t h e i r own feet were created. On the other hand, many peoples and n a t i o n a l i t i e s which met the objective c r i t e r i a f o r entitlement to self-determination were barred from asserting t h e i r claims by the overwhelming concentration on independence for the c o l o n i a l l y established state u n i t s . Consequently, the w i l l f u l disregard of the ethnic factor i n the determination of boundaries of newly established states was a negation of self-determination as was colonialism i t s e l f . 1 9 In pursuit of the above, t r a d i t i o n a l l y h o s t i l e t r i b e s which had been kept separate i n d i f f e r e n t administrative 2 7 units during colonialism, and which had not learned to t o l e r a t e one another, were put together i n same boundaries, p o l i t i c a l units, and administration. This created a r t i f i c i a l States and almost immediately revived or otherwise sparked of f the old t r i b a l i s m . These differences were soon to be r e f l e c t e d in, the administration, as well as i n the d i s t r i b u t i o n of resources and opportunities. These a r t i f i c i a l States, containing c o n f l i c t i n g t r i b e s loosely put together by colonialism, together with the granting of independence to an immature and inexperienced national p o l i t i c a l e l i t e , led to autocratic leadership or i n some cases weak leadership, as well to the denial of human ri g h t s by the autocratic leaders or by the t r i b a l forces not contained by the State. I t i s not surprising, therefore, that most of independent A f r i c a i s embedded with s t r i f e , c ruel leadership, mismanagement, and s e l f - s e r v i n g e l i t e s . Many a f r i c a n leaders, more often than not, manipulate the p o l i t i c a l organs as well as v i o l a t i n g human ri g h t s including but not l i m i t e d to, denial of p o l i t i c a l p a r t i c i p a t i o n , p o l i t i c a l k i l l i n g s , torture, and detention or f a l s e imprisonment so as to stay i n power. 2 0 More often than not, t h i s i s worsened by the d i r e c t involvement of the m i l i t a r y i n A f r i c a n p o l i t i c s . A f r i c a n armed forces have increasingly become major power contenders i n the domestic p o l i t i c s of many countries i n A f r i c a . This intervention has been made possible by the decline i n the established machinery for the transfer of 28 power, which has made p o l i t i c a l change within a state very problematic. Often the m i l i t a r y have been the only force capable of challenging the government. Furthermore, disrespect for p o l i t i c a l i n s t i t u t i o n s has i n many cases led to blatant abuses of human ri g h t s , and rampant corruption at the top of the p o l i t i c a l and c i v i l a d m i n i s t r a t i o n . 2 1 Combined with the steady weakening of the p o l i t i c a l leadership and the intense and uncompromising r i v a l r y among the p o l i t i c a l e l i t e s , these factors have given the m i l i t a r y a " r a t i o n a l e " (Is i t a pretext?) for overthrowing the c i v i l i a n governments. This involvement of the m i l i t a r y into p o l i t i c s has increasingly become a common feature of the c o n t i n e n t . 2 2 Although some m i l i t a r y regimes perform better than some " c i v i l i a n " governments, the general trend i s that m i l i t a r y governments v i o l a t e human ri g h t s j u s t l i k e many " c i v i l i a n " governments. Many times they may even perform i n a worse manner. M i l i t a r y takeovers tend to increase i n t e r n a l i n s t a b i l i t y and contribute to the breakdown i n law and order. The i n s t i t u t i o n a l framework always becomes d y s f u n c t i o n a l . 2 3 . These factors combine to create the d i s l o c a t i o n of : s o c i e t y which i n turn leads to the displacement of nationals, who through fear of persecution, are forced to become refugees not only i n neighbouring countries, but also within t h e i r own countries. A l l t h i s leaves various people oppressed and deprived of t h e i r 29 r i g h t s . More often than not, these manipulations and v i o l a t i o n s are based upon t r i b a l , ethnic or regional l i n e s . One scholar terms these v i o l a t i o n s of human r i g h t s , be i t by a m i l i t a r y or ' c i v i l i a n ' government, or by some other organ, as "i n t e r n a l colonialism". He asserts that t h i s r e s u l t s when a n j ethnic group i n control of government systematically exploits resources of the regions occupied by minority ethnic proups reducing the development of those regions to that of dependencies and a l l o c a t i n g the members of the minorities to s p e c i f i c roles i n the s o c i a l structure on the basis of objective c u l t u r a l d i s t i n c t i o n s . He gives t y p i c a l r e s u l t s •of such a s i t u a t i o n as an inequitable d i s t r i b u t i o n of national wealth, as well as access to employment, and educational and other o p p o r t u n i t i e s . 2 4 G u e r r i l l a wars are an attempt to defeat t h i s " i n t e r n a l colonialism" and assert what has been termed the r i g h t to "in t e r n a l self-determination." This connotes the r i g h t of people within a sovereign state to e l e c t and keep a i government of i t s choice or that of an ethnic, r a c i a l , r e l i g i o u s or other minority within a state to be free from oppression by the central government. 2 5 Some scholars argue that t h i s should also include the r i g h t to secession. However, t h i s has not as yet been accepted by international o p i n i o n . 2 6 The above notwithstanding, i t must be noted that the denial of the r i g h t to "self-determination" i n a l l i t s forms i s not the sole cause of g u e r r i l l a wars. I t i s j u s t one of 30 the p r i n c i p l e causes. In addition to v i o l a t i o n of other r i g h t s , (not only the c i v i l and p o l i t i c a l r i g h t s but also r i g h t s of the economic category), various other factors contribute to t h i s quagmire. One scholar has summarized these various causes as follows: These dest a b l i z i n g situations [ g u e r r i l l a wars] involving v i o l a t i o n s of human ri g h t s i n varying degrees stem from a v a r i e t y of sources; the ancient themes of human greed, betrayal of popular w i l l , l u s t and struggle f o r power, ethnic hatred, fear of p o l i t i c a l and economic domination of one n a t i o n a l i t y group by another, and perceived u n f a i r d i s t r i b u t i o n of national wealth and r e s o u r c e s . 2 7 Nevertheless:, the hand of human r i g h t s abuses can s t i l l be traced i n these other so-called causes of g u e r r i l l a movements. For example, "betrayal of popular w i l l " d i r e c t l y implies denial of the r i g h t to p o l i t i c a l p a r t i c i p a t i o n , while " l u s t and struggle for power" has d i r e c t connotations of v i o l a t i o n of c i v i l and other r i g h t s . A s i m i l a r argument can be advanced f o r " p o l i t i c a l and economic domination", and for "unfair d i s t r i b u t i o n of national wealth and resources" as causes of g u e r r i l l a wars on the Af r i c a n c o n t i n e n t . 2 8 I t could therefore be argued that i n one way or i another, these various factors point to one major factor, namely, abuse of human r i g h t s . But even i f t h i s were to be interpreted otherwise than as above, i t could a l t e r n a t i v e l y be argued that these factors, allegedly independent of human ri g h t s abuses, have been fathered by, or otherwise emanated from, the int e r p r e t a t i o n given to the r i g h t to s e l f - determination. If, a wider and more l i b e r a l approach had been taken toward "self-determination" i t may be that many of 3 1 these factors forming the basis of t h i s t h e s i s may never have arisen. Whereas the central aim of a majority of the g u e r r i l l a movements on the continent i s allegedly the attainment of the r i g h t to "self-determination" i n i t s various forms ("external" and " i n t e r n a l " ) , the degree of the intended self-determination i s not uniform. Some movements are a f t e r " i n t e r n a l self-determination" i n the sense of givi n g people the power to choose t h e i r own government as well as ridding them of oppression by the central government, while others would l i k e to a t t a i n greater autonomy i n addition to freedom to choose t h e i r governments; At the extreme end are a few others which are geared toward secession, and external s e l f - determination or p o l i t i c a l independence. In the next chapter an attempt s h a l l be made to examine i n greater d e t a i l the g u e r r i l l a wars i n three countries - Ethiopia, Sudan, and Uganda - with the purpose of advancing my analysis. 32 FOOTNOTES See Emmanuel1 G. Bello, Human Rights: The Rule of Law i n A f r i c a , supra, 629. There are various United Nations Resolutions to t h i s e f f e c t including Resolution 2229 (XXI) of 1966 which urged for a :referendum under UN sponsorship to enable the Saharaoui people to f r e e l y exercise t h e i r r i g h t to self-determination and Independence. ICJ Advisory opinion of 16 October, 1975 i n respect of Western Sahara upon request by Morocco. I t was held, i n t e r a l i a , that the evidence could not support Morocco's claim to "immemorial possession" of the t e r r i t o r y because i t did not e s t a b l i s h any l i n k of t e r r i t o r i a l sovereignty between the t e r r i t o r y of Wjestern Sahara on the one hand, and the kingdom of Morocco or Mauritania, on the other hand. (See Memorandum, The Saharaoui Arab Democratic Republic: Presidency, ,Hauza, SADR, Liberated T e r r i t o r i e s , July, 1981). The Saharaoui people's resistance to t h e i r being annexed by Morocco attracted the unleashing of Moroccan aggressive forces upon the Saharaoui people. This led to about h a l f the population f l e e i n g into A l g e r i a . Today more than h a l f of the o r i g i n a l population (over 75,000 Saharans) l i v e under the P o l i s a r i o banner around Tindouf i n Al g e r i a . Some figures put t h i s at 190,000 rAfrica Confidential, Vol.28, No.15, 22 July, 1987, Western Sahara: The P o l i s a r i o Factor]. This seems inaccurate because the o r i g i n a l population including those who stayed behind, was about 150,000 people. About 85,000 people, many of who are Moroccan brought into Western Sahara by the government of Morocco or t h e i r c i v i l employers, l i v e behind Morocco's defensive wall, thousands of miles long, and stretching from the A t l a n t i c coast up to the Mauritania border and turns north roughly p a r a l l e l to the Algerian border. Although i n e x i l e , the P o l i s a r i o g u e r r i l l a s proclaimed t h e i r 'Independence' on 27 February, 1976, as well as the s e t t i n g up of t h e i r Republic - the Saharaoui Arab Democratic Republic (SADR). The P o l i s a r i o movement i s recognized by the United Nations and the OAU, as well as by many countries (over 50 countries of which 29 are Afr i c a n countries). Attempts by the United Nations and the OAU at resolving the problem have so f a r not been very successful. This c o n f l i c t has also caused several problems i n the OAU e s p e c i a l l y as to the OAU's recognition, and admittance into the organization, of the SADR. This was one of the major causes of the f a i l u r e of several OAU Summits as well as the withdraw of morocco from the OAU i n November, 1984. Recently, 33 however, a p o s s i b i l i t y of a peaceful settlement through U.N. auspices has arisen [The Globe and Mail. Wednesday August 31, 1988, A l l , Morocco, P o l i s a r i o rebels approve UN peace plan; and IHT. Tuesday August 23, 1988, p4, In the Sahara, a Fight For Independence winds Down]. We only hope that a l a s t i n g peaceful settlement w i l l materialize. I See Chapter Two, i n f r a . See Chapter Two, i n f r a . i See The Times, Thursday, March 10, 1988, Unrest i n Somalia. Barre keeps the north i n check. Greenfield Richard, What Price P o l i t i c a l Prisoners? Somalia, A f r i c a Report (America's leading magazine on Africa) January-February 1988, 48-51, 49. See The Times. Monday, March 7, 1988, Tensions i n Somalia. Barre plagued by warfare and debt. See Chapter Two, i n f r a . The s i t u a t i o n i n Mozambique, Angola, Namibia, and South A f r i c a i s , to a great extent, quite d i f f e r e n t from that i n the rest of A f r i c a . In a l l of these four s i t u a t i o n s one discovers the hand of the apartheid regime i n South A f r i c a . These countries therefore requires a d i f f e r e n t study from the current one. Consequently, they s h a l l not be the subject of t h i s study. The Mozambique National Resistance Movement (RENAMO) was started by a few Portuguese whites soon a f t e r the attainment of independence allegedly because the then President, the l a t e Shamora Machel, had threatened a l l Portuguese, which led to t h e i r running to South A f r i c a and other countries. O r i g i n a l l y a very weak movement, RENAMO only gained some support a f t e r several years when the northern t r i b e s r e a l i z e d that most of the important positions i n the government and c i v i l service were being held by southerners, and when the government f a i l e d to f u l f i l l i t s promises made at independence. This has been worsened by the South A f r i c a n government which has taken i t upon i t s e l f to finance the movement i n pursuit of the South A f r i c a n government's p o l i c y of d e s t a b i l i s i n g i t s neighbours. The Angolan struggles between the government and the UNITA rebel headed by Jonas Savimbi commenced almost immediately upon the granting of: independence i n 1975. Soon thereafter, Angola became a f e r t i l e ground for regional as well as super power p o l i t i c s . The case of Namibia i s i n many ways s i m i l a r to that of South A f r i c a - people are struggling against the apartheid regime for the attainment of independence. Currently, there i s a 34 12 16 17 18 p o s s i b i l i t y of a settlement of the Angolan and Namibian sit u a t i o n s following the negotiation, through the U.N. auspices, of a peace agreement between the governments of South A f r i c a and Angola as well as other concerned p a r t i e s for the withdrawal of Cuban and South Af r i c a n troops and the granting of independence to Namibia. See A f r i c a Confidential. Vol.29, No.7, 1 A p r i l , 1988, Pointers, Zaire: Attack. 1 3 See A f r i c a Confidential. Vol.28, No.l, 7 March, 1987, Kenya: Facing Mwakenya. 1 4 See Mary Anne Fi t z g e r a l d , KENYA, i n : The A f r i c a Review. l l t n e d i t i o n , 1987 (World of Information), 114-126. Also see The C h r i s t i a n Science Monitor. Thursday, December 3, 1987, Atmosphere of suspicion troubles Kenya. Government actions foster tensions among Kenyans and foreigners; and The Times, Saturday, March 19, 1988, Violent run-up to Kenya p o l l . 1 5 See A f r i c a Confidential. Vol.28, No.3, 4 February, 1987, Senegal: Casamance. Ibid. Humphrey,J.P, Human Rights and the Peace of Nations. International Commission of J u r i s t s Review, 71-74, December, 1983, 73. Sec.Res.l514.(XV) . 1 9 See Moses Moskowitz, supra, 33. 2 0 A few A f r i c a n leaders such as the then president of Tanzania, J u l i u s Nyerere, and perhaps the l a t e Jomo Kenyatta of Kenya, performed a b i t better than the other leaders have done. Nevertheless, even the records of these few are not completely free of t a i n t s . 2 1 Ojo, Orwa, and Utete, A f r i c a n International Relations. Longman, New York, 1985, 133. 2 2 John Harbescn, M i l i t a r y r u l e r s i n A f r i c a n p o l i t i c s , i n : John W. Harbeson, ed, The M i l i t a r y i n A f r i c a n P o l i t i c s . Praeger, New York, 1987, 1, observed that as of mid- 1986, 31 A f r i c a n countries had experienced a t o t a l of 68 m i l i t a r y coups de'tat ever since the attainment of independence which commenced i n the 1950s. 2 3 To use the words of Ojo, Orwa, and Utete, A f r i c a n International Relations, supra, 133. 24 Sornarajah M, supra, 46. 35 See Cassesse, supra, 137; and Vincent, supra, 80. See Chapter Three of t h i s work. U. Ohaegbulom, Human Rights and the Refugee Situation i n A f r i c a , i n : Shepherd and Nanda, supra, 197-230, 202. The j u s t i f i c a t i o n s for t h i s can be found i n a r t i c l e 1(2) of thei Covenant on C i v i l and P o l i t i c a l Rights, 1966, and a r t i c l e 1(2) of the Covenant on Economic, S o c i a l , and Cultural Rights, 1966. Both a r t i c l e s s p e c i f i c a l l y provide that no people i s to be deprived of t h e i r resources and means of subsistence. 36 C H A P T E R T W O HUMAN RIGHTS AND ARMED CONFLICTS IN SELECTED COUNTRIES ETHIOPIA. Ethiopia comprises more than eighty ethnic groups. These may however be re-grouped, at lea s t for the purposes of t h i s study, into f i v e major groupings, namely, the E r i t r i a n s , and the Tigrians i n the north ( E r i t r e a and Tigray), the Shoa Amhars (sometimes written "Amhara") i n the centre, the Oromos i n the south and south east, and the Somalis i n the Ogaden and Haud regions which border Somalia. Although the Shoa Amhars do not form the single largest group, they are the dominant and r u l i n g group i n Ethiopia. Today the Ethiopian government faces four major g u e r r i l l a movements i n E r i t r e a , Tigray, Oromia, and the Ogaden, respectively. Of these, the most feared are to be found i n E r i t r e a and Tigray. Whereas the E r i t r e a n s 1 major concern i s secession and therefore the formation of an independent E r i t r e a , the Somalis i n Ogaden and the Haud would l i k e to j o i n t h e i r blood brothers i n Somalia. On the other hand, the Tigrians seem to seek greater regional autonomy within a reformed Ethiopia j u s t l i k e the Oromos who claim that they are discriminated by the r u l i n g Shoa Amhars.1 37 The roots of the tensions i n Ethiopia are to be traced back into history, i n p a r t i c u l a r to the conquest and subjugation of the various ethnic groupings which comprise present day Ethiopia by the Shoa Amhars. This may be p a r t l y responsible f o r the existence of t r i b a l or regional l o y a l t y which i s akin to t r i b a l or regional nationalism. 2 The f i r s t great Ethiopian Empire - the Roman era kingdom of Axum - was centred i n Tigre, and Axum's maritime trade was conducted through the ancient E r i t r i a n port of Adulis near modern-day Massawa. In the ninth century A.D., in t e r n a l dissension, the migration of Beja nomads from Sudan, and the r i s e of Islam eventually led to the demise of Axum. A f t e r the tenth century, the center of power s t e a d i l y moved south causing E r i t r e a to d r i f t apart from the res t of the region although i t retained i t s importance as an outlet to the sea. The Amhara people managed to conquer the southern and eastern t r i b e s , and i n the f i f t e e n t h century they were f i n a l l y able to re - e s t a b l i s h a tenuous hold over E r i t r e a . 3 In l i g h t of the above, the Amhara people have been and are s t i l l regarded as an imperial/colonial power by the rest of Ethiopians. Although they are Africans l i k e the rest of Ethiopians, they are conquers who imposed themselves upon the r e s t of Ethiopians i n a manner s i m i l a r to that of the European c o l o n i a l i s t s . Thus i t i s suggested that: s 38 . . .by 1889 a l l E r i t r e a had been occupied [by the I t a l i a n s ] and Menelik [the Amahara Emperor] had signed the treaty of U c c i a l i , under which he recognized I t a l i a n rule over E r i t r i a . . . Two d i f f e r e n t imperial t e r r i t o r i e s existed side by side. One, E r i t r e a , ruled by a white European c o l o n i a l power. The other, Ethiopia, ruled by a black A f r i c a n c o l o n i a l power - the Amharas under Menelik, whose subjugation of the Tigrians to the north and the Oromos to the south was viewed by the conquered people as no more desirable than European r u l e . 4 The E r i t r e a n struggle commenced i n the early 1960s. Following the I t a l i a n defeat at the hands of the B r i t i s h i n 1941 (second world war), the B r i t i s h occupied E r i t r e a u n t i l 1952. E r i t r e a was therefore a c t u a l l y ruled for sometime by a c o l o n i a l power, f i r s t by I t a l y and then B r i t a i n , while the r e s t of the country was never e f f e c t i v e l y colonized. Thus E r i t r e a and the rest of Ethiopia were governed separately - one by white r u l e r s and the other by black r u l e r s . However, when the B r i t i s h were leaving E r i t r e a i n 1952, E r i t r e a was not recognized as an independent state. Instead of so doing, the Western powers imposed a United Nations mandate on the region and made E r i t r e a a semi-autonomous t e r r i t o r y under the sovereignty of Ethiopia. As i f t h i s was not bad enough for the Eritreans who had gained over time a d i s t i n c t and separate existence, Emperor Selassie never respected the autonomy agreement. E r i t r e a ' s independent i n s t i t u t i o n s were gradually subverted, p o l i t i c a l p a r t i e s were banned, and Tigrinya, Tigre, and Arabic were suppressed as the languages of E r i t r e a and replaced by Amharic, j u s t l i k e was the case for the r e s t of the country. 39 The above events p r e c i p i t a t e d the formation of the E r i t r e a n Liberation Front (ELF) i n 1961, followed by the break out of c i v i l war i n September of that year when g u e r r i l l a s began mounting h i t and run attacks with antiquated I t a l i a n weapons. In r e t a l i a t i o n , the Ethiopian government formally annexed E r i t r e a i n 1962, making i t j u s t another of i t s provinces. 5 Thus the r e j e c t i o n of autonomy i s be found at the root cause of the E r i t r e a n insurgency. Eritreans, who number 4-5 m i l l i o n people, see as a l i e n the generally dark-skinned Amharas of the central highlands, who speak a d i f f e r e n t sematic tongue and have been perpetually insulated from the cosmopolitan influences of foreign c u l t u r e s , 6 j u s t as they do not f e e l part of the res t of Ethiopia. They believe t h e i r i n c l u s i o n i n Ethiopia i s a betrayal of the p r i n c i p l e of, and a denial of the r i g h t to, self-determination. They therefore seek, through m i l i t a r y means, to secceed from the re s t of E t h i o p i a . 7 In the l a t e seventies and early eighties, following f i g h t i n g between the ELF and the E r i t r e a n Peoples Liberation Front (EPLF) which came into formation i n 1970, the ELF l o s t i t s importance i n the E r i t r e a n struggle. The f i n a l blow came i n 1981 when the ELF was defeated by the EPLF and i t s remaining troops driven over the border into Sudan. Although i t s t i l l has a small following among Er i t r e a n refugees i n the Sudan, the ELF has been m i l i t a r i l y i r r e l e v a n t ever s i n c e . 8 40 The second movement i s the Oromo Liberation Front (OLF) which operates among the Oromo people i n the south and south-east of Ethiopia. The Oromo are the single largest ethnic group i n Ethiopia comprising a population of 15-18 m i l l i o n people. Their i n c l u s i o n into present day Ethiopia resulted from Emperor Menelik's p o l i c y of expansion to, and p a c i f i c a t i o n of, the south i n the l a t e nineteenth century. This was c l o s e l y followed by the imposition of the Amharic language and culture upon the Oromo as well as the al i e n a t i o n of la n d . 9 The Oromo national movement, which surfaced i n the urban centers i n the mid-1960s, had i t s roots i n the resistance of the 1880s and 1890s which were i n opposition to the subjugation of the Oromo people, language and culture. In 1967, the Oromo national movement was banned but i t s members went underground. The young and more m i l i t a n t began organizing among the Oromo peasants and urban dwellers. This formed the foundation for the Oromo Liberation Front (OLF) whose program was formally announced i n October, 1974. 1 0 A majority of the Ethiopians welcomed the revolution of 1974 which overthrew Emperor Haile Selassie and brought the Dergue (Amharic for "committee") into power. The Dergue's r u r a l land reform program, which promised to benefit the conquered peoples of southern Ethiopia, was much welcome to the Oromo e s p e c i a l l y as they formed the bulk of the b e n e f i c i a r i e s . I t i s not su r p r i s i n g therefore, that many 41 Ethiopians regarded the so-called 1974 revolution as "an Oromo revolution". This notwithstanding, further demands by the Oromo for " i n t e r n a l self-determination", which encompassed other spheres of t h e i r l i f e such as free e l e c t i o n of t h e i r representatives to the farmers' associations which replaced the old feudal structure, as well as the use of Oromo language, 1 1 were not as welcome to the Dergue. The Oromo, i n s p i t e of t h e i r demographic siz e , could not use t h e i r language for anything except domestic purposes. This demographic f a c t , i n addition to other p o l i t i c a l and s o c i a l factors, sharpened Oromo national conscienceness and provided f u e l f o r the pan-Oromo p o l i t i c a l a c t i v i t y organized by the OLF. 1 2 The o v e r a l l objective of the Oromo struggle was "the r e a l i z a t i o n of national self-determination for the Oromo people and t h e i r l i b e r a t i o n from oppression and e x p l o i t a t i o n i n a l l t h e i r forms". This could only be r e a l i z e d through "the successful consummation of of the new democratic revolution by waging an anti-feudal, a n t i - c o l o n i a l , a n t i - i m p e r i a l i s t struggle, and by the establishment of a people's democratic republic of Oromia". 1 3 Just l i k e the E r i t r e a n and Oromo resistances, the resistance of the Tigrean people, a population of 5-6 m i l l i o n , to Amhara rul e goes back to the Amhara expansion, p a r t i c u l a r l y under Menelik, i n the nineteenth century. Rebellions have existed ever since, the most famous of which 42 was the Woyane rev o l t against Haile Selassie i n 1943. 4 Following the suppression of t h i s r e b e l l i o n , the movement was forced to go underground. In early 1970s a l l these e f f o r t s were united under the Tigray National Organization (TNO), which began underground p o l i t i c a l a c t i v i t y . 1 5 In February, 1975, pursuant to the Dergue's f a i l u r e to s u b s t a n t i a l l y correct the s o c i a l and p o l i t i c a l s i t u a t i o n which i t inherited from Haile Selassie i n the 1974 revolution, the Tigray People's Liberation Front (TPLF) was established. Soon a f t e r , i t began armed struggle i n the western lower l a n d s . 1 6 The o v e r a l l aim of t h i s movement i s f u l l attainment of the r i g h t to self-determination. I t i s stated that t h i s does not necessarily mean secession; nor does i t mean unity for the sake of unity: (a) I f there i s a democratic p o l i t i c a l atmosphere, i t means the creation of v o l u n t a r i l y integrated nations and n a t i o n a l i t i e s whose r e l a t i o n s are based on equality, democracy, and mutual advantage. (b) I f the e x i s t i n g national oppression continues or i s aggravated, then i t means the b i r t h of an independent T i g r a y . 1 7 I t must be noted that the TPLF has had to struggle with a few other movements before i t could assume supremacy i n Tigray. Among these are the Ethiopian Democratic Union (EDU), and the Ethiopian People's Revolutionary Party (EPRP). These two were allegedly more concerned with the establishment of a reformed, and democratic, Ethiopia than with secession. I t should also be pointed out that sometimes the TPLF has worked i n close co-operation with the EPLF, and the two movements support each other's cause. 43 The resistance struggle i n the Ogaden i s part and parcel of the idea of the creation of a greater Somalia encompassing present day Somalia and the so-called " l o s t t e r r i t o r i e s " which comprise the Ogaden, Djibouti and the Northern Frontier D i s t r i c t of Kenya. ° A l l the people i n these various ' t e r r i t o r i e s ' have common h i s t o r i c a l , ethnic, l i n g u i s t i c , and c u l t u r a l c o n t i n u i t i e s . 1 9 Hence underlying t h i s t e r r i t o r i a l claim was the extraordinary phenomenon of Somali nationalism, which encompassed a l l Somali peoples not only within Somalia but also i n the " l o s t t e r r i t o r i e s " . Roots of t h i s struggle, j u s t l i k e those of the other struggles within Ethiopia, run deep and go back e a r l i e r i n h i s t o r y to the nineteenth century when Menelik conquered the walled c i t y of Harar, and placed h i s cousin Ras Mekonnen (Haile Selassie's father) i n charge of consolidating and expanding from the base of Harar. By 1896 when Menelik 1 s forces defeated the I t a l i a n s at the b a t t l e of Adowa, Ras Mekonnen had managed to set up m i l i t a r y garrisons throughout the Ogaden and thus extending the Ethiopian empire to i t s present day border with Somalia. 2 0 The Anglo-Ethiopian treaty of 1948 which recognized the Ogaden as part of Ethiopia and accepted the present border demarcations, 2 1 and the granting of independence to Somalia i n 1960, f a i l e d to take into account Somali nationalism. Thus the various t e r r i t o r i e s comprising Somali peoples were kept separate i n d i f f e r e n t countries including the Ogaden i n Ethiopia. 44 I t i s not the intention of t h i s study to deal with the e a r l i e r phase of the Ogaden struggle. The present phase began with the establishment of the Somali republic, and the creation of the Western Somali Liberation Front (WSLF) almost immediately t h e r e a f t e r . 2 2 The movement immediately engaged i n skirmishes with the Ethiopian army and scored v i c t o r i e s i n the Bale area the majority of whose inhabitants are Somali speakers. I t also organized a r e v o l t i n 1963 which covered the Bale region u n t i l 1965. 2 3 Almost from the very beginning, the Somali government has supported the movement i n various ways. The climax of the struggle seems to have been reached i n 1977 when the Somali government, obsessed with t e r r i t o r i a l claims, joined hands with the WSLF i n a f u l l y fledged war against Ethiopia. However, Somali v i c t o r i e s were l a t e r to be reversed by a combination of Ethiopian, Cuban and Soviet forces and t h i s culminated i n the Somali defeat and withdrawal i n the summer of 1979. 2 4 In spi t e of t h i s defeat, the Ogaden struggle has continued but b a s i c a l l y as a g u e r r i l l a war. In addition to the WSLF a few other movements are alleged to have come into existence i n the Ogaden, namely, the Somali and Abo Liberation Front (SALF), the Sidama Liberation Movement (SLM), and the Oromo Islamic Liberation Front (ILF). Nevertheless, none of these movements seems to be a very serious challenge to the Ethiopian government at present. The ILF has no r e a l m i l i t a r y presence and i s rather 45 shadowy; the SLM i s l i t t l e more than a name; and the WSLF and SALF are both seriously s p l i t and l a r g e l y i n a c t i v e . 2 5 The Somali government has had to temporarily give up or otherwise suspend i t s t e r r i t o r i a l claims, and to be content with giving moral and perhaps material support to the WSLF which seems to be the 1 strongest 1 movement i n the region. This may p a r t l y be due to the f a c t that the Barre regime i s facing opposition at home (also i n the form of g u e r r i l l a movements), which opposition i s s a i d to be supported by Ethiopia. I t might be t h i s s i t u a t i o n , that i s , each country supporting g u e r r i l l a movements i n the other, which may force both countries into negotiating a solution to the Ogaden q u e s t i o n . 2 6 However, as suggested by some writers: the biggest problem i n any Somali-Ethiopian negotiations i s the future of Ogaden. Somalia w i l l only drop i t s demand for self-determination of the Somali speaking people i n the Ogaden i f the Ethiopian regime gives them a larger measure of autonomy. 2 7 This does not seem to be the case as i s depicted by the progress of the negotiations. To date not much has been achieved. Moreover, the magnitude of Somali nationalism i n the Ogaden region remains high. I t has not subsided despite the weakening of the g u e r r i l l a movements i n the region. Of the g u e r r i l l a movements i n Ethiopia, the EPLF would seem the strongest and most organized. I t i s also the biggest threat to the Mengstu regime and t h i s goes back to the period immediately following the overthrow of Emperor Haile Selassie i n 1975. In November of that year, the 46 figurehead chief of state, General Aman Michael Andom, a man of E r i t r e a n heritage who had been negotiating with the E r i t r e a n g u e r r i l l a s , supposedly on the Dergue's behalf, was k i l l e d i n h i s Addis Ababa v i l l a by Dergue troops allegedly because he was believed to be close to achieving a settlement. This turned the great mass of Eritreans into enemies of the government and supporters of the movements. Thus many Eritreans, be they i n p o l i c e , army or schools, joined the EPLF and the then e x i s t i n g E L F . 2 8 Lt. Col. Mengstu Haile Mariam, who emerged Ethiopia's undisputed strongman i n 1977 a f t e r a series of power struggles among m i l i t a r y o f f i c e r s during which scores of r i v a l s were e i t h e r k i l l e d or executed, has shown himself u t t e r l y ruthless i n destroying opponents be they i n the government, army, or g u e r r i l l a s . In the years that followed his r i s e to power, an estimated 5000 Ethiopians were k i l l e d as Mengstu forced h i s brand of Soviet-supported marxism on the country. Bodies of tortured p o l i t i c a l prisoners were displayed on state-owned t e l e v i s i o n perhaps as an attempt to discourage any opposition to h i s p o l i c i e s and government. To date, thousands of p o l i t i c a l prisoners s t i l l languish i n Ethiopian p r i s o n s . 2 9 From the very beginning, the Dergue and the Mengstu regime have used starvation as one of the main weapons against a r e c a l c i t r a n t people. In the mid-1970s, the Dergue not only forbade i t s newly created r e l i e f agency to d i s t r i b u t e food i n E r i t r e a ; i t also forbade foreign donor 47 organizations to work there. u I t has been suggested that the famine i n E r i t r e a and Tigre created by the 1984-85 drought was as much a man-made c r i s i s - brought on by Mengstu's m i l i t a r y , p o l i t i c a l , a g r i c u l t u r a l , and f i s c a l p o l i c i e s - as a natural d i s a s t e r . 3 1 Government representatives carrying out several d i f f e r e n t p o l i c i e s have destroyed food supplies, disrupted normal commerce which would have allowed i n d i v i d u a l s to acquire food, prevented people from reaching food, with held food from those i n need, f o r c i b l y relocated people well away from t h e i r own ample food supplies, f o r c i b l y cleared areas of indigenous occupants to make room fo r s e t t l e r s , and imposed crushing tax and voluntary contribution l e v e l s on peasant producers which forced them to s e l l t h e i r food and even t h e i r own productive assets such as oxen or the seed f o r the next y e a r . 3 2 Moreover, the government spends most of i t s hard currency on m i l i t a r y equipment despite the f a c t that i t gets supposedly 'free' weapons from the Soviet Union. In pursuit of a m i l i t a r y s o l u t i o n to the insurgencies i n E r i t r e a and Tigre, over f o r t y percent of the national budget goes to supporting Ethiopia's standing army - one of the largest i n black A f r i c a - and very l i t t l e i s geared toward agricu l t u r e and the a l l e v i a t i o n of famine. Worse s t i l l , even when food aid i s donated by the i n t e r n a t i o n a l community, the government, perhaps i n pursuit of i t s p o l i c y of d e l i b e r a t e l y starving i t s opponents, many times c a r r i e s out one or more of the following: (a)Prevents food and other aid from being promptly unloaded when i t arr i v e s i n Ethiopian ports. 48 (b) Once food i s unloaded from the ships, the government f a i l s to immediately transport i t to areas affected by the drought. P r i o r i t y i s normally given to m i l i t a r y supplies and hardware. (c) When i t decides to transport the food, the government does not d i s t r i b u t e i t to the areas where i t i s needed most, but instead to areas sympathetic to the government. This i s worsened by a corrupt bureaucracy which hinders the ent i r e network f o r d i s t r i b u t i n g food from the ships to famine camps. 3 3 When Ethiopian farmers were allowed to own land, they had always produced enough food to prevent any large-scale famine. In March 1975, however, a l l agr i c u l t u r e was c o l l e c t i v i z e d . The government continues to require most subsistence farmers to s e l l a large portion of t h e i r meager surplus to i t s A g r i c u l t u r a l Marketing Corporation at prices f a r below the market rate. I t i s suggested that the decline i n a g r i c u l t u r a l production i s a r e s u l t of these a g r i c u l t u r a l p o l i c i e s since the farmers have no incentive to increase production l e t alone maintaining the then p r e v a i l i n g production l e v e l . 3 4 In addition to the c o l l e c t i v i z a t i o n of agriculture, v i l l a g i z a t i o n has been introduced i n recent years allegedly to f i g h t famine. V i l l a g i z a t i o n i s another population r e l o c a t i o n project which involves the forced r e l o c a t i o n of people, p a r t i c u l a r l y farmers, from t h e i r h i l l - t o p communities to cent r a l i z e d v i l l a g e s i n the lowlands 49 a l l e g e d l y to help them acquire better lands for agriculture and thereby avoid famine. 3 5 I t i s suggested that the r e a l purpose of t h i s p o l i c y i s to serve p o l i t i c a l i n t e r e s t s - i t i s a s t r a t e g i c move to t r a n s f e r a h o s t i l e ethnic minority. Under the pretext of saving them from starvation, p r o - g u e r r i l l a populations are moved from t h e i r t r a d i t i o n a l homelands i n the north to places further south where they may not e a s i l y come into contact with the g u e r r i l l a s and where they could be more e a s i l y c o n t r o l l e d . Further s t i l l , they are allocated the le s s f e r t i l e lands while the f e r t i l e ones are given to government supporters. 3 6 As a r e s u l t of t h i s p o l i c y , many people have l o s t t h e i r l i v e s through starvation, torture or d i r e c t execution by the s o l d i e r s . Those who have survived are denied t h e i r r i g h t s including freedom of movement. People are forced to move against t h e i r w i l l , and once r e s e t t l e d , they are not allowed to move even within Ethiopia except with a 'permit 1 and t h i s may not e a s i l y be o b t a i n e d . 3 7 A g r i c u l t u r a l production has further reduced, thanks to t h i s p o l i c y . This makes Ethiopia and Ethiopians some f e r t i l e ground for further bouts of famine i n the near future, not to t a l k of the p r e s e n t . 3 8 I t i s suggested that at present, resettlement and not famine, i s the biggest k i l l e r i n Ethiopia. In the words of one scholar: 50 While the resettlement program may have had some s u p e r f i c i a l appeal, i t has, i n fact, led to more deaths. Over 600,000 famine victims have been r e s e t t l e d so f a r . Many people, perhaps as many as 100,000 have died i n the move because of t h e i r weakened condition. Others have died from the treatment they receive i n resettlement camps. The Ethiopian army treats the r e s e t t l e r s as prisoners; they are placed on s t r i c t regimen of forced labor and are given l i t t l e food and water. Those who t r y to escape are shot and k i l l e d by the Ethiopian s o l d i e r s . 3 9 In s p i t e of a l l the negative e f f e c t s of these p o l i c i e s , the Mengstu regime has not effected any changes i n p o l i c y , 4 0 f o r example, v i l l a g i z a t i o n i s s t i l l being c a r r i e d on at the same rate and manner as before or even higher notwithstanding international o u t - c r y . 4 1 Regardless of the government's scandalized protestations to the contrary, food i s s t i l l being used as a weapon - the Ethiopian government attempts to keep food from the rebel provinces i n an e f f o r t to Starve them into submission. 4 2 As i f r e f u s a l to help i n the d i s t r i b u t i o n of food to the starving masses was not enough, i n A p r i l , 1988, the government went to the extent of t e l l i n g the aid workers who were d i s t r i b u t i n g the food to leave E t h i o p i a . 4 3 Discontented with the government's p o l i t i c a l , economic, and s o c i a l p o l i c i e s , and unable to bare the resultant abuse of human r i g h t s and su f f e r i n g any longer, many people have been forced to seek refugee i n neighbouring countries. Today many Ethiopians are to be found l i v i n g i n refugee camps i n Sudan, Somalia and Kenya. Quite a few others, perhaps the more af f l u e n t , have gone into e x i l e i n various countries i n search of security and better economic and educational 51 opportunities. However, what must be noted i s that even i n e x i l e , be i t i n refugee camps or otherwise, a majority of the people remain l o y a l to the g u e r r i l l a cause. This i s e s p e c i a l l y so for those who are i n the neighbouring countries. The o v e r a l l e f f e c t of a l l these b r u t a l i t i e s (abuses of human rights) has been to r a l l y the people more and more behind the g u e r r i l l a s which i s the d i r e c t opposite of what the government intended. Instead of submission, the g u e r r i l l a s have become even more determined i n t h e i r goals. For example, despite the presence of up to 5,000 Soviet nationals and 3,000 Cubans i n Ethiopia, a majority of which are i n the m i l i t a r y sphere, the EPLF has continued to gain more and more v i c t o r i e s against the Ethiopian f o r c e s . 4 4 This i s therefore a pointer to the Ethiopian regime that a m i l i t a r y s o l u t i o n to the Ethiopian question i s not f e a s i b l e . Since the beginning of 1987, there has been much t a l k about "redrawing the map of Ethiopia" by creating new regions which would take into account ethnic l o y a l t i e s and perhaps help end the war. 4 5 So f a r not much has been done allege d l y because of the war. Greater autonomy may help resolve some of the c o n f l i c t s . I t i s however debatable whether t h i s can negate the secessionist intentions of groups l i k e the Eritreans. In any case, the government does not seem genuine i n t h i s t a l k of giving greater autonomy to the regions. 52 Following E r i t r e a n crushing v i c t o r i e s over the Ethiopian s o l d i e r s i n A p r i l , 1988, e s p e c i a l l y at Af Abet among other p l a c e s , 4 6 and i t s subsequent agreement on m i l i t a r y coordination with the TPLF, the EPLF i s once again keen to open t a l k s with the Addis Ababa government. 4 7 In spi t e of i t s current m i l i t a r y s u p e r i o r i t y , the EPLF intimates that i t i s not a f t e r a m i l i t a r y solution. I t believes i n a negotiated settlement but based upon the EPLF's 1980 seven point program which alle g e d l y states the EPLF's war aims. 4 8 The most important term of t h i s program i s the holding of a referendum to determine the status of E r i t r e a , and the voting i s to be based upon three choices namely: f u l l independence; federal association with Ethiopia; or regional autonomy. The other terms are mainly intended to ensure that the referendum i s held i n a genuine manner and that the r e s u l t s are f u l l y implemented. Notwithstanding the government's currently weak m i l i t a r y p o s i t i o n and the fa c t that the EPLF i s w i l l i n g to negotiate a settlement, the Mengistu regime i s not keen upon negotiations e s p e c i a l l y i f they are to be conducted i n accordance with the Eritrean's seven point program. Instead Col. Mengistu i s o f f e r i n g the EPLF what he allegedly offered i n 1987, namely some autonomous status but with a re- d i v i s i o n of E r i t r e a into two or more r e g i o n s . 4 9 Of course t h i s cannot be accepted by the Eritreans. 53 I t would seem that Mengistu's intention i s to delay any peace t a l k s u n t i l he re-establishes the m i l i t a r y balance i n the north (Eritrea) . However, t h i s i s not an easy a f f a i r . Moreover, there seems to some pressure on the government to negotiate with the g u e r r i l l a s . This comes from two major sources: one i s Soviet Union which has f o r long helped finance the war. I t i s said that the Ethiopian government has been t o l d that the present arms agreement, signed i n 1986 and expiring i n 1991, w i l l be the l a s t i n i t s present form and scale. Future arms supplies w i l l be more l i m i t e d . 5 0 The other source i s the famine which i s p a r t l y fueled by the war. Ethiopia's only hope would seem to be that these and other i n t e r n a t i o n a l pressure w i l l force the Mengistu regime into a negotiated settlement so as to end t h i s three decades old war. SUDAN. The Republic of the Sudan, l i k e most Af r i c a n t e r r i t o r i e s , i s a p o l i t i c a l but not an ethnological unit . I t i s composed of a v a r i e t y of small t r i b a l groupings - almost s i x hundred i n t o t a l - i n a population of about twenty m i l l i o n people. These t r i b e s also speak various languages. Thus i t i s noted that: 54 T h e S u d a n , i n t h e v a r i e t y o f i t s p e o p l e s , l a n g u a g e s , a n d r e l i g i o n s , i s v i r t u a l l y a m i c r o c o s m o f t h e w h o l e A f r i c a n c o n t i n e n t . . . . [ M ] o r e t h a n o n e h u n d r e d l a n g u a g e s a r e s p o k e n b y a t l e a s t f i f t y m a j o r e t h n i c o r t r i b a l g r o u p i n g s , w i t h a l m o s t s i x h u n d r e d s i g n i f i c a n t s u b g r o u p i n g s . T h i s s t a g g e r i n g c u l t u r a l d i v e r s i t y i s a v e r y i m p o r t a n t f a c t o r i n S u d a n e s e l i f e . I t u n d e r l i e s , i n m a n y w a y s , t h e c h a r a c t e r i s t i c S u d a n e s e m o o d s o f c o m p r o m i s e a n d c o n f l i c t , o f b a l a n c e a n d t e n s i o n . 5 1 N e v e r t h e l e s s , m a n y o f t h e s e g r o u p i n g s o v e r l a p w h i c h m a k e s t h e i d e n t i t i e s o f p e o p l e i n t h e S u d a n m o r e c o m p l e x . A n o v e r - s i m p l i f i c a t i o n o f t h i s c o m p l e x i t y i s t o g r o u p e v e r y b o d y i n t o t h e m a j o r g r o u p i n g s , 5 2 n a m e l y : ( a ) t h e A r a b s i n t h e n o r t h ; ( b ) t h e N u b i a s i n t h e N i l e V a l l e y i n s o u t h e r n E g y p t a n d t h e n o r t h e r n m o s t s e c t i o n s o f t h e S u d a n ; ( c ) t h e B e j a i n t h e e a s t e r n h i g h l a n d r e g i o n a n d a l o n g t h e R e d S e a c o a s t ; ( d ) t h e N u b a i n t h e N u b a m o u n t a i n a r e a o f K o r d o f a n i n t h e w e s t ; ( e ) t h e F u r o f t h e w e s t e r n r e g i o n n o w c a l l e d D a r f u r ; ( f ) t h e D i n k a , w h o a r e t h e l a r g e s t e t h n i c g r o u p i n t h e s o u t h b u t a r e r e l a t e d t o o t h e r m a j o r g r o u p s i n t h e s o u t h , s u c h a s t h e N u e r a n d S h i l l u k , b y c o m m o n h i s t o r i c a l m i g r a t i o n a n d s i m i l a r i t y i n l a n g u a g e ; ( g ) t h e N u e r , t h e t h e B a r i , a n d t h e S h i l l u k i n S o u t h e r n S u d a n , a n d w h o , t o g e t h e r w i t h t h e D i n k a , a r e n o r m a l l y g r o u p e d i n t o t h e N i l o t e s ; a n d ( h ) t h e A z a n d e a n d M o r u w h o a r e t h e o t h e r s m a l l e r m a j o r g r o u p i n g s i n t h e s o u t h b u t w h o s p e a k d i f f e r e n t l a n g u a g e s . 55 The above o v e r - s i m p l i f i c a t i o n notwithstanding, the various ethnic groupings have come to be loosely united into two major groupings - the 'Arabized' and mainly Islamic north, and the Af r i c a n and la r g e l y C h r i s t i a n and animist south. This i s l a r g e l y a r e s u l t of Sudan's c o l o n i a l h i s t o r y . While r u l i n g Sudan as a condominium, the B r i t i s h c o l o n i a l i s t s decided to administer the south separately from the north. There was therefore very l i m i t e d contact between the north and south and t h i s exacerbated a north-south schism. J At the eve of int e r n a l self-government i n 1954 (the stage which always preceded the granting of independence), the north dominated almost everything i n the country including the c i v i l service and the army. This further reinforced the north-south c o n f l i c t . I t has therefore been suggested that: Sudan i s bedeviled by a very serious "north-south" c o n f l i c t of intranational regionalism between the predominantly Islamic and Arabic-speaking northern Sudanese majority and the medley of ethno- l i n g u i s t i c groups of the southern Sudanese minority, l e d by a western-educated c h r i s t i a n e l i t e . This problem of regionalism between the north and south involves, among other things, differences i n s o c i o - c u l t u r a l i n s t i t u t i o n s , d i f f e r e n t h i s t o r i c a l experience, numerical imbalance and educational, te c h n i c a l , economic and p o l i t i c a l i n e q u a l i t i e s . I t i s a by-product of many factors, geographical, s o c i a l , c u l t u r a l , c o l o n i a l administrative p o l i c i e s and the attitudes of national p o l i t i c i a n s and par t i e s , including the ro l e of the southerners themselves, e s p e c i a l l y t h e i r educated e l i t e . 4 The author further asserts that although the ro l e of the B r i t i s h administrative p o l i c i e s i n exacerbating the problem was remarkable, the approaches of a l l Sudanese 56 p o l i t i c a l c i r c l e s to the problem f a i l e d because of lack of unity among them; that important among these were Southern i n t e l l e c t u a l s and p o l i t i c i a n s , who i n most cases had no c l a r i t y of v i s i o n , d i r e c t i v e , purpose or s p e c i f i c programs for economic, s o c i a l and c u l t u r a l development i n the south and, above a l l , the a b i l i t y to suggest e f f e c t i v e devices for the s o l u t i o n of the problem. 5 5 This north-south schism, reinforced by the northern dominance of the c i v i l service and the m i l i t a r y , as well as other i n s t i t u t i o n s , p r e c i p i t a t e d the August, 1955, southern m i l i t a r y r e v o l t at T o r i t , thus commencing the 17-year "Anya nya" c i v i l war. By the time of independence i n 1956, Sudan was already undergoing a f u l l y - f l e d g e d g u e r r i l l a war. Thus G u e r r i l l a warfare i s not a new phenomenon i n Sudan. For 17 years, 1955-1972, Southern Sudan waged a bloody g u e r r i l l a war - the "Anya nya" c i v i l war - against the 'Arabized' n o r t h . 5 6 I t was only brought to an end i n 1972, a f t e r draining much of the country's resources and f a c i l i t a t i n g the f a l l of two 'national' governments, by the signing of the Addis Ababa agreement. 5 7 Under that agreement, the then President, J a f f a r i Nimeiri, conceded to many of the more moderate southern demands, as well as givi n g regional autonomy (within national unity) to the s o u t h . 5 8 The present Sudanese c i v i l war, based upon the north- south c o n f l i c t j u s t l i k e the f i r s t "Anya nya" c i v i l war, was sparked o f f by various events which took place i n 1982 and 57 1983 although the r e a l causes lay much deeper i n h i s t o r y and t i m e . 5 9 In 1982, amidst debate over regional devolution (allegedly i n pursuit of the 1978 regional devolution p o l i c y by which the north was re-divided into f i v e regions), and of Islamization of the Southern Sudan, several southerners opposed to the r e - d i v i s i o n and the Islamization of the south were arrested and imprisoned. This followed e a r l i e r arrests of various p o l i t i c i a n s opposed to N i m e i r i . 6 0 In June 1983, the Nimeiri government turned the old southern provinces of Equatoria, Bahr-al-Ghazal and Upper N i l e into new regional governments. 6 1 Before t h i s , these provinces were under one regional government of Southern Sudan established under the 1972 Addis Ababa peace agreement which ended the 17-year Anya nya c i v i l war. This r e - d i v i s i o n created resentment i n the south e s p e c i a l l y as i t was seen as a breach of the Addis Ababa agreement which established and guaranteed southern autonomy. 6 2 I t was therefore viewed as a way of cu t t i n g down southern power or otherwise weakening the South. Southern resentment hightened i n September 1983, when Nimeiri decreed a nationwide immediate imposition of s t r i c t Islamic shari'a law i n Sudan. 6 3 This was accompanied by great ambiguity with regard to i t s ap p l i c a t i o n e i t h e r i n the south which i s l a r g e l y C h r i s t i a n , or to non-Muslims i n the north. The spectre of Islamization had been, mistakenly or not, a perennial worry i n the south. Worse s t i l l , under Nimeiri's decrees, the south was t o l d that henceforth Arabic 58 would be the sole o f f i c i a l language nationwide, a l l of which made the chances of a p o l i t i c a l settlement with the south -I • 64 very slim. The other aspect arose out of the fear expressed over economic e x p l o i t a t i o n of two important new resources being developed i n the south. One was the Jonglei canal, designed p r i m a r i l y to increase the volume of water avail a b l e for agri c u l t u r e i n northern Sudan and Egypt and was thus funded by the two governments. There were fears expressed that the loss of water l o c a l l y i n the Sudd would upset the d e l i c a t e ecology of the region and damage self-subsistence a g r i c u l t u r e . 6 5 The second new resource was the o i l f i e l d s discovered by Chevron at Bentui i n Upper N i l e . Southern hopes of an o i l bonanza were soon dashed when i t was announced f i r s t that a new o i l r e f i n e r y would be b u i l t not at Bentui but at Kosti i n the north, and l a t e r , perhaps due to the government's fear of the resentment t h i s had caused i n the south, that t h e b u i l d i n g of a re f i n e r y had been abandoned i n favour of a pi p e l i n e d i r e c t to the Red Sea for export of the crude o i l . 6 6 This was i n addition to the e a r l i e r attempt by the Khartoum parliament to re-divide the south i n such a way that the o i l f i e l d s formed part of the north. Although the Act of parliament which had been passed to t h i s e f f e c t was l a t e r repealed, the damage had already been done. 6 7 To the southerners, these decisions presented the northern's f i n a l attempt at domination of the south - a 59 northern scheme to pre-empty southern autonomy - as well as e x p l o i t i n g i t f o r the benefit of the north but at the expense of the south. For example most of the huge burden of debt and balance of trade d e f i c i t which the o i l would o f f - set r e l a t e d to the north, and not the hitherto neglected oil-producing south. I t was i n the aftermath of these decisions that violence sprang i n the south among the great N i l o t i c communities of Upper N i l e , the Dinka and the Nuer. The month of June 1982 saw the ermegence, for the f i r s t time, of "Anya nya I I " as a s i g n i f i c a n t force i n the south. Army and p o l i c e o f f i c e r s and men defected to become "Anya nya I I " g u e r r i l l a s . This was worsened by Nimeiri's decision to disperse Southern composed Army units which was a d i r e c t breach of the Addis Ababa agreement as to composition of the army. 0 0 Among the deserting o f f i c e r s was Colonel John Garang 6 9 who l a t e r formed the Sudanese Peoples' Liberation Movement (SPLM) and i t s m i l i t a r y wing, the Sudanese Peoples' Liberat i o n Army (SPLA). Several p o l i t i c a l leaders also l e f t the country to organize the SPLM. SPLA/SPLM objectives would seem to be the eventual winning of control of the entire country and get r i d of the idea of Islamization p a r t i c u l a r l y of the south, as well as the alleged discrimination by the north against the south. In the words of SPLA spokesmen: 60 Secession i s not what we are working f o r . We are appealing to a l l opponents of Nimeiri to j o i n us i n our campaign for a progressive Sudan and to sweep away h i s ideas of Islamicization ... I t i s absurd f o r anybody to imagine that the Shari'a laws could be imposed on the 30 per cent or so of Sudanese who are not Muslims. 7 0 We are not f i g h t i n g for autonomy i n the South. We are f i g h t i n g for a restructuring of Khartoum. We envisage a system where power i s [given] to a l l the regions and l i m i t e d central government contro l . Eventually we [the SPLA] plan to take the whole country. We are f i g h t i n g a c u l t u r a l , p o l i t i c a l and economic war. 7 1 The SPLA has apparently succeeded i n integrating within i t s ranks, through persuasion and coercion, many Southern elements that had deserted the army including many members of the "Anya nya I I " movement.72 I t also managed to obtain the support of I s r a e l as part of i t s anti-Arab a c t i v i t i e s , of Libya which was opposed to Nimeiri, and of Ethiopia which appeared motivated by the neo-marxist ideology seemingly adopted by the SPLA leadership, and by Sudan's continuing support f o r the E r i t r i a n and Tigrean g u e r r i l l a s . 7 3 Presently, however, Libyan support i s questionable following the overthrow of the Nimeiri regime on A p r i l 6, 1985. G u e r r i l l a attacks i n 1983 and early 1984 led to the closure of operations on both the Jonglei Canal and the Bentui o i l f i e l d . The government's response was to send i n m i l i t a r y troops i n a wave of repression intended to i n s t i l l fear among the people and therefore s t i f l e a l l opposition. In pursuit of t h i s goal, the s o l d i e r s committed various a t r o c i t i e s p a r t i c u l a r l y upon innocent c i v i l i a n s and t h i s caused many of the c i v i l i a n s to f l e e Southern Sudan. 7 4 6 1 However, t h i s could not solve the problem. The war has continued unabated; more and more a t r o c i t i e s have been committed; and more c i v i l i a n s have become refugees either within Sudan i t s e l f or i n neighbouring countries. Soon a f t e r the f a l l of Nimeiri, the successor government attempted to reach a compromise with the g u e r r i l l a s but to no a v a i l . The major obstacle seemed to be that the SPLA leadership wanted the s h a r i 1 a law repealed while the government was only w i l l i n g to modify i t to the extent that i t should not be applied r i g i d l y or at a l l to non-muslims. 7 5 Having f a i l e d to a t t a i n a negotiated and peaceful settlement, the government resorted to seeking a m i l i t a r y s o l u t i o n to the problem. The strategy was to use southern t r i b e s which are t r a d i t i o n a l l y h o s t i l e to the Dinka against the Dinka who form the backbone of the SPLA. 7 6 The intention was to d e s t a b i l i s e Dinka society so as to empty the countryside and remove the SPLA's 1food-on-the-hoof 1, and thereby a t t a i n the o v e r a l l objective of regaining control of the Bentui o i l f i e l d s from the SPLA. Among the m i l i t i a s created are the Baggara Arab nomads who are supposed to cover the north- western flanks of Upper N i l e province; the Mundari t r i b a l m i l i t i a near Juba; the Rezigat tribesmen; and the M i s s i r i y a nomads i n Bahr-al-Ghazal (around Babanusa a r e a ) ; 7 7 Another of the armed t r i b a l m i l i t i a s i s the Anya nya II the bulk of whose membership i s from the Nuer t r i b e who are t r a d i t i o n a l l y antagonistic to the Dinka. 7 8 Anya nya II was 62 one o f the g u e r r i l l a movement b e f o r e i t f e l l out w i t h the SPLA and then j o i n e d the government. Each of the t r i b a l m i l i t i a s above s a i d has r e c e i v e d arms and ammunition, but not wages, from the government and i s o b l i g a t e d t o f i g h t the war on b e h a l f o f the government u s i n g the g u e r r i l l a t a c t i c s and l o c a l knowledge which the army does not p o s s e s s . 7 9 T r i b a l m i l i t i a s , perhaps a t government i n s t i g a t i o n , have c a r r i e d out a t r o c i t i e s i n the south p a r t i c u l a r l y among the Dinka, i n c l u d i n g the massacre o f whole v i l l a g e s . 8 0 The arming of t h e s e m i l i t i a s w i t h automatic weapons has a l s o r e v i v e d the c e n t u r i e s - o l d t r i b a l p r a c t i c e s o f c a r r y i n g out r a i d s f o r s l a v e s , c a t t l e , and o t h e r p r o p e r t y . T h i s has g i v e n the c o n f l i c t another t i n g e , t h a t i s , of a n o r t h - s o u t h m i l i t i a problem. R a i d e r s have r e p o r t e d l y moved back and f o r t h a c r o s s the t r a d i t i o n a l border r e g i o n t h a t s e p arates Sudan, t h a t i s , n o r t h from south, Moslem from C h r i s t i a n , Arab from A f r i c a n . The s i t u a t i o n now seems t o be both ways. Thus i t i s suggested t h a t : ...besides t r i g g e r i n g a dramatic i n c r e a s e i n t r i b a l s l a v e - r a i d i n g , new l e v e l s o f f i r e powder on both s i d e s o f the war have l e d t o t r i b a l massacres, the t h e f t of m i l l i o n s of heads of c a t t l e and wholesale d e s t r u c t i o n o f v i l l a g e s and c r o p l a n d i n c e n t r a l Sudan. These developments - e s c a l a t i o n of f i r e powder and the r e s u l t a n t i n c r e a s e i n s l a v e - r a i d i n g - j e o p a r d i z e the chance o f any s e t t l e m e n t o f the c i v i l w a r . 8 2 In s p i t e of the attempts a t d e s t a b i l i z i n g Dinka s o c i e t y , the SPLA has grown s t r o n g e r and perhaps more t r i b a l l y d i v e r s i f i e d . I t i s c l a i m e d t h a t many o u t s i d e r s (meaning non-Dinka) have j o i n e d the rank and f o i l o f the 63 SPLA ( p e r h a p s a s away o f a c q u i r i n g arms s o a s t o p r o t e c t t h e m s e l v e s f r o m t h e r a i d i n g m i l i t i a s 8 3 ) a n d t h a t a number o f t h e commanders o f i t s v a r i o u s m i l i t a r y s e c t o r s a r e n o t D i n k a . T h u s , i n s t e a d o f s e r v i n g t h e p u r p o s e f o r w h i c h i t was i n t e n d e d , t h e p o l i c y o f a r m i n g t r i b a l m i l i t i a s w o u l d seem t o h a v e p l a y e d e q u a l l y i n t o SPLA f a v o u r . The movement h a s a l s o h a s g a i n e d c o n t r o l o v e r more a n d more a r e a s n o t o n l y i n t h e s o u t h e r n a r e a s , b u t a l s o i n c e n t r a l S u d a n . 8 5 I n A p r i l , 1 9 8 8, i t was r e p o r t e d t h a t a l t h o u g h g o v e r n m e n t t r o o p s a n d t h e SPLA w e r e l o c k e d i n a b a t t l e o f a t t r i t i o n w i t h no o b v i o u s e n d i n s i g h t , t h e l a t t e r w e r e h a v i n g t h e m i l i t a r y u p p e r h a n d , p i n n i n g down a d e m o r a l i z e d a n d u n d e r - e q u i p p e d army. O n l y p a r t s o f W e s t e r n B a h r a l G h a z a l a n d W e s t e r n E q u a t o r i a r e m a i n e d f r e e f r o m s u s t a i n e d r e b e l a t t a c k s . The g u e r r i l l a army ( p e r h a p s 40,000 s t r o n g ) was r o a m i n g a t w i l l o v e r a n a r e a o f one q u a r t e r m i l l i o n s q u a r e m i l e s o f b u s h a n d f o r e s t . 8 6 . T h e s e v i c t o r i e s n o t w i t h s t a n d i n g , a t o t a l S PLA m i l i t a r y v i c t o r y o v e r t h e g o v e r n m e n t , o r v i c e v e r s a , d o e s n o t seem f e a s i b l e i n t h e n e a r f u t u r e , a n d b o t h s i d e s seem t o r e a l i z e t h i s . Y e t c o n t i n u e d w a r i s c a u s i n g more d e a t h s a n d s u f f e r i n g ft v • • f o r t h e p e o p l e . M o r e p e o p l e h a v e b e e n f o r c e d i n t o e x i l e o r i n t o b e c o m i n g r e f u g e e s , a n d a v e r y s e r i o u s f a m i n e , w h i c h was o n l y a p o s s i b i l i t y i n m i d - 1 9 8 8 , i s d e v a s t a t i n g t h e S u d a n . The w a r i s a l s o t h r o w i n g t h e c o u n t r y ' s a l r e a d y b a d economy i n t o r u i n s . I t m i g h t be t h e r e a l i z a t i o n o f t h e s e f a c t o r s t h a t i s o n c e a g a i n f o r c i n g t h e p a r t i e s i n t o n e g o t i a t i o n s . 64 Secret peace t a l k s are said to have been held beginning toward the end of 1987 and into January 1988. 8 8 Although the two sides f a i l e d to come to an agreement to end the war, i t i s believed that both sides were nearer a peace pact than ever b e f o r e . 8 9 This inspires some hope that eventually the pa r t i e s might come to a peaceful settlement l i k e was the case i n 1972 when the Addis Ababa Agreement was signed. The major cause of disagreement, among other factors, arises out of the fact that the government i s not w i l l i n g , as yet, to completely abandon Nimeiri's Islamic revolution. On the other hand Garang does not also seem w i l l i n g to forego h i s demand for 'r e l i g i o u s freedom', and i n p a r t i c u l a r the repeal of s h a r i ' a law, which was i n e f f e c t one of the major reasons f o r the commencement of the war. If no peaceful solution i s reached i n the near future, the combined e f f e c t of the war and the crumbling economy might lead to another m i l i t a r y coup which i n any case w i l l not help ease the s i t u a t i o n . I t w i l l merely aggravate the s i t u a t i o n perhaps to the point of the people becoming convinced that secession i s the only answer to the Sudanese problem. 9 0 UGANDA. The more than f o r t y ethnic groups which comprise today's Uganda were a colony of Great B r i t a i n which established imperial rule over them i n 1894. These 6 5 heterogeneous groups, which are sometimes divided into larger groups of Bantu Speakers, N i l o t i c Speakers, and Central Sudanic Speakers, had and s t i l l have l i t t l e i n common to the extent that even today many may not understand each others' languages. 9 1 Upon colonization of Uganda, the B r i t i s h found that the area had a number of well-organized s o c i e t i e s , to wit, the kingdoms of Buganda, Bunyoro, Toro and Ankole, of which the kingdom of Buganda seemed the most well organized and co- operative with the new comers. They therefore decided to apply the Dual Mandate or p o l i c y of i n d i r e c t rule as developed by Lord Lugard, l a r g e l y for expediency purposes. This implied r u l i n g through the e x i s t i n g 'governments' and ch i e f s , and using the e x i s t i n g i n s t i t u t i o n s . 9 2 Consequently, ethnic groups continued to e x i s t separately from each other and t h i s helped perpetuate t r i b a l and clan a f f i l i a t i o n s . Not even r e l i g i o u s denominations - Protestants, Catholics and Muslims - which had been introduced some time before colonialism, could cut across t h i s 'separate existence' of ethnic groups within 'Uganda'. In f a c t r e l i g i o n j u s t helped to create further cleavages. 9 3 Another factor which aggravated the cleavage was the export of the Buganda Model of administration which the B r i t i s h considered to be superior i n the area, to the rest of Uganda which did not have cen t r a l i z e d administrations. This was c l o s e l y accompanied by the recruitment of Baganda c i v i l servants whom the re s t of Uganda considered to be the 66 c o l o n i a l favourites, and who were supposed to e s t a b l i s h the Buganda Model of administration i n those areas. Further s t i l l , the administrative units were as much as possible based upon t r i b a l residence and t h i s contributed to a sense of d i s t r i c t nationalism and separatism. Thus i t i s noted that: Indirect rule was made the basis of B r i t i s h p o l i c y i n Uganda.... Administrative units c a l l e d d i s t r i c t s were drawn to ensure that i n most cases each t r i b e composed a d i s t r i c t i t s e l f . The few educated Africans looked at the service of t h e i r t r i b a l l o c a l government as the worth of t h e i r highest ambitions, and they were encouraged by the B r i t i s h o f f i c e r s to think so. Consequently they worked t h e i r way up to the pinnacle of power i n t h e i r respective d i s t r i c t s with s a t i s f a c t i o n and contentment. There was almost no need for them to look bevpnd the t r i b e , to view any issue as a Ugandan. 4 These tendencies, p a r t i c u l a r l y the t r i b a l and ethnic l o y a l t i e s , were c a r r i e d forward into independent Uganda. Thus Milton Obote (Prime Minister at independence and l a t e r President) summed up the s i t u a t i o n he inherited at the time of independence as one i n which the d i s t r i c t s regarded the central government, that i s the ministers and leading c i v i l servants, as representatives of t h e i r respective t r i b e s whose function i n government was to safeguard and plead t r i b a l i n t e r e s t s i n matters of appointments, d i s t r i b u t i o n of development projects and s o c i a l s e r v i c e s . 9 5 To a l l these should be added the B r i t i s h p o l i c y of development i n Uganda. Various educational and other i n s t i t u t i o n s , as well as cash crops such as coffee, cotton and tea were introduced i n southern Uganda and i n p a r t i c u l a r 67 i n Buganda at a very early age but not to the res t of the country. Consequently by 1916 the south was f i n a n c i a l l y self-supporting while the northern d i s t r i c t s such as Lango, Acholi and West N i l e remained l a r g e l y undeveloped u n t i l the 1950's. 9 6 I t would seem that there was a deliberate p o l i c y of reserving the warlike t r i b e s of the north as the main source f o r r e c r u i t s to the c o l o n i a l army, prisons and p o l i c e as well as a source of labour f o r the f a c t o r i e s , and sugar and tea plantations i n the south. I t i s worth noting that shortly before independence, Buganda boasted nearly h a l f the country's graduates, businessmen and c i v i l s e r v a n t s 9 7 while more than s i x t y per cent of the army and p o l i c e forces were from the northern d i s t r i c t s . 9 8 This therefore culminated into a c o l o n i a l l y encouraged North/South divide between the "warrior" and "educated" c l a s s e s , 9 9 which d i v i s i o n was to be encouraged and used to the advantage of many of the r u l e r s of independent Uganda. This d i v i s i o n i s also to be r e f l e c t e d i n the g u e r r i l l a war taking place, and perhaps i n the human ri g h t s v i o l a t i o n s i n Uganda. Uganda has had various changes of government since i t attained independence i n 1962. In t h i s study I w i l l only mention these governments chronologically. The country became independent on October 9, 1962 under the leadership of Apollo Milton Obote as Prime Minister and S i r Edward Mutesa II as c o n s t i t u t i o n a l president. On February 24, 1966, the Prime Minister i n s t i t u t e d a palace coup, abrogated the 68 1962 federal constitution, and established himself as the executive president of the c o u n t r y . 1 0 0 Obote's government was brought to an end on January 25, 1971 by a m i l i t a r y coup led by Major General I d i Amin Dada and supported by the I s r a e l i s and the B r i t i s h . Following the rampant murders, detentions and other human r i g h t s abuses by the I d i Amin government, Ugandan e x i l e s formed themselves into the Uganda National Liberation Front (UNLF) and, with the help of the Tanzanian government, overthrew the Amin regime on A p r i l 11, 1979. The f i r s t UNLF government was led by Professor Yusuf Kironde Lule. However, he was voted out of power 68 days l a t e r on June 19, 1979 and was replaced by Godfrey Lukongwa Binaisa. The Binaisa government was overthrown on May 10, 1980 by the M i l i t a r y Commission (one of the arms of the UNLF) with the backing of the army. The M i l i t a r y Commission, under the chairmanship of Paulo Muwanga, brought the country to the December 10, 1980 general elections through which Apollo Milton Obote's Uganda People's Congress (UPC) came to power under suspicious circumstances. The UPC government was overthrown i n a m i l i t a r y coup on July 27, 1985. The M i l i t a r y Council which formed the government a f t e r the UPC was also overthrown on January 25/2 6, 1986 by the National Resistance Movement (NRM) 1 0 1 and i t s m i l i t a r y wing, the National Resistance Army (NRA) under the leadership of Yoweri Kagutta Museveni, the current president of the country. 69 Although various human r i g h t s v i o l a t i o n s took place i n the f i r s t two decades of Uganda's independence, 1 0 2 including p o l i t i c a l and other k i l l i n g s , imprisonment and the denial of p o l i t i c a l p a r t i c i p a t i o n ; and the blatant v i o l a t i o n s by I d i A m i n 1 0 3 - murders, disappearances, 1 0 4 torture, and detention, to mention but a few - a g u e r r i l l a war did not break out i n Uganda u n t i l the highjacking of the general elections i n 1980. This f a c t should not i n any way weaken our theory, namely that v i o l a t i o n of human right s may lead to g u e r r i l l a wars and v i c e versa. The people's lack of knowledge of a g u e r r i l l a war at t h i s time should be taken into account as well as the f a c t that t h e i r opposition to these v i o l a t i o n s may have been r e f l e c t e d i n the various changes of governments which took place and the war which overthrew the regime of I d i Amin Dada. 1 0 5 The 1980 e l e c t i o n f i a s c o , which i s believed by many to have been rigged or otherwise manipulated 1 0 6 and was therefore i n e f f e c t a denial of the people's r i g h t to p o l i t i c a l p a r t i c i p a t i o n among other things, sparked o f f the wave of g u e r r i l l a movements i n Uganda which have persisted to date but with substantial changes. Among the reasons given f o r the commencement of the g u e r r i l l a movements i n 1 9 8 1 1 0 7 were the highjacking of elections by the Uganda Peoples' Congress (UPC) party headed by Milton Obote, and the v i o l a t i o n of other human ri g h t s e s p e c i a l l y by the army including murder, rape and t h e f t . 70 In response to the commencement of g u e r r i l l a movements, the then government resorted to repressive means i n the hope that the people would be discouraged from supporting the movements. Any persons suspected of being i n sympathy with the g u e r r i l l a movements were arrested, kidnapped, imprisoned, tortured, or k i l l e d . 1 0 8 C i v i l i a n populations who l i v e d among the areas where the g u e r r i l l a s operated were subjected to m i l i t a r y operations termed "Panda g a r i " (Swahili meaning that get i n the lorry) . The purpose of these operations was screening ' g u e r r i l l a s ' from innocent c i t i z e n s , but the end r e s u l t normally was torture, t h e f t of money and other property, rape, blackmail, and many times - death of some people. In some areas massive k i l l i n g operations were c a r r i e d out such as was the case i n West Ni l e , and i n Luwero D i s t r i c t . 1 0 9 Many people were forced to abandon t h e i r property and l i v e i n mop-up camps where t h e i r r i g h t s were again v i o l a t e d by the s o l d i e r s i n d i f f e r e n t ways. Many others got displaced and t h i s came to be termed "i n t e r n a l e x i l e . " 1 1 0 Thus i t i s reported that i n Luwero D i s t r i c t , as many as 120,000 people were held i n detention camps as long as two years i n the early 1980's as Obote's forces attempted to c l e a r out Baganda-based g u e r r i l l a o p p o s i t i o n . 1 1 1 Yet t h i s i s a conservative estimate. Freedom of the press and freedom of expression d i d not ex i s t i n fa c t though the government normally alleged that i t was one of the best i n A f r i c a . Many newspapers were banned 71 and many newspaper editors suffered arrests, torture and imprisonment without t r i a l or c h a r g e . 1 1 2 Is i t any wonder then that the v i o l a t i o n of human r i g h t s i n Uganda under Obote (Mark II) have been said to have been greater than under I d i Amin and a higher estimate of people k i l l e d made? 1 1 3 As a r e s u l t of subsequent v i o l a t i o n s of human ri g h t s e s p e c i a l l y by the army, the g u e r r i l l a movements acquired even more support from the people than ever before. Thus i t has been observed that: Throughout i t s tenure i n o f f i c e , the Obote (Mark II) government proved incapable of containing the N.R.A. (National Resistance Army), which seemed to have gathered some popular support not only i n southern and western Uganda but also i n c e r t a i n northern areas as well. Under the pretext of apprehending N.R.A. g u e r r i l l a s , the s o l d i e r s of Uganda army engaged i n an orgy of k i l l i n g , rape and looting e s p e c i a l l y but not only i n the t h i c k l y populated v i l l a g e s of Buganda D i s t r i c t s . 1 1 4 Likewise, i t i s stated that the abuse of parliamentary norms of behaviour helped the g u e r r i l l a forces to develop a new kind of p o l i t i c a l approach, namely, that of i d e n t i f y i n g with the people i n t h e i r day to day struggles of l i v i n g under precarious security and economic c o n d i t i o n s . 1 1 5 Another scholar suggests that because parliamentary p o l i t i c s was a farce and many opposition Members of Parliament were being detained, tortured or murdered, opposition p o l i t i c a l p a r t i e s turned to v i o l e n t g u e r r i l l a a c t i v i t i e s e i t h e r to further t h e i r aims as a r e s u l t of the allegedly rigged 72 losses, or i n r e t a l i a t i o n for the b r u t a l i t i e s of the second Obote regime. However, i t must be noted that the e t h n i c i t y factor and the Bantu (south)/Nilotic-Sudanese (North) d i v i s i o n may have played a part not only i n the commencement of the movements but also i n the support they acquired subsequently. The army which was responsible for most of these acts, though at government i n s t i g a t i o n , was l a r g e l y from the north and i t i d e n t i f i e d i t s e l f with Obote, while the g u e r r i l l a s and the people among whom they were operating were b a s i c a l l y southern Bantu t r i b e s , and they i d e n t i f i e d themselves as such. Nevertheless, t h i s does not change the f a c t that the root cause of a l l t h i s was the abuse of human r i g h t s . When the National Resistance Army, under the leadership of Yoweri Kagutta Museveni, marched v i c t o r i o u s l y into Kampala on January 25, 1986, 1 1 7 war-weary Ugandans hoped for a new era of peace and s t a b i l i t y . Museveni commenced a power-sharing exercise, b u i l d i n g a c o a l i t i o n by giving m i n i s t e r i a l seats to representatives of a l l p o l i t i c a l p a r t i e s and to the four f i g h t i n g forces which had battled O b ote. 1 1 8 However, the attempt to balance the cabinet e t h n i c a l l y , that i s , between the N i l o t i c northerners and easterners, and the southern Bantu, was not very successful; the southerners predominated, and they s t i l l form the majority i n the c a b i n e t . 1 1 9 Likewise, the recruitment of northerners and 73 easterners into the Bantu/southerner dominated army (N.R.A.) has not proceeded at a s u f f i c i e n t l y high rate. Seven months a f t e r the coming to power of the N.R.M., the hopes of Ugandans for peace and s t a b i l i t y were shattered when new g u e r r i l l a movements were formed. 1 2 0 Among those groups which are based i n Northern Uganda are the following: Uganda People 1s Democratic Army (UPDA) based around Gulu town; the Holy S p i r i t Movement of A l i c e Lakwena which operated i n a large part of northern and eastern Uganda, but i s now defunct following several confrontations with the National Resistance Army (government forces) and the arrest of i t s leader i n Kenya i n November, 1987; 1 2 1 and two new and f a r l e s s d i s c i p l i n e d groups - "Rubanga Won" (God the Father) and Lakwena Part Two - which arose out of the ashes of Lakwena's Holy S p i r i t Movement and started t e r r o r i z i n g c i v i l i a n s i n A c h o l i . 1 2 2 Among the groups which are based i n Eastern Uganda are Uganda People's Army (UPA) of Peter Otai which comprises mainly Obote l o y a l i s t s ; Uganda People's Front (UPF) of Colonel Omaria which i s based north of P a l l i s a town; FOBA (Force Obote Back Again) based around Iganga town; and f a r les s organized groups operating around Kumi and are headed by Ereju and o t h e r s . 1 2 3 Rebel leaders i n London and Nairobi allege that they are f i g h t i n g because Museveni i s a t r i b a l i s t and that the government i s dominated by westerners. They also say that the resistance committees 1 2 4 are communist; that the NRA i s 7 4 backed by Libyan, PLO, Cuban, and Rwandan mercenaries, and that i t i s abusing human r i g h t s . 1 2 5 Many of these reasons lack c r e d i b i l i t y and therefore may not s u f f i c i e n t l y j u s t i f y the commencement of war. In f a c t quite a number may be mere pretexts. The key reason may be loss of power and access to state wealth. Under the old regimes, s o l d i e r s could loot and s t e a l with impunity. A minister could be openly corrupt. A d i s t r i c t commissioner could run h i s area l i k e a personal fiefdorn - putting taxes d i r e c t l y into h i s pocket, using government cars for h i s private businesses, e v i c t i n g his p o l i t i c a l opponents from t h e i r homes, se i z i n g properties he d e s i r e d . 1 2 6 I t i s therefore not so much for the reasons given by the rebel leaders that the f i g h t i n g i s taking place as for loss of t h i s power and " p r i v i l e g e s " . This i s buttressed by the e t h n i c i t y factor - the northerners, p a r t i c u l a r l y the Acholi and Langi, see themselves as removed from power by the B a n t u . 1 2 7 However, actual, and p e r c e i v e d , 1 2 8 abuse of human ri g h t s may have contributed to the perpetration of the g u e r r i l l a movements. Immediately upon coming to power, the NRM banned p o l i t i c s f o r the r e s t of the 80 ' s 1 2 9 allegedly because the p o l i t i c a l p a r t i e s had conducted themselves i n an u t t e r l y d i s c r e d i t a b l e fashion throughout the l a s t quarter of the century, and that Uganda's immediate need was to recover from the economic and p o l i t i c a l chaos into which i t had been plunged i n the l a s t 20 years of more or l e s s bloodshed and 7 5 s t r i f e rather than p o l i t i c s . 1 3 0 I t may be that t h i s move by the NRM was interpreted by several people as a means of perpetually edging other groups and pa r t i e s out of power. The above suspicions may have been buttressed by the government's reaction to opposition and subversion. In mid- 1986, rumours of a planned coup resulted i n the arrest and imprisonment of "the Kirimuttu group" i n August, 1986. 1 3 1 This was allegedly a group of monarchists i n Buganda who were alleged to want the return of kingdoms which had been abolished by Obote i n 1966. However, many of these people have now been released without any charges. In October, 1986, another group involving, among others, three cabinet ministers (Evaristo Nyanzi, Andrew K a y i i r a and David Lwanga) were arrested and detained allegedly f o r p l o t t i n g to overthrow the government. 1 3 2 Just l i k e "the Kirimuttu group" many of these were l a t e r released, though Andrew K a y i i r a was soon a f t e r murdered by 'Unknown gunmen1 i n some dubious circumstances. 1 3 3 Actual, and suspected rebels have many times been treated by the government i n a tough manner. In February and March, 1986, following the allegations of the formation of FOBA, many people i n Busoga were arrested, and imprisoned only l a t e r to be released without c h a r g e s . 1 3 4 Many of them were tortured by tying them up i n the "Kandoya" or "three piece" s t y l e - t h i s i s a practice involving a prisoner's upper arms being t i e d t i g h t l y together behind h i s or her 76 back and t h i s may cause r e s t r i c t e d breathing and at times d e a t h . 1 3 5 In northern and north-eastern Uganda many people alleged to be g u e r r i l l a s have been arrested by the NRA. Many others have been tortured i n the "Kandoya" s t y l e , while quite a number have been k i l l e d . 1 3 6 I t i s claimed that by November, 1987, as many as 5,000 people may have been k i l l e d since the r e b e l l i o n began. 1 3 7 I t i s also claimed that that the NRA has burnt houses and food stores and 'hunted' a l l young males i n the north which has caused resentment among the Acholi (and other northerners and easterners) of Museveni's southern-dominated a d m i n i s t r a t i o n . 1 3 8 We must acknowledge the fact that the human right s s i t u a t i o n i n Uganda has greatly improved i n comparison to past r e g i m e s . 1 3 9 This notwithstanding, human ri g h t s are s t i l l being v i o l a t e d at a large scale. In i t s July 1987 submission to the government, Amnesty International c i t e s over two dozen cases of Acholi c i v i l i a n s dying at NRA hands, and i t claims that several thousand suspected rebels are being held without charges i n barracks and p r i s o n s . 1 4 0 Perhaps the only consolation, whatever i t s worth, i s that the government t r i e s not to condone intimidation of c i v i l i a n s by the army. Quite a few NRA s o l d i e r s , probably as a lesson to others, have been executed a f t e r being convicted of rape or fo r the k i l l i n g of c i v i l i a n s . While A l i c e Lakwena's Holy S p i r i t Movement has been demobilized, two knew but perhaps less organized groups have 7 7 developed i n i t s place. The other groups above said are also s t i l l going strong. Their presence i s manifested by such actions as the s e i z i n g of government m i n i s t e r s , 1 4 1 the k i l l i n g of a Libyan diplomat and f i v e others i n Kampala, 1 4 2 and the various m i l i t a r y engagements between the NRA s o l d i e r s and the g u e r r i l l a s , 1 4 3 a s well as the ambushing of c i v i l i a n and other v e h i c l e s . 1 4 4 A l l t h i s points to the fact that the war i s not ended. President Museveni does not believe i n negotiations on an equal basis with the f i g h t i n g forces. Yet a m i l i t a r y s o l u t i o n may be f a r from f e a s i b l e . However, h i s appeal to the rebels to lay down t h e i r arms during the N.R.M.'s Second Anniversary on January 26, 1988, 1 4 5 as well as the extension of the amnesty to those w i l l i n g to lay down t h e i r arms f o r another period may have generated some good r e s u l t s . There seems to be a p o s s i b i l i t y of the Uganda People's Democratic Army (UPDA), perhaps the largest of the g u e r r i l l a movements i n Uganda, f u l l y j o i n the NRM government and merge with the government forces - the National Resistance Army. A peace agreement to that e f f e c t was signed between the government and t h i s g r o u p . 1 4 6 Under the terms of the NRM/UPDA Peace Agreement which was signed on June 3, 1988, 1 4 7 the c a b i n e t 1 4 8 i s to be expanded to include UPDA/UPDM representatives and a l l UPDA o f f i c e r s and men who wish to continue with m i l i t a r y service and are q u a l i f i e d s h a l l be absorbed into the national resistance army (NRA) i n a manner proportional to d i s t r i c t s 78 of o r i g i n . 1 4 9 I t i s claimed that under t h i s truce many rebels are making peace with the government and ermeging from t h e i r hideouts to help re b u i l d the n a t i o n . 1 5 0 Perhaps a few of t h e i r o f f i c e r s have also been incorporated into the government. In s p i t e of t h i s , a tough hurdle remains, namely, f u l l implementation of t h i s agreement which i s i t s e l f not an easy matter. In 1985, a s i m i l a r agreement was signed i n Nairobi between the NRM/NRA (by then i t was s t i l l a g u e r r i l l a movement) and the then r u l i n g M i l i t a r y Council which overthrew the Obote government. This was the so-called Nairobi Peace Accord, signed December 17, 1985 under the auspices of President Daniel Arap Moi of Kenya. As i t turned out, the Nairobi Peace Accord was merely intended by both part i e s as a 'diplomatic coup' to buy eithe r party more time i n the b a t t l e f i e l d . I t was therefore never honoured, and was breached by both sides even as i t was being signed. The NRA then proceeded to take power which i t accomplished barely one and h a l f months a f t e r the signing of the Peace Agreement. 1 5 1 I t i s the writer's hope that t h i s time the part i e s to the June 1988 Peace Agreement are genuine i n t h e i r intentions. I t i s also my sincere hope that the rest of the g u e r r i l l a movements w i l l follow the f f f o t s t e p s of the UPDA and come to terms with the NRM government. This may help lead the country out of the quagmire, at l e a s t i n the short 79 run, since even the government s o l d i e r s would seem to be a l l out f o r a peaceful s e t t l e m e n t . 1 5 2 Of course a major duty l i e s upon the government to see to i t that i t encourages the establishment of a peaceful settlement with a l l the f i g h t i n g forces. This can e s p e c i a l l y be achieved through est a b l i s h i n g and maintaining a clean human r i g h t s record. One step has already been taken i n t h i s d i r e c t i o n , namely, the establishment of a Commission of inquiry into v i o l a t i o n s of human r i g h t s . 1 5 3 The Commission's main purpose i s to inquire into a l l aspects of v i o l a t i o n s of human ri g h t s , breaches of the rule of law and excessive abuse of power, committed against persons i n Uganda by the regimes i n power, t h e i r servants or agents during the period from 9 October, 1962 to 25 January, 1986, and to recommend possible ways of preventing the recurrence of those v i o l a t i o n s . 1 5 4 We only hope that the Commission w i l l l i v e up to the purposes f o r which i t was established; that i t w i l l improve i t s e l f so as to carry out i t s work more e f f i c i e n t l y ; and that there s h a l l be no p o l i t i c a l interference i n i t s work. Presently, the poorly trained and corrupt Uganda Police i s a major hindrance to i t s work. 80 8 9 10 11 12 13 14 FOOTNOTES See Peter Woodward, P o l i t i c a l factors contributing to the refugees i n the horn of A f r i c a . International Relations, Vol.IX, No.2, November 1987, 111-112. For example, see A f r i c a Confidential, Vol.27, No.l, 2 January, 1986, Ethiopia: Regional Wrangles; and A f r i c a Confidential. Vol.27, No.16, 30 July, 1986, Ethiopia: Opposition Disintegration. See Robert D. Kaplan, The Loneliest War. The A t l a n t i c Monthly, July 1988, 58-65, 60; and D. Donhan and W. James (eds), The Southern Marches of Imperial Ethiopia. Cambridge,Cambridge University Press, 1986. See Robert D. Kaplan, The Loneliest War, supra, 60. See Sherman R., E r i t r e a . The Unfinished Revolution. New York, Praeger, 1980, esp.73; and E r l i k h Hagai, The Struggle Over E r i t r e a , 1962-1978: War and Revolution i n the Horn of A f r i c a , Stanford, C a l i f o r n i a , Hoover I n s t i t u t i o n Press, 1983, 1-11. See Robert D. Kaplan, The Loneliest War, supra, 60. See Sherman R., E r i t r e a . The Unfinished Revolution, supra, 32-36; E r l i k h Hagai, The Struggle Over E r i t r e a , supra, 1-33; and Mary Dimes, Ethiopian repression i n E r i t r e a , i n : The E r i t r e a n Case. Proceedings of the permanent Peoples' Tribunal of the International Leagues for the Rights and Liberation of Peoples Session on E r i t r e a , Milan, I t a l y , May 24-26, 1980, 308- 323. See Robert D. Kaplan, The Loneliest War, supra, 63. Bereket Habte Selassie, C o n f l i c t and Intervention i n the Horn of A f r i c a . New York:Monthly Review Press, 1980, 77. Ibid, 78-81. Id, 81. Id, 83. Id. Bereket Habte Selassie, supra, at 88 states that t h i s r e v o l t destroyed Ethiopian garrisons i n Tigray, defeated Haile Selassie's B r i t i s h - t r a i n e d armed forces, and f o r a time l i b e r a t e d the town of Makale. The r e v o l t 81 was only quelled a f t e r obtaining more B r i t i s h help, including airplanes to bomb Makale. 1 5 See Bereket Habte Selassie, supra, 88-89. 1 6 Ibid, 89. Id. Id, 97. 17 18 19 20 23 24 25 26 28 29 30 See Tom J . Farer, War Clouds on the Horn of A f r i c a : The Widening Storm, 2nd, rev.ed., New York:Carnegie Endowment for International Peace, 1979, 69-89. See Bereket Habte Selassie, supra, 100. 2 1 Ibid, 105. 22 See Tom J . Farer, supra, 123-124. Ibid, 106-107. For a more intensive coverage of the Ethiopia-Somali Ogaden war 1977-79, see Tom J . Farer, supra, 120-123; and Bereket Habte Selassie, supra, 116-125. See A f r i c a Confidential, Vol.27, No.3, 29 January, 1986, The Horn: Barre and Mengstu. See, among others, A f r i c a Confidential. Vol.27, No.5, 26 February, 1986, Somalia: Towards an Ogaden Pact? See A f r i c a C o n f i d e n t i a l f Vol.27, No.l, 2 January, 1986; and Vol.27, No.3, 29 January, 1986, The Horn: Barre and Mengstu. See Robert D. Kaplan, The Loneliest War, supra, 61. See Michael J . Bazyler, Re-examining the Doctrine of Humanitarian Intervention i n Light of the A t r o c i t i e s i n Kampuchea and Ethiopia, Stanford J . I n t ' l Law, Vol. XXIII, Issue 2, Summer 1987, 547-619, 556. See Robert D. Kaplan, The Loneliest War, supra, 61. 3 1 See Michael J . Bazyler, supra, 557. Dr Jason Clay, Research Director of Cultural Survival, a Massachusetts-based human ri g h t s organization, i s said to have t e s t i f i e d that "With regard to the question: Is the government Ethiopia of engaged i n a p o l i c y of deliberate starvation of i t s own people, p a r t i c u l a r l y i n d issident regions of the country?, the answer i s 82 complicated but unequivocally yes." (Quoted by Michael J . Bazyler, 555). Ibid, 555. For an elaboration on these points see Michael J . Bazyler, supra, 560-569. Ibid, 558. Id, 567. Also see A f r i c a Confidential, Vol.27, No.12, 4 June, 1986, Pointers, Ethiopia: V i l l a g i z a t i o n . See Andrew Lycett, ETHIOPIA, i n : The A f r i c a Review. l l t n e d i t i o n , 1987 (World of Information), 93-96, 94. See The Economist, World Human Rights Guide. London, 1986, (Originated and compiled by Charles Humana), 88- 91. In that work Ethiopia i s rated as one of those countries having the lowest human ri g h t s records i n the world. The people are surbodinate to the aims and s u r v i v a l of the Provisional M i l i t a r y government which rules by a r b i t r a r y and summary decrees and controls. See, among others, The Times, Saturday November 21, 1987, 5 m i l l i o n face Ethiopia famine; Patrick Moser, Ethiopia: On Famine's Brink, A f r i c a Report (America's leading magazine on Africa) January-February 1988, 40- 43; The Times. Friday, A p r i l 15, 1988, Famine feared as Ethiopia prepares to crush rebels; and The Globe and Mail, Thursday, June 9, 1988, Canadian Hercules s p e l l r e l i e f f o r the hungry. See Michael J . Bazyler, supra, 565. See Manchester Guardian Weekly. February 28, 1988, 16, T r a d i t i o n versus Revolution i n Ethiopia. See The Times. Friday, February 19, 1988, Denial by Ethiopia. Ethiopia's Prime Minister, Mr F i k l e Selassie Wogderess announced that the resettlement program i s being expanded, but denied a l l allegations reported on BBC that people were being forced into the scheme or that some had been k i l l e d f o r refusing to move. See Michael Y e l l i n , E r i t r e a : The Food Weapon, A f r i c a Report (America's leading magazine on Africa) January- February 1988, 44; and The Globe and Mail. Friday, A p r i l 8, 1988, Ethiopia's Wars. See The Times. Thursday, A p r i l 7, 1988, Fighting i n Ethiopia: Addis Ababa t e l l s a i d workers to go. I t must however be noted that the g u e r r i l l a s themselves have also sometimes made the work of aid workers d i f f i c u l t - 83 see The Times, Thursday, March 31, 1988, Famine i n Ethiopia: Stepped-up g u e r r i l l a raids threaten food d e l i v e r i e s . In fact, a number of times, the g u e r r i l l a s have gone to the extent of h i t t i n g food trucks allegedly because they were carrying m i l i t a r y supplies i n addition to food - see The New York Times. Friday, January 22, 1988, U.S. a s s a i l s Ethiopian rebel r a i d ; and Manchester Guardian Weekly, January 24, 1988, 8, Ethiopian rebels h i t food trucks.. See A f r i c a C o n f i d e n t i a l f Vol.28, No.7, 1 A p r i l , 1987, Ethiopia: E r i t r e a takes stock; and A f r i c a Confidential. Vol.29, No.9, 29 A p r i l , 1988, Ethiopia: A b a t t l e l o s t , a war i n stalement. See A f r i c a Confidential, Vol.28, No.7, 1 A p r i l , 1987, Ethiopia: N a t i o n a l i t i e s and the Constitution; and A f r i c a Confidential, Vol.28, No.23, 18 November, 1987, Ethiopia: Redrawing the map. See A f r i c a Confidential. Vol 29, No.9. See A f r i c a Confidential. Vol 29, No. 11, 27 May, 1988, Ethiopia: EPLF Peace Conditions. Ibid. See A f r i c a Confidential. Vol.29, No.13, 1 July, 1988, Ethiopia: Mengistu's Soldiers On. Ibid. John V o l l and Sarah V o l l , The Sudan: Unity and D i v e r s i t y i n a M u l t i c u l t u r a l State, supra, 6. Ibid, 6-13. See, among others, Rafia Hassan Ahmed, Regionalism, E t h n i c i t y and s o c i o - c u l t u r a l pluralism. The case of southern Sudan, i n : Mohamed Omer Beshir, ed, Southern Sudan: Regionalism and Religion, supra, 6-59, esp. 26; John V o l l and Sarah V o l l , The Sudan: Unity and D i v e r s i t y i n a M u l t i c u l t u r a l State. Westview Press, Boulder, Colorado, 1985, esp. 49-65; and Minority Rights Group, Uganda and Sudan, Report No. 66, London, 1984, 24. Rafia Hassan Ahmed, Regionalism, E t h n i c i t y and socio- c u l t u r a l pluralism. The case of southern Sudan, i n : Mohamed Omer Beshir, ed, Southern Sudan: Regionalism and Religion. supra, 26. I t i s argued that the southerner f e e l s himself to be an African, while the r u l i n g northerner i s proud of h i s Arab consciousness (R. Gray, "Introduction" i n J . Oduho and W. Deng, The 84 Problem of the Southern Sudan. London, Oxford University Press, 1963, 2). 5 5 Ibid, 26-27. This assertion overlooks various points, among them, the f a c t that the southerners have never been given r e a l chance to devise peaceful means to the solu t i o n of the problem. Each side has always been suspicious of the other. Moreover, the northerners who have always been i n a better p o s i t i o n to do so, have only thought of subjugating the culture, r e l i g i o n and i n t e r e s t s of the south to those of the north. 5 6 This c i v i l war s h a l l not be the concern of t h i s study. I t s h a l l be referred to only i n so f a r as i t re l a t e s to the present war i n the Sudan. For f u l l e r accounts of t h i s war see, among others, Hizkias Assefa, Mediation of C i v i l Wars: Approaches and Strategies - The Sudan C o n f l i c t . Westview Press, Boulder, Colorado, 1987, 53- 85; E l i a s Nyamlell Wakoson, The Origin and Development of the Anya-Nya Movement 1955-1972 i n : Mohamed Omer Beshir, ed, Southern Sudan: Regionalism and Religion. Graduate College Publications, University of Khartoum, Sudan, 1984, 127-204; and Charles Gurdon, Sudan at the Crossroads. Menas Press, Whitstable, Kent, 1984, 19- 21. . 5 7 This i s regarded as Nimeiri's greatest achievement. A coverage of the negotiations leading up to the agreement as well as i t s s a l i e n t features i s made by Hizkias Assefa, i b i d , 131-143; and Charles Gurdon, i b i d , 30-31 5 8 Ibid. 5 9 See The Guardian Weekly. November 8, 1981, 7 "Enclave Arrangements" Simmering Secession upstages Gadafy's threats; and The Guardian Weekly. February 14, 1982, 12 Sudan - regional i n s t a b i l i t y and i n t e r n a l tension. Also see generally Mansour Khalid, Nimeiri and the Revolution of Pis-May. KPI, London, 1985, 193-253. 6 0 See Minority Rights Group, supra, 24-25. 6 1 See Mohammad Hamid, Devolution and National integration i n Sudan, i n : Al-Rahim, Badal, Hardallo and Woodward, eds., Sudan Since Independence. Gower, Aldershot, England, 1986, 121, 133-134; Charles Gurdon, Sudan at the Crossroads, supra, 60; and A f r i c a Confidential, 27 June 1983; 62 See The New York Times, February 22, 1982, Regional dispute divides the Sudan. Nimeiri's move to subdivide the South s t i r s opposition and fear of s t r i f e ; and The 85 New York Times. March 10, 1983, The struggle to govern the ungovernable i n Sudan. See Mohammad Hamid, Devolution and National integration i n Sudan, i n : Al-Rahim, Badal, Hardallo and Woodward, eds., Sudan Since Independence, supra, 121, 133-134; Charles Gurdon, Sudan at the Crossroads f supra, 65; and A f r i c a Confidential. 27 June 1983; Also see P. Woodward, Sudan: Threats to S t a b i l i t y . C o n f l i c t Studies No. 173, I n s t i t u t e f o r the Study of C o n f l i c t , London, 1985, 11-12; and The Globe and Mail, Monday December 19, 1983, Surge of fundamentalism remolding shape of Islam.. See Minority Rights Group, supra, 25. See Rapheal Badal, O i l and Regional Sentiment i n the South i n : Al-Rahim, Badal, Hardallo and Woodward, eds., Sudan Since Independence, supra, 143, 147-150; and P. Woodward, Sudan: Threats to S t a b i l i t y , supra, 12. [The Sudd i s an area i n south-central Sudan where the inhabitants depend s o l e l y on the water of the N i l e for t h e i r s u r v i v a l ] . Ibid. See also Charles Gurdon, Sudan at the Crossroads, supra, 76-86. See The Guardian Weekly, November 13, 1983, O i l holds promise for Sudan. See Mansour Khalid, Nimeiri and the Revolution of Dis- Mav. supra, 284. Col. Garang, a Dinka by t r i b e , served i n the Sudanese armed forces and lectured on a part-time basis i n the University of Khartoum's Faculty of Agriculture. He i s a holder of a PhD i n r u r a l economy from Iowa State University. Third World Reports: C o l i n Legum 23 March 1984, and quoted by Mansour Khalid, Nimeiri and the Revolution of Pis-May, supra, 286. Per John Garang (mil i t a r y leader of the SPLA movement) i n an an interview with A f r i c a Report, and reported by Robert M. Press, Prospects for peace? A f r i c a Report. January-February 1988, 45, 46-47. Mansour Khalid, Nimeiri and the Revolution of Pis-May, supra, 284. Various clashes have taken place between the SPLA and "Anya nya I I " . These were p a r t l y i d e o l o g i c a l and p a r t l y ethnic. The l a t e r movement was more secessionist while the former was interested i n a r a d i c a l a l t e r a t i o n of the whole Sudan. The ethnic 86 tensions were mainly as a r e s u l t of the fear of Dinka dominance i n the south since i t i s the largest single t r i b e i n the south. These clashes culminated i n the l a t e r movement j o i n i n g the government i n l a t e 1984 following some negotiations. Today "Anya nya I I " i s said to f i g h t the SPLA on the side of the government although i t s membership i s very low and i t s strength i s highly questionable. See Woodward, Sudan: Threats to S t a b i l i t y , supra, 12; and Mansour Khalid, Nimeiri and the Revolution of Dis- May, supra, 286-287; and Woodward, P o l i t i c a l factors contributing to the refugees i n the horn of A f r i c a , supra, 115-116 (under 'Domestic I n s t a b i l i t y and Neighbour Intervention'). See The Vancouver Sun. Saturday October 8, 1983, Fleeing Southern Sudan. Refugees claim a t r o c i t i e s . See IHT, Tuesday, August 27, 1985, In Sudan new leaders b a t t l e an old c i v i l war; The New York Times, Sunday, May 4, 1986, Sudan's new leaders are i n a corner; Manchester Guardian Weekly, June 21, 1987, The honeymoon i s over for the government i n Sudan; and Week-end Australian. August 23-24, 1986, C i v i l war pol a r i z e s the North and South i n Sudan. See Manchester Guardian Weekly. August 31, 1986, Sudan's War of secession. Ibid. Also see A f r i c a Confidential, Vol.27, No.10, 7 May, 1986, Sudan: Towards Government; and A f r i c a Confidential Vol.28, No.3, 4 February, 1987, Sudan: North and South. See A f r i c a Confidential. Vol.27, No.23, 12 November, 1987, Sudan: Inside Malak. See A f r i c a Confidential. Vol.28, No.3, 4 February, 1987, Sudan: North and South. See The Globe and Mail. Friday, A p r i l 17, 1987, 2,000 Dinka tribesmen reportedly k i l l e d i n Sudan; and A f r i c a C onfidential, Vol.28, No.9, 29 A p r i l , 1987, Sudan: Post-mortem. See Manchester Guardian Weekly. September 6, 1987, New guns revive slavery i n Sudan. Ibid. 83 See A f r i c a Confidential. Vol.28, No.19, 23 September, 1987, Sudan: T r i b a l Divides. 87 84 85 86 87 88 89 90 91 See Robert Press, Sudan: Prospects for peace? A f r i c a Report. January-February, 1988, 46. However, i t should be pointed out that the attempts to broaden the t r i b a l base of the Dinka-dominated SPLA are to some extent thwarted by the increase i n t r i b a l i s m fueled by the war and i n p a r t i c u l a r , the government p o l i c y of arming t r i b a l m i l i t i a s (See A f r i c a C o nfidential. Vol.28, No.19, 23 September, 1987, Sudan: T r i b a l Divides; and A f r i c a Confidential. Vol.29, No.8, 15 A p r i l , 1988, Sudan: The SPLA i n Focus). See A f r i c a Confidential. Vol.28, No.23, 18 November, 1987, Pointers, Sudan: Troubled Waters. See A f r i c a Confidential. Vol.29, No.8, 15 A p r i l , 1988, Sudan: The SPLA i n Focus See The New York Times. Sunday October 23, 1988, Debate on Islamic Law Further Strains Sudan; and Sudan's Secret Slaughter. (Anonymous), Cu l t u r a l Survival Quarterly, Vol.10 No.2, 1988, 41-47. See A f r i c a Confidential, Vol.29, No.8, 15 A p r i l , 1988, Sudan: The SPLA i n Focus. See also The Globe and Mail. Wednesday, January 13, 1988, Sudan says rebels ready for truce. See Robert Press, A f r i c a Report, supra, 45 A f r i c a Confidential believes that a f t e r several years of f i g h t i n g , the gap between the north and south has continued to grow creating a major change i n Northern opinion. A b e l i e f i n national unity that once seemed to be unshakable has been replaced by a widely-held willingness to l e t the south go. I r o n i c a l l y the Southerners who at one time wanted independence, are demanding a greater national r o l e more veci f e r o u s l y than ever before. (Vol.28, No.18, 2 September, 1987, Sudan: The D r i f t Toward Dictatorship). In my opinion the l a t t e r statement (in r e l a t i o n to the south) i s more true than the former (in r e l a t i o n to the north). Northern opinion has not yet reached t h i s stage but may reach i t with continued f i g h t i n g . See Minority Rights Group, Uganda and Sudan. Report No. 66, London, 1984, 4. 9 2 See Lugard, The Dual Mandate i n B r i t i s h Tropical A f r i c a ; and Lugard, The Rise of Our East A f r i c a n Empire, Vol.1, 649 and quoted i n : Ib i n g i r a Grace K, The Forging of an A f r i c a n Nation, Viking Press, New York, 1973, 19. 88 See Welbourrt, Religion and P o l i t i c s i n Uganda, 1952-62, Nairobi, 1965; and Jorgensen, Uganda: A Modern History, London, 1981. Ibi n g i r a , supra, 65. Milton Obote, The Footsteps of Uganda's Revolution, East A f r i c a n Journal, 5, 10, October, 1968. See The Minority Rights Group, Uganda and Sudan, supra, 4-5. Ibid, 5. See Holger Bernt Hansen, E t h n i c i t y and M i l i t a r y Rule i n Uganda, Research report No.43, Scandinavian I n s t i t u t e of A f r i c a n Studies, Uppsala, 1977, esp. Chapter 9. Avirgan Tony and Honey Martha, War i n Uganda. The Legacy of I d i Amin, Connecticut, 1982, 6, observe that: "Obote's ten-thousand-man army, a c h i l d of the c o l o n i a l army, was composed la r g e l y of Acholi, Langi, and Itesot peoples, the.; t r i b e s considered most 'warlike' by the B r i t i s h . The.colonial pattern of r e c r u i t i n g mainly from these three t r i b e s for the arky, p o l i c e , and prisons was strengthened by Obote, himself a Langi. To use the words of the Minority Rights Group, Uganda and Sudan, supra, 5. Mutesa was forced to go into e x i l e i n B r i t a i n where he died i n 1969. Members of parliament and ministers who did not agree with the president were imprisoned. Kingdoms were abolished. A l l these actions were l a t e r purportedly l e g a l i z e d i n the 1966 c o n s t i t u t i o n and then even l a t e r on i n the Republican constitution, 1967. A l l detentions were l a t e r to be ret r o s p e c t i v e l y j u s t i f i e d under the Public Order and Security Act, 1967. This was a g u e r r i l l a movement formed i n 1981 allegedly i n opposition to the rigging of the 1980 general elce t i o n s . In the f i r s t Obote regime (1962-1971), Ugandans saw the abrogation of the Independence Constitution, the a b o l i t i o n of kingdoms, detention of the opposition and denial of p o l i t i c a l p a r t i c i p a t i o n , and the suppression of various t r i b e s . For example, while recounting h i s greatest achievements i n 1969, Obote i s said to have boasted of having cut the Baganda down to s i z e . For a de t a i l e d anally s i s of these events see, among others, Ib i n g i r a Grace., The Forging of an A f r i c a n Nation, supra; and Kanyeihamba G.W, Constitutional Law and Development i n Uganda, Nairobi, E.A.L.B, 1973. 89 1 0 3 I d i Amin came to power on January 25, 1971 following a m i l i t a r y coup which was p a r t l y supported by I s r a e l and B r i t a i n . There are numerous accounts of I d i Amin's a t r o c i t i e s and h i s times. Among these are the following: Amnesty International, Human Rights i n Uganda, London, 1978; International Commission J u r i s t s , Uganda and Human Rights: Report to the United Nations Commission on Human Rights. Geneva, 1977; Kyemba H, A State of Blood: The Inside Story of I d i Amin, 1977; Kiwanuka M.S.M, Amin and the Tragedy of Uganda, 1979; Grahame I, Amin and Uganda: A Personal Memoir,1980; H i l l s Dennis C, Rebel People, 1978; Melady T. Patrick, I d i Amin Dada: H i t l e r i n A f r i c a , 1978; and Smith G. Ivan, Ghosts of Kampala. 1980.. 1 0 4 For a r e l a t i v e account on the nature and meaning of disappearances see Shestack, Jerome J, The Case of the Disappeared. "In Foreign Countries 'missing persons' are the nightmare victims of state terrorism" 8 Human Rights 24-27 and 51-53, Winter, 1980. 105 106 Milton Obote was overthrown i n a m i l i t a r y coup by I d i Amin i n January, 1971; Amin was overthrown i n A p r i l , 1979 i n a war of e x i l e s supported by neighbouring Tanzania. Three successive governments were set i n the period p r i o r to the December, 1980 elections headed by the l a t e Yusuf K. Lule (68 days) , Godfrey L. Binaisa, and the M i l i t a r y Commission under the chairmanship of Paulo Muwanga, respectively. See Minority Rights Group, supra, 7-8. The U.P.C. was reported to have secured seventy-two seats, the Democratic Party (D.P.) f i f t y - o n e , Uganda P a t r i o t i c Movement (U.P.M.) one, and the Conservative Party (CP.) none. The basis f o r doubting the r e s u l t s were the events p r i o r to and during, and immediately following the elections which involved manipulations and manoeuvres including the U.P.C.'s securing of 17 seats said to be unopposed i n suspicious circumstances. The Commonwealth Observer Group which reported that the elections were f a i r given the circumstances on the whole made i t s report too early and l e f t the country long before the e l e c t i o n r e s u l t s were announced. For a coverage of these elections see among others: Sathyamurthy/ The P o l i t i c a l Development of Uganda. 1900-1986, Gower, Aldershot, England, 1986, 670-671; Avirgan and Honey, supra, 225-8; Rhoda Howard, Human Rights i n Commonwealth A f r i c a , supra, 135; Minority Rights Group, supra, at 7; and Commonwealth Observer Group, Uganda Elections December, 1980: Report (London. Commonwealth Secretariat, 1980) F i n a l Report. I t i s p a r t l y reprinted i n Uganda Information B u l l e t i n 6 (January, 1981) 13-15, and i s also quoted by Rhoda Howard, and by the Minority Rights Group. 90 1 07 . . For an account of the g u e r r i l l a movements involved u n t i l the coming to power of the National Resistance Movement (N.R.M.) under the chairmanship of Yoweri K. Museveni i n January, 1986, see Minority Rights Group, supra, 8. They included the N.R.M., the Uganda Freedom Movement (U.F.M.), the Federal Democratic Army (FEDEMU), and the Uganda National Rescue Front (UNRF). 1 OR . . The writer happens to have been born i n one of the areas which were deeply affected. There are also elaborate accounts of these human ri g h t s abuses such as: C o l i n Legum, "After the Amin Nightmare".Report. January-February, 1983; Amnesty International, Memorandum to the Government of Uganda on an Amnesty International Mission to Uganda i n 1982 and further exchanges between the government and Amnesty Int e r n a t i o n a l ( A p r i l 1983) and Uganda: Evidence of Torture. (June 18. 1985); Amnesty International Reports, 1982 (pp. 88-92), 1983 (pp.88-93), 1984 (pp.107-111) , 1985 (pp.105-109) , and 1986 (pp. 106- 110) ; J e f f Crisp, National Security. Human Rights and Population Displacements: Luwero D i s t r i c t , Uganda. Jan- Dec. 1983. Review of the Afr i c a n P o l i t i c a l Economy, 27- 28 (1983):164-174; The Minority Rights Group, supra; and Yusuf K. Lule, Human Rights V i o l a t i o n s i n Uganda under Obote. C a l i f o r n i a , 1982. 109 110 112 115 See i n p a r t i c u l a r , The Minority Rights Group, supra, 8- 10 and 12-15; Yusuf Lule, supra, esp. 13-15; and J e f f Crisp, supra. However, i t must be noted that quite a number of k i l l i n g s were also c a r r i e d out by the g u e r r i l l a movements. The National Resistance Army and the Uganda Freedom Army were p a r t i c u l a r l y known for executing government agents such as chiefs and party o f f i c i a l s , as well as c i v i l i a n s who d i d not seem to support the g u e r r i l l a ' s cause. See J e f f Crisp, supra. 1 1 1 Ibid, 169. See Minority Rights Group, supra, 14-16, 1 1 3 See Yusuf K. Lule, supra; The then leader of the Parliamentary Opposition placed the minimum figure of people k i l l e d during Obote's second term of o f f i c e at 500,000. 1 1 4 Sathyamurthy T.V., supra, 671. Ibid, 716. 1 1 6 Rhoda Howard, Human Rights i n Commonwealth A f r i c a , supra, 135. 91 See A f r i c a Confidential. Vol.27 No.3, 29 January, 1986, Uganda: By Storm. See A f r i c a Confidential. Vol.27 No.4, 12 February, 1986, Uganda: Gotterdammerung at Gulu; See also Catharine Watson, Uganda: Ending the Rule of the Gun, A f r i c a Report (America's leading magazine on Africa) January-February 1988, 14, 15. Despite the alleged power-sharing, the people who were i n power immediately preceding the N.R.M. were not e f f e c t i v e l y represented i n the "accommodatory" N.R.M. government. Museveni c a l l e d them "human ri g h t s criminals who had massacred people i n Luwero and could not come back to Uganda without facing t r i a l " , and that they were " p o l i t i c a l l y bankrupt" with no l o c a l support. This predominance may however not be so great i f i t i s viewed proportionately to the population of each ethnic group. See A f r i c a Confidential. Vol.27 No.18, 3 September, 1986, Pointers, Uganda: Northern Troubles; Vol.28 No.3, 4 February, 1987, Uganda: False Messiah; Vol.29 No.l, 8 January, 1988, Uganda: Insecurity East and North; and Vol.29 No.7, 1 A p r i l , 1988, Uganda: Unholy S p i r i t . See The Times (London), Thursday, December 31, 1987, Ugandan rebel j a i l e d i n Kenya; The Globe and Mail. Thursday, December 31, 1987; The Vancouver Sun, Thursday, December 31, 1987, Kenya nabs Ugandan rebel who l e d troops v i a Voodoo. Lakwena's Holy S p i r i t Movement had attracted a substantial following i n the north as well as r e g i s t e r i n g several successes against the NRA p r i o r to i t s defeat. For an account of these see Macleans Magazine. November 2, 1987, 24, A l i c e ' s Army on the March; The Globe and Mail. Friday, November 13, 1987, 'Magic of Ugandan Priestess conjures t r a i l s of rebel blood'; and The New York Times, Thursday, November 5, 1987, Ugandan Cult i s carrying out s u i c i d a l r a i d s . See A f r i c a Confidential, Vol.29 No.l, 8 January, 1988, Uganda: Insecurity East and North. See A f r i c a Confidential, Vol.29 No.7, 1 A p r i l , 1988, Uganda: Unholy S p i r i t . These have been established at various l e v e l s allegedly to allow p o l i t i c a l p a r t i c i p a t i o n by the masses (sic) and many people have been elected to them. They may be equated to the palever which i s described as "organized and open debates on various issues i n which everybody, regardless of age and sex, i s encouraged to p a r t i c i p a t e with a view to reaching a consensus and keeping the 92 community c l o s e l y linked. 1 1 (U.N.E.S.CO., S o c i a l - p o l i t i c a l aspects of the palever i n some Afr i c a n countries. 1979, i n the preface). Although t h i s general purpose may be served, the resistance committees are i n r e a l i t y organs of the NRM through which i t hopes to entrench i t s e l f , as well as a t t r a c t i n g the masses and r a l l y i n g them behind NRM. 1 2 5 See Catharine Watson, supra, 16. 1 2 6 Ibid, 16-17. Of course many of these acts, and i n p a r t i c u l a r corruption, cannot be ruled out i n the present regime. The only difference from past regimes i s that the current regime does not, at l e a s t i n p r i n c i p l e , encourage these acts and i n f a c t attempts to punish the perpetrators when apprehended. The major problem i s that the machinery responsible f o r t h i s law enforcement, namely the p o l i c e , i s i t s e l f affected by the very forces i t i s supposed to f i g h t . 127 128 129 130 131 See The Address to the Nation by His Excellency the President Hon.Yoweri Kagutta Museveni on the twenty- f i f t h anniversary of Uganda.s Independence on the 9 — October i n 1987 at Kampala (copy i n Writer's possession); and the President's speech at Vancouver on Friday, October 1 6 t h 1987 to Ugandans i n Vancouver and V i c t o r i a when he came for the commonwealth conference, October, 1987, held i n Vancouver. Also see The New York Times, Thursday, November 5, 1987, Uganda Cult i s carrying out suicide ra i d s . Since the army and government are to a large extent dominated by the Bantu, the northerners among whom the movements operate, and who were responsible f o r much of the human ri g h t s abuses and s u f f e r i n g during the Obote and Okello regimes, must have feared retaliation/revenge by the NRA. See NRM Proclamation. 1986 (Legal Notice No.l of 1986) as amended by Legal Notice No. 6 of 1986, and l a t e r by Legal Notice No.l of 1986 (Amendment) Decree, 1987 which replaced Legal Notice No.6 of 1986 upon i t s being declared unconstitutional i n the case of Ssempebwa Vs Attorney General, Constitutional Court Case No.l of 1986. A comment on t h i s i s given i n Commonwealth Law B u l l e t i n . 1987 Vol.13, 1151. See Sathyamurthy T. V., supra, 724. See Amnesty International Report, 1987, 116. 1 3 2 Ibid. 93 1 3 3 Andrew K a y i i r a was also the leader of UFM, one of the g u e r r i l l a movements which fought the Obote government. He was believed i n many c i r c l e s as Museveni's equal i n g u e r r i l l a organization and one of the persons whom Museveni feared most. His death i s therefore suspected of f o u l play e s p e c i a l l y i n view of the contradictory statements made by the government as to hi s death. 134 137 138 139 140 141 142 146 147 See Amnesty International Report, 1987, 115. 1 3 5 Ibid, 117. 1 3 6 See Museveni's Independence Anniversary speech on October 9, 1987, and hi s speech at Vancouver on October 16, 1987, supra; Also see The New York Times, Thursday, November 5, 1987, Uganda Cult i s carrying out s u i c i d a l r a i d s . The Globe and Mail. Friday, November 13, 1987, 'Magic of Ugandan Priestess conjures t r a i l s of rebel blood'. See The New York Times. Thursday, November 5, 1987, Uganda Cult i s carrying out s u i c i d a l r a i d s . See Amnesty International Report, 1987, 114. See A f r i c a Report, January-February, 1988, supra, 16. See The Globe and Mail, Saturday, January 2, 1988, Ugandan O f f i c i a l s reported seized. See The Globe and Mail. Tuesday, January 12, 1988, One dead and f i v e wounded i n Uganda rebel attack; and The Globe and Mail, Thursday, January 14, 1988, Two arrested i n Libyan's death. 1 4 3 The Times. Thursday, November 26, 1987, Uganda f l a r e - up. See The Times. Wednesday, February 17, 1988, Bus ambush. Mbale; and The Globe and Mail, Thursday, February 18, 1988, Ugandan rebels h i t 6 truck U.N. convoy. 1 4 5 The Times. Wednesday, January 27, 1988, Museveni's Plea. See The Times. Thursday, March 24, 1988, Ugandan rebels to j o i n army. The s a l i e n t features of t h i s agreement are reproduced i n Uganda News B u l l e t i n . June/July, 1988, (Presented by the Uganda High Commission, Ottawa), 1-4. 94 150 151 1 The present cabinet, the largest so f a r i n Uganda's history, comprises 69 ministers and deputy ministers. See Uganda News B u l l e t i n . January/February, 1988, 1-3, under the heading 'Cabinet Reshuffle'. A Parts A and B of the Agreement. See Uganda News B u l l e t i n , June/July, 1988, 2-3. THE NATION/Thailand's English Language Newspaper. Saturday, July 16, 1988, Peace hopes kindled i n E.African nation. Guns F a l l S i l e n t i n Uganda. Of course i t could be argued that the circumstances then and now are not the same. The NRM/NRA as a g u e r r i l l a force had far more support from the majority of the people than the government. S i m i l a r l y , i t was more d i s c i p l i n e d and i t committed f a r less human ri g h t s abuses than the government troops, s i m i l a r observations cannot e a s i l y be made of the current g u e r r i l l a forces. 1 5 2 I t i s reported that on 7 A p r i l , 1988, the 19th A r t i l l e r y Regiment and the 8th Infantry B a t a l l i o n c a r r i e d out a mutiny ( l a t e r they were overpowered) i n t e r - a l i a . because the government was not holding peace t a l k s with the several rebel armies. I t i s further reported that there was an assassination attempt on the president four days l a t e r . See The Globe and Mail, Thursday, June 9, 1988, 200 mutineers s l a i n i n Uganda. This report was however dismissed as f a l s e by the Ugandan government. According to the government, i t was " f a l s e information calculated to cause alarm and discontent within Uganda at the time when various former rebel groups are ceasing acts of h o s t i l i t y and v o l u n t a r i l y coming forward to contribute toward national b u i l d i n g " - See Uganda News B u l l e t i n . June/July, 1988, 9. 1 5 3 Legal Notice No. 5 of 1986. For a b r i e f o utline of i t s s a l i e n t features see the Commonwealth Law B u l l e t i n Vol.13 (No.l January 1987), 349. See also The Globe and Mail, Wednesday March 2, 1988, A 11, Ugandan righ t s probe hears t a l e s torture. 1 5 4 See the Commonwealth Law B u l l e t i n Vol.13 (No.l January 1987), 349. 95 P A R T T W O International Protection of Human Rights i n A f r i c a 9 6 C H A P T E R T H R E E UNITED NATIONS AND HUMAN RIGHTS One of the greatest achievements of inte r n a t i o n a l law in t h i s century concerns the protection of human r i g h t s . 1 This has es p e c i a l l y been so i n the f i e l d of d e f i n i t i o n ; today human ri g h t s cover a broad range of issues - the physical i n t e g r i t y of the person, p o l i t i c a l freedoms, the elimination of discrimination, as well as economic and s o c i a l r i g h t s . 2 By so doing, substantial r i g h t s have been broadly defined which has greatly enhanced the dign i t y of the human being i n the world. There i s now increasing recognition of the in d i v i d u a l as a subject of inte r n a t i o n a l law. 3 There i s as well some spe c i a l recognition of non-State groups and i n p a r t i c u l a r the l i b e r a t i o n movements such as PLO (the Palestinean Liberation Organization), SWAPO (the South West A f r i c a n Peoples' Organization), and ANC (the Afr i c a n National Congress). In the near future, t h i s may extend to s o l i d a r i t y r i g h t s or ri g h t s of groups. A b r i e f analysis w i l l show that the above trend has not always been the case. Individuals and Groups Under International Law. Pr i o r to the second world war, indi v i d u a l s and groups were neither the subjects of, nor d i r e c t l y protected by 97 i n t e r n a t i o n a l law, though there were series of rules and i n s t i t u t i o n s the e f f e c t of which was to protect the right s of i n d i v i d u a l s and groups. 4 International law was s o l e l y a law of States under which the in d i v i d u a l and groups could only enjoy r i g h t s through, and by v i r t u e of being a national of, a State. This view of c l a s s i c a l i n t e r n a t i o n a l law has been summarized by one scholar as follows: The orthodox p o s i t i v i s t doctrine has been e x p l i c i t i n affirming that only States are the subjects of inter n a t i o n a l law. In those cases i n which in d i v i d u a l s seem to derive benefits under int e r n a t i o n a l law, the predominant view has been that such benefits are enjoyed not by v i r t u e of a ri g h t which international law gives to the in d i v i d u a l , but by reason of a r i g h t appertaining to the State of which the i n d i v i d u a l i s a national S i m i l a r l y , i f individ u a l s have no rig h t s under international law, i t seems to follow that they can have no locus standi before in t e r n a t i o n a l t r i b u n a l and other in t e r n a t i o n a l agencies. 5 Likewise, i t has been opined that since the law of nations i s based on the common consent of i n d i v i d u a l states, and not of i n d i v i d u a l human beings, states s o l e l y and excl u s i v e l y are the subjects of international law, and the law of nations i s a law f o r international conduct of states and not t h e i r c i t i z e n s . 6 The i n d i v i d u a l ' s lack of status under c l a s s i c a l i n t e r n a t i o n a l law was followed, u n t i l recently, by the f a i l u r e of international diplomacy and customary in t e r n a t i o n a l law to address the matter of i n d i v i d u a l human r i g h t s . 7 I t was only a f t e r the second world war that human ri g h t s were given much attention; thus some scholars regard 98 the second world war as a war to vindicate human ri g h t s and they c i t e various provisions i n the U.N. charter as a r e f l e c t i o n of t h i s . 8 Likewise, 'peoples' did not a t t r a c t the attention of the i n t e r n a t i o n a l community u n t i l a f t e r the second world war. But even then, t h i s did not mean the acceptance of "peoples" i n the sense of encompassing groups within a country, or of " s o l i d a r i t y r i g h t s " . There has been a clea r avoidance of the d e f i n i t i o n of "peoples" and of " s o l i d a r i t y r i g h t s " . True several d e f i n i t i o n s of "peoples" have been advanced by scholars, and various r i g h t s - the so-called " s o l i d a r i t y r i g h t s " accorded to them. 9 Nevertheless these scholarly arguments have not as yet attracted international acceptance. What the international community has accepted as 'peoples' i s an i d e n t i f i a b l e group of people who are f a i r l y homogeneous and are aware of t h e i r c o l l e c t i v i t y . 1 0 In fac t 'peoples' has come to be equated to a l l the people ( t o t a l population) l i v i n g i n a p a r t i c u l a r country, and the r i g h t which i s accepted to belong to them i s ' s e l f - determination'. 1 1 The only exception are the "minorities" who are increasingly being recognized as having c e r t a i n r i g h t s . However, these rig h t s do not include the r i g h t to self-determination or the r i g h t to secession. Nevertheless, i t must be noted that sometimes i t may be proper to equate "peoples r i g h t s " with "State r i g h t s " i f such r i g h t s can only be handled c o l l e c t i v e l y on behalf of 99 a l l the people by the State. Examples of such a s i t u a t i o n are where the State i s negotiating prices for commodities or t r e a t i e s be they commercial or otherwise. I t i s however wrong to equate "peoples" with "States" i f i t i s to deny minority or group r i g h t s . 'Self-determination 1, as contained i n the various i n t e r n a t i o n a l documents, decisions and r e s o l u t i o n s , 1 2 i s taken to mean simply the independence of peoples under c o l o n i a l r u l e and a p a r t h e i d . 1 3 The tendency i s to l i m i t the p r i n c i p l e of self-determination to "salt-water" colonialism and to equate i t with the r i g h t to statehood. 1 4 Once independence i s achieved, t h i s r i g h t ceases. For example, States do not desire to extend the p r i n c i p l e to minorities i n t h e i r own countries. Thus any attempts at secession have not gained much support from the international community. The only exception i n A f r i c a was the case of B i a f r a which gained recognition from a number of c o u n t r i e s . 1 5 The other example which not only gained recognition but was i n fact a t o t a l success i s the case of Bangladesh i n Asia. This denial of the extension of self-determination beyond the c o l o n i a l context i s intended to protect State sovereignty and international s e c u r i t y . 1 6 One scholar has termed t h i s i n t e r p r e t a t i o n of the p r i n c i p l e as "external self-determination", and he defines i t as: the a b i l i t y of a people or a minority to choose f r e e l y i n the f i e l d of international r e l a t i o n s , opting for independence or union with other s t a t e s . 1 7 100 I t i s our contention that 'self-determination 1 should be extended beyond the c o l o n i a l context. Williams and de Kestval suggest that t h i s should not imply independence but rather a freedom to choose how the people w i l l be governed. S i m i l a r l y , Cassese, 1 9 argues that a new and more meaningful concept of p o l i t i c a l self-determination, which i s more consonant with new demands of freedom than the t r a d i t i o n a l approach to self-determination, has gradually emerged. He terms t h i s 'internal self-determination' and defines i t as denoting that: a people i n a sovereign State can e l e c t and keep a government of i t s choice or that an ethnic, r a c i a l , r e l i g i o u s or other minority within a sovereign State has the ricrht not to be oppressed by the central government.^° Further more, i t i s suggested that self-determination means a r i g h t of a l l States and peoples under foreign occupation or a l i e n and c o l o n i a l domination or l i v i n g under an apartheid system to r e s t i t u t i o n and f u l l compensation for the e x p l o i t a t i o n , depletion of and damage to, t h e i r natural and other r e s o u r c e s . 2 1 Therefore, i t seems that i n spite of the arguments, International opinion i s s t i l l not ready to accept secession as being part of "self-determination." We would think that i n addition to a r i g h t to autonomy within the state, self-determination should be extended to include a r i g h t to secession. However, t h i s should only be allowed under exceptional cases, including such circumstances as when the clash between a segment of a State's population and the government becomes so acute that 101 no l o c a l remedies can a v a i l , and the government pursues undemocratic and brutal measures aimed at the suppression of that segment. 2 2 This may help to avoid the repercussions associated with t h i s d e n i a l . 2 3 Therefore, i t would seem that modern int e r n a t i o n a l law has come to accept the in d i v i d u a l as i t s subject and not object, i n so f a r as human ri g h t s are concerned. 2 4 However, i n so f a r as groups are concerned, the tendency s t i l l i s to equate group r i g h t s with the ri g h t s of States. Yet there seems to be no precedent for vesting human ri g h t s i n S t a t e s . 2 5 The area of group r i g h t s i s a poorly defined and evolving area. I t may therefore take sometime before group ri g h t s are f u l l y accepted. Thus, whereas a few States have come to accord a few r i g h t s to minorities within t h e i r countries, a majority of the States and i n p a r t i c u l a r the Third World, scarsely accord any group r i g h t s to t h e i r m i n o r i t i e s . A f r i c a i s no exception i n t h i s regard. Role of the United Nations. R e s p o n s i b i l i t y for the achievements i n the area of in d i v i d u a l and group r i g h t s goes to the United Nations which has played a profound r o l e both as 'motor and c a t a l y s t ' 2 6 i n the development of the modern law of human r i g h t s . Is i t any wonder then that while evaluating the United Nations a f t e r t h i r t y years of i t s existence, one scholar came to the 102 conclusion that the U.N. has proved i t s i n d i s p e n s a b i l i t y i n the f i e l d of human ri g h t s and deserves everybody's support and a s s i s t a n c e ? 2 7 Many times, the majority of the p r i n c i p l e i n s t i t u t i o n s of the U.N. including the security council, the General Assembly, the International court of Ju s t i c e , the Secretariat, and the Trusteeship council, i n some degree concern themselves with human ri g h t s issues. However, competence to deal with human right s issues i s accorded by the United Nations Charter to the Economic and Social Council, and the commission on human ri g h t s and i t s various a f f i l i a t e s . These may therefore be termed the U.N. human ri g h t s enforcement machinery. Nevertheless, what these i n s t i t u t i o n s can do i s severely l i m i t e d by s t a f f i n g and funding problems, and by the f i r s t p r i n c i p l e of the U.N. (sovereign equality of a l l i t s members), 2 8 and the r e a l i t y of the powers of S t a t e s . 2 9 These U.N. bodies, inasmuch as they are composed of representatives of governments, are p o l i t i c a l organs wherein the p o l i t i c a l factors tend to p r e v a i l . 3 0 Many times purely p o l i t i c a l i n t e r e s t s and considerations do p r e v a i l over genuine human ri g h t s concern. 3 1 This i s buttressed, i n the case of A f r i c a , by the absence of an Afr i c a n major player i n int e r n a t i o n a l p o l i t i c s and the fact that A f r i c a n governments tend to hide t h e i r human ri g h t s abuses under the seventh p r i n c i p l e of the U.N. (non-intervention i n a f f a i r s that f a l l within the domestic j u r i s d i c t i o n of member s t a t e s ) . 3 2 103 These factors combine to keep a majority of the Afr i c a n human r i g h t s issues o f f the U.N. agenda. The p o l i t i c a l f a ctor tends to operate more often than not, as a defender of oppressive powers and neglects the fate of the oppressed peoples and persons. I t seems to be the d r i v i n g force f o r any human ri g h t s a c t i o n . 3 3 Thus one scholar notes that the United Nations i s a most intensely partisan, p o l i t i c a l organization, which has proved successful only when id e o l o g i c a l and p o l i t i c a l differences are overcome by the issue at hand. 3 4 C u l t u r a l d i v e r s i t y of the States further aggravates t h i s s i t u a t i o n . I t i s thus observed that, given the c u l t u r a l d i v e r s i t y of the independent States created by the ending of European colonialism, the United Nations' purpose of organizing international actions to protect human ri g h t s and fundamental freedoms had, and s t i l l has, l i t t l e chance of su c c e s s . 3 5 Inevitably, therefore, the U.N. has only been working w i t h force and conviction with regard to three s p e c i f i c human r i g h t s s i t u a t i o n s - standard s e t t i n g , 3 6 promotion, and p r o t e c t i o n . 3 7 As regards implementation, i t has played safe with such issues as attainment of self-determination of overseas colonies ( p o l i t i c a l independence), and r a c i a l equality e s p e c i a l l y the elimination of apartheid and Z i o n i s m . Demands for p o l i t i c a l and s o c i a l j u s t i c e i n the various continents, to mention but a few areas, have to a greater extent been ignored. A few exceptions however e x i s t . The U.N. has been active i n condemning abuses i n parts of La t i n America and i n 104 p a r t i c u l a r Chile and Guetemala, as well as concerning i t s e l f with the issue of apartheid i n South A f r i c a , and the Palestinean/Israel c o n f l i c t . Nevertheless, these exceptions do not negate the United Nations' inaction i n other areas. A l l blame should however go to the member States themselves and not to the U.N. as a c o l l e c t i v e body since t h i s body can only be as strong as the i n d i v i d u a l member States allow i t to be. As long as the various countries f i g h t implementation by either refusing to succumb to United Nations resolution or otherwise not allowing to surrender any of t h e i r alleged sovereign r i g h t s , the U.N. cannot achieve much. Thus one time United Nations Secretary General, U Thant, commented that: I t i s not the charter that has f a i l e d the inter n a t i o n a l community; i t i s the inte r n a t i o n a l community that has f a i l e d to l i v e up to the r e s p o n s i b i l i t i e s under the charter - The United Nations can be only as strong as i t s member governments permit i t to be. As long as governments jealously guard t h e i r sovereign r i g h t s and as long as they are unwilling to surrender any part of t h e i r sovereignty to serve the common good of the international community, i t would be f u t i l e to expect the United Nations to develop into a supranational a u t h o r i t y . 3 8 These weaknesses notwithstanding, standard s e t t i n g i s not such a mean achievement. International standards may have a p o s i t i v e e f f e c t on the development of a government's w i l l to progress i n the area of human r i g h t s . This may p a r t i c u l a r l y be the case i n respect to governments concerned with t h e i r i n ternational reputation or those seeking grounds for a l t e r i n g t h e i r p r a c t i c e s . 3 9 The standards could also be a yard s t i c k f o r international public opinion and a useful 105 t o o l to c i t i z e n s attempting to pressure t h e i r governments for a change i n i t s p o l i c i e s . 4 0 Many of the set standards, i f not a l l , are to be found i n the United Nations charter and the international^ b i l l of human r i g h t s , 4 1 as well as i n various Declarations and Resolutions. We s h a l l only make note of the s a l i e n t features of the most important of a few of these instruments, for purposes of t h i s work. The United Nations Charter. 1945.^ The f i r s t major attempts toward the international protection of human right s are to be found i n the United Nations Charter which provides, though perhaps not i n a very c l e a r manner, not only f o r the claims of a c i t i z e n of one country against another country (foreigners), but also for claims a r i s i n g out of v i o l a t i o n s of international law by i t s o f f i c i a l s , c i t i z e n s , or i n h a b i t a n t s . 4 3 Thus i t l a i d the foundation stone f o r the l e v e l of human ri g h t s which are being promoted today. In i t s preamble, reaffirmation i s made of " f a i t h i n fundamental human ri g h t s , i n dig n i t y and worth of the human person,(and) i n equal r i g h t s . . . " A r t i c l e 1(3) provides one of the purposes of the U.N. as being "promoting and encouraging respect for fundamental freedoms for a l l without d i s t i n c t i o n as to race, sex, language, or r e l i g i o n " ; while a r t i c l e 13(1)(b) grants a ro l e to the general Assembly i n 106 the promotion of human r i g h t s . Further provisions are to be found i n a r t i c l e s 55 and 56 wherein members pledge themselves to take j o i n t and separate action i n cooperation with the organization to "promote ...universal respect for, and observance of human right s and fundamental freedoms". As a further measure, a r t i c l e 68 empowers the Economic and S o c i a l Council (established under a r t i c l e 7) to set up one or more commissions "for the promotion of human r i g h t s " ; and a r t i c l e 76(c) requires the trusteeship system (which was established to continue the League mandates and to bring c o l o n i a l t e r r i t o r i e s to rapid achievement of s e l f - government) to "encourage respect f o r human r i g h t s and fundamental freedoms for a l l " . These and other provisions create a "broad and impressive" 4 4 mandate f o r the United Nations i n respect of human r i g h t s . I t has been suggested that t h i s mandate implies: action on a wide range of points both p o l i t i c a l and l e g a l , through debate, intervention, the se t t i n g of human ri g h t s standards by the adoption of international conventions and the fashioning of adequate techniques of enforcement of these standards. 4 5 In s p i t e of the above, the Charter was c r i t i c i z e d for lack of an implementation machinery and a f a i l u r e to define human r i g h t s . 4 6 One scholar has even asserted that f o r a l l i t s references to human ri g h t s and aspirations, the Charter i s at bottom a c o l l e c t i v e - s e c u r i t y pact designed to prevent the most recent war. 4 7 True as these weaknesses are, they cannot negative the h i s t o r i c a l achievement of the Charter as 107 a departure from previous approaches to international protection of human r i g h t s . In any case, d e f i n i t i o n of human ri g h t s and an attempt to e s t a b l i s h an implementation machinery have now been done i n other documents. More work may also be i n the p i p e l i n e . The International B i l l of Human R i g h t s . 4 8 This comprises three documents: the Universal Declaration of Human Rights, 1948, 4 9 the International Covenant on C i v i l and P o l i t i c a l Rights (together with i t s optional Protocol, 1966), and the International Covenant on Economic, S o c i a l , and Cultural Rights, 1966. Among other things, these instruments c o l l e c t i v e l y serve as touchstones for i n t e r p r e t i n g the human right s provisions of the United Nations C h a r t e r . 5 0 An attempt at defining human ri g h t s i s f i r s t made i n the Universal Declaration adopted by the General Assembly of the United Nations without a dissenting v o t e . 5 1 However, t h i s attempt was not conclusive, for example no minority r i g h t s provisions were made. Consequently, today reference i s made to l a t e r declarations and covenants than to the Universal Declaration, leaving the l a t t e r to play more of a h i s t o r i c rather than a substantial r o l e . In any case, the Universal Declaration was never meant to be a treaty with enforceable l e g a l obligations; i t was merely a proclamation 108 of "a common standard of achievement for a l l peoples and a l l n a t i o n s " . 5 2 General Assembly intentions notwithstanding, the Declaration acquired the status of an authoritative guide for i n t e r p r e t a t i o n of the U.N. C h a r t e r . 5 3 Some scholars even argued that i t forms part of the c o n s t i t u t i o n a l law of the world community and i s superior to a l l other i n t e r n a t i o n a l instruments and to domestic laws. 5 4 I t i s also noted to have been "widely used even by national courts as a means of judging compliance with human right s obligations under the U.N. c h a r t e r . 5 5 Of course these arguments were more true f o r the 1960s than for the 1980s. As noted e a r l i e r , today more reference i s made to subsequent Declarations and to the two 1966 Covenants than to the Universal Declaration. Nevertheless, the l e g a l basis of the Declaration as part of the i n t e r n a t i o n a l b i l l of r i g h t s , and i t s importance as the foundation upon which subsequent Covenants and Declarations have been based i s beyond doubt. The International Covenant on C i v i l and P o l i t i c a l R i g h t s 5 6 restates many of the r i g h t s contained i n the Universal Declaration. However, some righ t s l i s t e d i n the Declaration such as "the r i g h t to own property" and "the r i g h t to asylum" are not included i n the Covenant. S i m i l a r l y , the Covenant introduces some new r i g h t s such as "the r i g h t to self-determination" and "the r i g h t of ethnic, r e l i g i o u s , or l i n g u i s t i c minorities to enjoy t h e i r own 109 culture, to profess and practice t h e i r own r e l i g i o n , and to use t h e i r own language". 5 7 I t i s suggested that to the extent that the Universal Declaration and the Covenant overlap, the l a t t e r i s understood to explicate and interpret the former. 5 8 While evaluating the si g n i f i c a n c e of the Covenant on C i v i l and P o l i t i c a l Rights, one scholar has stated that: For the f i r s t time, the international community reached an agreement not only on the l i s t of basic human r i g h t s , but also on the content of each r i g h t and on the most important l i m i t a t i o n s to such r i g h t s . . . Secondly, the covenant contains various measures of implementation; though some of them are optional i n character, they recognize the r i g h t of ind i v i d u a l s to seek redress of t h e i r grievances on the international plane... [It i s an] authoritative i n t e r p r e t a t i o n of the basic rules of International law on the subject of human rig h t s which are embodied i n the c h a r t e r . . . 5 9 Unlike the f i r s t two components of the International b i l l of r i g h t s , the International Covenant on Economic, S o c i a l , and Cultural r i g h t s , 6 0 " i s not geared, with modest exceptions, to immediate implementation". What was envisaged i s only "to take steps" toward "achieving progressively f u l l r e a l i z a t i o n of the ri g h t s recognized i n the...covenant" but subject to "the maximum of available resources". Therefore, the covenant i s e s s e n t i a l l y a 'promotional convention' s t i p u l a t i n g objectives more than standards and requiring implementation over time rather than a l l at once. 6 1 P r o h i b i t i o n of discrimination i n the enjoyment of the ri g h t s enumerated on grounds of race, colour, sex, language, r e l i g i o n , or p o l i t i c a l or r e l i g i o u s or other opinion, 110 national or s o c i a l o r i g i n ; property; and b i r t h or other status, i s the only o b l i g a t i o n which requires immediate a p p l i c a t i o n . 6 2 A number of Resolutions and Declarations have also been adopted by the General Assembly for the purposes, among others, of e l u c i d a t i n g on, and implementing, the enumerated r i g h t s . They include the Proclamation of Teheran, 1968, 6 3 the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the International Convention on the elimination of a l l forms of Racial Discrimination. This i s to mention but a few. 6 4 I l l 3 4 5 10 11 FOOTNOTES See Williams and de Mestral, An Introduction to International law, 2nd ed, Butterworths, Toronto, 1987, 299. Ibid. Ibid, 302. Jessup, P, A modern law of nations (1948) 2. Lauterpacht, International law and human r i g h t s (1950) 6-8. Oppenheim,I.L, International law: A Treatise, para 13, at 20-21 (A.D. McNair ed. 1928) See L. Matthew, Human right s r e v i s i t e d : The protection of human ri g h t s under the inte r n a t i o n a l covenant on c i v i l and p o l i t i c a l r i g h t s . 10 Cal. W. I n t ' l . L.J. 450 (1980) 453. Ian Brownlie, P r i n c i p l e s of Public International law, 3rd ed, Oxford, 1979, 564; and Skelton J . W. j r , Standards of procedural due process under international law Vs preventive detention i n selected A f r i c a n countries f 2 Houston J . I n t ' l L.307 (1980) 307-8. For e a r l i e r attempts at protecting human r i g h t s , which attempts are f o r the most part spasmodic and unorganized, see Lippman M. supra, 453-357; and Weston Burns H, Human r i g h t s . 6 H. R. Q. 257 (1984) 269-271. This issue s h a l l be given better treatment l a t e r on i n Chapter Eight. Williams and de Mestral, supra, 57-61. Ibid. For an alt e r n a t i v e d e f i n i t i o n of peoples see i n front, Chapter Eight. 1 2 United Nations charter, art.1(2) and 55; Res.1314(XIII) on self-determination of Dec.12,1958; Declaration on the granting of independence to c o l o n i a l countries and peoples, sec. Res 1514(XV); Declaration on the i n a d m i s s i b i l i t y of intervention i n the domestic a f f a i r s of states and the protection of t h e i r independence and sovereignty, Dec. 21, 1965,G.A Res 2131(XX); the covenant on c i v i l and p o l i t i c a l r i g h t s and the optional protocol, and the covenant on economic, s o c i a l and c u l t u r a l r i g h t s , 1966 [Annex to G.A. Res 2200(XXI)]; the 1970 Declaration on the p r i n c i p l e s of international law; and the International Court of Ju s t i c e Advisory 112 Opinions on Namibia (I.C.J. Reports, 1971, 31), and Western Sahara (I.C.J. Reports, 1975, 31-33). Williams and de Mestral, supra, 59. Moskowitz Moses, The Roots and Reaches of United Nations Actions and Decisions, Netherlands, 1980, 32. See Nayar K, Self-determination beyond the c o l o n i a l context: Bi a f r a i n retrospect 10 Texas I n t ' l L.J.321-45 (1975). Sornarajah M, Internal colonialism and Humanitarian intervention, supra, esp 45. Cassese A, i n Cassese, ed, U.N.Law. .. et a l , supra, 137. See also R. J . Vincent, Human Rights and International Relations, Cambridge, 1986, 80. Supra 57. Supra 138. Cassese, supra, 137. At 147, he argues that to date the work of the U.N. has been one-sided i n that i t has concentrated on 'external self-determination' and neglected 'internal self-determination'. Williams and de Mestral, supra, 59. Support f o r t h i s i s derived from various Declarations and Resolutions such as Declaration on Permanent sovereignty over natural resources, Res.1803(VIII), Dec.14, 1962; the Declaration on the establishment of a New International Economic Order, A/Res.3201(S-VI) May 9, 1974; and the Charter of Economic Rights and Duties of states A/Res.3281(XXIX), Dec.12, 1974. See T. S. Rama Rao, Human Rights i n Developing Countries, i n : Agrawala, Rama Rao, and Saxena (eds) New Horizons of International Law and Developing Countries, I n t ' l law ass., India, 1983, 25. A s i m i l a r view i s advanced by Sornarajah M, Internal colonialism and Humanitarian intervention, supra, 46-47, when arguing the cause of the minority. See PART ONE of t h i s work. See L. N. Mathur, i n : Agrawala, Rama Rao, and Saxena (eds) New Horizons of International Law and Developing Countries, supra, 50; and Anthony D'Amato, International Law: Process and Prospect, Transnational publishers, New York, 1987, 89 and 2 05. 113 25 26 30 32 33 34 35 36 37 38 Kathleen Taperell, i n : B u l l e t i n of the Australian Society of Legal Philosophy, Vol.9, No 33, June 1985 Special Issue: The Rights of Peoples. To use the words of Williams and de Mestral, supra, 306. 2 7 Bert V.A. i n Cassese, supra, 35. 2 8 A r t i c l e 2(1), U.N.Charter. 2 9 Gray L. Dorsey, Beyond the United Nations: Changing discourse i n international p o l i t i c s and law, Lanham, 1986, 44. Theo C. Van Boven, United Nations and human r i g h t s : A c r i t i c a l appraisal, i n Cassese, supra, 119, 128. 3 1 Ibid, 126. Also see Moskowitz Moses, The Roots and Reaches of United Nations Actions and Decisions, supra, 171-173. He asserts that the United Nations i s a "partisan" organ which "has developed a capacity for creating stereotypes so pronounced as to compel t h e i r own p o l i t i c a l .imperatives, and f o r examining issues t o t a l l y divorced from any other s o c i a l , p o l i t i c a l , or moral concerns". 39 A r t i c l e 2(7), U.N. Charter. Ibid, 128. Donnelly, Recent Trends i n U.N. Human Rights A c t i v i t y ...et a l , supra, 653. Gray L.Dorsey, supra, 47. Jack Donnelly, supra, 653-4. Theo C. Van Boven, supra, 124. U.N., OPI, Press Release, SG/SM/982 p 3, and quoted by S. Dayal, Developing Countries and Universal and Regional Approaches to Human Rights i n Light of Changing Context and Perspectives, i n : Ginther K. and Benedek W, (eds) New Perspectives and Conceptions of International Law. An Afro-European Dialogue. New York, 1983, 99. Jack Donnelly, supra, 654. 40 Ibid. 114 The i n t e r n a t i o n a l b i l l of human ri g h t s comprises three instruments: the Universal Declaration of human rig h t s , 1948; the international covenant on c i v i l and p o l i t i c a l r i g h t s ; and the international covenant on economic, s o c i a l and c u l t u r a l r i g h t s . See Burns H. Weston, Human Rights, 6 H.R.Q. 257, (1984) 273. 42 43 44 46 47 48 49 50 The charter i s reproduced (among others) i n Ian Brownlie, Basic Documents i n International Law. 3rd ed. Oxford, 1983; and Brownlie, Basic Documents on Human Rights. 2nd.ed, Oxford, 1981. I t came into force on 24 October,1945. Sohn, The Human Rights Law of the Charter 12 Tex. I n t ' l L. J . 129 (1977). To use the words of Williams and de Menstral, supra, 308. 4 5 Ibid. E z e j i u f o r G, Protection of human ri g h t s under the law (1964) 59. Anthony D'Amato, International Law: Process and Prospect. Transnational publishers, New York, 1987, 220. See note 41. U.N. Doc. A/811. F u l l text i s reproduced i n Brownlie, Basic Documents...et a l , supra. See the introduction i n Brownlie, Basic Documents In International Law supra. 5 1 For the various r i g h t s see the text of the Declaration. 5 2 See Universal Declaration of Human Rights, Am. J . I n t ' l L. Supp. 127 (1949). 5 3 See Brownlie, Basic Documents i n inte r n a t i o n a l law, supra, 250, and Basic Documents on Human Rights, supra, i n the Commentary preceding the text of the Declaration; See also Lauterpacht, i n t e r n a t i o n a l law and Human Rights (1950) 400; and Skelton James j r , supra, 311. 5 4 Sohn, The Universal Declaration of Human Rights 8 J. I n t ' l Comp. Jur. 17, 26 (1967). 115 5 5 Burns H. Weston, supra, 273. He argues that i t acquired t h i s status p a r t l y because of an eighteen year old delay between i t s adoption and the completion for signature of the two covenants. 56 57 59 60 61 62 63 64 UN Doc A/6546 (1966), reprinted i n 56 Dept. State B u l l , 111 (1967), and also i n Brownlie, supra. I t was adopted on 16 December, 1966 but i t d i d not enter into force u n t i l 23 March, 1976. Burns H. Weston, supra, 274. 5 8 Ibid. Sohn, supra, 135. UN Doc A/6316 (1966), reprinted i n 56 Dept. State B u l l , 107 (1967). Also i n Brownlie supra. Adoption date i s 16 December, 1966 but entry into force was on 3 January, 1976. Burns H. Weston, supra, 275. States are nevertheless required to report to the United Nations Economic and Social Council on the steps they have adopted and the progress they have made i n achieving the r e a l i z a t i o n of the enumerated r i g h t s . U.N.Doc A/CONF. 32/41, Sales No. E 68, XIV 2. Space does not allow us to deal with each of these Declarations and Resolutions l e t alone those not even mentioned. For an elaboration of each of the various Declarations and Resolutions, see among others, Human Rights: A compilation of International Instruments (U.N. 1983), and both texts by Brownlie, supra. 116 C H A P T E R F O U R THE U.N. MACHINERY FOR ENFORCEMENT OF HUMAN RIGHTS Various organs f a c i l i t a t e the observance, promotion, and to an extent enforcement of human ri g h t s through the United Nations. These include the General Assembly, the Secretariat, the Security Council, the International Court of J u s t i c e , the Trusteeship Council, and the Economic and Soc i a l Council. However, the Economic and Soc i a l Council, through i t s commissions and t h e i r various a f f i l i a t e s , plays the most immediate r o l e f or purposes of the i n d i v i d u a l and groups. This r o l e i s s p e c i f i c a l l y assigned to the Council by the UN Charter. The work of these organs i s many times f a c i l i t a t e d by inte r n a t i o n a l human ri g h t s non-governmental organizations (NGOs) which have played a very s i g n i f i c a n t , though sometimes i n d i r e c t r o l e , i n f a c i l i t a t i n g the observance, promotion and perhaps enforcement of human r i g h t s . In t h i s chapter, f o r lack of space, I s h a l l only mention the s a l i e n t features of these organs. The General Assembly. One of the functions of the General Assembly i s to " i n i t i a t e studies and make recommendations for the purpose 117 of.... a s s i s t i n g i n the r e a l i z a t i o n of human ri g h t s and fundamental freedoms for a l l without d i s t i n c t i o n as to race, sex, language, or r e l i g i o n " . 1 A majority of the human ri g h t s items dealt with by the General Assembly originate i n sections of the report of the Economic and Soc i a l Council r e l a t i n g to human ri g h t s , or i n decisions of the Assembly i n e a r l i e r sessions to take up p a r t i c u l a r i s s u e s . 2 Some spe c i a l items have also been proposed f o r i n c l u s i o n i n the General Assembly's agenda by the Economic and Social Council, by the Trusteeship Council, by a Member State or by the Secretary General. 3 Within the General Assembly, human ri g h t s issues are handled through i t s various committees, the most important of which i s the Third (Social, Humanitarian, Cultural) Committee. 4 However, some s p e c i f i c issues may be referred to other Main Committees; thus items of an e s s e n t i a l l y p o l i t i c a l character go to the Second Committee or to the Special P o l i t i c a l Committee, and those of an e s s e n t i a l l y economic character, to the Second Committee. The Fourth Committee deals with issues r e l a t i n g to non-self-governing or t r u s t t e r r i t o r i e s , while the F i f t h Committee handles the f i n a n c i a l aspects and budgetary provisions r e l a t i n g to human rig h t s items. Some human ri g h t s issues have also been dealt with by the Sixth (Legal) Committee. 5 A few issues have also been handled by some ad hoc organs or committees of the General Assembly. 6 118 The Economic and Soc i a l council. A r t i c l e 62(2) of the U.N. charter empowers the Council to "make recommendations for the purpose of promoting respect for, and observance of, human ri g h t s and fundamental freedoms for a l l " , while a r t i c l e 68 requires i t to "set up commissions.... for the promotion of human r i g h t s , and such other commissions as may be required f o r the performance of i t s functions. Pursuant to the above, the Council has established several commissions, sub-commissions and procedures for the purpose of achieving i t s obligations. The Commission on Human Rights i s one of the functional commissions of the Council, and whose work, since i t s inception i n 1946, has been directed towards submitting proposals, recommendations, and reports to the Council regarding, among others, an international b i l l of r i g h t s ; i n t e r n a t i o n a l declarations or conventions on c i v i l l i b e r t i e s , the status of women, freedom of information and s i m i l a r matters; the protection of minorities; the prevention of discrimination on grounds of race, sex, language or r e l i g i o n ; and any other matter concerning human rig h t s not covered by the above. 7 The Commission also makes studies and recommendations and provides information and other services requested by the Council. I t may also recommend the establishment of any sub-commission i t considers appropriate. In a b i d to f a c i l i t a t e i t s work, the Commission on Human Rights has established sub-commissions and procedures 119 to handle various human ri g h t s issues. These include the Sub-Commission on Prevention of Discrimination and Protection of Min o r i t i e s whose major function i s to undertake studies and make recommendations to the Commission concerning the prevention of discrimination of any kind r e l a t i n g to human ri g h t s and fundamental freedoms and the protection of r a c i a l , national, r e l i g i o u s , and l i n g u i s t i c m i n o r i t i e s . 8 Among the Working Groups established are, one on Indigenous Populations, and the other on M i n o r i t i e s . The job descri p t i o n of these ad hoc functionaries usually contains an element of f a c t - f i n d i n g (preparing a report on the human rig h t s s i t u a t i o n i n country X) and an element of mediation (establishing a dialogue with the government and preparing recommendations for improvement of the human ri g h t s s i t u a t i o n ) . They are not mandated to respond to i n d i v i d u a l instances of human ri g h t s v i o l a t i o n s . 9 The more recent functionaries established by the U.N. Commission on Human Rights i n response to human right s v i o l a t i o n s are the "thematic" or issue-oriented procedures. 1 0 They comprise four elements: the Working Group on Enforced or Involuntary Disappearances(1980) ; 1 1 the Special Rapporteur on Summary or A r b i t r a r y Executions (1982); 1 2 the Special Rapporteur on Torture (1985); 1 3 and the Special Rapporteur on Religious Intolerance (1986). 1 4 The importance of these procedures to the observance and 120 implementation of human ri g h t s has been summarized as follows: Taken together, the thematic procedures could well be regarded as an elementary form of International habeas corpus, or even an embryonic U.N. High Commission f o r Human Rights (They) constitute the only devices of the United Nations which act continuously and report p u b l i c l y on human ri g h t s v i o l a t i o n s on a world wide basis. [The] "theme" mechanisms.... have developed into e f f e c t i v e and f l e x i b l e i n s t i t u t i o n s f or i d e n t i f y i n g abuses and intervening r a p i d l y i n urgent cases. Nevertheless, perhaps due to the s t a f f i n g , funding and p o l i t i c a l problems of the United Nations system, these procedures are yet to be applied on an extensive scale; t h e i r e f f e c t i s also yet to be f e l t i n A f r i c a i n spi t e of the p r e v a i l i n g human ri g h t s v i o l a t i o n s . 1 7 Further s t i l l , these mechanisms, where they operate, are sometimes hampered by States which f a i l to respond to requests for information, respond with blanket denials or give misleading or inaccurate responses. 1 8 Another of the functional Commissions of the Economic and S o c i a l Council i s the Commission on the Status of Women established i n 1946. Its functions are: "to make recommendations and reports to the Council on promoting women's r i g h t s i n p o l i t i c a l , economic, c i v i l , s o c i a l , and educational fields...[and]...on urgent problems requiring immediate attention i n the f i e l d of women's ri g h t s with the object of implementing the p r i n c i p l e that men and women s h a l l have equal r i g h t s , and to develop proposals to give e f f e c t to such recommendations". 1 9 121 P r i o r to the establishment of the thematic procedures by the Commission on Human Rights, the Economic and Social Council adopted the Resolution 1503 Procedure 2 0 f o r the purpose of f a c i l i t a t i n g the work of the Commission and i t s a f f i l i a t e organs, p a r t i c u l a r l y the Sub-commission on Prevention of Discrimination and Protection of Mi n o r i t i e s . Under t h i s procedure, i n d i v i d u a l p e t i t i o n e r s and non- governmental organizations are provided with an inte r n a t i o n a l complaint procedure through which to charge any state with "gross and r e l i a b l y attested v i o l a t i o n s of human r i g h t s and fundamental freedoms" including p o l i c i e s of r a c i a l discrimination and segregation and of apartheid i n any country, including c o l o n i a l and other dependent countries and p e o p l e s . 2 1 In order to have standing a p e t i t i o n e r need not be a vict i m ; the complaint (communication) may originate from an in d i v i d u a l , a group, or an organization as long as i t i s based upon eithe r d i r e c t and r e l i a b l e knowledge, or second hand information accompanied with c l e a r evidence. However, i t must be free of any p o l i t i c a l motivations and the p e t i t i o n e r must have exhausted any reasonably e f f e c t i v e l o c a l remedies and then communicated with the U.N. within a reasonable t i m e . 2 2 Although adopted with the best of intentions, the Commission has f a i l e d to use the procedure to achieve the stated objective, namely, to stop gross v i o l a t i o n s of human r i g h t s . The reasons for t h i s f a i l u r e are to be found i n the 122 f a c t that the procedure i s so lengthy and slow; communications cannot be updated, and i t i s p o l i t i c i z e d and embedded with many t e c h n i c a l i t i e s . 2 3 Thus i t has been suggested that the procedure i s so p o l i t i c i z e d , secretive and slow that offending governments may escape meaningful s c r u t i n y . 2 4 The performance of t h i s procedure has been summed up i n the following words: To a f a r greater extent than a j u d i c i a l t r i b u n a l the Commission decides cases on the basis of p o l i t i c a l rather than l e g a l c r i t e r i a Regional p o l i t i c a l r e lationships unrelated to the merits of a complaint may dicta t e the r e s u l t At most the procedure has benefited a few ind i v i d u a l s released as a symbolic gesture i n response to Commission pressure. ... N.G.O. a c t i v i s t s who i n i t i a l l y hoped the Resolution 1503 procedure would lead to meaningful in t e r n a t i o n a l scrutiny have found the process as a s h i e l d against public embarrassment and an attempt to muzzle N.G.O.s by invoking the c o n f i d e n t i a l i t y r u l e to prevent disclosure of documented a t r o c i t i e s . ... A procedure fashioned to redress patterns of gross v i o l a t i o n s thus produced an is o l a t e d i n d i v i d u a l remedy for symbolic e f f e c t . 2 5 Other U.N. Organs. The other United Nations organs which i n one way or another deal with human right s s h a l l only merit mentioning i n t h i s work. They include the Security Council which i s given the primary r e s p o n s i b i l i t y of maintaining in t e r n a t i o n a l peace and security, and which r e s p o n s i b i l i t y may at times extend to v i o l a t i o n s of human ri g h t s and fundamental freedoms such as i s the case with the apartheid regime i n South A f r i c a ; the Trusteeship Council; the 123 Secre t a r i a t ; and the Of f i c e of the United Nations High Commissioner f o r Refugees (UNHCR). These organs also include s p e c i a l i z e d agencies such as the International Labour Organization (ILO), the United Nations Educational, S c i e n t i f i c and Cul t u r a l Organization (UNESCO), the World Health Organization (WHO), and the Food and A g r i c u l t u r a l Organization of the United Nations (FAO). 2 6 One other organ which merits attention i s the Human Rights Committee established under the International Covenant on C i v i l and P o l i t i c a l Rights. This s h a l l be dealt with l a t e r , although b r i e f l y , i n Chapter Nine of t h i s work while dealing with a comparison of the regional human right s enforcement regimes. Role of Human Rights Non-governmental Organizations. Many human ri g h t s non-governmental organizations (N.G.O.s) have been established over time for the purpose of promoting human r i g h t s . More than 700 N.G.O.s have accredited status with the United Nations Economic and Soc i a l C o u n c i l . 2 7 While many N.G.O.s devote only part of t h e i r time and resources to human ri g h t s , quite a number of them have f u l l - t i m e international human ri g h t s programs. Among the l a t t e r category are the following: Amnesty International, Anti-slavery Society, Commission of the Churches on International A f f a i r s , International Association of Democratic lawyers, International Commission of J u r i s t s , 124 International Committee of the Red Cross, International Confederation of Free Trade Unions, International Federation of Human Rights, International League for Human Rights, Minority Rights Group, World Conference on Religion and Peace, and World Federation of Trade Unions. 2 8 Some of the N.G.O.s are s p e c i a l i s t organizations which seek to protect p a r t i c u l a r human ri g h t s such as Amnesty International, the Minority Rights Group, the Anti-slavery Society, and the International Committee of the Red Cross. A few others have more general human ri g h t s concerns the examples of which are the International League for Human Rights, and the International Commission of J u r i s t s . Quite a number of them are not established for the purpose of promoting human ri g h t s , but have them as part of t h e i r more general concerns such as churches, trade unions, professional Associations and p o l i t i c a l p a r t i e s . 2 9 The r o l e the N.G.O.s have played i n the human ri g h t s f i e l d has not been a minor one. They have f a c i l i t a t e d the promotion of human ri g h t s p a r t i c u l a r l y through carrying out investigations and compiling data about human ri g h t s abuses, as well as p u b l i c i z i n g such abuses. They also help to disseminate ideas about human ri g h t s e s p e c i a l l y through organizing seminars and conferences for the promotion of human r i g h t s . Further more, t h e i r not i n s i g n i f i c a n t r o l e i n the d r a f t i n g and signing of the various human right s instruments cannot be overlooked. u 125 The hand of the N.G.O.s i s also to be found i n t h e i r use of the Resolution 1503 Procedure. N.G.O.s are noted for documenting the most informative and de t a i l e d complaints which not only state enough abuses so as to e s t a b l i s h a consistent pattern of v i o l a t i o n s , but also s i m p l i f y the Sub- Commission's task by aggregating i n d i v i d u a l cases. They also help the Secretariat by i d e n t i f y i n g which international instruments to apply, as well as submitting twelve copies of t h e i r work and by preparing b r i e f summaries sui t a b l e for r e f e r r a l to Commission members. 3 1 In fac t t h i s gives the N.G.O.s an advantage over in d i v i d u a l s under the procedure. 3 2 N.G.O.s accomplish these roles through various means such as agi t a t i o n , expressing views i n reports and public statements, drawing up resolutions, drawing attention to v i o l a t i o n s , urging studies, sending fact finding missions, protesting misconduct, and so o n . 3 3 Thus they function as " u n o f f i c i a l ombudsmen safeguarding human ri g h t s against governmental infringement" 3 4 and are "the ginger groups of International s o c i e t y " . 3 5 What f a c i l i t a t e s implementation i s the fear by the governments responsible for human ri g h t s v i o l a t i o n s , of public exposure. Governments p a r t i c u l a r l y do not l i k e to be c r i t i c i z e d i n the openness of inte r n a t i o n a l debate e s p e c i a l l y as t h i s may lead to t h e i r i s o l a t i o n following exposure. 3 6 This goes to strengthen the N.G.O.s' b e l i e f i n the power of opinion and the fac t that such opinion i s based upon the truth. 126 Notwithstanding these rol e s , the performance of the N.G.O.s has not been without l i m i t a t i o n s . N.G.O.s contend that they are given only peripheral status within the U.N. which prevents them from exercising e f f e c t i v e influence within that and other organizations with which they may have consultative s t a t u s . 3 7 The resources of these N.G.O.s are also l i m i t e d and may sometimes not be constant which may be a contributing factor to the small sizes of these N.G.O.s. This leads to a l l o c a t i o n of e f f o r t . Thus N.G.O.s may avoid pursuing some v i o l a t i o n s because that might upset i n f l u e n t i a l friends, sources of f i n a n c i a l support, f r i e n d l y governments, and so on. Some countries may also be chosen and not others merely because they appear to be easier t a r g e t s . 3 8 These above factors have contributed to the poor performance of NGOs . i n A f r i c a . Another factor, which d i r e c t l y derives from the Af r i c a n governments themselves, i s the unwillingness of some governments to allow N.G.O.s to v i s i t t h e i r countries. However, one of the greatest weaknesses may perhaps be the non-existence of "indigenous" N.G.O.s on the continent; the few which seem to have an "African" element are i n fact branches or subsidiaries of N.G.O.s outside A f r i c a and they derive t h e i r finances and inst r u c t i o n s from the parent N.G.O.s. These l i m i t a t i o n s have perhaps caused there to be an imbalance i n the o v e r a l l N.G.O. p a r t i c i p a t i o n i n the t h i r d world, with A f r i c a not being the ex c e p t i o n . 3 9 The number of 127 N.G.O.s which operate i n A f r i c a are quite few. Worse s t i l l , many of these tend to concentrate t h e i r work i n South A f r i c a . 4 0 Thus i t i s observed that: Despite t h e i r growth i n numbers, the overwhelming majority of e x i s t i n g human right s N.G.O.s remain located i n the western i n d u s t r i a l nations For westerners and blacks a l i k e , the persistence of gross r a c i a l i n j u s t i c e s i n South A f r i c a apparently i n h i b i t s the development of human ri g h t s N.G.O.s concerned with other A f r i c a n c o u n t r i e s . 4 1 The above does not mean that there are no NGOs which are operating outside of apartheid South A f r i c a . Among those N.G.O.s which have done much work i n a big section of A f r i c a are Amnesty International, the International Commission of J u r i s t s , the Minority Rights Group, and the International Committee of the Red Cross. Survival International has also started expanding i t s concerns to black A f r i c a . 4 2 However, even these have proportionately not done much i f the siz e of A f r i c a and the -rate of human right s abuses i s taken into account. Consequently, the influence of human right s N.G.O.s i n A f r i c a remains to be f e l t . The fact that some governments are unwilling to allow v i s i t s to t h e i r countries cannot of i t s e l f be a perpetual deterring factor to N.G.O.s' p a r t i c i p a t i o n i n A f r i c a because international public opinion w i l l sooner or l a t e r force these governments to succumb to the N.G.O.s' requests for investigations. A new development which i s l i k e l y to help i n t h i s d i r e c t i o n i s the formation of a new " A f r i c a Watch" as part of Asia watch, Americas watch and He l s i n k i watch. Currently 128 a f e a s i b i l i t y study i s being c a r r i e d out i n t h i s d i r e c t i o n . I t has been s p e c i f i c a l l y stated that: The number of experienced and highly sophiscated domestic human ri g h t s groups i n South A f r i c a , and the range of groups, both i n Europe and the U.S., that focus exclusively on South A f r i c a , indicates that there i s a dander of duplicating the e f f o r t s of others. We believe i t would be better to use our resources to promote the protection of human ri g h t s i n other A f r i c a n countries, where l i t t l e i s being done, (emphasis added) 4^ I t i s further stated that given the number and severity of wars i n A f r i c a , the question of human r i g h t s monitoring i n war si t u a t i o n s w i l l be given serious consideration. Among other issues, the relationships between human ri g h t s and humanitarian law, the reporting of v i o l a t i o n s committed by insurgents, and the problems inherent i n compiling accurate reports on v i o l a t i o n s against c i v i l i a n s i n remote areas where m i l i t a r y operations are c a r r i e d out, w i l l have to be examined. 4 4 Better s t i l l , i n some Afr i c a n countries a few r e l i g i o u s and l e g a l organizations are gradually but s t e a d i l y beginning to devote a substantial part of t h e i r e f f o r t s to promoting human r i g h t s . Good examples of these are to be found i n Zimbabwe, and also i n Uganda where a human r i g h t s Commission was set up i n 1986. 4 5 Although the work of these l o c a l organizations i s l i k e l y to be frustrated by some governments, the former are l i k e l y to receive support and encouragement from A f r i c a Watch. One of the aims of A f r i c a Watch i s to help protect and promote the work of l o c a l human r i g h t s a c t i v i t i e s . 129 S p e c i f i c a l l y , i t intends to mobilize immediate and e f f e c t i v e i n t e r n a t i o n a l campaigns when domestic human ri g h t s a c t i v i s t s are arrested, intimidated or harassed i n any manner. 4 6 Thus NGOs play a very important r o l e i n the promotion of human r i g h t s p a r t i c u l a r l y on the inte r n a t i o n a l l e v e l . Although they have been very h e l p f u l on the A f r i c a n plane, t h e i r r o l e has been more l i m i t e d f o r various reasons seen above. However, the r o l e of NGOs i n A f r i c a i s l i k e l y to increase i n the near future e s p e c i a l l y i f given support and encouragement not only i n t e r n a t i o n a l l y but also l o c a l l y and regi o n a l l y . 130 FOOTNOTES U.N. Charter, a r t . 13(1)(b). L. B. Sohn and T.Buergenthal, International Protection of Human Rights. Indianapolis, 1973, 523. Ibid. Ibid; see also Jack Donnelly, Recent Trends et a l , supra, 635. Sohn, i b i d . Ibid. Ibid, 524. See i b i d , 525. M.T.Kamminga, The Thematic Procedures of the U.N. Commission on Human Rights. Netherlands I n t ' l L. Rev. (1987) XXXIV Issue 3, 299 Ibid, 299-323, but esp. 3 01; Also see M. J . Bossuyt, The Development of Special Procedures of the United Nations Commission on Human Rights. 6 H. R. L. J . (1985) 179; D. Weissbrodt, The Three "Theme" Special Rapporteurs of the U.N. Commission on Human Rights 80 A. J . I. L. (1986), 685; and N. Rodley, U.N. Action Procedures Against "Disappearances". Summary or Ar b i t r a r y Executions, and Torture. 8 H. R. Q. (1986) 700. Established under U.N. Commission on Human Rights Res. 20 (XXXVI), 10 (XXXVII),1982/24, 1983/20, 1984/23, 1985/20, 1986/55,and 1987/27. Set up under U.N. Commission on Human Rights Res. 1982/29, 1983/36, 1984/50, 1985/37, 1986/42, and 1987/57. Set up under U.N. Commission on Human Rights Res. 1985/33, 1986/50, and 1987/29. Set up under U.N. Commission on Human Rights Res. 1986/20, and 1987/15. M. T. Kamminga, supra, 321 and 323. However, he notes one major problem, namely, the geographical imbalance i n the d i s t r i b u t i o n of these procedures and t h e i r sources of information. As of today, few have been sent to A f r i c a . 131 See the International Commission of J u r i s t s , THE REVIEW No.40 June 1988, UN Commission on Human Rights, at 18 (Editor: N i a l l MacDermot). x ' The writer i s only aware of the v i s i t by the Special Rapporteur on Summary or Ar b i t r a r y Executions to Uganda 17-20 August 1986, U.N. Doc. E/CN.4/1987/20 Annex I I . However, the purpose f o r t h i s v i s i t was not to carry out investigations i n the current abuses but rather to confirm the abuses of passed regimes. 18 19 20 21 22 23 See THE REVIEW No.40 June 1988, supra, 18. See Sohn and Buergenthal, supra, 526. E.S.C. Res. 1503 (XLVIII) adopted 27 May 1970, 48 U.N. Doc. E/4832/Add. 1 (1970). See Sub-Comm. Res. l(XXIV) U.N. Doc. E/CN4/1070 (1971), and Howard Tolley, j r , The Concealed Crack i n the Ci t a d e l ; The United Nations Commission on Human Rights' Response to Confidential Communications, 6 H. R. Q. 420 (Nov.1984) 432. Ibid, 433. Space does not allow us to deal with the s p e c i f i c s of the procedure. For these, see among others, Howard Tolley, supra, esp.433-450, and Dinah H. Shelton, Individual Complaint Machinery under the United Nations 1503 Procedure and the Optional Protocol to the International Covenant on C i v i l and P o l i t i c a l Rights, i n Hannum H, ed, Guide to International Human Rights Practice. Philadephia. 1984, 59-73. 2 4 Disappointing Start to New U.N. Procedure on Human Rights. I. C. J . Review 9 (1972) 5; and Howard Tolley, supra, 433. 2 5 Howard Tolley, supra, 453 and 457. 2 6 For an analysis of these organs see, among others, Sohn and Buergenthal, supra, 527-532. 2 7 U.N. Doc.E/INF. 162 '(1977) . 28 29 See David Weissbrodt, The Contribution of International Non-governmental Organizations to the Protection of Human Rights, i n T. Meron, ed, Human Rights i n International Law, Oxford, 1984, 403. See R. J . Vincent, Human Rights and International Relations, Cambridge, 1986, 97. 132 30 31 32 33 37 38 39 40 41 42 43 45 V. Leary, A new ro l e for non-governmental organization i n human r i g h t s : A case study of non-governmental p a r t i c i p a t i o n i n the development of inte r n a t i o n a l norms on torture, i n Cassesse A. U.N. Law . .. et a l , supra, 197, 198. Howard Tolley, supra, 434-435. Ibid. Also see Dinah H. Shelton, Individual Complaint Machinery... et a l , supra, 60 and 64. R. J . Vincent, supra, 98; and D.Weissbrodt, supra, 404. 3 4 David Weissbrodt, supra, 404. 3 5 R. J . Vincent, supra, 98. 36 David Weissbrodt, supra, 411. V i r g i n i a Leary, supra, 206. David Weissbrodt, supra, 409. Blaser A. W,supra, 274-276. H. M. Scoble, supra, 183-5; and Hans Thoolen and Berth Verstappen, supra, 137-8. H. M. Scoble, supra, 179 and 185. As as example, see Survival International. A f r i c a : Unnatural Disasters, August 1988. Human Rights Watch Number 2, May-June 1988, 9, AN AGENDA FOR AFRICA WATCH. Human Rights Watch Begins F e a s i b i l i t y Study. 4 4 Ibid. See page 79 of t h i s work. 4 6 See Human Rights Watch, supra, 9. 133 P A R T T H R E E A f r i c a A n d H u m a n R i g h t s 134 C H A P T E R F I V E AFRICAN CONCEPTIONS OF HUMAN RIGHTS Tr a d i t i o n a l Views. The law of human r i g h t s as i t i s known today i s b a s i c a l l y of European o r i g i n . This can be traced as fa r back as the Magna Carta Libertatum i n England i n 1215 and the English B i l l of Rights of 1689, through to the 1789 American B i l l of Rights, and the French Declaration of the Rights of Man and the C i t i z e n of 1793. 1 I t i s within these documents that the roots of the International B i l l of Rights are to be found. This notwithstanding, a number of Af r i c a n scholars contend that human righ t s are inherent i n every human being and have a "universal character"; 2 that they are not "r i g h t s " as properly conceived but "powers" i n the human being. 3 Within t h i s form, i t i s argued, "human r i g h t s " e x i s t i n a l l p o l i t i c a l and s o c i a l systems including t r a d i t i o n a l s o c i e t i e s i n Asia and A f r i c a , and that i f empirical research into the i n t e r n a l i z e d conceptions of human ri g h t s recognized by a t r a d i t i o n a l society were conducted, one would f i n d enormous s a t i s f a c t i o n as to the b a s i c a l l y democratic way i n which the society protects i t s own values. 4 Thus i t i s contended that: 135 Conceptions of human ri g h t s could be found i n most c i v i l i z a t i o n s and t h i s means Af r i c a n communities had such conceptions bearing or representing various contents. I t could be that the same ideas as those e x i s t i n g i n European communities were being expressed i n Afr i c a n communities only that the d i f f e r e n t environments and c u l t u r a l structures made the appearance af such ideas i n d i f f e r e n t terms.(emphasis added) 5 I t cannot be doubted that the well-organized and ce n t r a l i z e d s o c i e t i e s such as the Asantis of Ghana, the Ibo of Nigeria, the Shona and Ndebele of Zimbambe, and the Baganda of Uganda, to mention but a few, had a semblance of democracy and protected various values through the family, clan, v i l l a g e , community, or t r i b e . This could therefore be r i g h t l y argued as an attempt at protecting human right s because the protection of various values was tantamount to protecting the ri g h t s of individ u a l s and the community. However, what must not be overlooked i s the fac t that majority of the Af r i c a n s o c i e t i e s were not "centralized"; Yet t h i s so-called "respect for human r i g h t s " was only r e s t r i c t e d to the cen t r a l i z e d s o c i e t i e s . Secondly, even within the cen t r a l i z e d s o c i e t i e s , the values respected were not uniform; they varied from community to community and within communities due to t r i b a l , r e l i g i o u s , and c u l t u r a l differences. Of course, t h i s does not necessarily mean that respect f o r human right s can only be achieved through "a single human ri g h t s model". What the Af r i c a n scholars and p o l i t i c i a n s advocate for i s t h i s "uniquely A f r i c a n concept of human r i g h t s " (that i s , the protection of community values and r i g h t s which 136 ultimately amounted to protection of i n d i v i d u a l r i g h t s ) . This i s r e f l e c t e d , though perhaps not very successfully, i n the A f r i c a n Charter on Human and Peoples' Rights. However, because there i s no "universal" and homogeneous Afr i c a n culture and society, they argue that the A f r i c a n concepts of human ri g h t s are culture s p e c i f i c and that the International B i l l of Rights should only be applied to A f r i c a with m o d i f i c a t i o n . 6 A f r i c a n Values and Cultural Relativism. C u l t u r a l r e l a t i v i s m as f a r as human ri g h t s i n A f r i c a are concerned, i s a doctrine which holds that any v a r i a t i o n s i n the observance and respect f o r human ri g h t s should be exempt from legitimate c r i t i c i s m by outsiders and i s strongly supported by notions of "communal autonomy and self-determination". 7 I t asserts that: (a) Rules about morality vary from place to place; (b) The way to understand t h i s v a r i e t y i s to place i t i n i t s c u l t u r a l context; and (c) Moral claims derive from, and are enmeshed i n , a c u l t u r a l context which i s i t s e l f a source of t h e i r v a l i d i t y . 8 The argument which has been advanced i s that there i s a p l u r a l i t y of cultures i n the world, and these cultures produce t h e i r own values. There are no universal values and no universal morality. Any attempt to assert u n i v e r s a l i t y as a c r i t e r i o n of a l l morality i s more or l e s s a well-disguised 137 version of the imperial routine of t r y i n g to make the values of a p a r t i c u l a r culture general. 9 I t i s upon t h i s argument that the conservative A f r i c a n scholars base t h e i r a l l e g a t i o n for a need to su b s t a n t i a l l y modify the International B i l l of r i g h t s , p a r t i c u l a r l y the Universal Declaration of Human Rights and the Covenant on C i v i l and P o l i t i c a l Rights, so as to take into account "African values", before i t can be applied to A f r i c a . 1 0 Arguments for modification are i n s p i t e of the fact that the Organization of Afr i c a n Unity endorsed the Universal Declaration and that almost a l l the Af r i c a n states copied and included a majority of the human ri g h t s and fundamental freedoms contained i n the Declaration within t h e i r constitutions upon attainment of independence. In fac t , quite a few incorporated a b i l l of human r i g h t s as a chapter i n the con s t i t u t i o n . Of course i t could be argued that the Af r i c a n p o l i t i c i a n s had no choice at the time of independence; that i t was a condition f o r the granting of independence. However, even i f t h i s were the case, the majority of the States have maintained b i l l s of human ri g h t s as chapters within t h e i r constitutions i n spi t e of the amendments which have been effected upon the constitutions ever since independence was attained. These constitutions are l e g a l l y binding upon the respective countries. Assuming that the p o l i t i c i a n s had no choice but to include these r i g h t s and freedoms at the time of 138 independence, we see no reason why these constitutions have not been modified so as to r e f l e c t these alleged "African values" at lea s t for the sake of constitutionalism. I t i s absurd f o r b i l l s of human right s to be kept on the statute books without being followed. V i l l a g e , family, clan, Community, and t r i b e would seem to be the Af r i c a n values and culture upon which the scholars' arguments are based. 1 1 Under t r a d i t i o n a l A f r i c a n culture, groups and c o l l e c t i v e r i g h t s were given a superior p o s i t i o n to that of individ u a l s and i n d i v i d u a l r i g h t s . S o c i a l harmony or the preservation of the f a b r i c of s o c i a l l i f e came f i r s t i n Afr i c a n thought, hence the prevalence, among other things, of the extended f a m i l i e s . This placing of groups and c o l l e c t i v e r i g h t s , which have come to mean States and ri g h t s of States, above the in d i v i d u a l and i n d i v i d u a l r i g h t s , has played a substantial part i n the human right s record i n A f r i c a since independence, and i t seems to have been recently given l e g a l sanction by the Af r i c a n Human Rights charter. However, i t must be pointed out that these group and c o l l e c t i v e r i g h t s recognized i n t h i s Charter do not include the ri g h t s of mino r i t i e s . Whereas the preservation of Af r i c a n culture and values i s important, and welcome at lea s t among the conservative Africans, the point which seems to be missed i s that culture i s neither homogeneous nor s t a t i c . I t changes gradually but perhaps s t e a d i l y over time. In A f r i c a , the process of change 139 was buttressed by colonialism whose l a s t i n g marks have been the introduction of "western" practices and i n s t i t u t i o n s . A majority of A f r i c a has been penetrated and influenced by foreign culture (values, practices and i n s t i t u t i o n s ) ranging from the modern state, to the money economy, and to "western" values, languages, products and practices. In a majority of the cases, what exi s t s today are not t r a d i t i o n a l communities but "dual s o c i e t i e s and patchwork prac t i c e s " that seek to accommodate seemingly i r r e c o n c i l a b l e old and new ways. 1 2 T r a d i t i o n a l culture i s gradually being replaced by a "disruptive and incomplete westernization, c u l t u r a l confusion, or the enthusiastic embrace of modern practices and v a l u e s " . 1 3 While some autonomous and b a s i c a l l y t r a d i t i o n a l communities which decide t h e i r destiny l a r g e l y i n accordance with t r a d i t i o n a l values and practices s t i l l do e x i s t i n A f r i c a , for example the Karamojong i n Uganda and the Maasai i n Kenya and Tanzania, they are the exception rather than the r u l e . Whereas the c u l t u r a l s u r v i v a l of these b a s i c a l l y t r a d i t i o n a l groups i s important, they are i n e v i t a b l y minority groups within the state such that they do not j u s t i f y a general conclusion that the state must observe or otherwise respect human ri g h t s i n a c u l t u r a l l y r e l a t i v e way. The only way these groups can be protected i s by dealing ,with minority r i g h t s and not i n d i v i d u a l human r i g h t s . 140 In l i g h t of a l l the above circumstances, therefore, t r a d i t i o n a l A f r i c a n culture, which i s the basis of the arguments for c u l t u r a l r e l a t i v i s m , cannot and does not, any longer e x i s t i n majority of A f r i c a . Thus i t i s suggested that: To base human right s p o l i c y on t h i s model of r u r a l A f r i c a . . . . i s to ignore the changes which have occurred and are occurring i n the way Africans l i v e , i n p a r t i c u l a r how t h e i r l i v e s are affected by the i n s t i t u t i o n s that the State controls. Under such new s o c i a l conditions, new methods of guaranteeing human ri g h t s become e s s e n t i a l . ...Pre-colonial society i s [only] useful insofar as i t explains the c u l t u r a l and psychological roots of modern Afr i c a n man, but not...as a fact u a l description of contemporary A f r i c a n s o c i a l o r g a n i z a t i o n . 1 4 I t would therefore seem that the Af r i c a n e l i t e s (scholars and p o l i t i c i a n s ) are manipulating human ri g h t s by enunciating a s p e c i f i c a l l y "African theory of human r i g h t s " a l l e g e d l y taking into account A f r i c a n values and culture, merely as a l e g i t i m i z i n g ideology and cover f o r t h e i r own in t e r e s t s . Appeals to t r a d i t i o n a l practices and values are more often than not "a mere cloak for s e l f - i n t e r e s t or a r b i t r a r y r u l e " 1 5 and are most often intended only for external consumption so as to escape c r i t i c i s m f o r non- observance and abuse of human r i g h t s . Support f o r t h i s argument i s to be found i n the fact that the advocates of t h i s "human ri g h t s theory" have l i t t l e connections, i f at a l l , with " t r a d i t i o n a l " society; they have taken a l l steps to extract themselves from any strands of t r a d i t i o n a l society and have no intentions of returning to i t . Secondly, majority of the practices which underlie 141 the human ri g h t s abuses i n A f r i c a and which are sometimes wrongly j u s t i f i e d as part of A f r i c a ' s t r a d i t i o n a l values or culture, have nothing "African" i n them; they are as a n t i t h e t i c a l to A f r i c a n c u l t u r a l t r a d i t i o n s as they are to western human right s conceptions. 1 6 Thus one scholar has warned that: We must be a l e r t to cyni c a l manipulations of a dying, l o s t , or even mythical c u l t u r a l past. We must not be misled by complaints of the inappropriateness of "western" human ri g h t s made by repressive regimes whose practices have at best only the most tenuous connection to the indigenous culture; communitarian r h e t o r i c too often cloaks the depredation of corrupt and often westernized or deracinated e l i t e s . In p a r t i c u l a r , we must be wary of s e l f - i n t e r e s t e d denunciations of the excessive individualism of "western" human r i g h t s . 1 7 Consequently, c u l t u r a l r e l a t i v i s m as a basis for va r i a t i o n s i n the observance of human ri g h t s cannot be j u s t i f i e d . A f r i c a n culture which could have supported t h i s doctrine has to a large extent been watered away. To accept such a doctrine would be to perpetuate and protect the s e l f - i n t e r e s t s of the e l i t e s and p o l i t i c i a n s at the expense of human r i g h t s and the rest of the masses on the continent. This would also be a way of sanctioning the perpetuation of A f r i c a ' s current quagmire. However, i n view of the fact that most of A f r i c a i s now composed of "dual s o c i e t i e s " which are having "patchwork pr a c t i c e s " taken from both the old and new ways, t o t a l r e j e c t i o n of c u l t u r a l r e l a t i v i s m would be a great mistake. Whereas strong or r a d i c a l c u l t u r a l r e l a t i v i s m must be avoided f o r the reasons given above, some l e v e l of weak 142 c u l t u r a l r e l a t i v i s m should be maintained so as accommodate t h i s dual society and culture. Weak c u l t u r a l r e l a t i v i s m i s taken to mean that: [Whereas] culture may be an important source of the v a l i d i t y of a moral r i g h t or rule there i s a weak presumption of u n i v e r s a l i t y , but the r e l a t i v i t y of human nature, communities, and ri g h t s serves as a check on po t e n t i a l excesses of universalism. weak c u l t u r a l r e l a t i v i s m would recognize a comprehensive set of prima f a c i e universal human ri g h t s and allow only r e l a t i v e l y rare and s t r i c t l y l i m i t e d l o c a l v a r i a t i o n s and exceptions. 1 8 Prima f a c i e , human ri g h t s should always be taken to be universal and each country and people should endeavour to respect them i n that capacity. Modification should only be applied to the pot e n t i a l excesses which may be impossible or otherwise d i f f i c u l t f or the people to observe due to c u l t u r a l and other differences. The only problem with t h i s assertion i s that i t i s l i k e l y to be used by s e l f - s e r v i n g e l i t e s and p o l i t i c i a n s for t h e i r own purposes. I t i s t h i s weak c u l t u r a l r e l a t i v i s m , and not the r a d i c a l or strong one, which should be considered when formulating, inter p r e t i n g , and enforcing human right s i n A f r i c a . In s p i t e of our arguments above, t h i s allegedly "African concept of human r i g h t s " which i s said to be c u l t u r a l r e l a t i v e and supposedly takes into account A f r i c a n values, has been used to formulate various concepts. Many of these are to be found i n the Afr i c a n Charter on Human Rights Charter. A few others have not yet been documented but can be seen i n pra c t i c e . 143 Among these concepts are s o l i d a r i t y r i g h t s or the ri g h t s of groups based upon Afr i c a n t r a d i t i o n s which place the group above the i n d i v i d u a l ; the according of p r i o r i t i e s among human ri g h t s and t h i s derives from the above i n that those r i g h t s belonging to groups are treated as superior to in d i v i d u a l r i g h t s ; and the idea of the one-party State system which i s so notorious on the continent. These concepts s h a l l be the concern of the next chapter of t h i s study. 144 FOOTNOTES See Szabo, H i s t o r i c a l Foundations of Human Rights and Subsequent Developments, i n : Vasak (ed.)/ The International Dimensions of Human Rights, Vol.1, Westport, Paris 1982, 11; and C. R. Mahalu, A f r i c a and Human Rights, i n : Kunig P., Benedek W. and C.R. Mahalu, Regional Protection of Human Rights by International Law: The Emerging Af r i c a n System. Baden-Baden, Germany, 1985, 2. C. R. Mahalu, i b i d , 1. L. Marasinghe, T r a d i t i o n a l Conceptions of Human Rights i n A f r i c a , i n : C. Welch J r and R. Meltzer, Human Rights and Development i n A f r i c a , Albany, 1984, 43. L. Marasinghe, supra, 43. These arguments are based upon such s o c i e t i e s as the Asantis of Ghana, the Ibo i n Nigeria, and some Bantu t r i b e s i n East and Central A f r i c a such as the Baganda i n Uganda, and the Shona and Ndebele i n Zimbabwe. C. R. Mahalu, supra, 2. See among others, Obinna Okere, The Protection of Human Rights i n A f r i c a and the Afr i c a n Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems. 6 H. R. Q. 141 (1984) , esp.143-144. Compare with Rhoda Howard, Evaluating Human Right i n A f r i c a : Some Problem of Imp l i c i t Comparisons. 6 H. R. Q. 160-179 (1984). See Jack Donnelly, Cultural Relativism and Universal Human Rights 6 H. R. Q. 400 (November,1984). See R. J.^ Vincent, Human Rights and International Relations. supra, 37. Ibid, 38. I t may be worth mentioning that an argument i s increasingly gaining ground among a few scholars that although human ri g h t s must be universal, the ri g h t s contained i n the international b i l l of human ri g h t s are not adequate perhaps because they were la r g e l y developed within the se t t i n g of the Western world alone. They therefore envisage a need to modify or perfect these rig h t s so as to make them universal. Of course i t w i l l take time before t h i s argument may be accepted by the international community, i f at a l l . 10 For a l i s t of some of these scholars see Rhoda Howard, Evaluating Human Rights i n A f r i c a . . . e t a l , supra, 173. 145 1 I r o n i c a l l y , these "values" do not seem to be r e f l e c t e d i n the A f r i c a n Charter on Human and Peoples' Rights save f o r the family ( a r t i c l e 18). 1 2 To use the words of Jack Donnelly, Cultural Relativism and Universal Human Rights, supra, 411. 1 3 Ibid. 1 4 Rhoda Howard, Evaluating Human Rights i n A f r i c a et a l , supra, 177. 1 5 See Jack Donnelly, C u l t u r a l Relativism and Universal Human Rights, supra, 412. He c i t e s some leaders who have gone to the extent of picking out c e r t a i n elements of t r a d i t i o n a l A f r i c a n culture to anesthetize the masses. These include President Kamuzu Banda of Malawi who resorted to the use of " t r a d i t i o n a l courts" i n order to deal with p o l i t i c a l opponents outside of the regular l e g a l system; President Mobutu of Zaire who created the practice of Salongo, a form of communal labor with a supposedly t r a d i t i o n a l basis when i n fac t i t i s a r e v i v a l of the c o l o n i a l practice of Corvee labor; and the Samarias i n Niger, which are t r a d i t i o n a l youth organizations allegedly revived out of respect fo r t r a d i t i o n a l culture when the actual reason may be to channel youth energies away from p o l i t i c s . 1 6 See Jack Donnelly, Cultural Relativism and Universal Human Rights. supra, 413. Among such practices are disappearances, a r b i t r a r y arrests and detentions, torture, and rigging of elections. 1 7 Jack Donnelly, Cultural Relativism and Universal Human Rights. supra, 411. 1 8 Ibid, 401. 146 C H A P T E R S I X PRIORITIES AMONG HUMAN RIGHTS International Categorization of Human Rights. International law groups human ri g h t s into three major categories, also termed generations. 1 These are the f i r s t , second, and t h i r d generations of human r i g h t s . We s h a l l only attempt to l i s t the various ri g h t s contained i n each of the three categories. The f i r s t generation i s that of the C i v i l and P o l i t i c a l Rights which includes the right s to l i f e , security of the person, privacy and property; the ri g h t to marry and found a family; the r i g h t to a f a i r t r i a l ; freedom from slavery, torture and a r b i t r a r y arrest; freedom of movement and to seek asylum; the r i g h t to a n a t i o n a l i t y ; freedom of thought, conscience and r e l i g i o n ; freedom of opinion and expression; freedom of assembly and association; and the r i g h t to free elections, universal suffrage and p a r t i c i p a t i o n i n public a f f a i r s . 2 In general terms the rig h t s of the f i r s t generation require immediate implementation and t h i s i s to be achieved by means of the government abstaining from i n t e r f e r i n g with the i n d i v i d u a l . The second generation comprises the Economic and Soc i a l Rights. These are a claim upon the government for 147 intervention i n the economic or s o c i a l sphere and they include the following r i g h t s : the r i g h t to work and f o r a ju s t reward; the r i g h t to form and j o i n trade unions; the r i g h t to res t , l e i s u r e , and periodic holidays with pay; the r i g h t to a standard of l i v i n g adequate to health and w e l l - being; the r i g h t to s o c i a l security; the r i g h t to education; and the r i g h t to p a r t i c i p a t e i n the c u l t u r a l l i f e of the community.3 The t h i r d generation i s that of C o l l e c t i v e r i g h t s (also known as s o l i d a r i t y r i g h t s or the ri g h t s of groups). They include the ri g h t s of nations to p o l i t i c a l , economic, s o c i a l , and c u l t u r a l self-determination, of races to freedom from discrimination, and of classes to freedom from neo- colonialism; the r i g h t to economic and s o c i a l development; the r i g h t to p a r t i c i p a t e i n and benefit from "the common heritage of mankind" (that i s , shared earth-space resources; s c i e n t i f i c , t e c h n i c a l , and other information and progress; and the c u l t u r a l t r a d i t i o n s , s i t e s , and monuments). They also include the r i g h t to peace; the r i g h t to health and balanced environment; and the r i g h t to humanitarian disaster r e l i e f . 4 Unlike the f i r s t and second generation r i g h t s , the t h i r d generation r i g h t s make a c o l l e c t i v e claim upon the government and can be r e a l i z e d only through the concerted e f f o r t s of governments at the international l e v e l - they are concerns of a planetary nature. Secondly, majority of the t h i r d generation r i g h t s are more a s p i r a t i o n a l than 148 j u s t i c i a b l e i n character, and as yet they only enjoy an ambiguous j u r a l status as international r i g h t s norms. 5 Much debate ex i s t s on the international plane over the legitimacy and p r i o r i t i e s of claimed r i g h t s . 6 One conservative view recognizes only the c i v i l and p o l i t i c a l r i g h t s of the in d i v i d u a l as human ri g h t s so-called, and tends to exclude the second and t h i r d generation r i g h t s from t h e i r d e f i n i t i o n of human ri g h t s altogether (or at best, to la b e l them as " d e r i v a t i v e " ) . 7 The claims they place are for moral nec e s s i t i e s which cannot immediately be met. By the standard of what i s very important and what can be achieved now, the second, and t h i r d generation r i g h t s do not q u a l i f y . 8 Another view, which perhaps may not a t t r a c t much support i n the international community, i s that which tends to accord equal status to a l l human ri g h t s be they of the f i r s t , second, or t h i r d generation. I t asserts that a l l human ri g h t s are inter-dependent and support one another; there should therefore be no p r i o r i t y among the human right s categories because without the ri g h t s of any one category, those of another cannot be at t a i n e d . 9 Conversely, second and t h i r d generation defenders recognize not only the second and t h i r d generation rig h t s but also the f i r s t generation of human r i g h t s . However, they regard the f i r s t generation r i g h t s as i n s u f f i c i e n t l y attentive to material human needs and as legitimating 149 instruments to unjust domestic, transnational, and int e r n a t i o n a l s o c i a l orders. Consequently, they tend to assign the f i r s t generation of human r i g h t s a lower status than the second and t h i r d generation r i g h t s and thereby t r e a t the former as long-term goals that w i l l come to pass only with fundamental economic and s o c i a l transformations, to be r e a l i z e d progressively and f u l l y consummated only sometime i n the f u t u r e . 1 0 This i s the view which i s most acceptable to a majority of A f r i c a n scholars and p o l i t i c i a n s . A f r i c a n P r i o r i z a t i o n of Rights. Many A f r i c a n States, scholars, and p o l i t i c i a n s argue that p r i o r i t y should be given to the implementation of economic r i g h t s rather than of c i v i l and p o l i t i c a l r i g h t s . They therefore advocate f o r the promotion of the second and t h i r d generation ri g h t s i n disregard of f i r s t generation r i g h t s . 1 1 Some scholars have even argued that A f r i c a n thought i s to put c o l l e c t i v e r i g h t s f i r s t i n importance, second comes economic and s o c i a l r i g h t s , and t h i r d the c i v i l and p o l i t i c a l r i g h t s . 1 2 Arguments for t h i s view seem to be based upon the conventional wisdom of the s i x t i e s and s e v e n t i e s 1 3 which held that rapid development and human ri g h t s were competing, and not complementary, concerns except i n the very long run; and development was seen as a prerequisite for e f f e c t i v e and 150 widespread implementation of human r i g h t s . Basing upon the above, t h e i r contention i s that i n the in t e r e s t s of both human ri g h t s and development, many of the human rig h t s , e s p e c i a l l y i n the c i v i l and p o l i t i c a l sphere, should be suspended u n t i l the attainment of economic development; what should not be suspended are those r i g h t s i n the second and t h i r d generations which are d i r e c t l y concerned with economic development. J u s t i f i c a t i o n s f or the trading o f f of c i v i l and p o l i t i c a l r i g h t s for economic righ t s and development have been given as f o l l o w s : 1 4 (a) that more of the world's population i s s u f f e r i n g from denial of the economic r i g h t s to work, food, health, shelter and education, than from v i o l a t i o n s of the right s to freedom from torture, a r b i t r a r y detention, and censorship of the p r e s s . 1 5 (b) that a starving, i l l i t e r a t e man cannot understand c i v i l and p o l i t i c a l r i g h t s and therefore human r i g h t s i n some cases should be set aside u n t i l the majority of the people are educated and conditions of l i v i n g are improved. 1 6 This has come to be described as the " f u l l b e l l y t h e s i s . " 1 7 (c) that c i v i l and p o l i t i c a l r i g h t s are not universal concepts and have very l i t t l e a p p l i c a t i o n to the non- western world. 151 ( d ) t h a t g i v i n g p r i o r i t y t o c i v i l a n d p o l i t i c a l r i g h t s o r p u t t i n g t h e m a t p a r ( o b s e r v i n g t h e m s i m u l t a n e o u s l y ) w o u l d m a k e t h e a c h i e v e m e n t o f e c o n o m i c d e v e l o p m e n t d i f f i c u l t . ( e ) t h a t m a s s c o m m u n i c a t i o n m e d i a a n d o t h e r w e s t e r n i n f l u e n c e s s t i m u l a t e e x p e c t a t i o n s w h i c h a r e l i k e l y t o c o m p l i c a t e t h e t a s k o f e c o n o m i c d e v e l o p m e n t i n s t a t e s o b s e r v i n g c i v i l a n d p o l i t i c a l r i g h t s . ( f ) t h a t m u l t i - p a r t y p o l i t i c a l s y s t e m s i n h e r e n t i n t h e c o n c e p t o f c i v i l a n d p o l i t i c a l r i g h t s w o u l d t e n d t o r e f l e c t t r i b a l p a r t i c u l a r i s m i n A f r i c a a n d t o c r e a t e u n w a n t e d o p p o r t u n i t i e s f o r f o r e i g n i n f l u e n c e s i n A f r i c a n s t a t e s ' i n t e r n a l a f f a i r s ; a n d ( g ) t h a t i t i s d o u b t f u l w h e t h e r t h e o b s e r v a n c e o f c i v i l a n d p o l i t i c a l r i g h t s i n t h e d e v e l o p i n g c o u n t r i e s w i l l l e a d t o p o l i t i c a l a n d e c o n o m i c s t a b i l i t y . B e c a u s e t h e A f r i c a n s t a t e s a r e n e w , t h e i r f i r s t p r i o r i t y s h o u l d b e t o e s t a b l i s h i n g s t r o n g , v i a b l e g o v e r n m e n t s . B a s i n g u p o n a l l o r s e v e r a l o f t h e a b o v e r e a s o n s , A f r i c a n g o v e r n m e n t s h a v e d e n i e d t h e i r p o p u l a t i o n s m o s t o f t h e c i v i l a n d p o l i t i c a l r i g h t s . T o t h e m t h i s d e n i a l i s a n e c e s s a r y e v i l a n d i s i n e v i t a b l e . T h u s t h e y s t a t e d t h a t : 152 The concepts of p o l i t i c a l r i g h t s [in A f r i c a ] were bound to be d i f f e r e n t . . . . A f t e r independence the major problems of economic development and national b u i l d i n g had to be tackled from scratch [and] the existence of these imperatives and the o v e r a l l economic and s o c i a l conditions of the Af r i c a n countries made i t necessary to modify the c l a s s i c a l European concepts.... Certain practices widely considered to be v i o l a t i o n s of human ri g h t s were, i n the context of A f r i c a , merely e f f o r t s to correct situations which had developed i n pre- independence days and encourage _and protect human rig h t s of the masses of pe o p l e . 1 8 Perhaps as a r e s u l t of the fac t that A f r i c a n and other t h i r d world countries form a majority i n the United Nations, t h i s trend of according p r i o r i t y to economic r i g h t s has been extended to the United N a t i o n s . 1 9 Whereas United States w i l l t a l k of c i v i l and p o l i t i c a l r i g h t s , and the Soviet Union w i l l concern i t s e l f with racism and apartheid, the majority of the t h i r d world w i l l t a l k of the "new international economic order" and economic r i g h t s . The equivocal espousal of t h i s trend i s to be found i n Resolution 32/130 of 1977 wherein the General Assembly, while recognizing p e r f u n c t o r i l y the i n d i v i s i b i l i t y of a l l human r i g h t s and freedoms, declared that "the f u l l r e a l i z a t i o n of c i v i l and p o l i t i c a l r i g h t s i s imp o s s i b l e " . 2 0 There a f t e r , the trend i n the U.N. i n the area of development has been toward greater support of the economic ri g h t s f i r s t approach and r e l a t i v e neglect of c i v i l and p o l i t i c a l r i g h t s and personal security r i g h t s . 2 1 Thus i t has been noted that the present p r a c t i c e of most states (in the United Nations) i s to neglect or downplay the importance of p o l i t i c a l r i g h t s i n favour of 1 5 3 economic development and economic r i g h t s . T h i s m a j o r i t y has been waging a b a t t l e i n the U.N. t o excuse, even t o approve, t h e i r v i o l a t i o n s o f c i v i l and p o l i t i c a l r i g h t s i n p a r t i c u l a r , and p e r s o n a l economic r i g h t s as w e l l . 2 2 However, i t should be p o i n t e d out t h a t many times t h i s m a j o r i t y has no much power i n de t e r m i n i n g what comes onto the UN agenda e s p e c i a l l y where ve t o powers are i n v o l v e d . But once an i s s u e has s u c c e s s f u l l y been brought t o the UN agenda, t h i s m a j o r i t y can use t h e i r n umerical s u p e r i o r i t y t o b l o c k i t . N o t w i t h s t a n d i n g the above arguments and t h e i r a l l e g e d j u s t i f i c a t i o n s , n e i t h e r economic development nor s u f f i c i e n t observance of economic r i g h t s have been achieved by the A f r i c a n governments s i n c e independence. T h i s approach t o economic development has been a t o t a l f a i l u r e i n most of A f r i c a i n l i g h t o f the m i l i t a r y coups, d i c t a t o r s h i p s , and human r i g h t s v i o l a t i o n s i t has c o n t r i b u t e d t o . Although some l e a d e r s b e l i e v e d i n good f a i t h t h a t they c o u l d a t t a i n economic p l e n t y f o r t h e i r people a t a f a s t e r r a t e i f they e l i m i n a t e d c i v i l and p o l i t i c a l r i g h t s such as p o l i t i c a l p a r t i c i p a t i o n and freedom of speech ( e s p e c i a l l y as to p u b l i c c r i t i c i s m o f government p o l i c y ) , a m a j o r i t y o f the A f r i c a n l e a d e r s have p r e f e r r e d t o g i v e p r i o r i t y t o economic r i g h t s so as t o p r o v i d e themselves w i t h a ready made means o f a c q u i r i n g p o l i t i c a l power o r p e r p e t u a t i n g t h e i r tenure i n o f f i c e . Thus one s c h o l a r has warned t h a t : 154 The 'right to development 1 touted by A f r i c a n e l i t e s as a prerequisite to the more t r a d i t i o n a l human r i g h t s , may well be merely a cover f o r the denial of those basic c i v i l and p o l i t i c a l l i b e r t i e s which w i l l allow the dispossessed masses to act i n t h e i r own i n t e r e s t s . . . . Without human ri g h t s , the evidence suggests, economic growth may occur, but economic development w i l l not. " F u l l b e l l i e s " require p o l i t i c a l p a r t i c i p a t i o n and c i v i l l i b e r t i e s . 2 7 A f r i c a ' s experience would therefore seem to leave t h i s approach to economic development with l i t t l e c r e d i b i l i t y , i f at a l l . The experiences of B r a z i l , South Korea, and sometimes India, where t h i s approach to human ri g h t s and economic development i s believed to have worked miracles, are often c i t e d i n i t s support. 2 4 True, a substantial l e v e l of development was attained i n these countries; Nevertheless, the s a c r i f i c i n g of c i v i l and p o l i t i c a l r i g h t s for a rapid economic development i s not safe from generating negative r e s u l t s as well. Thus i t i s suggested that i n the absence of c i v i l and p o l i t i c a l r i g h t s , for example, investment takes unproductive wasteful forms, and without popular p a r t i c i p a t i o n i n decision-making, very serious mistakes i n economic p o l i c y are d i f f i c u l t to c o r r e c t . 2 5 S i m i l a r l y , the experiences of B r a z i l and South Korea show that upon the attainment of a substantial l e v e l of economic development, a return to the observance of, and respect f o r , human ri g h t s i s not automatic; I t would seem to suggest that the suspension of c i v i l and p o l i t i c a l r i g h t s i s more l i k e l y to be grounded i n an attempt to protect or strengthen e l i t e p r i v i l e g e s and an inequitable d i s t r i b u t i o n 155 o f t h e b e n e f i t s o f g r o w t h . ° I t i s n o t s u r p r i s i n g , t h e r e f o r e , t h a t one s c h o l a r h a s c o n c l u d e d t h a t : A p o l i c y t h a t p o s t p o n e s p r o m o t i o n o f human r i g h t s u n t i l e c o n o m i c d e v e l o p m e n t i s a c h i e v e d i s n o t h o s p i t a b l e t o human r i g h t s e v e n i n t h e l o n g r u n . F o r e c o n o m i c d e v e l o p m e n t i s a l o n g t e r m a f f a i r . W i t h o u t d e v e l o p i n g human s k i l l s , e n t e r p r i s e a n d c r e a t i v i t y , i t c a n n o t b e a c h i e v e d e v e n i n t h e l o n g r u n . A p o l i c y t h a t s u p p r e s s e s human r i g h t s may r e t a r d d e v e l o p m e n t o f t h e s e f a c t o r s . A s o c i e t y t h a t e x p e r i e n c e s s u p p r e s s i o n o f human r i g h t s f o r a l o n g t i m e i s l i k e l y t o d e v e l o p a c u l t u r e t h a t i s h o s t i l e t o human r i g h t s , a n d jfjrom s u c h c u l t u r e i t i s h a r d t o o b t a i n l i b e r a t i o n . 2 7 I t w o u l d t h e r e f o r e seem, a t l e a s t i n t h e c o n t e x t o f A f r i c a , t h a t , human r i g h t s a n d e c o n o m i c d e v e l o p m e n t a r e n o t c o m p e t i n g b u t c o n t e m p o r a r y g o a l s . The t w o m u s t b e s e e n a s f u n d a m e n t a l l y c o m p l e m e n t a r y a n d m u t u a l l y r e i n f o r c i n g i n a l l t i m e f r a m e s . 2 8 s i n c e e c o n o m i c d e v e l o p m e n t i s o f t e n t r e a t e d s y n o n y m o u s l y w i t h e c o n o m i c r i g h t s , p r i o r i z a t i o n o f human r i g h t s s h o u l d b e a v o i d e d . A f r i c a ' s e x p e r i e n c e i n t h e d e c a d e s a f t e r i n d e p e n d e n c e w o u l d seem t o s u g g e s t t h a t a d e q u a t e e c o n o m i c d e v e l o p m e n t i n g e n e r a l a n d i m p r o v e m e n t o f a g r a r i a n p r o d u c t i o n i n p a r t i c u l a r c a n n o t b e a c h i e v e d w i t h o u t t h e i m p l e m e n t a t i o n o f c e r t a i n c i v i l a n d p o l i t i c a l r i g h t s . C i v i l a n d p o l i t i c a l r i g h t s s u c h a s f r e e d o m o f s p e e c h a n d a s s e m b l y , a n d t h e r i g h t t o p o l i t i c a l p a r t i c i p a t i o n p r o v i d e t h e o n l y p r a c t i c a l m e c h a n i s m a v a i l a b l e t o t h e p e o p l e o f A f r i c a t o f o r c e t h e i r p o l i t i c a l l e a d e r s b o t h t o r e s p o n d t o t h e i r e c o n o m i c n e e d s a n d t o a b a n d o n t h e e c o n o m i c p o l i c i e s t h a t a r e h i n d e r i n g p r o g r e s s ; 2 9 t h e y g i v e p e o p l e p o l i t i c a l p o w e r w h i c h c a n b e u s e d t o g a i n e c o n o m i c a n d s o c i a l r i g h t s w h e r e a s t h e e c o n o m i c a n d s o c i a l r i g h t s p r o v i d e o n l y m a t e r i a l 156 needs - goods and services - which may not necessarily be useful i n for c i n g progress on c i v i l and p o l i t i c a l r i g h t s . 3 0 We would suggest that there i s some rel a t i o n s h i p , although not c l e a r l y defined, between economic and s o c i a l r i g h t s , and c i v i l and p o l i t i c a l r i g h t s . The two seem to reinfo r c e one another almost to the extent of interdependence. In fact, t h i s would seem to have been the message of the 1968 Proclamation of Teheran which i s contained i n the phrase "human ri g h t s and fundamental freedoms are i n d i v i s i b l e " . 3 1 I t i s therefore erroneous to pursue economic development goals allegedly through the observance of economic r i g h t s i n t o t a l disregard of c i v i l and p o l i t i c a l r i g h t s . Consequently, there i s need to revise the p r i o r i z a t i o n of human ri g h t s i f economic and s o c i a l development are to be achieved. Donnelly suggests that c i v i l and p o l i t i c a l r i g h t s should take p r i o r i t y over a l l other r i g h t s . He believes that c i v i l and p o l i t i c a l r i g h t s may prove to be a c r u c i a l instrument f o r turning a country toward e g a l i t a r i a n development. He further asserts that they may be the only way, short of revolution or overwhelming external pressure, to bring about the t r a n s i t i o n to equitable development. His explanation i s that even i f bread comes f i r s t , since poverty i s i n large measure a s o c i a l and p o l i t i c a l , not a natural product, c i v i l and p o l i t i c a l r i g h t s may be the best, or at lea s t the most peaceful, way to get b r e a d . 3 2 S i m i l a r l y , Minasse Haile asserts that although both sets of human 157 r i g h t s are important, c i v i l and p o l i t i c a l r i g h t s are the means through which economic rig h t s can be enforced i n the A f r i c a n c o n t e x t . 3 3 These recommendations seem to miss one point, namely, that f o r there to be meaningful respect for c i v i l and p o l i t i c a l r i g h t s , some basic needs, p a r t i c u l a r l y as to subsistence, must be s a t i s f i e d , and t h i s may require immediate s a t i s f a c t i o n . The assertion that c i v i l and p o l i t i c a l r i g h t s are the best and most peaceful way of getting bread i s not convincing enough. I t may take long before bread i s obtained through pursuit of c i v i l and p o l i t i c a l r i g h t s i n i s o l a t i o n of other r i g h t s , by which time the s u f f e r i n g of the people would have been tremendous. In contrast to the above recommendations, Vincent R. J . suggests that the provision f o r subsistence r i g h t s has a strong claim to p r i o r i t y over a l l other human r i g h t s . He asserts that what should be pursued f i r s t and foremost are those human ri g h t s that f a c i l i t a t e provision f o r and s a t i s f a c t i o n of the needs of s u r v i v a l . The argument upon which h i s recommendation i s based does not derive from any conviction that subsistence r i g h t s are p r i o r to other basic r i g h t s such as those to security and l i b e r t y but rather from sympathy to starving and malnourished p e o p l e . 3 4 Much as malnourishment and starvation must be a l l e v i a t e d , i t i s not possible to provide subsistence r i g h t s i n t o t a l i s o l a t i o n of other r i g h t s . Bread may be given to a starving person but i f h i s l i f e i s going to be taken away 158 soon a f t e r eating the bread, then no purpose would have been served by providing the bread. Similar arguments could be advanced f o r security. Security i s as es s e n t i a l to a person's s u r v i v a l as i s bread. Therefore, the interdependence of human ri g h t s should not be denied. C i v i l and p o l i t i c a l r i g h t s on the one hand, and economic and s o c i a l r i g h t s on the other, are i n t e r - r e l a t e d and reinforce one another. C o l l e c t i v e or s o l i d a r i t y r i g h t s derive from the above two categories of human right s since the ultimate beneficiary i s the i n d i v i d u a l , and t h e i r o v e r a l l e f f e c t i s to reinforce c i v i l and p o l i t i c a l , as well as economic and s o c i a l r i g h t s , and vic e versa. However, we must acknowledge one fact, namely, that i n A f r i c a a l l human right s cannot be e f f e c t i v e l y implemented at the same time. I t i s too b i g a task. This fact notwithstanding, one category of human ri g h t s must not be pursued i n i s o l a t i o n because no purpose w i l l be served i n the long run. What needs to be done i s to attempt to s a t i s f y the basic r i g h t s from each category so as to lay a foundation f o r the eventual observance of a l l other human ri g h t s . Among the ri g h t s which should be observed immediately and perhaps before a l l others are: the r i g h t to l i f e , and security of the person; freedom of speech, and of association; the r i g h t to p o l i t i c a l p a r t i c i p a t i o n ; the r i g h t to work, and to s o c i a l security; the r i g h t to i n t e r n a l s e l f - determination, peace, and disaster r e l i e f ; and the r i g h t to 159 s o c i a l and economic development. These would seem to be the core r i g h t s , at l e a s t i n the case of A f r i c a , which w i l l help lay the foundation for the observation of other r i g h t s . Once these r i g h t s or a majority of them are observed, there w i l l be less i n s t a b i l i t y on the continent; dic t a t o r s h i p s w i l l be eliminated, economic and s o c i a l development should be able to take place. This i n turn w i l l f a c i l i t a t e the observance of the remaining l i s t s of human ri g h t s . However, i t i s very u n l i k e l y that these r i g h t s w i l l be achieved within the frame work of the one-party state which i s not so uncommon on the continent. One-party States and Human Rights i n A f r i c a . The idea of a one-party State has become p r a c t i c a l p o l i t i c s i n A f r i c a . 3 5 A majority, i f not a l l , of the Af r i c a n governments which are not m i l i t a r y d ictatorships are one- party states. Today only Botswana, Gambia, Mauritius, Morocco, Senegal, Sudan and Tunisia practice multi-partyism. The r e s t are under c i v i l i a n one-party or m i l i t a r y dominated regimes. This was not so at independence. A f r i c a n countries, almost without exception, adopted multi-party p o l i t i c a l systems and elaborate b i l l s of human ri g h t s at the time when each attained independence. After a short period of l i b e r a l , c o n s t i t u t i o n a l government characterized by freedom of speech, press, and p o l i t i c a l a c t i v i t y , severe r e s t r i c t i o n s were imposed on the 160 exercise of r i g h t s , and i n p a r t i c u l a r , p o l i t i c a l r i g h t s . The mechanism through which t h i s curtailment of p o l i t i c a l and other r i g h t s was i n s t i t u t i o n a l i z e d was the one-party State system and any resistance to t h i s was i n v a r i a b l y met with severe r e p r e s s i o n . 3 6 Allegedly i n an e f f o r t to f i g h t grave economic problems and divided t r i b a l l o y a l t i e s as well as obtaining more e f f e c t i v e control of t h e i r c i t i z e n s , A f r i c a n leaders, almost without exception, renounced multi-party democracy i n favour of one-party p o l i t i c a l systems. One-party States systems were seen as the solution to A f r i c a ' s p o l i t i c a l malaise and under development. 3 7 Multi-party p o l i t i c a l systems were seen as d i v i s i v e and a bar to the attainment of economic development. Another j u s t i f i c a t i o n ( i s i t a pretext) used for adoption of the one-party p o l i t i c a l systems were the A f r i c a n t r a d i t i o n s and values - i t was alleged that Africans were not used to western multi-party democracy. This argument seems to have been based upon the f a c t that a majority of the A f r i c a n s o c i e t i e s were being ruled by hereditary chiefs and kings p r i o r to the coming of the c o l o n i a l i s t s . I t i s true that many t r a d i t i o n a l r u l e r s had absolute powers but t h i s does not mean that they used them a r b i t r a r i l y . Many of these governments were soon seized by strong executives, m i l i t a r y cabals, or d i c t a t o r s . Perhaps with the intention of creating circumstances akin to those of hereditary r u l e r s , such leaders destroyed the multi-party 161 p o l i t i c a l systems which they inherited at time of independence, replacing them with one-party State systems. The erosion of human ri g h t s i n t h i s respect was usually not fa r b e h i n d . 3 8 However, i t must be pointed out that neither the Af r i c a n constitutions nor the United Nations Charter require the guaranteeing of human right s through a competitive multi-party democracy. This i s not even so with the recently enacted A f r i c a n Charter on Human and Peoples Rights. Though p a r t l y i n conformity with the U.N. covenant on C i v i l and P o l i t i c a l Rights, the Af r i c a n Charter makes no mention of voting nor of genuine periodic e l e c t i o n s . 3 9 Likewise, i t must be noted that i t i s not impossible to observe and respect human ri g h t s , including the holding of genuine per i o d i c elections, within a one-party State system. I t would be erroneous to interpret the one-party system as the embodiment of absolute e v i l . Ideally, one-party States are taken to be a vehicle of p o l i t i c a l p a r t i c i p a t i o n . I t i s sometimes argued that i t i s easier to choose f r e e l y within a one-party State system because the differences are supposedly le s s than i n a multi-party p o l i t i c a l system. One scholar suggests that: 162 depending on countries, circumstances, and events, the one-party system could t r u l y gain acceptance by a l l as the i d e a l instrument for the r a l l y i n g of ce n t r i f u g a l forces, as the temple of frank and sincere dialogue, and the backstay of States weakened and f o s s i l i z e d by the vi s s i t u d e s of his t o r y . . . . i t could be a temple i d e a l devised to face si t u a t i o n s of public salvation, major c r i s e s , s i t u a t i o n s of emergency and exigency, thus a sort of sacred union i n exceptional circumstances, a response to situations that require a c a l l to the p e o p l e . 4 0 Notwithstanding these arguments, A f r i c a ' s experience shows that t h i s i s not always the case. Many of the Af r i c a n leaders p r a c t i c e an almost absolute despotism which i s also almost always autocratic, and the primary organizational expression of t h i s despotism i s the one-party State. Many times a leader concentrates a l l powers under h i s sole authority, even when there are parliamentary assemblies and a j u d i c i a l system apparently independent but i n r e a l i t y confined to the r o l e of rubber-stamping v e r d i c t s and ins t r u c t i o n s handed down i n cases where "State i n t e r e s t s " are involved. Since no c r i t i c i s m and opposition i s tolerated, A f r i c a ' s one-party state systems have turned out to be rubber-stamping mechanisms for the party leadership. The examples of Kenya, Tanzania, and Zambia, which are among the Af r i c a n countries which have established one-party State systems f o r a long time, are cases i n p o i n t . 4 1 Perhaps because Zimbabwe i s new i n the arena, i t s performance as a one-party state i s so fa r not as bad as i n the other A f r i c a n countries which pr a c t i c e one-party State p o l i t i c s . 163 Consequently, the idea of a one-party State system has proved not to be healthy for human ri g h t s i n A f r i c a . In prac t i c e , i t i s c l e a r l y inconsistent with the enjoyment of fundamental freedoms and r i g h t s . 4 2 Likewise, i t solves neither the continent's p o l i t i c a l malaise nor i t s economic development problems. A f r i c a n leaders have used t h i s one- party p o l i t i c a l system (the neo-marxist idea of a vanguard party) to create personal c u l t s which are almost tantamount to personal empires. In order to sustain themselves i n power, A f r i c a n leaders v i o l a t e human ri g h t s p a r t i c u l a r l y but not l i m i t e d to the c i v i l and p o l i t i c a l r i g h t s category, by s t i f l i n g a l l opposition and c r i t i c i s m through such means as detentions, torture, and deaths, to mention but a few. 4 3 Many times the means of s t i f l i n g opposition have included the d i s t r i b u t i o n and a l l o c a t i o n of resources and opportunities. Party supporters are allocated job opportunities and other benefits while those who seem not to support the government are denied many of the opportunities and resources. P o l i t i c a l p a r t i c i p a t i o n , when allowed, i s i t s e l f a mockery. Only the r u l i n g party sycophants are 'elected', a l l opposition having been almost automatically screened out during the p r e l i m i n a r i e s . 4 4 This i s i n spi t e of the constructive elements embedded i n parliamentary opposition. The performance of one-party States i n A f r i c a i s better revealed i n the words of one scholar as follows: 164 Whether or not the one-party sol u t i o n to the present A f r i c a n p o l i t i c a l malaise i s the best approach can better be judged by the wave of m i l i t a r y coups, chaos, corruption and i n s t a b i l i t y pervading the continent Many of the new leaders have tampered with the p o l i t i c a l p r i n c i p l e s that l i e at the very heart of democratic government.... 4 5 Consequently, one-party State systems are a l i a b i l i t y rather than an asset i n A f r i c a . They neither f a c i l i t a t e economic development, nor help the observance and respect fo r human ri g h t s and fundamental freedoms. Their single and most important purpose i s to help e s t a b l i s h and perpetuate "personal r u l e " or sometimes class r u l e . Many times the means through which t h i s i s achieved i s abuse of human r i g h t s . In the words of one scholar, A f r i c a ' s one-party State systems are: the cornerstone and the prime base of obscure [read absolute] despotism. [This] uses the structure of an i d e a l i z e d one party to ensure the permanence of a t o t a l i t a r i a n system. Under the pretense of being the cradle for the bu i l d i n g of the nation-State, [the one-party State] i s nothing but a movement to r a l l y people i n the service of the one i n power. Organized as i t i s according to the monolithic model of t o t a l i t a r i a n system [ i t ] has no room f o r any discussions. I t s t i f l e s any creative capacity since the party leader i s considered as holding Universal t r u t h by the grace of God. 4 6 In l i g h t of a l l the above, whether or not the alleged "African" concept of human righ t s together with the p r i o r i z a t i o n of human righ t s are dropped, any attempts at enforcing human ri g h t s i n A f r i c a , at l e a s t on the domestic l e v e l , should not be through a one-party State system. 165 7 8 9 10 11 12 FOOTNOTES See Burns H. Weston, Human Rights, supra, 264-266; and R. J . Vincent, Human Rights and International Relations, supra, 11-12. Ibid. Ibid. Ibid. Burns H. Weston, supra, 266. I t i s not my intention to deal, i n great d e t a i l , with the various arguments and counter-arguments i n t h i s respect. Our major concern i n t h i s work i s the way these various rig h t s are treated i n A f r i c a . For a det a i l e d coverage of t h i s debate on the international plane see, among others, Burns H. Weston, Human Rights, supra, 264-269; and R. J . Vincent, Human Rights and International Relations, supra, 12-36 and 81-90. Burns H. Weston, supra, 267. R. J . Vincent, supra, 12. Ibid, 81-90. Burns H. Weston, supra, 2 67. Minasse Haile, Human Rights i n A f r i c a : Observations on the implications of Economic P r i o r i t y , 19 Venderbilt Journal of Transnational Law 299 (Spring 1986), 300. R. J . Vincent, supra, 40. X J See Jack Donnelly, Human Rights and Development: Complementary or Competing Concerns? i n : Shepherd . and Nanda, (eds) Human Rights and Third World Development, supra, 26. 1 4 See Minasse Haile, supra, 303-307. 1 5 I t cannot be disputed that a large number of people i n A f r i c a are not enjoying t h e i r economic r i g h t s . However, the rate at which c i v i l and p o l i t i c a l r i g h t s are denied transcending to the extent of loss of l i f e , negates a l l the j u s t i f i c a t i o n s f or denial of c i v i l and p o l i t i c a l r i g h t s . 1 6 J u l i u s Nyerere, former President of Tanzania, thought that c i v i l and p o l i t i c a l r i g h t s are a luxury to extremely poor people (Julius Nyerere, S t a b i l i t y and 166 change i n A f r i c a , i n : Col i n Legum, ed, A f r i c a Contemporary record, Vol. 2, London:Rex Col l i n g s , 1969- 70, C30-C31). Rhoda Howard, The F u l l - B e l l y Thesis: Should Economic Rights take P r i o r i t y over C i v i l and P o l i t i c a l Rights? Evidence from Sub-Sahara A f r i c a , 5 H. R. Q. (November, 1985) 467 and 478. Seminar on Human Rights i n Developing Countries, Dakar, Senegal, 8-22 February, 1966 (ST/TAO/HR/25, 1966, pp 34-35), and quoted by S. Dayal, Developing Countries and Universal and Regional Approaches to Human Rights i n Light of Changing Context and Perspective, i n : Ginther I. C. and Benedek, W. (ed) New Perspectives and Conceptions of International Law, supra, 102. Jack Donnelly, Recent Trends i n U. N. Human Rights A c t i v i t y : Description and Polemic, supra, esp. 639-642. Compare P h i l i p Alston, The Alleged Demise of P o l i t i c a l Human Rights at the U.N.: A Reply to Donnelly, 37 I n t ' l Organization 538 (1983). U.N. Gen. Ass. Res. 32/130 of Dec. 1977, [G.A. Res. 130, 32 U.N. G A 0 R Supp. (No 45) at 150, U.N. Doc. A/32/45 (1977)] Minasse Haile, supra, 307. Jack Donnelly, The Human Rights P r i o r i t i e s of the U.N.: A Rejoinder to Alston. 37 I n t ' l Organization 547 (1983), 562. Rhoda Howard, The F u l l - B e l l y Thesis: et a l , supra, 467 and 478 For arguments f o r and against these examples, see Jack Donnelly, Human Rights and Development: Complementary or Competing Concerns? i n : Shepherd and Nanda, (eds) Human Rights and Third World Development, supra, 44; and Minasse Haile, supra, 309. See Minasse Haile, supra, 309. See Jack Donnelly, Human Rights and Development: Complementary or Competing Concerns? i n : Shepherd and Nanda, (eds) Human Rights and Third World Development, supra, 44. B. S. Murty, Human Rights and the Basic Perspectives of Developing Countries, i n : Agrawala, Rama Rao, and Saxena, (eds) New Horizons of International Law and Developing Countries, I n t ' l Law Ass., India, 1983, 17. 167 See Jack Donnelly, Human Rights and Development: Complementary or Competing Concerns? i n : Shepherd and Nanda, (eds) Human Rights and Third World Development, supra, 28-29. See Minasse Haile, supra, 317. See Jack Donnelly, Human Rights and Development: Complementary or Competing Concerns? i n : Shepherd and Nanda, (eds) Human Rights and Third World Development, supra, 46. U.N. Doc. A/CONF.32/41, Sales No E 68, XIV 2, para. 13. It i s also reproduced i n Brownlie, Basic Documents on Human Rights, supra. Of course t h i s does not seem to be the in t e r p r e t a t i o n given to i t today. Ibid. Supra, 329. Supra, 2 and 150. I t i s in t e r e s t i n g to note that the idea of one-party States has increasingly become an a f r i c a n pattern. One- party States are l i m i t e d to States i n A f r i c a and i n the s o c i a l i s t and communist countries. Thus, although Latin America has often had m i l i t a r y dictatorships, whenever par t i e s have functioned the idea of a one-party state has not been pressed. The only exception are the countries which profess communism or socialism such as Cuba. The same applies to a majority of the Asian countries outside of the communist states. See Edward Kannyo, The OAU and Human Rights, i n : Yassin El-Ayouty and William Zartman, eds, The OAU After Twenty Years, SAIS, Praeger, New York, 1984, 157; and John Ebiasah, The Contradictions and Paradoxes i n the Af r i c a n Experiences, 22 Howard Law Journal, 3. See John K. Ebiasah, A f r i c a : New Masters, New Slaves 8 Human Rights J . 10, 12-13. See Carol M. Tucker, Regional Human Rights Models i n Europe and A f r i c a : A Comparison. 10 Syracuse J . I n t ' l L. and Commerce 135 (1983) 153. 168 A r t i c l e 13, A f r i c a n Human Rights Charter. Rhoda Howard, i n her work e n t i t l e d : Human Rights i n Commonwealth A f r i c a , Rowman and l i t t l e f i e l d , New Jersey, 1986, 134, suggests that t h i s omission must have been done de l i b e r a t e l y so as to leave open the p o s s i b i l i t y of choosing representatives by other means other than elections on the basis of universal suffrage; for example by elections or appointment within the r u l i n g party. 4 0 Edemo Kodjo, A f r i c a Tomorrow. Continuum, New York, 1987, 129 (Translated by E .B. Khan) 4 1 See A f r i c a Confidential. Vol.29, No.10, 13 May, 1988, Zambia: Backbench r e v o l t . I t t a l k s of President Kauhda's attempts to s t i f l e any opposition i n parliament. His Special branch i s said to have already earmarked the outspoken backbenchers who have often embarrassed the government so that they may not q u a l i f y i n the next elections. The United National Independence Party (UNIP) i s the only p o l i t i c a l party i n Zambia. 4 2 See James W. Skelton, supra, 322. 4 3 See Robert H. Jackson and Carl G. Rosberg, Democracy i n Tropical A f r i c a : Democracy versus Autocracy i n A f r i c a n P o l i t i c s 38 J . of I n t ' l A f f a i r s , (No 2, Winter, 1985) 302-305. See also International Commission J u r i s t s , Human Rights i n a One-Party State. Search Press, London, 1978. 4 4 Ibid. 45 46 John K. Ebiasah, supra, 13. See Edemo Kodjo, A f r i c a Tomorrow, supra, 129. 169 P A R T F O U R The Organization Of Afr i c a n Unity and human ri g h t s 170 C H A P T E R S E V E N THE OAU DOUBLE STANDARD APPROACH TO HUMAN RIGHTS The Organization of Afr i c a n Unity (OAU), formed i n May 1963, 1 was conceived of p r i n c i p a l l y as a p o l i t i c a l organ and not an instrument for the promotion, protection or enforcement of human r i g h t s . Protection of human ri g h t s was merely peripheral i n the scheme of p r i o r i t i e s . This i s c l e a r l y manifested i n the OAU Charter i t s e l f which makes no d i r e c t mention of human right s except i n i t s preamble, 2 apart from the r i g h t of peoples to self-determination i n the sense of attainment of independence from colonialism. The objectives of the OAU are set out i n i t s Charter, 3 as follows: (a)to promote p o l i t i c a l unity and s o l i d a r i t y of Af r i c a n states; (b)to co-ordinate and i n t e n s i f y t h e i r co- operation and e f f o r t s to achieve a better l i f e f or the peoples of A f r i c a ; (c)to defend t h e i r sovereignty, t h e i r t e r r i t o r i a l i n t e g r i t y and independence; (d)to eradicate a l l forms of colonialism from A f r i c a ; and (e)to promote int e r n a t i o n a l co-operation, having due regard to the Charter of United Nations and the Universal Declaration of Human Rights. Although the duty to encourage the promotion and protection of human ri g h t s could be implied into the int e r p r e t a t i o n of objectives (b) and (e) above, no steps 171 were ever taken i n t h i s d i r e c t i o n u n t i l 1979. Thus one scholar concludes that: Human ri g h t s were not a major concern of Af r i c a n States a f t e r each country had gained independence, nor by the Organization of Afr i c a n Unity at the time i t was set up. At the time p o l i t i c a l and economic independence, non-discrimination and l i b e r a t i o n by A f r i c a were the immediate objectives to be achieved by the Organization of Af r i c a n U n i t y . 4 Consequently, within the f i r s t two decades of i t s formation, the OAU's only human right s oriented goals have been the elimination of colonialism i n respect of those countries which were not yet independent, and the eradication of r a c i a l discrimination (apartheid) from A f r i c a . 5 To t h i s end, various resolutions have been passed not only within the OAU i t s e l f , but also within the United Nations upon the insistence of the OAU group at the United Nations. An OAU Co-ordinating Committee f o r the l i b e r a t i o n of A f r i c a was also set up with the duty of supervising moral, f i n a n c i a l , and m i l i t a r y a i d to l i b e r a t i o n movements i n dependent A f r i c a n c o u n t r i e s . 6 Within t h i s ambit, any reference to human ri g h t s i s e s s e n t i a l l y for the purpose of achieving any one of the stated objectives and not for the protection of human right s per se. In pursuit of i t s above said p r i n c i p l e s , the OAU maintained an i n d i f f e r e n t attitude toward the suppression of human r i g h t s i n a number of independent A f r i c a n countries by unduly emphasizing the p r i n c i p l e of non-interference i n the in t e r n a l a f f a i r s of member States at the expense of human r i g h t s . Blatant v i o l a t i o n s of human ri g h t s ranging from such 172 mass k i l l i n g s and abuses as those of the T u t s i and Hutu i n Rwanda i n the early seventies, of I d i Amin i n Uganda, Marcius Nguema i n Guinea and Bedel Bokassa i n Central A f r i c a , to p o l i t i c a l detentions, torture and other abuses by the so-called "democratic" countries of A f r i c a such as Kenya, were not given as much as a nod but were instead brushed away as matters s o l e l y within the i n t e r n a l a f f a i r s of the member State concerned. 7 Within i t s Summit Conferences the OAU has, more often than not, overlooked such abuses and instead concentrated i t s attention to the issues of apartheid i n South A f r i c a , and the independence of such countries as Namibia and Western Sahara, as well as Zimbabwe ( u n t i l 1979), and Angola and Mozambique ( u n t i l 1975). In l i g h t of t h i s attitude, several scholars commented that the OAU's approach to human rig h t s was a dichotomous one i n that i t turned a b l i n d eye toward human r i g h t s v i o l a t i o n s i n member States but blamed v i o l a t i o n s i n South A f r i c a and those countries s t i l l under the york of c o l o n i a l i s m . 8 Others argued that the OAU was a l i t t l e more than an organization for the protection of the rig h t s of heads of States. 9 This attitude was also r e f l e c t e d i n the a c t i v i t i e s of the A f r i c a n States within the United Nations wherein the OAU group has many times i n s i s t e d upon "the t r y OAU f i r s t " p r i n c i p l e 1 0 allegedly based upon a r t i c l e 52(2) of the United Nations Charter. Thus, whenever human ri g h t s oriented issues (except those r e l a t i n g to independence, and perhaps ' i 173 economic, s o c i a l and c u l t u r a l rights) were brought to the attention of the United Nations i n respect of any Afr i c a n State, the OAU organs, more often than not, made i t a point i n t h e i r resolutions to emphasize the need to seek regional remedies f i r s t , as well as putting " t h i s need" i n such a way as could ensure for the OAU the widest possible j u r i s d i c t i o n . 1 1 The A f r i c a n group's attitude at the United Nations, j u s t l i k e the one within the OAU, has caused scholars to charge that A f r i c a ' s approach to human ri g h t s at the United Nations i s tainted with double standards. 1 2 Reasons fo r t h i s dichotomous approach to human rig h t s , be i t within the OAU or at the UN, have been given as f o l l o w s : 1 3 (a) that the A f r i c a n leaders adopted a narrow and state- c e n t r i c i n t e r p r e t a t i o n of the int e r n a t i o n a l b i l l of human ri g h t s - to them the instruments were j u s t a means of peaceful and p o s i t i v e cooperation among states; (b) that the OAU i t s e l f i s l a r g e l y an association of heads of States and governments whose primary concerns have nothing to do with the protection and promotion of human ri g h t s . They focus upon s e l f preservation, regime security, and the sovereignty and t e r r i t o r i a l i n t e g r i t y of t h e i r States; and (c) that some of the provisions of the OAU Charter are major b a r r i e r s to the promotion of human r i g h t s . This i s p a r t i c u l a r l y so with a r t i c l e 111(2) i n respect of non- interference i n the in t e r n a l a f f a i r s of member States, 174 under which many Afr i c a n leaders have hidden human righ t s v i o l a t i o n s i n t h e i r countries. However, one point which must not be forgotten i s the fact that the OAU i s a f r a g i l e p o l i t i c a l e n t i t y whose primary objectives have been the protection of the newly acquired independence of t h e i r countries, and African s o l i d a r i t y or unity as i s r e f l e c t e d by the name of the organization. Therefore human ri g h t s v i o l a t i o n s among i t s members present one of the most d e l i c a t e c h a l l e n g e s . 1 4 Just as has been the s i t u a t i o n i n the l a s t two decades, the OAU may hardly be i n a p o s i t i o n at present to cope with enormous problems involving, and a r i s i n g out of human ri g h t s abuses and c i v i l wars, or from protracted inter-State c o n f l i c t s . In addition to not being a t r u l y cohesive e n t i t y , the OAU lacks s u f f i c i e n t m i l i t a r y , f i n a n c i a l , and personnel resources f o r such functions as enforcement of resolutions, border-sealing, truce observation, and restoration of law and order, j u s t l i k e i t lacks resources for large-scale r e l i e f o p e r a t i o n s . 1 5 Not withstanding the above, the OAU could s t i l l have performed better i n the human right s f i e l d than i t has done i n the past two and a h a l f decades. The above factors should be no j u s t i f i c a t i o n s f o r the Af r i c a n governments not respecting and promoting human r i g h t s . They are not insurmountable. In fac t several of them are self-generated. For example an OAU force can be raised j u s t l i k e the United Nations r a i s e s i t s peace-keeping forces; personnel resources 175 can be avail a b l e e s p e c i a l l y i f those people who have been forced into e x i l e to serve as "international c i v i l servants" can be induced into going home; and finances can be raised p a r t i c u l a r l y i f Af r i c a n leaders can be less obsessed with maintaining themselves i n power through spending too much of the national budget on defense. I t might have been p a r t l y the r e a l i z a t i o n of the fact that i n spi t e of a l l the problems and alleged hindrances, the OAU could s t i l l play an important r o l e i n the promotion and protection of human ri g h t s (in addition to other f a c t o r s ) , 1 6 that some change of attitude toward human ri g h t s protection took place among the Af r i c a n leaders i n 1979-80. This change culminated i n the the adoption of the Af r i c a n Charter on Human and Peoples' Rights by the Summit of the Af r i c a n Heads of State and Governments of the the OAU i n Nairobi, Kenya, i n June of 1981. 1 7 This Charter, also known as the Banjul Charter on Human and Peoples' R i g h t s , 1 8 s h a l l be the concern of Chapter Eight of t h i s study. 176 FOOTNOTES A. Sesay, O. Ojo, and O. Fasehun, The OAU Af t e r Twenty Years. Westview Press, Boulder, Colorado, 1984, 1-2. For example Paragraph 9 of the Preamble to the OAU Charter states that "PERSUADED that the Charter of the United Nations and the Universal Declaration of Human Rights, to the p r i n c i p l e s of which we reaffirm our adherence, provide a s o l i d foundation f o r peace and co- operation among states". See the OAU charter, a r t i c l e 11(1); Also see a r t i c l e III i n r e l a t i o n to the OAU p r i n c i p l e s . Roger Chongwe, Afr i c a n Charter on Human and Peoples' Rights, Commonwealth Law B u l l e t i n , October 1987, 1605. See, among others, Moses E. Akpan, A f r i c a n Goals and Diplomatic Strategies i n the United Nations, C h r i s t i a n Publishing House, North Quincy, Massachusetts, 1976. See Monica N. H a l l , The Curious Bind Spot of the OAU, supra, 32. There are a few times when the OAU has intervened i n some countries i n spi t e of the non-interference p r i n c i p l e . These include: the "Congo C r i s i s " , the Nigerian C i v i l War, and the Chadian C i v i l War. The other s i t u a t i o n was when Tanzania i n v i t e d OAU forces to replace B r i t i s h troops that had quelled the 1964 army mutiny i n Tanzania. Edward Kannyo, The OAU and Human Rights, i n : Yassin El-Ayouty and William Zartman, eds, The OAU Af t e r Twenty Years, SAIS, Praeger, New York, 1984, 155, 162, argues that the OAU has only intervened where there i s presence or threat of foreign intervention. We would however think that the alleged need to maintain the status quo (especially the boundaries and t e r r i t o r i a l i n t e g r i t y of states) has had more weight i n t h i s than fear of foreign intervention. See among others, Ebiasah, New Masters, New Slaves, supra, 10; Monica N. H a l l , The Curious Bind Spot of the OAU. supra, 32; Costa Ricky Mahalu, i n : Kunig, Benedek and Mahalu, Regional Protection of Human Rights by International Law: The Ermeginq A f r i c a n System, supra, 22-23; A. Sesay, 0. Ojo, and 0. Fasehun, The OAU After Twenty Years, Westview Press, Boulder, Colorado, 1984, 80-82; and Ojo and Sesay, The OAU and Human Rights: Prospects for the 1980s and Beyond 8 H. R. Q. 89 (February, 1986), 89-91. 177 See Olajide Aluko, The OAU and Human Rights, The Round Table 283 (July 1981) 240, and c i t e d i n : Rhoda Howard, Human Rights i n Commonwealth A f r i c a , supra, 4. 1 0 See Rhoda Howard, Human Rights i n Commonwealth A f r i c a , supra, 5; Berhanykun Andemicael, The OAU and the UN. Relations Between the Organization of A f r i c a n Unity and the United Nations. UNITAH, Af r i c a n Publishing Company, New York, 1976, 51 and 91; and Wellington Nyangoni, A f r i c a i n the United Nations System, Associated University Press, Cranbury, New Jersey, 1985, 245. 1 1 See Berhanykun Andemicael, i b i d , 92. Nyangoni, i b i d , at 245, has attempted to j u s t i f y t h i s p r i n c i p l e by al l e g i n g that i t eliminates superpower r i v a l r y i n the solutio n of Af r i c a n problems, cold-war confrontation i n A f r i c a , and the competition f o r the establishment of superpower and great power c l i e n t e l e i n A f r i c a , as well as allowing the United Nations more time to deal with other issues. Perhaps with the exception of the l a s t reason, none of these i s convincing enough e s p e c i a l l y as they are more of wishes than the r e a l i t y . 12 13 14 15 16 Warrein Weistein, A f r i c a ' s Approach to Human Rights at the United Nations, Issue. A Journal of Af r i c a n Opinion 6, No 4(Winter 1976) 16, and quoted by Rhoda Howard, Human Rights i n Commonwealth A f r i c a , supra, 5. O. Ojo and A Sesay, The OAU and Human Rights: Prospects for the 1980s and Beyond, supra, 92. Examples of i t s f r a g i l e condition are r e f l e c t e d i n Morocco's withdraw from the OAU because of the issues of Western Sahara - the A f r i c a heads of State and Government admitted the Sahraoui Arab Democratic Republic to the OAU; and recently, i n the walk out by the representatives of Mauritius from the 25th Summit Conference i n Addis Ababa (May 1988) due to the fac t that the OAU member states had accused Mauritius of trading with the apartheid regime of South A f r i c a . See Andemicael, supra, 165. Roger Chongwe, Af r i c a n Charter on Human and Peoples' Rights. supra, states that the factors that prompted the A f r i c a n leaders to do something about human rights i n A f r i c a are: (a)the gradual acceptance by the Afr i c a n leaders of the OAU as a p r i n c i p a l forum for the reso l u t i o n of Af r i c a n problems; (b)the embarrassment caused f o r the OAU and Af r i c a n leaders i n general by the a c t i v i t i e s of Amin, Bokassa, and various regimes i n Uganda, the former Central A f r i c a n Empire and Equatorial Guinea, respectively; (c)the acrimonious debate at the 1979 OAU Summit Conference marked by the 178 invasion of Uganda by Tanzanian troops and armed Ugandan e x i l e s that led to the downfall of Amin regime; (d)the work of the United Nations i n i t s e f f o r t s to encourage the establishment of regional human right s commissions; and (e)the increased attention paid to reports of human ri g h t s v i o l a t i o n s i n the international media by p o l i t i c i a n s , i n t e l l e c t u a l s , and the general public a l l over the world beginning i n the mid-1970s. See also Edward Kannyo i n : Yassin El-Ayouty and William Zartman, eds, The OAU After Twenty Years, supra, 163- 166. OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted i n 21 ILM 59 (1982); and 27 Review I n t ' l Comm'n J u r i s t s 76 (1981). The Charter received i t s r e q u i s i t e r a t i f i c a t i o n (a simple majority of 26 members of the OAU) at the end of July, 1986, and i t entered into force on October 21, 1986, i n accordance with A r t i c l e 63(3) thereof. For a l i s t of the signatories which brought i t into force, see Banjul Charter comes into force. 11 Human Rights Internet Rep., September 1986, 46. , See, among others, Richard N. Kiwanuka, The Meaning of "People" i n the Af r i c a n Charter on Human and Peoples' Rights. 82 Am. J . I n t ' l Law, 80 (1988). 179 C H A P T E R E I G H T THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS Much l i t e r a t u r e has been w r i t t e n about t h i s C h a r t e r and the reasons f o r i t s a d o p t i o n . 1 We s h a l l t h e r e f o r e o n l y concern o u r s e l v e s w i t h i t s s a l i e n t f e a t u r e s f o r purposes of t h i s study. These are of two types: those common t o oth e r human r i g h t s documents both i n t e r n a t i o n a l as w e l l as r e g i o n a l ; and those seemingly unique t o the A f r i c a n Human and Peoples' R i g h t s C h a r t e r . R i g h t s and D u t i e s i n the A f r i c a n C h a r t e r . In a d d i t i o n t o e x p r e s s i n g i n t e n t i o n s t o promote and p r o t e c t human r i g h t s c o n t a i n e d i n the preamble, the C h a r t e r p r o v i d e s f o r the b a s i c c i v i l and p o l i t i c a l r i g h t s and economic, s o c i a l and c u l t u r a l r i g h t s p o s t u l a t e d i n the i n t e r n a t i o n a l b i l l o f human r i g h t s (the U n i v e r s a l D e c l a r a t i o n o f Human R i g h t s , the I n t e r n a t i o n a l Covenant on C i v i l and P o l i t i c a l R i g h t s , and the I n t e r n a t i o n a l Covenant on Economic, S o c i a l and C u l t u r a l R i g h t s ) . The c i v i l and p o l i t i c a l r i g h t s guaranteed i n the A f r i c a n C h a r t e r i n c l u d e : freedom from any k i n d of d i s c r i m i n a t i o n ( A r t i c l e 2 ) ; e q u a l i t y b e f o r e the law ( A r t i c l e 3) ; the r i g h t t o l i f e and i n t e g r i t y o f the person ( A r t i c l e 180 4); the r i g h t to l i b e r t y and security of the person including freedom from a r b i t r a r y arrest and detention ( A r t i c l e 6); the r i g h t to a f a i r t r i a l ( A r t i c l e 7); freedom of conscience and r e l i g i o n ( A r t i c l e 9) ; freedom of information ( A r t i c l e 9) ; freedom of association ( A r t i c l e 10) ; freedom of assembly ( A r t i c l e 11); freedom of movement ( A r t i c l e 12); the r i g h t to free p a r t i c i p a t i o n i n government ( A r t i c l e 13); and the r i g h t to own property ( A r t i c l e 14). Among the economic, s o c i a l , and c u l t u r a l r i g h t s which are guaranteed are the following: the r i g h t to work under eguitable and s a t i s f a c t o r y conditions, and the r i g h t to equal pay for equal work ( A r t i c l e 15) ; the r i g h t to enjoy the best attainable state of physical and mental health ( A r t i c l e 16); and the r i g h t to education ( A r t i c l e 17). However, i t i s one thing to proclaim s o c i a l and economic r i g h t s , and quite a d i f f e r e n t matter to e s t a b l i s h the i n f r a s t r u c t u r e necessary fo r t h e i r enjoyment. Given the poverty of the A f r i c a n states, the immediate enjoyment of these r i g h t s or the e f f i c a c y of the provisions i s highly doubtful. I t i s suggested that these socio-economic righ t s are purely exhortary; by t h e i r nature, they are r i g h t s which can only come into existence a f t e r the government has provided f a c i l i t i e s for them. I t would be ludicrous to r e f e r to such r i g h t s where no f a c i l i t i e s e x i s t . 2 Nevertheless, reference to them may force the government into providing the necessary f a c i l i t i e s for t h e i r enjoyment. 181 Although the c i v i l and p o l i t i c a l , as well economic, s o c i a l , and c u l t u r a l r i g h t s enumerated i n the Charter c l o s e l y follow those contained i n the inte r n a t i o n a l b i l l of human r i g h t s , many provisions i n the Af r i c a n Charter contain clawback clauses that e n t i t l e a state to r e s t r i c t the granted r i g h t s to the extent permitted by domestic law. 3 These cannot be equated to derogation clauses contained i n the i n t e r n a t i o n a l b i l l of human right s or i n other regional human ri g h t s documents such as the European Charter of Human Rights. Thus one scholar suggests that: While derogation clauses permit the suspension of previously granted r i g h t s , clawback clauses r e s t r i c t r i g h t s ab i n i t i a l . As a r e s u l t clawback clauses tend to be les s precise than derogation clauses because the r e s t r i c t i o n s they permit are almost t o t a l l y d i s c r e t i o n a l l y . The granted r i g h t s may be r e s t r i c t e d by l o c a l law or the existence of a national ermegency - two vague and l i m i t l e s s broad standards. By v i r t u e of these, clawback clauses do not provide the external control over State behaviour that derogation provisions provide. 4 Consequently, the Charter leaves too much lee way for the government to l e g a l l y not respect r i g h t s , p a r t i c u l a r l y i n the c i v i l and p o l i t i c a l category. There are too many unresolved ambiguities that the Charter i s capable of l e g i t i m i z i n g a c r u e l l y perverted jurisprudence of human rig h t s under which the in d i v i d u a l i s permitted no more than the r i g h t to engage i n public praise of the omnicompetent r u l i n g party or i t s l e a d e r . 5 In addition to c i v i l and p o l i t i c a l r i g h t s , as well as economic, s o c i a l and c u l t u r a l r i g h t s , the Charter provides for another category of ri g h t s - the t h i r d generation of 182 r i g h t s of the so-called r i g h t s of Peoples' or s o l i d a r i t y r i g h t s . They are also known as c o l l e c t i v e r i g h t s . Peoples' r i g h t s are among the unique features of the Af r i c a n Human Rights Charter. Although much concern had been given to peoples' rig h t s within the inte r n a t i o n a l community f o r quite some time, the Af r i c a n Charter was the f i r s t document to codify these r i g h t s together with the ri g h t s of the other generations, i n a singl e document. The peoples' rig h t s s t i p u l a t e d i n the Charter include: the r i g h t to equal treatment ( A r t i c l e 19) ; the r i g h t to l i b e r a t i o n from colonialism and oppression ( A r t i c l e 20); the r i g h t to f r e e l y dispose of a peoples' wealth and natural resources ( A r t i c l e 21) ; the r i g h t to economic, s o c i a l , and c u l t u r a l development ( A r t i c l e 22); and the r i g h t to national and international peace and security ( A r t i c l e 23). The Charter also s t i p u l a t e s a number of duties which the i n d i v i d u a l owes ( A r t i c l e s 27, 28 and 29) . These duties are a l l e g e d l y c o r r e l a t i v e to the ri g h t s guaranteed i n the Charter. 6 They include the duty to the family, society, the State, "other l e g a l l y recognized communities", and the inte r n a t i o n a l community as a whole ( A r t i c l e 27) . They also encompass the duty to respect and consider fellow human beings without discrimination ( A r t i c l e 28); to preserve the harmonious development of the family ( A r t i c l e 29[1]); to serve the national community ( A r t i c l e 29 [2]); not to compromise the security of the State ( A r t i c l e 29[3]); to 183 preserve and strengthen s o c i a l and national s o l i d a r i t y ( A r t i c l e 29) ; and to preserve and strengthen national independence and t e r r i t o r i a l i n t e g r i t y of one's country ( A r t i c l e 29[5]). These duties would seem to be another of the unique features of the Afr i c a n Human Rights Charter. Why Duties and Peoples' Rights i n the Charter. I t has been argued that i n A f r i c a a person i s not conceived of as an is o l a t e d and abstract i n d i v i d u a l . He i s an i n t e g r a l member of a group animated by the s p i r i t of s o l i d a r i t y . 7 I t i s further contended that i n A f r i c a , the in d i v i d u a l , completely taken over by the archetype of the totem, the common ancestor or the protective genius, merges into the group. 8 In the view of these scholars, l i v i n g i n A f r i c a means abandoning the r i g h t to be an i n d i v i d u a l , p a r t i c u l a r , competitive, s e l f i s h , aggressive, conquering being i n order to be with others i n peace and harmony with the l i v i n g and the dead, with the natural environment and the s p i r i t s that people give i t or give l i f e to i t . 9 I t must be noted that these are part of the c u l t u r a l - r e l a t i v i s t views we have argued against i n Chapter Five above. I f such arguments were correct, then Africans would today be l i v i n g with each other " i n peace and harmony with the l i v i n g and the dead". 1 0 A f r i c a would have been one of the most peaceful places on Earth, and g u e r r i l l a wars and other disturbances would have been unknown on the Afr i c a n 184 continent. Of course t h i s i s not the case which goes to further weaken these arguments. In s p i t e of t h e i r weaknesses, these views were taken into account i n the in c l u s i o n of peoples' r i g h t s and duties i n the A f r i c a n Charter. The Draftsmen were enjoined with the duty of taking into account "the Afr i c a n concept of human r i g h t s " . I t was indicated that: the A f r i c a n Charter of human and peoples' r i g h t s [had to] r e f l e c t the Af r i c a n concept of human ri g h t s [and] take as a pattern the A f r i c a n philosophy of law and meet the needs of A f r i c a . 1 1 Room should be made f o r t h i s A f r i c a n t r a d i t i o n i n our charter on Human and Peoples' Rights, while bathing i n our philosophy, which consists i n not al i e n a t i n g the subordination of the i n d i v i d u a l to the community, i n co-existence, i n giving everyone a c e r t a i n number of ri g h t s and d u t i e s . 1 2 Allegedly taking into account t h i s "African t r a d i t i o n " , the OAU Secretary General instructed the Draftsmen to give s p e c i a l attention to the following matters: 1 3 (a) to give importance to the p r i n c i p l e of non- discrimination ; (b) to lay emphasis on the p r i n c i p l e s and objectives of the OAU as defined i n A r t i c l e II of the Charter of the OAU with p a r t i c u l a r emphasis on respecting the sovereignty and t e r r i t o r i a l i n t e g r i t y of each State and each state's inalienable r i g h t s to independent existence, and on r e f l e c t i n g absolute dedication to the t o t a l emancipation of A f r i c a n t e r r i t o r i e s which are s t i l l dependent; (c) to include peoples' r i g h t s i n addition to i n d i v i d u a l r i g h t s ; 185 (d) to determine the duties of each person towards the community i n which he l i v e s and more p a r t i c u l a r l y towards the family and the state; (e) to show that A f r i c a n values and morals have an important place i n our s o c i e t i e s ; and (f) to give economic, s o c i a l and c u l t u r a l r i g h t s the place they deserve. The duties, and peoples' r i g h t s i n the Charter are allege d l y r e f l e c t i n g these "African t r a d i t i o n s and values". I t would therefore follow from t h i s that the ri g h t s and duties i n the Af r i c a n Charter are "not univ e r s a l " but rather " s p e c i f i c to A f r i c a " . But i s t h i s the case? As we have argued elsewhere i n t h i s study, much of t h i s culture which i s allegedly being accommodated i n the Charter has already been eroded. The majority of Africans have, overtime, been moving slowly towards western and other culture. To ignore u n i v e r s a l i t y while in t e r p r e t i n g the Afr i c a n Human Rights Charter i s erroneous. This i s e s p e c i a l l y so since i n t e r p r e t i n g the Charter as " s p e c i f i c " to A f r i c a and for that matter to Africans who are aware of these t r a d i t i o n s , i s prone to being used as a pretext for neglecting c e r t a i n human r i g h t s , e s p e c i a l l y of the c i v i l and p o l i t i c a l r i g h t s category, or as an excuse f o r outright abuse of these human ri g h t s as already pointed out. 186 Meaning of "Peoples" i n the Charter. Whereas a useful step was taken to include peoples 1 r i g h t s within the Afr i c a n Human Rights Charter, no d e f i n i t i o n of "peoples" was made. That 'peoples' i s nowhere defined i n the Charter i s no accident. I t was d e l i b e r a t e l y avoided. 1 4 This creates problems because the Charter was l e f t too open for any interpretations of the meaning of "Peoples" to be implied. In the long run, t h i s may be detrimental to protection of human r i g h t s . Thus one scholar suggests that the deliberate avoidance of d e f i n i t i o n of "peoples" i n the Charter i s an "attempt to use an ideology of A f r i c a n communalism to j u s t i f y reaffirmation of national i n t e r e s t s by r e f e r r i n g to weakly-integrated nation-States as peop l e s " . 1 5 The meaning of "peoples" has been a subject of contention i n scholarly c i r c l e s . Some scholars think that i t ref e r s to peoples• or group r i g h t s intended to protect the inherent communal, group-oriented A f r i c a n s o c i e t i e s against the unbridled individualism c h a r a c t e r i s t i c of Western c a p i t a l i s t i c s o c i e t y . 1 6 This i s s i m i l a r to the meaning given to "peoples" i n the "Universal Declaration of the Rights of Peoples" also known as the "Declaration of A l g i e r s " of 1976. 1 7 Nevertheless, t h i s meaning i s not acceptable to African • • • • • • "I 8 leaders, p o l i t i c i a n s , and some A f r i c a n e l i t e s , ° as well as to some other s c h o l a r s . 1 9 This i s c l e a r l y manifested i n the 187 discussion held i n Nairobi i n respect of the Charter wherein i t was stated that: I t was noted that Westerners tend to consider clans, ethnic units, t r i b e s , and even communities as 'peoples'. In A f r i c a the notion of a people re f e r s to the national community as d i s t i n c t from an ethnic, l i n g u i s t i c , or t r i b a l community... [A] d i s t i n c t i o n must be drawn between the ri g h t s of peoples and the ri g h t s of minorities.... [The] l e g a l l y recognized communities i n A r t i c l e 27 referred to administrative d i v i s i o n s within a State, f o r example, communes and r u r a l communities of Senegal. 2 0 This would mean that "Peoples" are equated to the t o t a l population i n a country and not to d i s t i n c t groups or communities within the State. This i s tantamount to c a l l i n g "peoples' r i g h t s " , r i g h t s of sovereign States since States are allegedly composed of the t o t a l community i n a country. I f t h i s i s the correct interpretation, then the Af r i c a n Human Rights Charter would be contradictory since i t purports to take into account A f r i c a n t r a d i t i o n s and values. Since the present States were never i n existence as single units p r i o r to colonialism but were instead composed of d i s t i n c t groups and communities, we would think that the Af r i c a n t r a d i t i o n s and values which the Charter purports to take into account include the d i s t i n c t groups or communities found within each State. To interpret i t otherwise would be to defeat the very basis of a majority of the features of the Charter. A f r i c a n scholars and leaders contend that A f r i c a ' s approach to human ri g h t s i s community-oriented and t h i s i s emphasized by the in c l u s i o n of "peoples' r i g h t s " i n the 188 A f r i c a n human ri g h t s Charter. The Charter purports to take into account A f r i c a n t r a d i t i o n s as already pointed out. However, Charter references to A f r i c a n t r a d i t i o n a l systems, which were b u i l t on highly decentralized • autonomous structures, would make l i t t l e sense i f those communities s t i l l i n existence were excluded from the scope of the C h a r t e r . 2 1 Thus i t i s suggested that since the r e a l i z a t i o n of peoples' r i g h t s requires the j o i n t e f f o r t s of a l l s o c i a l actors, and the beneficiary of these r i g h t s are the i n d i v i d u a l as well as a l l s o c i a l groups, comparing the doctrine of human ri g h t s of a t h i r d generation with peoples' ri g h t s would suggest the conclusion that the concept of 'peoples' has to be understood i n a wide sense, including also "intermediary groups" between the national people and the i n d i v i d u a l . . . A f r i c a i s p a r t i c u l a r l y r i c h i n such decentralized structures of a c e r t a i n autonomy l i k e the v i l l a g e , the clan, ethnic group e t c . 2 2 Likewise, i t has been suggested i n a recent s t u d y 2 3 that more than one d e f i n i t i o n of "peoples" i s necessary to f i t the d i f f e r e n t references to "people" and "peoples" i n the Charter; that the term "peoples" should have four d e f i n i t i o n s , namely; (a) a l l persons within the geographical l i m i t s of any e n t i t y yet to achieve p o l i t i c a l independence or majority r u l e ; (b) a l l groups of people with c e r t a i n common c h a r a c t e r i s t i c s who l i v e within the geographical l i m i t s of an e n t i t y referred to i n (a) , or i n an e n t i t y that has attained 189 independence or majority rule ( i . e . , minorities under any p o l i t i c a l system); (c) the State and the people as synonymous (He says t h i s i s only an external meaning of "people"); and (d) a l l persons within a State. I t i s further suggested that: the concept of "peoples" should be an enabling t o o l . I t should empower the people to do something about t h e i r future; to take charge of t h e i r destiny and control t h e i r a f f a i r s . The only way they can do so i n today's world i s i f the dichotomy between them and the State i s minimized. I f i t endures, there i s l i t t l e hope of r e a l i z i n g any of the peoples' r i g h t s i n the Charter. Consequently, giving a "State-centric" i n t e r p r e t a t i o n to the term "peoples" i n the A f r i c a n Human Rights Charter i s erroneous. A f r i c a n t r a d i t i o n recognizes various groups such as clan, t r i b e , v i l l a g e , community and so on, as d i s t i n c t e n t i t i e s depending on the circumstances at the time. Such e n t i t i e s would therefore q u a l i f y as "peoples". Since the Charter purports to take into account these "African values", the term "peoples" must be given a wide in t e r p r e t a t i o n so as to encompass a l l the various A f r i c a n " t r a d i t i o n a l values and practices". Such a wide in t e r p r e t a t i o n w i l l help avoid any contradictions which would otherwise a r i s e i n the Charter. This i s e s p e c i a l l y so since there are instances i n the Charter where "people" refers to more than one meaning; for example i n r e l a t i o n to the r i g h t s to development ( A r t i c l e 22) , peace ( A r t i c l e 23) , and a clean environment ( A r t i c l e 2 4 ) . 2 5 A State-centric int e r p r e t a t i o n w i l l therefore make 190 such provisions contradictory with each other which cannot be the desired end of the Charter. However, much as t h i s wide in t e r p r e t a t i o n of the meaning of "Peoples" i s necessary, one should add that i t must be l i m i t e d i n at le a s t one respect. Since a majority of the A f r i c a n countries are weakly integrated nation States, the issue of national i n t e g r i t y i s a d e l i c a t e one. Consequently, i n order to avoid p o l i t i c a l i n s t a b i l i t y and unrest the r i g h t to self-determination i n the sense of "national p o l i t i c a l independence" envisaged i n a r t i c l e 20 of the A f r i c a n Human Rights Charter should not be automatically open to the various peoples found i n each State. In otherwords, although secession i s not healthy for the t e r r i t o r i a l i n t e g r i t y of States, there are a few circumstances when t h i s should be allowed. This should include s i t u a t i o n s when a group i s so d i s t i n c t , and antagonistic with the res t of the population i n a given country that i t i s impossible to f u l l y incorporate i t , be i t peacefully or otherwise, into the rest of the country. However, before a decision to allow secession can be made, a free and f a i r referendum within the region or area i n question must be held to that e f f e c t to decide such an issue. A vote of a t l e a s t 75 percent i n favour of the motion should be attained to enable the secession to be allowed. To hold a referendum throughout the whole country instead of the region i n question would i n most cases amount to 191 outright denial of secession since the people who want secession w i l l almost always be i n the minority. Commission on Human Rights. The other major feature of the A f r i c a n Human Rights Charter i s the Commission on Human Rights the provisions for which are to be found i n Part II of the Charter. The functions of the Commission are g i v e n 2 6 as follows: (a) to promote human and peoples' r i g h t s . (b) to ensure the protection of human and peoples' ri g h t s under conditions l a i d down i n the Charter. (c) to i n t e r p r e t a l l the provisions of the Charter at the request of a State party, an i n s t i t u t i o n of the OAU, or an A f r i c a n organization recognized by the OAU, and (d) to perform any other tasks which may be entrusted to i t by the Assembly of Heads of State and Government. The composition of the Commission i s to be 11 (eleven) members serving i n t h e i r personal capacity, no two of which may come from the same S t a t e . 2 7 They must be eminent nationals of member States enjoying the highest respect and known f o r t h e i r high morality, i n t e g r i t y and i m p a r t i a l i t y . They should also be competent i n the f i e l d of human ri g h t s , though they do not have to have had l e g a l t r a i n i n g . 2 8 The figure 11 (eleven) allegedly corresponds to the equitable geographic d i s t r i b u t i o n that the OAU usage devotes to the North, East, Centre, and South of A f r i c a , and the odd number 192 i s supposed to f a c i l i t a t e the making of decisions i n the event of d i v i s i o n i n v o t e s . 2 9 What i s probable, however, i s that there w i l l be attempts to put p o l i t i c a l pressure upon these p e r s o n a l i t i e s by t h e i r own countries so that they are made more of p o l i t i c a l representatives than members serving i n t h e i r i n d i v i d u a l c a p a c i t i e s . Secondly, not many of these so c a l l e d experts are widely t r a v e l l e d throughout the whole of A f r i c a outside t h e i r own countries. Much of t h e i r expertise i s obtained while studying i n Europe and North America, and not from within A f r i c a . Hence they may not, i n r e a l i t y , be experts upon some of the issues they may be dealing with. The Commission i s one of the major arms of the Af r i c a n Human Rights enforcement machinery. I t shares i t s competence i n the f i e l d of protection of human ri g h t s with the Assembly of Heads of State and Government, which supposedly acts as a supervisory body f o r the Commission. However, i n a majority of the instances no action can be taken by the Commission without the consent of the Assembly of Heads of State and Government. In fact, the Commission i s i t s e l f an organ of the OAU. The OAU's Secretary-General provides and bears the costs of the s t a f f of the Commission, as well as fo r a l l the services necessary for the e f f e c t i v e discharge of the Commission's d u t i e s . 3 0 The A f r i c a n Human Rights enforcement machinery s h a l l be the concern of Chapter Nine and i t i s i n that Chapter that the Commission s h a l l be given de t a i l e d treatment. 193 FOOTNOTES Among others see: Kunig, Benedek and Mahalu, Regional Protection of Human Rights by International Law: The Emerging A f r i c a n System. supra; Balonda, Af r i c a n Charter on Human and Peoples' Rights i n : New Perspectives and Conceptions of International Law: An Afro-European Dialogue. supra; Edward Kannyo, The Banjul Charter on Human and Peoples' Rights: Genesis and P o l i t i c a l Background, i n : Human Rights and Development. supra; Ojo and Sesay, The OAU and Human Rights: Prospects for the 1980s and Beyond, supra; and Umozurike, The Af r i c a n Charter on Human and Peoples' Rights 77 Am. J . I n t ' l . L. 902 (1983). See B. Obinna Okere, The Protection of Human Rights i n A f r i c a and the Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American System, 6 Human Rights Quarterly, 141, 148 (May 1984). See a r t i c l e s 8-14 of the Charter. Richard Gittleman, The Banjul Charter on Human and Peoples' r i g h t s : A l e g a l Analysis, i n : Welch and Meltzer, eds, Human Rights and Development i n A f r i c a , supra, 158. See Harry Scoble, Human Rights Non-governmental Organizations i n Black A f r i c a : Their Problems and Prospects i n the Wake of the Banjul Charter, i n : Welch and Meltzer, eds, Human Rights and Development i n A f r i c a , supra, 200. He believes that one or more nations can and w i l l manipulate the contradictions embraced i n the Charter to es t a b l i s h an anti-human ri g h t s regime, and also that no nations, however indignant, w i l l be able to employ the Charter successfully to c a l l the v i o l a t i o n s to account (page 201) . We believe that t h i s i s being too pessimistic. Whereas i t may be true that governments are l i k e l y to manipulate the Charter to s u i t t h e i r ends, i t i s erroneous to state that i t i s not possible to succes s f u l l y use the Charter so as to c a l l v i o l a t i o n s to account. See f o r example, B. Obinna Okere, supra, 148; and Richard Gittleman, The Banjul Charter on Human and Peoples' r i g h t s : A l e g a l Analysis, i n : Welch and Meltzer, eds, Human Rights and Development i n A f r i c a , supra, 155. See B. Obinna Okere, supra, 148. 8 K'eba Mbaye and quoted by Obinna Okere, supra, 148. 194 See Obinna Okere, supra, 149. To use the words of Obinna Okere, supra, 149. See the Meeting of experts f o r the preparation of the Draft A f r i c a n Charter of the Human and Peoples' Rights, Dakar, Senegal, 28 November to December, 1979. [OAU Doc. CAB/LEG/67/3/Rev.1]. F u l l text i s reproduced i n : Kunig, Benedek and Mahalu, Regional Protection of Human Rights bv International Law: The Emerging Af r i c a n System, supra, 107-108, 107. See the Address delivered by H.E. Mr Leopald S. Sengor, then President of the Republic of Senegal on 28 November 1979, to the Meeting of Af r i c a n Experts preparing the Draft A f r i c a n Charter on Human and Peoples' Rights. [OAU Doc. CAB/LEG/67/5]. F u l l text i s reproduced i n : Kunig, Benedek and Mahalu, Regional Protection of Human Rights by International Law: The Emerging A f r i c a n System, supra, 121-124. See the Report of the Secretary general on the Draft A f r i c a n Charter on Human and Peoples' Rights [CM/1149 (XXXVIII) 1], and c i t e d by Ojo and Sesay, The OAU and Human Rights: Prospects for the 1980s and Beyond, supra, 93-94. For example see, P h i l i p Kunig, The Role of "Peoples' Rights" i n the Afr i c a n Charter on Human and Peoples' Rights, i n : New Perspectives and Conceptions of International Law. An Afro-European Dialogue (Ginther and Benedek, eds.) supra, 167; Rhoda E. Howard, Human Rights i n Commonwealth A f r i c a , supra, 6-7; W. Benedek, Peoples' Rights and Individual Duties as Special Features of the Af r i c a n Charter on Human and Peoples' Rights, i n : Kunig, Benedek and Mahalu, Regional Protection of Human Rights by International Law: The Emerging A f r i c a n System. supra, 66-69; and K'eba Mbaye's Keynote address, and the Summary of Discussion, i n : Human and Peoples' Rights i n A f r i c a and The Afr i c a n Charter (International Commission J u r i s t s ) Report of a Conference held i n Nairobi from 2 to 4 December, 1985, convened by the International Commission of J u r i s t s , 27-28 and 54. Rhoda E. Howard, Human Rights i n Commonwealth A f r i c a , supra, 6-7. For example Asmarom Legasse, and quoted i n : Rhoda E. Howard, Human Rights i n Commonwealth A f r i c a , supra, 6. 195 This was drafted by private i n i t i a t i v e by a number of ind i v i d u a l s , including well-known international j u r i s t s . However, i t i s not a l e g a l l y binding document. For a useful account on t h i s Declaration see F. Rigaux, The A l g i e r s Declaration of the ri g h t s of peoples, and Richard Falk, The A l g i e r s Declaration of the Rights of Peoples and the Struggle for Human Rights, i n : UN Law/Fundamental Rights (Antonio Cassese, ed.) 211-218 and 225-235 respectively. For other s i m i l a r views see International Experts Meeting on the Problems Connected with the Rights of Peoples and the H i s t o r i c a l and P r a c t i c a l Significance of these Problems. Harare, Zimbabwe, 2-5 December 1985 (UNESCO, D i v i s i o n of Human Rights and Peace, F i n a l Report, SHS 85/CONF. 613/10, 15 December, 1985); and G i l l i a n Triggs, The Rights of Peoples and Individual Rights: C o n f l i c t or Harmony? Law School, University of Melbourne (Draft A r t i c l e ) . Compare BULLETIN of the Australian Society of Legal Philosophy, Vol.9, No.33. June 1985, Special Issue: The Rights of Peoples, p a r t i c u l a r l y , the A r t i c l e by Ian Brownlie, The Rights of Peoples i n Modern International Law, 108, 113. He rejects the A l g i e r s Declaration and the idea that "rights of peoples" e x i s t . To him those who t a l k of peoples' rig h t s are merely enthusiastic. However, he leaves the door open f o r empirical studies. See Human and Peoples' Rights i n A f r i c a and The Afr i c a n Charter (International Commission J u r i s t s ) , supra, 53- 54. For example see BULLETIN of the Austr a l i a n Society of Legal Philosophy. Vol.9. No.33, June 1985. Special Issue: The Rights of Peoples, supra, e s p e c i a l l y Ian Brownlie's A r t i c l e (page 113). Human and Peoples' Rights i n A f r i c a and The Af r i c a n Charter (International Commission J u r i s t s ) , supra, 54. See Wolfgang Benedek, Peoples' Rights and Individual Duties as Special Features of the Af r i c a n Charter on Human and Peoples' Rights, i n : Kunig, Benedek and Mahalu, Regional Protection of Human Rights by International Law: The Emerging Af r i c a n System, supra, 71. Ibid. Richard N. Kiwanuka, The Meaning of "People" i n the Af r i c a n Charter on Human and Peoples' Rights, 82 American J . I n t ' l Law, 100-101 (1988). Ibid. Ibid. 196 See a r t i c l e 45 of the Afr i c a n Human Rights Charter. Whether or not these p e r s o n a l i t i e s w i l l serve i n t h e i r i n d i v i d u a l capacity and not as p o l i t i c a l representatives of t h e i r states remains to be seen. Examples may perhaps be got from the UN equivalents where t h i s works unevenly. Thus, most experts nominated to the UN Sub-Commission have represented t h e i r States p o l i t i c a l l y , and a number are foreign service o f f i c e r s . A f r i c a n Charter, a r t i c l e s 31 and 32. See K'eba Mbaye i n : Human and Peoples' Rights i n A f r i c a and the A f r i c a n Charter (International Commission of J u r i s t s ) , supra, 35. Af r i c a n Charter, a r t i c l e 41. 197 C H A P T E R N I N E THE AFRICAN MACHINERY FOR ENFORCEMENT OF HUMAN RIGHTS The A f r i c a n human ri g h t s enforcement machinery comprises the Human and Peoples' Rights Commission as the major component, together with the Assembly of Heads of State and Government or the Chairman thereof, and the Secretary-General of the Organization of A f r i c a n Unity as supervisory organs. Ideally the Commission i s supposed to act independently but i n r e a l i t y i t cannot make substantial decisions without getting a 'go-ahead' from the Assembly of Heads of State and Government, or from i t s Chairman p a r t i c u l a r l y i n cases of emergency. I t i s therefore part of the Organization of Afr i c a n Unity and i t s performance w i l l i n most cases depend on the performance of the OAU.1 The Human and Peoples' Rights Commission. As i s revealed i n i t s functions, the Commission's major duty i s to promote and protect human r i g h t s . This i s to be achieved through documentation, studies, seminars, symposiums, and conferences to disseminate information; to encourage other human ri g h t s i n s t i t u t i o n s ; and should the case a r i s e , give i t s views or make recommendations to governments. I t s h a l l formulate rules and p r i n c i p l e s for the solu t i o n of human ri g h t s problems, interpret the Charter at 1 9 8 the request of a State party, an i n s t i t u t i o n of the OAU, or an A f r i c a n organization recognized by the OAU, and perform other functions given to i t by the Assembly. 2 In i t s i n v e s t i g a t i v e capacity, i t may employ any appropriate method of i n v e s t i g a t i o n and may be contacted by any one capable of enlightening i t . 3 In addition to the above, the eleven-man Commission may receive inter-State complaints i n respect of human righ t s abuses. These are termed communications. Any State-party that believes that another State has v i o l a t e d the Charter s h a l l communicate the alleged breach to the v i o l a t o r i n w r i t i n g and send copies to the Secretary-General and to the Chairman of the Commission. The alleged offending State has three months within which to reply ,in w r i t i n g to the complainant S t a t e . 4 I f the matter i s not resolved within three months to the s a t i s f a c t i o n of both p a r t i e s , either State may submit the matter to the Commission. 5 A l t e r n a t i v e l y , the accusing party may approach the Commission d i r e c t l y by lodging a complaint with the Commission Chairman and also serving a copy on the Secretary-General and the alleged offending S t a t e . 6 However, the Commission may not deal with any matter submitted to i t unless a l l l o c a l remedies, i f they e x i s t , have been exhausted. The only exception i s i f i t i s obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged. 7 When the Commission decides upon acting, i t may request for a l l relevant 199 information and have the State concerned to appear before i t i n an attempt to reach an amicable s o l u t i o n . 8 I f no amicable solution can be reached, the only course open to the Commission i s to prepare and transmit a report of the fac t s , i t s findings, and any recommendations to the States concerned and to the Assembly of Heads of State and Government.9 The Commission i s also under an obl i g a t i o n to submit to each ordinary session of the Assembly of Heads of State and Government a report on i t s a c t i v i t i e s . 1 0 Although States Parties to the Af r i c a n Human Rights Charter have the greatest standing i n bringing complaints before the Commission within the provisions of the Charter, the Charter also empowers the Commission to receive complaints concerning human ri g h t s v i o l a t i o n s from non-State p a r t i e s . These have been categorized as "other communications". I t has been argued that the "other communications" envisaged are those from physical or moral e n t i t i e s other than State p a r t i e s . They therefore include i n d i v i d u a l s , human righ t s non-governmental organizations, and i n t e r n a t i o n a l and national organizations. The Charter does not envisage complaints from States that are not par t i e s to the present C h a r t e r . 1 1 Unlike communications from States, before "other communications" can be e l i g i b l e f o r consideration by the Commission, seven prerequisites must be s a t i s f i e d . These are set out i n a r t i c l e 56 of the Charter as follows: (l)They must indicate the author even i f the l a t t e r requests anonymity; 200 ( 2 ) T h e y m u s t b e c o m p a t i b l e w i t h t h e C h a r t e r o f t h e O A U o r w i t h t h e p r e s e n t C h a r t e r ; ( 3 ) T h e y m u s t n o t b e c o u c h e d i n a l a n g u a g e t h a t i s i n s u l t i n g t o a S t a t e o r i t s i n s t i t u t i o n s , o r t o t h e O A U ; ( 4 ) T h e y m u s t n o t b e b a s e d e x c l u s i v e l y o n n e w s d i s s e m i n a t e d t h r o u g h t h e m a s s m e d i a ; ( 5 ) A l l l o c a l r e m e d i e s m u s t b e e x h a u s t e d u n l e s s i t w i l l u n d u l y p r o l o n g t h e p r o c e d u r e ; ( 6 ) T h e y m u s t b e s u b m i t t e d w i t h i n a r e a s o n a b l e t i m e f r o m t h e t i m e t h e l o c a l r e m e d i e s a r e e x h a u s t e d o r f r o m t h e d a t e t h e C o m m i s s i o n i s s e i z e d o f t h e m a t t e r ; a n d ( 7 ) T h e y m u s t n o t d e a l w i t h c a s e s w h i c h h a v e a l r e a d y b e e n r e s o l v e d . W h e t h e r o r n o t a c o m m u n i c a t i o n m e e t s t h e s e p r e r e q u i s i t e s w i l l b e d e t e r m i n e d b y a s i m p l e m a j o r i t y o f t h e m e m b e r s o f t h e C o m m i s s i o n . 1 2 H o w e v e r , t h e C o m m i s s i o n c a n n o t a c t o n t h e s e " o t h e r c o m m u n i c a t i o n s " u n t i l i t h a s n o t i f i e d t h e S t a t e c o n c e r n e d . 1 3 S e c o n d l y , n o s t e p s c a n b e t a k e n u n l e s s t h e C o m m i s s i o n i s s a t i s f i e d t h a t t h e c o m m u n i c a t i o n r e l a t e s t o s p e c i a l c a s e s w h i c h r e v e a l t h e e x i s t e n c e o f s e r i o u s o r m a s s i v e v i o l a t i o n s o f h u m a n a n d p e o p l e s ' r i g h t s . B u t e v e n t h e n i t h a s t o f i r s t b r i n g t h e s e c a s e s t o t h e a t t e n t i o n o f t h e A s s e m b l y o f H e a d s o f S t a t e a n d G o v e r n m e n t w h i c h m a y t h e n r e q u e s t t h e C o m m i s s i o n t o u n d e r t a k e a n i n - d e p t h s t u d y o f t h e c a s e s a n d m a k e a f a c t u a l r e p o r t , a c c o m p a n i e d b y i t s f i n d i n g s a n d r e c o m m e n d a t i o n s . 1 4 201 The only exception to the above are those communications depicting cases of emergency duly noticed by the commission. However, even these cases cannot be dealt with immediately. They have to be submitted by the Commission to the Chairman of the Assembly of Heads of State and Government who may then request an in-depth s t u d y . 1 5 Much as the only course open to the Commission i s to make a report and recommendations, whatever report i s made must remain c o n f i d e n t i a l u n t i l such a time as the Assembly of Heads of State and Government s h a l l otherwise decide. Even the report on the a c t i v i t i e s of the Commission can only be made public a f t e r i t has been considered by the Assembly of Heads of State and Government. 1 6 Does t h i s then mean that the Charter envisages some form of censorship upon the commission's work to be ca r r i e d out by the Assembly of Heads of State and Government? Therefore the r o l e of the Assembly of Heads of State and Government i n the Afr i c a n human ri g h t s enforcement machinery i s very c l e a r . The Human Rights Commission i s part and p a r t i a l of the OAU and a l l i t s actions are determined by i t i n s p i t e of the fact that the members of the Commission are supposed to act i n t h e i r i n d i v i d u a l capacities independent of any State. In fact, the f i n a l decision i n a l l cases w i l l come from the Assembly of Heads of State and Government and not from the Commission. The A f r i c a n Commission on Human and Peoples' Rights was constituted during the 1987 OAU Assembly of Heads of State and Government meeting, 1 7 and on 13th February, 1988, i t 202 adopted i t s rules of procedure comprising 120 a r t i c l e s . 1 8 Perhaps due to a number of gaps and ambiguities i n the Charter provisions, the Commission has not as yet achieved much. For example, to the knowledge of the writer, the recent August-September (1988) massacres i n Burundi have not been given the necessary attention and treatment they deserve. Nevertheless, i t may be too early to judge the A f r i c a n Commission. In the 1987 Seminar on the A f r i c a n Human and Peoples' Rights Commission held i n Dakar, Senegal, i t was suggested that the Commission may not do much i n i t s i n i t i a l stages; that, as a f i r s t p r i o r i t y , i t w i l l devote i t s e l f to "drawing i t s own rules of procedure to f i l l up a number of lacunae that are d i s c e r n i b l e i n the provisions of the C h a r t e r " . 1 9 Although a number of gaps s t i l l remain i n the Charter, the rules of procedure have been drawn up. Hence they should not be the j u s t i f i c a t i o n f o r the Commission's inaction. I t may be that the Commission i s facing problems of funding. The Commission obtains i t s finances from the OAU budget. Since the OAU cannot be said to be exactly i n the best f i n a n c i a l p o s i t i o n , i t may be that the Commission has not as yet received a l l the r e q u i s i t e funding so as to commence e f f e c t i v e work. 203 Comparison of the Afr i c a n Human Rights machinery with other Regional Systems. The protection and promotion of human r i g h t s on a regional basis was not an innovation by A f r i c a . Such regional human ri g h t s regimes were already operating i n Western Europe and the Americas. A human ri g h t s regime also ex i s t s i n the Middle East, although no enforcement mechanism within the framework of a human ri g h t s Charter has been established as yet. Since the European and American Human Rights regimes have operated quite successfully f o r some time, a comparison of these regimes with the Af r i c a n regime may help assess the success of the Af r i c a n human right s regime. In a l l the three Human Rights regimes, (that i s the European regime, the American regime and the Af r i c a n regime), provision i s made for a Commission of Human Rights for the purpose of promotion and protection of human r i g h t s . Thus the European Convention for the protection of Human Rights and Fundamental Freedoms (European Convention) provides f o r the European Commission of Human Rights;* 1" the American Convention on Human Rights committed the previously established Organization of American States Inter-American Commission on Human Rights to the implementation of the Convention. 2 1 Likewise, the Afr i c a n Charter on Human and Peoples' Rights establishes the Afr i c a n Commission on Human and Peoples' R i g h t s . 2 2 We have already given much treatment to t h i s A f r i c a n Human and Peoples' Rights Charter. Therefore, 204 we s h a l l only concern ourselves with the other two Commissions, though i n a cursory manner, fo r the purpose of achieving our goal. The European Commission, composed of twenty-one members each serving f o r a term of s i x years, i s elected by the Committee of Ministers of the Council of Europe. Unlike the A f r i c a n Commission, the European Commission has automatic j u r i s d i c t i o n over inter-State applications without requiring the express consent of the p a r t i e s involved or the Committee of Ministers of the Council of Europe. This automatic j u r i s d i c t i o n also extends to p e t i t i o n s by any person, group of i n d i v i d u a l s or non-governmental organization (NGO) claiming to be a v i c t i m of a human r i g h t v i o l a t i o n by a State Party to the European Convention. The only proviso i s that the respondent State Party must have made a declaration recognizing the Commission's competence to receive such p e t i t i o n s . 2 3 This Commission i s empowered to determine a d m i s s i b i l i t y of applications, as well as ascertaining facts i n respect of an a p p l i c a t i o n properly before the Commission, and to attempt to secure a f r i e n d l y settlement. 2 4 Unlike the A f r i c a n Commission whose only option i s to ascertain the facts and make recommendations to the Assembly of Heads of State and Government i n case of a f a i l u r e to reach a f r i e n d l y settlement, the European Commission has a few options. I t may report the facts and i t s opinion of the case to the European Council's Committee of Ministers, and op t i o n a l l y , make any number of recommendations to the 205 Committee. 2 5 A l t e r n a t i v e l y , i t may bring s u i t before the European Court of Human R i g h t s 2 6 as long as the respondent State Party has recognized the Court's compulsory j u r i s d i c t i o n . 2 7 Likewise, the Inter-American Commission, composed of seven members (no two from the same State) elected i n t h e i r personal capacities and serving f o r a one-time renewable term of four years, i s given the main function of promoting respect f o r and defense of human r i g h t s . 2 8 This i s to be achieved through developing awareness of human ri g h t s , making recommendations to OAS Member States, preparing studies or reports, requesting information from OAS Member States, responding to and advising OAS Member States on matters r e l a t i n g to human r i g h t s and submitting annual reports to the OAS General Assembly. 2 9 The other avenue i s to to take action on p e t i t i o n s and other communications. 3 0 Other duties of the Inter-American Commission, j u s t l i k e the European Commission, are determination of a d m i s s i b i l i t y of in d i v i d u a l p e t i t i o n s , 3 1 f a c t - f i n d i n g , as well as establ i s h i n g f r i e n d l y settlements. 3 2 I t i s also obligated to make a report to the OAS Secretary General as well as to the pa r t i e s involved, f o r publication, about the facts and the solution reached i f i t attains a f r i e n d l y settlement and, i f i t f a i l s to achieve a f r i e n d l y settlement, to prepare a c o n f i d e n t i a l report. Optionally, i t may tender proposals and recommendations and submit cases to the Inter-American Court of Human R i g h t s . 3 3 Also, i t must receive and review annual reports from the States Parties so 2 0 6 as to monitor t h e i r progress i n r e l a t i o n to economic, s o c i a l and c u l t u r a l r i g h t s . 3 4 Perhaps due to the fact that i t was formed before the American Convention ever came into force, the Inter-American Commission, unlike the European Commission, plays a dual r o l e ; one as an organ of the American Convention, and the other as an organ of the OAS, with the OAS Charter and the American Declaration as i t s normative instruments. 3 5 The j u r i s d i c t i o n exercised i n t h i s dual r o l e has been summarized as follows: As an [O.A.S.] Charter organ, the Commission has j u r i s d i c t i o n over a l l O.A.S. Member States, whether or not they have r a t i f i e d the Convention; as a Convention organ, i t s j u r i s d i c t i o n s extends only to States Parties to the Convention. Here i t s j u r i s d i c t i o n i s more s p e c i f i c and i t s powers extensive. The powers of the Commission as Charter organ lack p r e c i s i o n , which i s j u s t as well, for the ambiguities about the scope of i t s powers gave i t greater f l e x i b i l i t y to deal imaginatively with gross v i o l a t i o n s of human r i g h t s p r i o r to the entry into force of the Convention. I t retains that f l e x i b i l i t y i n dealing with states that have not r a t i f i e d i t and i n responding to emergency sit u a t i o n s involving large-scale human ri g h t s abuses i n the r e g i o n . 3 6 A l l three regional systems envisage an important r o l e to be played by the General Assembly of each region. Thus under the European regime, the Committee of Ministers of the Council of Europe, though not a creature of the European Convention and composed of government representatives instead of members serving i n t h e i r i n d i v i d u a l capacities as i s the case f o r the various Human Rights Commissions, plays a major r o l e i n the promotion and protection of human righ t s i n Europe. 207 The Committee i s responsible for deciding whether or not a breach of the European Convention has occurred i n a l l those cases where no application has been made to the Court by the Commission or a concerned State P a r t y . 3 7 Further s t i l l , i t has the absolute duty of executing the judgments made by the European C o u r t . 3 8 One of the methods through which t h i s i s done i s passing resolutions requiring States to remedy proven v i o l a t i o n s . 3 9 I t has therefore been suggested that the Committee i s "the ultimate guarantor of human r i g h t s under the [European] Convention". 4 0 Likewise, although i t i s established by the OAS Charter and not the American Convention, the OAS General Assembly i s empowered to execute the judgments passed by the Inter- American Court. I t i s therefore free to discuss the matter and adopt whatever OAS sanctions i t deems appropriate which to some extent mitigates the Court's incapacity to enforce i t s own judgments. 4 1 In t h i s i t i s assisted by the annual reports that the Court i s under an obliga t i o n to submit to the General Assembly specifying the cases i n which a State has not complied with the Court's judgment and making any pertinent recommendations. 4 2 In the case of A f r i c a , the Assembly of Heads of State and Government i s given tremendous powers as f a r as the enforcement of human ri g h t s i s concerned. As has already been seen, the Afr i c a n Human Rights Commission, which i n p r i n c i p l e i s the body responsible for the promotion and protection of human right s i n A f r i c a , cannot take any concrete action u n t i l i t has received 'a go ahead' from the 208 A s s e m b l y . 4 3 For example, i n cases o f massive v i o l a t i o n s i t cannot c a r r y out 'an in- d e p t h ' study u n l e s s i t n o t i f i e s the Assembly and the l a t t e r so r e q u e s t s . 4 4 L i k e w i s e , a l l measures taken w i t h i n the p r o v i s i o n s o f the C h a r t e r must remain c o n f i d e n t i a l u n t i l the Assembly c o n s i d e r s o t h e r w i s e . 4 5 Thus no r e p o r t made by the Commission can be p u b l i s h e d u n l e s s and u n t i l i t has been c o n s i d e r e d by the A s s e m b l y . 4 6 Consequently, the ( A f r i c a n ) Assembly o f Heads of S t a t e and Government i s g i v e n f a r more powers as f a r as promotion and p r o t e c t i o n o f human r i g h t s i s concerned than those of i t s c ounter p a r t s i n the European and American regimes. One wonders whether t h i s i s f o r b e t t e r o r worse. W i l l i t make the regime more powerful and e f f i c i e n t than those i n Europe and America? In view o f the p a s t r e c o r d o f the OAU i n r e s p e c t t o human r i g h t s , 4 7 chances f o r t h i s t r e n d a re s l i m . I t i s more prob a b l e than not t h a t i t w i l l make i t weaker and l e s s e f f i c i e n t . T h i s i s e s p e c i a l l y so s i n c e , o t h e r than the A f r i c a n Human and Peoples' R i g h t s Commission, the A f r i c a n regime p r o v i d e s f o r no o t h e r avenue f o r r e v i e w i n g o f cases c o n s i d e r e d by the, Commission. U n l i k e t h e A f r i c a n system, the European and American systems have each got a c o u r t s t r u c t u r e . They t h e r e f o r e p r o v i d e second avenues f o r the review of cases f i r s t brought b e f o r e the Commission. Such a second avenue does not e x i s t i n t he A f r i c a n regime. Thus i n the European system, i f the Commission cannot b r i n g about a f r i e n d l y s e t t l e m e n t o f a case, i t may r e f e r the case t o the c o u r t . Although the c o u r t 2 0 9 has been given secondary p o s i t i o n as against the Commission so f a r as reference of cases are concerned, i n practice the Commission has acknowledged the important r o l e of the court and referr e d cases to i t whenever a f r i e n d l y settlement has not been reached. 4 8 Just l i k e the European Convention, the American Convention provides for the Inter-American Court consisting of seven members no two of which may come from the same State. They are elected by the States p a r t i e s to the Convention from among j u r i s t s of the highest moral authority and recognized competence i n the f i e l d of human ri g h t s for a renewable term of s i x years, and they serve i n t h e i r i n d i v i d u a l capacity. The Inter-American Court i s directed to int e r p r e t the American Convention i n both contentious and advisory j u r i s d i c t i o n . 4 9 The l a t t e r j u r i s d i c t i o n may r e s u l t i n an order f o r compensatory damages, permanent or temporary injunction or b o t h . 5 0 However, i n exercising i t s contentious j u r i s d i c t i o n , the Court i s accessible only to the Inter-American Commission and to those States Parties to the American Convention that have expressly recognized such j u r i s d i c t i o n . 5 1 On the other hand, i n exercising i t s advisory j u r i s d i c t i o n , the Court i s open not only to states Parties to the American Convention and to the Inter-American Commission, but also to a l l Member States of the Organization of American States (OAS) including non-State Parties to the Convention and to the OAS and a l l i t s 52 organs. 210 Nevertheless, j u s t l i k e i n the European regime, in d i v i d u a l s have no formal standing before the Inter- American Court. They have standing only before the Commission. The indiv i d u a l ' s case w i l l therefore only be brought before the Court by the Commission a f t e r the Commission has completed i t s proceedings applicable to the case. Secondly, s i m i l a r to i t s equivalent i n the European regime, the Court lacks the power to enforce i t s judgments and preliminary r u l i n g s ; i t must r e l y on the OAS General Assembly j u s t l i k e the European Court r e l i e s on the Council of Europe's Committee of m i n i s t e r s . 5 3 In the Af r i c a n Human Rights enforcement machinery, a court was d e l i b e r a t e l y avoided allegedly because Af r i c a n customs and t r a d i t i o n s emphasize c o n c i l i a t i o n rather than j u d i c i a l settlement of disputes. In the words of one eminent scholar who i s also one of the draftsmen of the Afr i c a n Human Rights Charter; According to Af r i c a n conception of the law, disputes are s e t t l e d not by contentious procedures, but through r e c o n c i l i a t i o n . R e c o n c i l i a t i o n generally takes place through discussions which end i n a consensus leaving neither winners nor losers. T r i a l s are always c a r e f u l l y avoided. They create animosity. People go to court to dispute rather than to resolve d i f f i c u l t y . 5 4 This therefore leaves no f i n a l recourse f o r the parties under the A f r i c a n human ri g h t s enforcement machinery i n case no f r i e n d l y solution i s reached by the Commission. I t would seem that the assumption i s that the pub l i c a t i o n of the report of the Commission w i l l force such State into remedying the s i t u a t i o n and thereafter observing human 211 r i g h t s . However, since no report can be published unless and u n t i l i t has been considered by the Assembly of Heads of State and Government, chances are that t h i s e f f e c t w i l l take long to be achieved or never at a l l as the A f r i c a n Heads of State and Government have established a precedent of protecting each other as f a r as abuse of human ri g h t s i s concerned through omission or commission. The A f r i c a n Heads of State and Government s t i l l have to convince us, through t h e i r actions, that t h i s attitude has changed. The r i g h t to p e t i t i o n the various Commissions i s also worthy mentioning. Under the A f r i c a n Human Rights regime, only States which are part i e s to the Charter can p e t i t i o n the A f r i c a n Commission. 5 5 This would mean that a l l non- member States are excluded i r r e s p e c t i v e of the fac t that the complaint being made i s against a State Party to the Charter. This notwithstanding, i t could be argued that the r i g h t of non-member States to p e t i t i o n the Commission may e a s i l y be implied i n the "other communications" 5 6until amendment to the contrary i s effected. However, t h i s has been rejected by Af r i c a n scholars. For example K'eba Mbaye argues that "other communications" do not include p e t i t i o n s of non-member States and public national i n s t i t u t i o n s dependent upon them. 5 7 I f t h i s i s true then States which are not part i e s to the Charter cannot p e t i t i o n the Commission even i f the complaint i s against a State p a r t i e s to the Charter. The American Convention envisages an optional i n t e r - state complaint procedure. In addition to the requirement 212 that complainant States have to be members to the Convention, the Convention gives option to States p a r t i e s to declare recognition of the Commission's competence to receive complaints from other States p a r t i e s . The proviso to t h i s i s that the complainant State must also have recognized the Commission's competence to receive State complaints. 5 8 However, as mentioned e a r l i e r the American Commission i s competent to entertain complaints of non-member States while exercising i t s second r o l e as an organ of the Organization of American States. On the other hand, the European Commission can be petitioned not only by member States to the European Convention, but also by non-member States as long as the complaint i s being l e v i e d against a State party to the Convention. I t therefore envisages a mandatory i n t e r - s t a t e complaint procedure. 5 9 As regards i n d i v i d u a l p e t i t i o n s , the American regime i s the broadest of the three. The A f r i c a n regime i s so State- c e n t r i c that no express provision was made i n respect of i n d i v i d u a l p e t i t i o n s . Provision for these p e t i t i o n s can only be implied i n a r t i c l e 55 of the Charter i n respect of "other communications". Therefore, i n d i v i d u a l s and groups are given a q u a l i f i e d r i g h t to p e t i t i o n the A f r i c a n Commission. Under the European regime in d i v i d u a l s and groups have the r i g h t to p e t i t i o n the European Commission. However, t h i s r i g h t i s optional i n that the high contracting power against which the complaint i s made must have declared i t s 213 recognition of the competence of the Commission to receive such p e t i t i o n s . 6 0 The American regime, on the other hand, not only expressly provides for the r i g h t of ind i v i d u a l s and groups to p e t i t i o n the Commission against any State simply on the basis of the respondent State being a party to the American Convention 6 1 but also does not l i m i t the r i g h t to f i l e i n d i v i d u a l p e t i t i o n s only to victims of v i o l a t i o n s . This leaves the process open to almost everyone. 6 2 Comparison with UN Human Rights Committee. The International Covenant on C i v i l and P o l i t i c a l Rights establishes a Human Rights Committee 6 3 (hereinafter "the Committee") for the purpose of promoting human ri g h t s i n the manner envisaged i n the Covenant. I t consists of eighteen members who s h a l l be nationals of States Parties to the Covenant, and having high moral character and recognized competence i n the f i e l d of human r i g h t s . 6 4 Although t h i s regime i s wider i n the sense that i t cuts across geographical regions, i t has s i m i l a r i t i e s with the Af r i c a n regime and i s therefore worth looking at. Just l i k e the Af r i c a n Commission which receives i t s funding from the OAU budget upon approval of the Assembly of Heads of State and Government, the members of the Committee receive emoluments from United Nations resources upon approval of, and terms and conditions established by, the General Assembly. 6 5 A l l the s t a f f of the Committee and the 214 necessary f a c i l i t i e s f or the e f f e c t i v e performance of the functions of the Committee are provided by the Secretary- General of the United N a t i o n s . 6 6 I t cannot therefore be independent of the United Nations which i s of course understandable since i t i s established under i t s auspices. The States Parties to the Covenant are under an obl i g a t i o n to submit to the Secretary-General, whenever the Committee so requests, reports on the measures they have adopted to give e f f e c t to the ri g h t s recognized i n the Covenant and on the progress made i n the enjoyment of those r i g h t s . The Secretary-General s h a l l then transmit them to the Committee f o r i t to study them and make recommendations i f necessary. He may also, a f t e r consultation with the Committee, transmit to the sp e c i a l i z e d agencies concerned copies of such reports as may f a l l within t h e i r f i e l d of competence. 6 7 Unlike the A f r i c a n Commission which has to send i t s reports and recommendations to the Assembly of Heads of State and Government, the Committee transmits i t s reports and comments d i r e c t l y to the State Parties concerned without f i r s t consulting with Secretary-General of the United Nations. I t may also transmit these comments and the reports to the Economic and Social C o u n c i l . 6 8 Whereas the Afr i c a n Commission has competence to consider any communication as long as i t originates from, and concerns a State Party to the Af r i c a n Charter, there i s further l i m i t a t i o n upon the Committee. I t can only deal with communications o r i g i n a t i n g from State Parties i n respect of 215 those State Parties which have recognized the competence of the Committee to receive and consider communications to the e f f e c t that a State Party complains that another State Party i s not f u l f i l l i n g i t s obligations under the Covenant. 6 9 However, j u s t l i k e the Af r i c a n Commission, the communication can only be dealt with a f t e r exhaustion of l o c a l remedies unless the app l i c a t i o n of l o c a l remedies w i l l be unreasonably prolonged. The Committee s h a l l also hold i t s meetings under closed doors and i t s h a l l provide i t s good o f f i c e s to the parti e s concerned with a view to a f r i e n d l y s o l u t i o n of the matter on the basis of respect f o r human ri g h t s and fundamental freedoms recognized i n the Covenant. 7 0 I f a solut i o n i s reached, the Committee s h a l l confine i t s report to a b r i e f statement of the facts and of the solutio n reached. I f no solution i s reached, the report s h a l l state the facts, the written submissions and record of the o r a l submissions made by the State Parties concerned. In every matter, the report s h a l l be communicated to the State Parties concerned. 7 1 In cases where the Committee does not resolve a communication to the s a t i s f a c t i o n of the State Parties concerned, the Committee may, with p r i o r concent of the State Parties concerned, appoint a five-man ad hoc C o n c i l i a t i o n Commission whose good o f f i c e s s h a l l be made avai l a b l e to the State Parties concerned with a view to an amicable solution of the matter on the basis of respect for the Covenant. 7 2 The expenses of the ad hoc C o n c i l i a t i o n 216 Commission are to be met by the State p a r t i e s concerned though the Secretary-General of the United Nations may, i f necessary, meet the expenses before reimbursement by the State Parties concerned. 7 3 Lastly, the Committee s h a l l submit to the general Assembly of the United Nations through the Economic and Soc i a l Council, an annual report on i t s a c t i v i t i e s . 7 4 However, since no express provision as regards approval of the reports before pu b l i c a t i o n i s made, i t would seem that the Committee i s not r e s t r i c t e d i n the pub l i c a t i o n of i t s reports. This i s unlike the Af r i c a n Commission which has to obtain the approval of the Assembly of Heads of State and Government before any publication can be made. 217 Table I: Summary of the four Human Rights Regimes. FEATURES 1.Composition of Commission 2.State communications 3.Individual AFRICAN EUROPEAN AMERICAN 11 Yes 21 Yes communications Yes/No** Optional 4.Confidentiality of procedure Yes 6. Action without approval No 7. Court System or second avenue No 8. Any options to Commission No 9. Enforcement procedure Yes 10.Jurisdiction over non-members No Yes 5.Confidentiality of publications Too much Yes Yes Yes Yes Yes No Optional Yes Yes Yes Yes Yes Yes Yes UN 18 Optional Optional Yes ++ Less No Yes Yes n Few Yes No *** ** * * * In the case of the UN Regime, t h i s i s c a l l e d a Committee. No express provision i s made hence t h i s can only be implied i n the "other Communications". The hearing i s c o n f i d e n t i a l but the views reached are not c o n f i d e n t i a l . + In case of the UN Regime, the second avenue i s an Ad hoc Con c i l i a t o r y Commission and not a court, and as the name suggests, i t does not a r b i t r a t e but rather t r i e s to reconcile the pa r t i e s . + + This i s i n i t s second capacity as an organ of the Organization of American States. 218 Assessment of the Af r i c a n Human Rights Regime. Much as an attempt was made by the drafters of the Af r i c a n Charter to provide for an enforcement machinery which w i l l s u i t and accommodate a l l A f r i c a ' s human right s abuses within t h e i r alleged t r a d i t i o n a l s e t t i n g , and purportedly taking into account Af r i c a n values, there are many gaps i n the machinery which w i l l i n e v i t a b l y make i t le s s e f f e c t i v e . As seen above, the less emphasis placed upon i n d i v i d u a l p e t i t i o n s and the lack of a second avenue i n the form of a Court or Tribunal are major weaknesses i n the Afr i c a n machinery. The according of tremendous powers to the Assembly of Heads of State and Government, i n addition to the lack of a Court or Tribunal are l i k e l y to make the machinery much weaker. This i s e s p e c i a l l y so since, i n addition to making the machinery slow j u s t l i k e any of the other human ri g h t s mechanisms, the Assembly of Heads of State and Government has a reputation of protecting A f r i c a n presidents i r r e s p e c t i v e of the v i o l a t i o n s t h e i r governments have committed. Unless t h i s reputation i s improved, the machinery w i l l not operate very e f f i c i e n t l y i f i t i s pegged, i n a l l i t s entirety, upon the Assembly of Heads of State and Government. Many Scholars hoped that, while drawing i t s rules of procedure, the Commission would f i l l up most of the lacunae i n the Charter provisions as well as according i t s e l f such powers as w i l l enable i t to operate e f f i c i e n t l y . These rules have now been drawn and presumably attempts have been made 219 to ensure e f f i c i e n c y . 7 5 However, issues l i k e providing f o r a second avenue i n the form of a Court or Tribunal can only be remedied through amendment by the Assembly of Heads of State and Government within a r t i c l e 63 of the Charter. FOOTNOTES Of course i t i s not possible for the Commission to be wholly independent of the States e s t a b l i s h i n g i t . However, what i s important i s the l e v e l to which i t i s dependent upon them and whether t h i s dependency can be reduced. A f r i c a n Charter, a r t i c l e 45. Ibid, a r t i c l e 46. Id, a r t i c l e 47. Id, a r t i c l e 48. Id, a r t i c l e 49. Id, a r t i c l e 50. Id, a r t i c l e 51. Id, a r t i c l e s 52 and 53. Id, a r t i c l e 54. See, among others, K'eba Mbaye i n : Human and Peoples' Rights i n A f r i c a and the Afr i c a n Charter (International Commission of J u r i s t s ) , supra, 41; Umozurike, The Af r i c a n Charter on Human and Peoples' Rights, 77 Am. J . I n t ' l . L. 902, 908; and Daniel C. Turack, supra, 376. Af r i c a n Charter, a r t i c l e 55(2). Id, a r t i c l e 57. Id, a r t i c l e 58(1) and (2). Id, a r t i c l e 58(3). Id, a r t i c l e 59. See Richard N. Kiwanuka, The Meaning of "People" i n the ' A f r i c a n Charter on Human and Peoples' Rights, supra, 101. See The International Commission of J u r i s t s , THE REVIEW No. 40 June 1988, Rules of Procedure of the Afr i c a n Commission for Human and Peoples Rights, 26 (Editor: N i a l l MacDermot) . Unfortunately, we have not been able to get hold of a copy of the Rules of Procedure of the Commission. Roger Chongwe, Afr i c a n Charter on Human and Peoples' Rights, supra, 1611.. See a r t i c l e 19(1) of the European Convention for the protection of Human Rights and Fundamental Freedoms, Nov.4, 1950, Europ.T.S.No.5. (It entered into force on September 3, 1953). I t i s supplemented by eight protocols. See a r t i c l e 33 of the American Convention on Human Rights, NOV.22, 1969, OAS T.S. No.36, at 1. OAS Off.Rec.OEA/Ser.L/V/II.23 doc.21 rev.6 (1979), reprinted i n I.L.M. at 673 (1970), and i n Kunig, Benedek, and Mahalu, Regional Protection of Human Rights Under International Law; The Emerging Af r i c a n System. Supra, 137-156. See A f r i c a n Human Rights Charter, supra, a r t i c l e 30. See a r t i c l e s 20-25 of the European Convention. Ibid, a r t i c l e 28(b). Id, a r t i c l e 31. Id, a r t i c l e s 44 and 48. Id, a r t i c l e 46. American Convention, supra, a r t i c l e 41. Ibid. Ibid. Id, a r t i c l e s 46 and 47. Id, a r t i c l e 48. Id, a r t i c l e s 50 and 61. Id, a r t i c l e s 42 and 43. See B. Weston, R. Lukes, and K. Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, Vol.20 No. 4, Vanderbilt J . Transnational L. (October 1987) 585, 603. Buergenthal, Human Rights i n the Americas: View from the Inter-American Court, 2 Conn. J . I n t ' l . L. 3 03, 306-7 (1987) and quoted i n : B. Weston, R. Lukes, K. Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, i b i d , 603. 37 38 39 40 41 42 43 44 48 49 50 222 European Convention, supra, a r t i c l e 32(1). Ibid, a r t i c l e s 32(4) and 54. See B. Weston, R. Lukes, K. Hnatt, Regional Human Rights Regimes; A Comparison and Appraisal, supra, 597. Professor Kevin Boyle i n : Guide to International Human Rights Practice (H. Hannum ed. 1984) and quoted by B. Weston, R. Lukes, K. Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, supra, 596-597. See B. Weston, R. Lukes, K. Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, supra, 605. American Convention, a r t i c l e 65. See the sub-section of t h i s Chapter e n t i t l e d "The Human and Peoples' Rights Commission". A f r i c a n Human and Peoples' Rights Charter, a r t i c l e 58. 4 5 Ibid, a r t i c l e 59(1). 4 6 Id, a r t i c l e 59(2) and (3). 47 See Chapter Seven of t h i s work e n t i t l e d "THE OAU DOUBLE STANDARD APPROACH TO HUMAN RIGHTS". See C.K.N Raja, Jurisprudence of the European Court of Human Rights, i n : Agrawala, Rama Rao and Saxena, eds, New Horizons of International Law and Developing Countries. supra, 64. See American Convention, supra, a r t i c l e s 62 and 64. See Ibid, a r t i c l e 63. 5 1 Id, a r t i c l e s 61(1) and 62(3). 5 2 Id, a r t i c l e 64. 5 3 Id, a r t i c l e 65. 5 4 See K'eba Mbaye, Keynote Address on the A f r i c a n Charter on Human and Peoples' Rights, i n : Human and Peoples' Rights i n A f r i c a and the Afr i c a n Charter (International Commission of J u r i s t s ) , supra, 27. Elsewhere i n t h i s work we have argued against the unnecessary c l i n g i n g onto A f r i c a n t r a d i t i o n s , which i n most cases have or are i n the process of diminishing, at the expense of human r i g h t s . Therefore, i t w i l l serve no purpose to repeat these arguments here. 2 2 3 C O N C L U S I O N The prevalent g u e r r i l l a movements and wars on the A f r i c a n Continent are l a r g e l y a r e s u l t of the abuse of human ri g h t s by the various A f r i c a n governments and t h e i r various organs, be they m i l i t a r y or otherwise. At the root causes of a majority of the g u e r r i l l a wars i n A f r i c a are to be found, among others, such human r i g h t s abuses as the denial of p o l i t i c a l r i g h t s including p o l i t i c a l p a r t i c i p a t i o n and intervention into p o l i t i c s by the m i l i t a r y ; the denial of i n t e r n a l self-determination manifested i n such acts as oppression and economic deprivation; and the denial of r e l i g i o u s freedoms witnessed i n such countries as Sudan. The above i s accentuated by the abuse of other human ri g h t s . For example the disrespect of c i v i l r i g h t s such as the r i g h t to l i f e and property has led to the i n t e n s i f i c a t i o n of the g u e r r i l l a wars i n that more and more people are forced by these abuses and the p r e v a i l i n g circumstances into j o i n i n g the already e x i s t i n g g u e r r i l l a movements. Such issues as t r i b a l i s m and regionalism should not, by themselves, be considered as the r e a l causes of the A f r i c a n g u e r r i l l a movements. They are merely factors contributing to the accentuation of these movements. At the bottom of these t r i b a l and/or regional feelings are to be found human right s 225 v i o l a t i o n s of one sort or another. Many people are forced to look to t h e i r t r i b e or region and hence the development of t r i b a l or regional feelings due to the abuses of human ri g h t s being perpetrated upon them by the government managed by people who happen to be from d i f f e r e n t t r i b e s than those they are oppressing. I t therefore follows that i f human ri g h t s were to be respected and observed, t r i b a l i s m and regionalism would not, by themselves, lead to the commencement of g u e r r i l l a wars i n A f r i c a . Consequently, i f human righ t s were to be f u l l y respected throughout A f r i c a , fewer g u e r r i l l a movements and wars would a r i s e on the Continent, i f at a l l , and those few which would a r i s e would more e a s i l y be contained because they would a t t r a c t l i t t l e support from the majority of the masses. The analysis i n chapter two i n respect of Ethiopia, Sudan and Uganda leads to a few conclusions; In Ethiopia and Sudan there i s the need to allow increased regional autonomy or federalism so as to avoid repression of some regions and peoples as well as enabling them to have more e f f e c t i v e p o l i t i c a l p a r t i c i p a t i o n . Better s t i l l , the quagmire i n the E r i t r i a n region of Ethiopia can only be e f f e c t i v e l y solved by subjecting E r i t r i a to a free and f a i r referendum to determine whether or not E r i t r i a n secession should be allowed. In the case of Uganda, ensuring e f f e c t i v e p o l i t i c a l p a r t i c i p a t i o n within the frame work of a unitary State 226 system may be the best answer. A l t e r n a t i v e l y , a federal system could be used but t h i s should not be effected unless i t i s decided upon by a majority vote i n a free and f a i r referendum throughout the whole of the country. The disadvantage with a federal system i n the case of Uganda i s that i t may have the tendency of creating small units some of which may not be very v i a b l e . Since the root causes of the majority of the g u e r r i l l a movements i n A f r i c a are to be found behind human right s abuses of one sort or another, what i s necessary i s a mechanism which w i l l ensure that human ri g h t s are observed and respected throughout the Af r i c a n continent. Although mediation and negotiation i s one form of stopping a g u e r r i l l a war, i t i s not conclusive i n i t s e l f . This can be i l l u s t r a t e d by the Anya nya c i v i l war i n Sudan, and the g u e r r i l l a war i n Uganda, among others. Through negotiations and mediation, the 17-year old Anya nya c i v i l war was ended i n 1972. However, because the various human ri g h t s abuses continued, t h i s war was to resurrect i n even a more serious war which i s currently devastating Sudan. S i m i l a r l y , the g u e r r i l l a war i n Uganda could not be stopped by the December, 1985 Nairobi Peace Accord due to the various human right s abuses which were being c a r r i e d out by the Obote government. In our study we have attempted to show that the current United Nations human ri g h t s enforcement machinery cannot be used to solve A f r i c a ' s quagmire - i t cannot adequately help 227 protect human ri g h t s and thereby avoid the commencement of in t e r n a l armed c o n f l i c t s or g u e r r i l l a wars. I t s r o l e i s more of standard-setting as to the l e v e l to which human rights should be respected rather than enforcing the implementation and protection or respect of human r i g h t s . Likewise, the A f r i c a n human ri g h t s enforcement mechanism which would have played t h i s r o l e of protecting human r i g h t s on the continent i s not adequately equipped so as to ensure respect for human ri g h t s and therefore help avoid the commencement of g u e r r i l l a wars on the continent as well as containing those already i n progress. True, i t may play some major r o l e i n t h i s regard i f and when properly and f u l l y u t i l i z e d . Nevertheless, lack of a court or an a r b i t r a t i o n machinery makes the Afr i c a n mechanism to have almost no teeth. As i t currently stands, the only thing the A f r i c a n Commission on Human Rights can do i s to make a report and recommendations to the (African) Assembly of Heads of State and Government i f so requested. Thereafter, the Commission can do nothing. I t remains f o r the Assembly of Heads of State and Government to consider whether or not the recommendations tendered by the Commission are fe a s i b l e , and i f they are, what steps should be taken i n the circumstances. Since t h i s i s not a l e g a l decision, and since the whole mechanism i s supposed to take into account the allegedly A f r i c a n conception of law where disputes are said to be 228 s e t t l e d n o t b y c o n t e n t i o u s p r o c e d u r e b u t r a t h e r t h r o u g h r e c o n c i l i a t i o n , p r o b a b l y w h a t t h e A s s e m b l y w i l l d o i s t o g i v e a d v i c e t o t h e s t a t e p a r t y c o n c e r n e d o r o t h e r w i s e make r e q u e s t s t o i t w h i c h a d v i c e o r r e q u e s t s may o r may n o t b e a g r e e d t o b y t h e s a i d S t a t e p a r t y . T h i s t h e r e f o r e means t h a t t h e r e i s no f i n a l r e c o u r s e s i n c e t h e r e i s no v i s i b l e d e c i s i o n t o w h i c h t h e a g g r i e v e d p a r t y c a n h o l d . I n o t h e r w o r d s , a v i s i b l e d e c i s i o n i s o f t e n e s s e n t i a l a n d t h i s c a n b e s e e n f r o m t h e UN s y s t e m w h i c h t r i e s t o a v o i d v i s i b l e d e c i s i o n s b u t i n f a c t a l l o w s t h e m t o b e made. W o r s e s t i l l , t h e A f r i c a n m e c h a n i s m i s s o much p e g g e d u p o n t h e A s s e m b l y o f He a d s o f S t a t e a n d G o v e r n m e n t . I n a d d i t i o n t o t h e f a c t t h a t t h e b u d g e t a n d f i n a n c e s o f t h e C o m m i s s i o n a r e d i r e c t l y c o n t r o l l e d b y t h e A s s e m b l y o f Heads o f S t a t e a n d G o v e r n m e n t , a l l m a j o r a c t i o n s o f t h e C o m m i s s i o n r e q u i r e t h e c o n s e n t o f t h e A s s e m b l y o r , i n c a s e s o f e r m e g e n c y , t h a t o f t h e C h a i r m a n o f t h e t h e A s s e m b l y o f h e a d s o f S t a t e a n d G o v e r n m e n t . A l l t h i s c o m b i n e s t o make t h e A f r i c a n e n f o r c e m e n t m a c h i n e r y a d e f a c t o p o l i t i c a l o r g a n w h i c h , i r o n i c a l l y , i s a l l e g e d t o h a v e b e e n s p e c i f i c a l l y a v o i d e d b y t h e d r a f t e r s o f t h e A f r i c a n C h a r t e r o n Human a n d P e o p l e s ' R i g h t s . I n o t h e r w o r d s , t h e A f r i c a n C o m m i s s i o n i s f a r more s u b j e c t t o t h e A s s e m b l y o f He a d s o f S t a t e s a n d G o v e r n m e n t t h a n t h e c o m p a r a b l e C o m m i s s i o n s o r C o m m i t t e e s i n t h e A m e r i c a n , E u r o p e a n , o r UN s y s t e m s . 229 I t has been pointed out that the human ri g h t s non- governmental organizations (NGOs) which would have helped i n making the work of the Commission easier by bringing to i t a l l those cases i n which human right s are being v i o l a t e d but which may not have been brought to the notice of the Commission, as well as helping i n compiling data r e l a t i n g to the facts and the evidence available, are not well spread i n A f r i c a . In addition to the non-existence of indigenous human ri g h t s NGOs i n A f r i c a , those (non-indigenous) NGOs which e x i s t are not uniformly spread throughout the whole of A f r i c a . The tendency i s for a majority of them to concentrate i n apartheid South A f r i c a . Hence, even i f the Af r i c a n human ri g h t s enforcement mechanism were to operate e f f e c t i v e l y and e f f i c i e n t l y , not a l l human ri g h t s abuses would be brought to the attention of the Commission because of t h i s deficiency. We have also shown that some of the concepts which are said to be r e f l e c t e d i n the Af r i c a n Human Rights Charter i n p a r t i c u l a r , and i n A f r i c a ' s human ri g h t s record i n general, and are alleg e d l y based upon A f r i c a n t r a d i t i o n s and values, are at t h e i r best baseless. They are merely pretexts for j u s t i f y i n g various human ri g h t s abuses and tendencies. I f they are allowed to stand while i n t e r p r e t i n g the Afr i c a n Human Rights Charter, they w i l l turn out to be a strong f e t t e r upon the effectiveness of the Af r i c a n human right s 230 enforcement machinery. Ultimately, t h i s w i l l accentuate A f r i c a ' s quagmire rather than solving i t . In view of a l l the above, several things have to be done i f the mechanism i s to be e f f e c t i v e and therefore capable of preventing human right s abuses and the resultant c i v i l wars. This does not only mean amending the Charter but also taking p r a c t i c a l steps toward respecting human right s on the A f r i c a n continent. The need for a second avenue i n the form of a Court structure or an a r b i t r a t i o n t r i b u n a l i s very axiomatic. The Charter should therefore be amended to t h i s e f f e c t and the Assembly of Heads of State and Government should be made the body to enforce the decision's of the Court or A r b i t r a t i o n t r i b u n a l depending on the name decided upon. This w i l l provide a f i n a l recourse for the parti e s and w i l l help improve the effectiveness of the enforcement machinery. The powers of the Assembly of Heads of State and Government i n respect to the Afr i c a n human ri g h t s machinery should be reduced so as to make i t le s s and le s s , i f at a l l , a p o l i t i c a l body which i n fac t i t i s at present. Thus i t should be made to have no control whatsoever upon any of the decisions of the Af r i c a n Human Rights Commission be i t i n undertaking studies, cases, or publishing the reports and recommendations made. We f e e l that the Commission should be able to operate independently - more l i k e a human ri g h t s non-governmental organization. Thus i t should be able to undertake studies 231 without requiring the consent of the Assembly or of i t s chairman as long as the Commission members deem such studies or investigations necessary. I t should also be able to publish reports of i t s studies as soon as they are completed without f i r s t obtaining the permission of the Assembly. This should of course not a f f e c t the funding which should continue to come from the general OAU budget. In t h i s way the decisions and recommendations w i l l i n most cases be free of a l l p o l i t i c a l biases. However, i t must be pointed out that the independence of the Commission may be a question of who i s a member of the Commission and not necessarily on i t s structure. The p e r s o n a l i t i e s are very important e s p e c i a l l y i n the i n i t i a l stages of the Commission. Since the A f r i c a n Human Rights Charter has a number of ambiguities, these could be interpreted i n many ways so as to ensure independence. Hence the need f o r strong p e r s o n a l i t i e s on the Commission at l e a s t i n i t s early stages. Likewise, i f a Court structure i s adopted, i t must be able to function independently save for the finances which must come from the general OAU budget, and for the enforcement of Court decisions which should be done by the Assembly of Heads of States and Government. There should be something akin to "the independence of the j u d i c i a r y " . On the p r a c t i c a l side, an attempt must be made to encourage the development of indigenous human ri g h t s NGOs and thereby increasing the r o l e of these organizations i n 232 A f r i c a . We would suggest that f o r s t a r t e r s these organizations should be developed on a regional basis, that i s , East, West, North, South and Central. This w i l l ensure that a l l the v i o l a t i o n s on the Continent can be given attention. I f t h i s i s done, there w i l l be les s gross human ri g h t s abuses and therefore less conditions for the commencement and sustenance of g u e r r i l l a wars on the Continent. Another attempt which should be made i s to increase awareness about human ri g h t s among the masses. Many people do not know t h e i r r i g h t s and those who know fear to exercise or demand them. Therefore there should be a l i t e r a c y campaign i n t h i s respect. Of course t h i s should be a long term issue and i t must also involve changing the attitudes of the powers that be because they are the ones that i n s t i l l fear even among those who may be aware of t h e i r r i g h t s . One method which i s suggested i n much of the l i t e r a t u r e for changing the attitude of these r u l e r s i s pegging i n t e r n a t i o n a l a i d upon respect for human r i g h t s . Of course the extent to which t h i s has worked or been attempted i s highly questionable e s p e c i a l l y as i t a f f e c t s the very masses that i t i s supposed to protect. One other suggestion which may perhaps be outside the powers of A f r i c a i n general and the OAU i n p a r t i c u l a r , i s Super power involvement. We think that much of A f r i c a ' s quagmire would be easier to solve i f the Super powers and other regional powers stopped using A f r i c a as an arena for 233 exercising t h e i r m i l i t a r y asernals and p o l i t i c a l ideologies. Cases i n point are, among others, Ethiopia, Angola, and Mozambique. I f no outside countries provided m i l i t a r y and other support to ei t h e r side i n the c o n f l i c t s , we think that some g u e r r i l l a movements would f a i l to take o f f or i f they do they would be considerably weak and therefore easy to contain. A l t e r n a t i v e l y , those governments which are so repressive would be thrown out of power merely by the simple r u l e of majorities. I f a majority of the people i n a country were to gang against a repressive government chances are that such a government w i l l , i n the absence of foreign help, be overthrown within a short while. L a s t l y but not least, there should be provision for humanitarian intervention i n genuine cases of gross human ri g h t s abuses. Such mass k i l l i n g s as the recent massacres i n Burundi cannot be stopped by the human ri g h t s enforcement mechanism however e f f e c t i v e the mechanism may be. By the time the f i n a l steps are taken, i t may be too l a t e to save many l i v e s . A f a i r l y good example of humanitarian intervention was the Tanzanian entry into Uganda, i n 1979, i n an e f f o r t to stop the a t r o c i t i e s which were being committed by I d i Amin. The only problem with i t was that the then Tanzanian president, Mwalimu J u l i u s K. Nyerere, used i t f o r some u l t e r i o r motives, namely, to f a c i l i t a t e the coming to power of h i s f r i e n d Apollo Milton Obote. 234 Consequently, humanitarian intervention by any country or group of countries which may be i n p o s i t i o n so to do, should be allowed i n the short run so as to save l i v e s which would otherwise perish because of the t e c h n i c a l i t i e s and bureaucratic tendencies of the mechanism. However e f f i c i e n t the mechanism could turn out to be, the various t e c h n i c a l i t i e s and bureaucratic tendencies would make i t too slow and too l a t e to react to such s i t u a t i o n s . Humanitarian intervention doctrine may also help to deter many leaders and t h e i r m i l i t a r y and p o l i c e organs from abusing human r i g h t s i f they are sure that i n case they do so some country w i l l immediately intervene to stop such abuse. Provision f o r t h i s doctrine should not only be put i n the A f r i c a n Charter but also i n the International b i l l of human ri g h t s i f the doctrine i s to have much s i g n i f i c a n c e . The immediate c r i t i c i s m which w i l l be made against t h i s doctrine i s that i t w i l l be contrary to the much cherished p r i n c i p l e of non-interference i n in t e r n a l a f f a i r s of member States. I t i s our considered opinion that there should be an exception to t h i s p r i n c i p l e such that i t should be waived i n t h i s regard. There i s no point i n i n s i s t i n g on sovereignty when the very people whose sovereignty i s alleg e d l y being protected are i n fac t perishing. Sovereignty should therefore be subject to the l i v e s of the peoples i n each country. One danger which cannot of course be over-looked i s misuse of the doctrine of humanitarian intervention. In 235 order to minimize abuse of t h i s doctrine, s p e c i f i c conditions which must be f u l f i l l e d before, during, and a f t e r the intervention must c l e a r l y be set out. Whereas these need to be c l e a r l y thought out and formulated, they must include such conditions as existence of massive a t r o c i t i e s , preference to j o i n t action unless t h i s cannot be achieved, and l i m i t e d intervention, that i s , only as much m i l i t a r y force should be used as i s necessary to help stop the massacre and the intervening State or States must withdraw immediately t h i s purpose i s attained. This may help stop abuse of t h i s doctrine. I t i s our b e l i e f that i f the various suggestions above said are taken into account, much of the human r i g h t s abuses on the continent w i l l be avoided and t h i s also means that many g u e r r i l l a wars w i l l not ar i s e since the major factor behind most of them i s abuse of human r i g h t s . 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International Commission J u r i s t s , Human and Peoples' Rights i n A f r i c a and The Af r i c a n Charter (Report of a Conference held i n Nairobi from 2 to 4 December, 1985, converned by the International Commission of J u r i s t s ) , 26-30. The International Commission of J u r i s t s , THE REVIEW No. 40 June 1988, Rules of Procedure of the Af r i c a n Commission for Human and Peoples Rights, 26-3 0, (Editor: N i a l l MacDermot). International Commission of J u r i s t s , THE REVIEW No.40 June 1988, UN Commission on Human Rights, 18-26, (Editor: N i a l l MacDermot). Jackson Robert H. and Rosberg Carl G, Democracy i n Tropical A f r i c a : Democracy versus Autocracy i n Af r i c a n P o l i t i c s 38 J . of I n t ' l A f f a i r s , (No 2, Winter, 1985), 302-305. Kamminga M. T, The Thematic Procedures of the U.N. Commission on Human Rights. Netherlands I n t ' l L. Rev. (1987) XXXIV Issue 3, 299. Kaplan Robert D, The Loneliest War. The A t l a n t i c Monthly, Ju l y 1988, 58-65, 60. Kiwanuka Richard N., The Meaning of "People" i n the Afr i c a n Charter on Human and Peoples' Rights. 82 American J . I n t ' l Law, 80 (1988). Matthew L, Human ri g h t s r e v i s i t e d : The protection of human ri g h t s under the international covenant on c i v i l and p o l i t i c a l r i g h t s . 10 Cal. W. I n t ' l . L.J. 450 (1980). 243 Minasse Haile, Human Rights i n A f r i c a : Observations on the implications of Economic P r i o r i t y , 19 Venderbilt Journal of Transnational Law 299 (Spring 1986). Nayar K. G. M, Self determination beyond the c o l o n i a l context: B i a f r a i n retrospect 10 Texas I n t ' l . L. J . (1975), 321. Obinna Okere B., The Protection of Human Rights i n A f r i c a and the Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American System, 6 Human Rights Quarterly, 141.(May 1984). Obote Milton, The Footsteps of Uganda's Revolution. East A f r i c a n Journal, 5, 10, October, 1968. Ojo and Sesay, The OAU and Human Rights: Prospects f o r the 1980s and Beyond 8 H. R. Q. 89 (February, 1986) , 89- 91. Rodley N, U.N. Action Procedures Against "Disappearances", Summary or Ar b i t r a r y Executions, and Torture, 8 H. R. Q. (1986) 700. Shestack, Jerome J, The Case of the Disappeared. "In Foreign Countries 'missing persons' are the nightmare victims of state terrorism" 8 Human Rights 24-27 and 51-53, Winter, 1980. Skelton J . W. j r , Standards of procedural due process under inte r n a t i o n a l law Vs preventive detention i n selected A f r i c a n countries. 2 Houston J . I n t ' l L.307 (1980). Sohn, The Human Rights Law of the Charter 12 Tex. I n t ' l L. J. 129 (1977). Sohn, The Universal Declaration of Human Rights 8 J . I n t ' l Comp. Jur. 17 (1967). Sornarajah M, Internal colonialism and Humanitarian intervention 11 Ga. J . I n t ' l and comp. L. 45-77, (Winter 1981). Survival International. A f r i c a : Unnatural Disasters, August, 1988. Tucker Carol M, Regional Human Rights Models i n Europe and A f r i c a : A Comparison, 10 Syracuse J . I n t ' l L. and Commerce 135 (1983). Umozurike U. 0., The Afr i c a n Charter on Human and Peoples' Rights 77 Am. J . I n t ' l . L. 902 (1983). 244 UNESCO, International Experts Meeting on the Problems Connected with the Rights of Peoples and the H i s t o r i c a l and P r a c t i c a l Significance of these Problems. Harare, Zimbabwe, 2-5 December 1985 (UNESCO, Di v i s i o n of Human Rights and Peace, F i n a l Report, SHS 85/CONF. 613/10, 15 December, 1985). Universal Declaration of Human Rights, Am. J . I n t ' l L. Supp. 127 (1949) . Weissbrodt D, The Three "Theme" Special Rapporteurs of the U.N. Commission on Human Rights 80 Am. J . I n t ' l . L. (1986), 685. Weston Burns H, Human ri g h t s , 6 H. R. Q. 257 (1984). Weston B., Lukes R., Hnatt K., Regional Human Rights Regimes: A Comparision and Appraisal, Vol.20 No. 4, Vanderbilt J . Trasnational L. (October 1987) 585. Woodward Peter, P o l i t i c a l factors contributing to the refugees i n the horn of A f r i c a , International Relations, Vol.IX, No.2, November 1987, 111. NEWSPAPERS AND MAGAZINES A f r i c a Confidential, Vol.27, No.l, 2 January, 1986, Ethiopia: Regional Wrangles. A f r i c a C onfidential, Vol.27, No.3, 29 January, 1986, The Horn: Barre and Mengstu. A f r i c a C o nfidential. Vol.27 No.3, 29 January, 1986, Uganda: By Storm. A f r i c a C onfidential, Vol.27 No.4, 12 February, 1986, Uganda: Gotterdammerung at Gulu. A f r i c a C o nfidential. Vol.27, No.5, 26 February, 1986, Somalia: Towards an Ogaden Pact? A f r i c a C o n f i d e n t i a l . Vol.27, No.10, 7 May, 1986, Sudan: Towards Government. A f r i c a C onfidential, Vol.27, No.12, 4 June, 1986, Pointers, Ethiopia: V i l l a g i z a t i o n . A f r i c a C o nfidential. Vol.27, No.16, 30 July, 1986, Ethiopia: Opposition Disintegration. 245 A f r i c a C o n f i d e n t i a l . Vol.27 No.18, 3 September, 1986, Pointers, Uganda: Northern Troubles. A f r i c a C o n f i d e n t i a l . Vol.27, No.23, 12 November, 1987, Sudan: Inside Malak. A f r i c a C o n f i d e n t i a l . Vol.28, No.l, 7 March, 1987, Kenya: Facing Mwakenya. A f r i c a C onfidential. Vol.28, No.3, 4 February, 1987, Senegal: Casamance. A f r i c a Confidential, Vol.28, No.3, 4 February, 1987, Sudan: North and South. A f r i c a C o nfidential. Vol.28 No.3, 4 February, 1987, Uganda: False Messiah. A f r i c a C o nfidential. Vol.28, No.7, 1 A p r i l , 1987, Ethiopia: E r i t r e a takes stock. A f r i c a C o nfidential. Vol.28, No.7, 1 A p r i l , 1987, Ethiopia: N a t i o n a l i t i e s and the Constitution. A f r i c a C o n f i d e n t i a l . Vol.29, No.8, 15 A p r i l , 1988, Sudan: The SPLA i n Focus. A f r i c a Confidential, Vol.28, No.9, 29 A p r i l , 1987, Sudan: Post-mortem. A f r i c a C o nfidential. Vol.28, No.15, 22 July, 1987, Western Sahara: The P o l i s a l i o Factor. A f r i c a C o nfidential. Vol.28, No.18, 2 September, 1987, Sudan: The D r i f t Toward Dictatorship). A f r i c a C o n f i d e n t i a l . Vol.28, No.19, 23 September, 1987, Sudan: T r i b a l Divides. A f r i c a C o n f i d e n t i a l . Vol.28, No.23, 18 November, 1987, Ethiopia: Redrawing the map. A f r i c a C o n f i d e n t i a l f Vol.28, No.23, 18 November, 1987, Pointers, Sudan: Troubled Waters. A f r i c a C o n f i d e n t i a l . Vol.29 No.l, 8 January, 1988, Uganda: Insecurity East and North. A f r i c a C o nfidential. Vol.29, No.7, 1 A p r i l , 1988, Pointers, Zaire: Attack. A f r i c a Confidential, Vol.29 No.7, 1 A p r i l , 1988, Uganda: Unholy S p i r i t . 246 A f r i c a C o nfidential. Vol.29, No.9, 29 A p r i l , 1988, Ethiopia: A b a t t l e l o s t , a war i n stalement. A f r i c a Confidential, Vol.29, No.10, 13 May, 1988, Zambia: Backbench r e v o l t . A f r i c a C o nfidential. Vol 29, No.11, 27 May, 1988, Ethiopia: EPLF Peace Conditions. A f r i c a Confidential, Vol.29, No.13, 1 July, 1988, Ethiopia: Mengistu's Soldiers On. F i t z g e r a l d Mary Anne, KENYA, i n : The A f r i c a Review, l l t n e d i t i o n , 1987 (World of Information), 114-126. Greenfield Richard, What Price P o l i t i c a l Prisoners? Somalia, A f r i c a Report (America's leading magazine on Africa) January-February 1988, 48-51. Lycett Andrew, ETHIOPIA, i n : The A f r i c a Review, 1 1 t h e d i t i o n , 1987 (World of Information), 93-96. Macleans Magazine, November 2, 1987, 24, A l i c e ' s Army on the March. Manchester Guardian Weekly, August 31, 1986, Sudan's War of secession. Manchester Guardian Weekly. June 21, 1987, The honeymoon i s over f o r the government i n Sudan. Manchester Guardian Weekly. September 6, 1987, New guns revive slavery i n Sudan. Manchester Guardian Weekly. January 24, 1988, 8, Ethiopian rebels h i t food trucks. Manchester Guardian Weekly, February 28, 1988, 16, Tr a d i t i o n versus Revolution i n Ethiopia. Michael Y e l l i n , E r i t r e a : The Food Weapon, A f r i c a Report (America's leading magazine on Africa) January- February 1988, 44. Moser Patrick, Ethiopia: On Famine's Brink, A f r i c a Report (America's leading magazine on Africa) January- February 1988, 40-43. Press Robert M., Sudan: Prospects f o r peace? A f r i c a Report, January-February 1988, 45. The C h r i s t i a n Science Monitor. Thursday, December 3, 1987, Atmosphere of suspicion troubles Kenya. Government actions foster tensions among Kenyans and foreigners. 247 The Guardian Weekly. November 8, 1981, 7 "Enclave Arrangements" Simmering Secession upstages Gadafy's threats. The Guardian Weekly, February 14, 1982, 12 Sudan - regional i n s t a b i l i t y and i n t e r n a l tension. The Guardian Weekly, November 13, 1983, O i l holds promise for Sudan. The Globe and Mail, Friday, A p r i l 17, 1987, 2,000 Dinka tribesmen reportedly k i l l e d i n Sudan. The Globe and Mail. Friday, November 13, 1987, 'Magic of Ugandan Priestess conjures t r a i l s of rebel blood'. The Globe and Mail. Monday December 19, 1983, Surge of fundamentalism remolding shape of Islam. The Globe and Mail. Thursday, December 31, 1987. The Globe and Mail, Saturday, January 2, 1988, Ugandan O f f i c i a l s reported seized. The Globe and Mail. Tuesday, January 12, 1988, One dead and f i v e wounded i n Uganda rebel attack. The Globe and Mail. Wednesday, January 13, 1988, Sudan says rebels ready for truce. The Globe and Mail. Thursday, January 14, 1988, Two arrested i n Libyan's death. The Globe and Mail. Thursday, February 18, 1988, Ugandan rebels h i t 6 truck U.N. convoy. The Globe and Mail. Wednesday, March 2, 1988, A l l , Ugandan ri g h t s probe hears t a l e s of torture. The Globe and Mail. Friday, A p r i l 8, 1988, Ethiopia's Wars. The Globe and Mail, Thursday, June 9, 1988, Canadian Hercules s p e l l r e l i e f for the hungry. The Globe and Mail, Thursday, June 9, 1988, 200 mutineers s l a i n i n Uganda. The Globe and Mail, Wednesday, August 31, 1988, A l l , Morocco, P o l i s a r i o rebels approve UN peace plan. THE NATION/Thailand's English-Language Newspaper, Saturday, July 16, 1988, Peace hopes kindled i n E. Af r i c a n nation. Guns f a l l s i l e n t i n Uganda. 248 The New York Times. February 22, 1982, Regional dispute divides the Sudan. The New York Times, March 10, 1983, The struggle to govern the ungovernable i n Sudan. The New York Times, Sunday, May 4, 1986, Sudan's new leaders are i n a corner. The New York Times, Thursday, November 5, 1987, Ugandan Cult i s carrying out s u i c i d a l r a i d s . The New York Times. Friday, January 22, 1988, U.S. a s s a i l s Ethiopian rebel r a i d . The New York Times, Sunday, October 23, 1988, Debate on Islamic Law Further Strains Sudan. The Times. Saturday November 21, 1987, 5 m i l l i o n face Ethiopia famine. The Times. Thursday, November 26, 1987, Uganda flare-up. The Times (London), Thursday, December 31, 1987, Ugandan rebel j a i l e d i n Kenya. The Times. Wednesday, January 27, 1988, Museveni's Plea. The Times, Wednesday, February 17, 1988, Bus ambush. Mbale. The Times. Friday, February 19, 1988, Denial by Ethiopia. The Times. Monday, March 7, 1988, Tensions i n Somalia. Barre plagued by warfare and debt. The Times. Thursday, March 10, 1988, Unrest i n Somalia. Barre keeps the north i n check. The Times. Saturday, March 19, 1988, Violent run-up to Kenya p o l l . The Times. Thursday, March 24, 1988, Ugandan rebels to j o i n army. The Times. Thursday, March 31, 1988, Famine i n Ethiopia: Stepped-up g u e r r i l l a raids threaten food d e l i v e r i e s . The Times. Thursday, A p r i l 7, 1988, Fighting i n Ethiopia: Addis Ababa t e l l s a i d workers to go. The Times. Friday. A p r i l 15, 1988, Famine feared as Ethiopia prepares to crush rebels. The Vancouver Sun. Saturday October 8, 1983, Fleeing Southern Sudan. Refugees claim a t r o c i t i e s . 249 The Vancouver Sun, Thursday, December 31, 1987, Kenya nabs Ugandan rebel who led troops v i a Voodoo. Uganda News B u l l e t i n , June/July, 1988, (Presented by the Uganda High Commission, Ottawa), 1-4. Uganda News B u l l e t i n , January/February, 1988, 1-3, under the heading 'Cabinet Reshuffle'. Watson Catharine, Uganda: Ending the Rule of the Gun, A f r i c a Report (America's leading magazine on Africa) January- February 1988, 14, 15. Week-end Australian, August 23-24, 1986, C i v i l war polarises the North and South i n Sudan. A P P E N D I X The A f r i c a n Charter on Human and Peoples' Rights PREAMBLE The A f r i c a n states members of the Organization of Afr i c a n Unity, p a r t i e s to the present convention e n t i t l e d "African Charter on Human and Peoples' Rights," R e c a l l i n g Decision 115(XVI) of the Assembly of Heads of State and Government at i t s Sixteenth Ordinary Session held i n Monrovia, L i b e r i a , from 17 to 20 July 1979 on the preparation of a "preliminary d r a f t on an Af r i c a n Charter on Human and Peoples' Rights providing i n t e r a l i a f or the establishment of bodies to promote and protect human and peoples' r i g h t s " ; Considering the Charter of the Organization of Afr i c a n Unity, which s t i p u l a t e s that "freedom, equality, j u s t i c e , and d i g n i t y are es s e n t i a l objectives for the achievement of the legitimate aspirations of the Afr i c a n people"; Reaffirming the pledge they solemnly made i n A r t i c l e 2 to eradicate a l l forms of colonialism from A f r i c a , to coordinate and i n t e n s i f y t h e i r cooperation and e f f o r t s to achieve a better l i f e f o r the people of A f r i c a , and to promote int e r n a t i o n a l cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights; Taking into consideration the vi r t u e s of t h e i r h i s t o r i c a l t r a d i t i o n and the values of Af r i c a n c i v i l i z a t i o n which should i n s p i r e and characterize t h e i r r e f l e c t i o n on the concept of human and peoples' r i g h t s ; Recognizing on the one hand, that fundamental human rights stem from the attr i b u t e s of human beings, which j u s t i f i e s t h e i r national and international protection, and on the other hand that the r e a l i t y and respect of peoples' rig h t s should necessarily guarantee human r i g h t s ; Considering that the enjoyment of ri g h t s and freedoms also implies the performance of duties on the part of everyone; 251 Convinced that i t i s henceforth e s s e n t i a l to pay a p a r t i c u l a r attention to the r i g h t to development and that c i v i l and p o l i t i c a l r i g h t s cannot be dissociated from economic, s o c i a l and c u l t u r a l r i g h t s i n t h e i r conception as well as u n i v e r s a l i t y , and that the s a t i s f a c t i o n of economic, s o c i a l , and c u l t u r a l r i g h t s i s a guarantee for enjoyment of c i v i l and p o l i t i c a l r i g h t s ; Conscious of t h e i r duty to achieve the t o t a l l i b e r a t i o n of A f r i c a , the people of which are s t i l l struggling f o r t h e i r d i g n i t y and genuine independence, and undertake to eliminate colonialism, neo-colonialism, apartheid, Zionism, and to dismantle aggressive foreign m i l i t a r y bases and a l l forms of discrimination, p a r t i c u l a r l y those based on race, ethnic group, color, sex, language, r e l i g i o n , or p o l i t i c a l opinions; Reaffirming the adherence to the p r i n c i p l e s of human and peoples' r i g h t s and freedoms contained i n the declarations, conventions, and other instruments adopted by the Organization of Afr i c a n Unity, the Movement of Non-aligned Countries, and the United Nations; Firmly convinced of t h e i r duty to promote and protect human and peoples' r i g h t s and freedoms, taking into account the importance t r a d i t i o n a l l y attached to these r i g h t s and freedoms i n A f r i c a ; have agreed as follows: PART I: RIGHTS AND DUTIES CHAPTER I: HUMAN AND PEOPLES' RIGHTS ARTICLE 1 The member states of the Organization of Af r i c a n Unity p a r t i e s to the present Charter s h a l l recognize the ri g h t s , duties, and freedoms enshrined i n t h i s Charter and s h a l l undertake to adopt l e g i s l a t i v e or other measures to give e f f e c t to them. ARTICLE 2 Every i n d i v i d u a l s h a l l be e n t i t l e d to the enjoyment of the ri g h t s and freedoms recognized and guaranteed i n the present Charter without d i s t i n c t i o n of any kind, such as race, ethnic group, color, sex, language, r e l i g i o n , p o l i t i c a l or any other opinion, national and s o c i a l o r i g i n , fortune, b i r t h , or other status. ARTICLE 3 1. Every i n d i v i d u a l s h a l l be equal before the law. 2. Every i n d i v i d u a l s h a l l be e n t i t l e d to equal protection before the law. 252 ARTICLE 4 Human beings are i n v i o l a b l e . Every human being s h a l l be e n t i t l e d to respect for h i s l i f e and the i n t e g r i t y of h i s person. No one may a r b i t r a r i l y be deprived of t h i s r i g h t . ARTICLE 5 Every i n d i v i d u a l s h a l l have the r i g h t to the respect of the di g n i t y inherent i n a human being and to the recognition of his l e g a l status. A l l forms of exp l o i t a t i o n and degradation of man, p a r t i c u l a r l y slavery, slave trade, torture, c r u e l , inhuman and degrading punishment and treatment, s h a l l be prohibited. ARTICLE 6 Every i n d i v i d u a l s h a l l have the r i g h t to l i b e r t y and to the security of h i s person. No one may be deprived of h i s freedom except f o r reasons and conditions previously l a i d down by law. In p a r t i c u l a r , no one may be a r b i t r a r i l y arrested or detained. ARTICLE 7 1. Every i n d i v i d u a l s h a l l have the r i g h t to have h i s cause heard. This comprises: (a) the r i g h t to appeal to competent national organs against acts of v i o l a t i n g h i s fundamental r i g h t s as recognized and guaranteed by conventions, laws, regulations, and customs i n force; (b) the r i g h t to be presumed innocent u n t i l proved g u i l t y by a competent court or t r i b u n a l ; (c) the r i g h t to defence, including the r i g h t to be defended by counsel of hi s choice; (d) the r i g h t to be t r i e d within a reasonable time by an impartial court or t r i b u n a l ; 2. No one may be condemned f o r an act or omission which did not constitute a l e g a l l y punishable offence at the time i t was committed. No penalty may be i n f l i c t e d f or an offence f o r which no provision was made at the time i t was committed. Punishment i s personal and can be imposed only on the offender. ARTICLE 8 Freedom of conscience, the profession and free p r a c t i c e of r e l i g i o n s h a l l be guaranteed. No one may, subject to law and order, be submitted to measures r e s t r i c t i n g the exercise of these freedoms. ARTICLE 9 1. Every i n d i v i d u a l s h a l l have the r i g h t s to receive information. 2. Every i n d i v i d u a l s h a l l have the r i g h t to express and disseminate h i s opinions within the law. 253 ARTICLE 10 1. Every i n d i v i d u a l s h a l l have the r i g h t to free association provided that he abides by the law. 2. Subject to the obliga t i o n of s o l i d a r i t y provided for i n A r t i c l e 29, no one may be compelled to j o i n an association. ARTICLE 11 Every i n d i v i d u a l s h a l l have the r i g h t to assemble f r e e l y with others. The exercise of t h i s r i g h t s h a l l be subject only to necessary r e s t r i c t i o n s provided f o r by the law, i n p a r t i c u l a r those enacted i n inte r e s t s of national security, the safety, health, ethics, and ri g h t s and freedoms of others. ARTICLE 12 1. Every i n d i v i d u a l s h a l l have the r i g h t to freedom of movement and residence within the borders of a state provided that he abides by the law. 2. Every i n d i v i d u a l s h a l l have the r i g h t to leave any country including h i s own, and to return to his country. The r i g h t may only be subject to r e s t r i c t i o n s , provided f o r by the law, for the protection of national security, law and order, public health or morality. 3. Every i n d i v i d u a l s h a l l have the r i g h t , when persecuted, to seek and obtain asylum i n other countries i n accordance with laws of those countries and int e r n a t i o n a l conventions. 4. A non-national l e g a l l y admitted i n a state party to the present Charter, may only be expelled from i t by v i r t u e of a decision taken i n accordance with the law. 5. The mass expulsion of non-nationals s h a l l be prohibited. Mass expulsion s h a l l be that aimed at national, r a c i a l , ethnic, or r e l i g i o u s groups. ARTICLE 13 1. Every c i t i z e n s h a l l have the r i g h t to p a r t i c i p a t e f r e e l y i n the government of h i s country eit h e r d i r e c t l y or through f r e e l y chosen representatives i n accordance with the provisions of the law. 2. Every c i t i z e n s h a l l have the r i g h t to equal access to the public service of h i s country. 3. Every i n d i v i d u a l s h a l l have the r i g h t of access to pub l i c property and services i n s t r i c t equality of a l l persons before the law. ARTICLE 14 The r i g h t to property s h a l l be guaranteed. I t may only be encroached upon i n the inte r e s t s of public need or i n the general i n t e r e s t s of the community and i n accordance with the provisions of appropriate laws. 254 ARTICLE 15 Every i n d i v i d u a l s h a l l have the r i g h t to work under equitable and s a t i s f a c t o r y conditions, and s h a l l receive equal pay f o r equal work. ARTICLE 16 1. Every i n d i v i d u a l s h a l l have the r i g h t to enjoy the best attainable state of physical and mental health. 2. States par t i e s to the present charter s h a l l take the necessary measures to protect the health of t h e i r people and to ensure that they receive medical attention when they are sick. ARTICLE 17 1. Every i n d i v i d u a l s h a l l have the ri g h t to education. 2. Every i n d i v i d u a l may f r e e l y take part i n the c u l t u r a l l i f e of h i s community. 3. The promotion and protection of morals and t r a d i t i o n a l values recognized by the community s h a l l be the duty of the state. ARTICLE 18 1. The family s h a l l be the natural unit and basis of society. I t s h a l l be protected by the state, which s h a l l take care of i t s physical and moral health. 2. The state s h a l l have the duty to a s s i s t the family, which i s the custodian of morals and t r a d i t i o n a l values recognized by the community. 3. The state s h a l l ensure the elimination of every discrimination against women and also ensure the protection of the right s of the woman and the c h i l d as sti p u l a t e d i n international declarations and conventions. 4. The aged and disabled s h a l l also have the ri g h t to spe c i a l measures of protection i n keeping with t h e i r physical and moral needs. ARTICLE 19 A l l peoples s h a l l be equal; they s h a l l enjoy the same respect and s h a l l have the same r i g h t s . Nothing s h a l l j u s t i f y the domination of a people by another. ARTICLE 20 1. A l l peoples s h a l l have the ri g h t to existence. They s h a l l have the un-questionable and inalienable r i g h t to self-determination. They s h a l l f r e e l y determine t h e i r p o l i t i c a l status and s h a l l pursue t h e i r economic and s o c i a l development according to the p o l i c y they have f r e e l y chosen. 2. Colonized or oppressed peoples s h a l l have the ri g h t to free themselves from the bonds of domination by reso r t i n g to any means recognized by the international community. 255 3. A l l peoples s h a l l have the r i g h t to the assistance of the States parties to the present Charter i n t h e i r l i b e r a t i o n struggle against foreign domination, be i t p o l i t i c a l , economic, or c u l t u r a l . ARTICLE 21 1. A l l peoples s h a l l f r e e l y dispose of t h e i r wealth and natural resources. This s h a l l be exercised i n the exclusive i n t e r e s t of the people. In no case s h a l l a people be deprived of i t . 2. In case of s p o l i a t i o n the dispossessed people s h a l l have the r i g h t to the lawful recovery of i t s property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources s h a l l be exercised without prejudice to the o b l i g a t i o n of promoting international economic cooperation based on mutual respect, equitable exchange and the p r i n c i p l e s of i n t e r n a t i o n a l law. 4. States pa r t i e s to the present Charter s h a l l i n d i v i d u a l l y and c o l l e c t i v e l y exercise the r i g h t to free disposal of t h e i r wealth and natural resources with a view to strengthening A f r i c a n unity and s o l i d a r i t y . 5. States pa r t i e s to the present Charter s h a l l undertake to eliminate a l l forms of foreign economic ex p l o i t a t i o n , p a r t i c u l a r l y that practiced by i n t e r n a t i o n a l monopolies, so as to enable t h e i r peoples to f u l l y benefit from the advantages derived from t h e i r national resources. ARTICLE 22 1. A l l peoples s h a l l have the r i g h t to economic, s o c i a l , and c u l t u r a l development, with due regard to t h e i r freedom and i d e n t i t y and i n the equal enjoyment of common heritage of man kind. 2. States s h a l l have the duty, i n d i v i d u a l l y or c o l l e c t i v e l y , to ensure the exercise of the r i g h t to development. ARTICLE 23 1. A l l peoples s h a l l have the r i g h t to national and int e r n a t i o n a l peace and security. The p r i n c i p l e s of s o l i d a r i t y and f r i e n d l y r e l a t i o n s i m p l i c i t l y affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of A f r i c a n Unity s h a l l govern r e l a t i o n s between States. 2. For purposes of strengthening peace, s o l i d a r i t y , and f r i e n d l y r e l a t i o n s , States pa r t i e s to the present Charter s h a l l ensure that: (a)any i n d i v i d u a l enjoying the r i g h t of asylum under A r t i c l e 12 of the present Charter s h a l l not engage i n subversive or t e r r o r i s t a c t i v i t i e s against his country of o r i g i n or any other State party to the present Charter; 256 (b)their t e r r i t o r i e s s h a l l not be used as bases for subversive or t e r r o r i s t a c t i v i t i e s against the people of any other State party to the present Charter. ARTICLE 24 A l l peoples s h a l l have the r i g h t to a general s a t i s f a c t o r y environment favorable to t h e i r development. ARTICLE 25 States p a r t i e s to the present Charter s h a l l have the duty to promote and ensure through teaching, education, and publication, the respect of the r i g h t s and freedoms contained i n the present Charter and to see to i t that these freedoms and r i g h t s as well as corresponding obligations and duties are understood. ARTICLE 26 States p a r t i e s to the present Charter s h a l l have the duty to guarantee the independence of courts and s h a l l allow the establishment and improvement of appropriate national i n s t i t u t i o n s entrusted with the promotion and protection of r i g h t s and freedoms guaranteed by the present Charter. CHAPTER I I . DUTIES ARTICLE 27 1. Every i n d i v i d u a l s h a l l have duties towards h i s family and society, the State and other l e g a l l y recognized communities, and the international community. 2. The r i g h t s and freedoms of each i n d i v i d u a l s h a l l be exercised with due regard to the r i g h t s of others, c o l l e c t i v e security, morality, and common i n t e r e s t . ARTICLE 28 Every i n d i v i d u a l s h a l l have the duty to respect and consider h i s fellow being without discrimination, and to maintain r e l a t i o n s aimed at promoting, safeguarding, and r e i n f o r c i n g mutual respect and tolerance. ARTICLE 29 The i n d i v i d u a l s h a l l 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 h i s parents at a l l times, to maintain them i n case of need; 2. To serve h i s national community by placing h i s physical and i n t e l l e c t u a l a b i l i t i e s at service; 3. Not to compromise the security of the state whose national or resident he i s ; 4. To preserve and strengthen s o c i a l and national s o l i d a r i t y , p a r t i c u l a r l y when the l a t t e r i s threatened; 257 5. To preserve and strengthen the national independence and t e r r i t o r i a l i n t e g r i t y of h i s country and to contribute to i t s defence i n accordance with the law; 6. To work to the best of h i s a b i l i t y and competence, and to pay taxes imposed by the law i n the in t e r e s t s of society; 7. To preserve and strengthen p o s i t i v e A f r i c a n c u l t u r a l values i n h i s r e l a t i o n with other members of society, i n the s p i r i t of tolerance, dialogue, and consultation, and i n general, to contribute to the promotion of moral well-being of society; 8. To contribute to the best of h i s a b i l i t i e s , at a l l times and at a l l l e v e l s , to the promotion and achievement of Af r i c a n unity. PART I I : MEASURES OF SAFEGUARD CHAPTER 1. ESTABLISHMENT AND ORGANIZATION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS ARTICLE 30 An A f r i c a n Commission on Human and Peoples' Rights, hereinafter c a l l e d the "Commission", s h a l l be established within the Organization of A f r i c a n Unity to promote human and peoples' r i g h t s and ensure t h e i r protection i n A f r i c a . ARTICLE 31 1. The Commission s h a l l consist of eleven members chosen from amongst A f r i c a n p e r s o n a l i t i e s of the highest reputation, known f o r t h e i r high morality, i n t e g r i t y , i m p a r t i a l i t y , and competence i n matters of human and peoples' r i g h t s , p a r t i c u l a r consideration being given to persons having l e g a l experience. 2. The members of the Commission s h a l l serve i n t h e i r personal capacity. ARTICLE 32 The Commission s h a l l not include more than one national of the same state. ARTICLE 33 The members of the Commission s h a l l be elected by secret b a l l o t by the Assembly of Heads of State and Government, from a l i s t of persons nominated by the states p a r t i e s 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 n a t i o n a l i t y of one of the States p a r t i e s to the present Charter. When two candidates are nominated by a state, one of them may not be a national of that state. 258 ARTICLE 35 1. The Secretary-General of the Organization of A f r i c a n Unity s h a l l i n v i t e States p a r t i e s to the present Charter at l e a s t four months before the elections to nominate candidates; 2. The Secretary-General of the Organization of African Unity s h a l l make an alphabetical l i s t of the persons thus nominated and communicate i t to the heads of State and Government at l e a s t one month before the elections. ARTICLE 36 The members of the Commission s h a l l be elected f o r a s i x - year period and s h a l l be e l i g i b l e for r e - e l e c t i o n . However, the term of o f f i c e of four of the members elected at the f i r s t e l e c t i o n s h a l l terminate a f t e r two years and the term of o f f i c e of the three others, at the end of four years. ARTICLE 37 Immediately a f t e r the f i r s t e l e c t i o n , the Chairman of the Assembly of Heads of State and Government of the Organization of A f r i c a n Unity s h a l l draw l o t s to decide the names of those members referred to i n A r t i c l e 36. ARTICLE 38 A f t e r t h e i r e l e c t i o n , the members of the Commission s h a l l make a solemn declaration to discharge t h e i r duties i m p a r t i a l l y and f a i t h f u l l y . ARTICLE 39 1. In case of death or resignation of a member of the Commission, the Chairman of the Commission s h a l l immediately inform the Secretary-General of the Organization of A f r i c a n Unity, who s h a l l declare the seat vacant from the date of death or from the date on which the resignation takes e f f e c t . 2. I f , i n the unanimous opinion of other members of the Commission, a member has stopped discharging h i s duties fo r any reason other than a temporary absence, the Chairman of the Commission s h a l l inform the Secretary- General of the Organization of A f r i c a n Unity, who s h a l l then declare the seat vacant. 3. In each of the cases anticipated above, the Assembly of Heads of State and Government s h a l l replace the member whose seat became vacant for the remaining period of h i s term unless the period i s less than s i x months. ARTICLE 40 Every member of the Commission s h a l l be i n o f f i c e u n t i l the date h i s successor assumes o f f i c e . 259 ARTICLE 41 The Secretary-General of the Organization of A f r i c a n Unity s h a l l appoint the Secretary of the Commission. He s h a l l also provide the s t a f f and services necessary for the e f f e c t i v e discharge of the duties of the Commission. The Organization of A f r i c a n Unity s h a l l bear the costs of the s t a f f and services. ARTICLE 42 1. The Commission s h a l l e l e c t i t s Chairman and Vice- chairman for a two-year period. They s h a l l be e l i g i b l e f o r r e - e l e c t i o n . 2. The Commission s h a l l lay down i t s rules of procedure. 3. Seven members s h a l l form a quorum. 4. In case of equality of votes, the Chairman s h a l l have the casting vote. 5. The Secretary-General may attend the meetings of the Commission. He s h a l l neither p a r t i c i p a t e i n deliberations nor s h a l l he be e n t i t l e d to vote. The Chairman of the Commission may, however, i n v i t e him to speak. ARTICLE 43 In discharge of t h e i r duties, the members of the Commission s h a l l enjoy diplomatic p r i v i l e g e s and immunities provided for i n the General Convention on the P r i v i l e g e s and Immunities of the Organization of Af r i c a n Unity. ARTICLE 44 Provision s h a l l be made for the emoluments and allowances of the Commission i n the Regular Budget of the Organization of Af r i c a n Unity. CHAPTER I I . MANDATE OF THE COMMISSION ARTICLE 45 The functions of the Commission s h a l l be: 1. To promote Human and Peoples* Rights and i n p a r t i c u l a r : (a) to c o l l e c t documents, undertake studies and research on A f r i c a n problems i n the f i e l d of human and peoples' r i g h t s , organize seminars, symposia, and conferences, disseminate information, encourage national and l o c a l i n s t i t u t i o n s concerned with human and peoples' r i g h t s , and should the case a r i s e , give i t s views or make recommendations to the governments. (b) to formulate and lay down p r i n c i p l e s and rules aimed at solving l e g a l problems r e l a t i n g to human and peoples' r i g h t s and fundamental freedoms upon which the A f r i c a n governments may base t h e i r l e g i s l a t i o n s . (c) to co-operate with other A f r i c a n and international i n s t i t u t i o n s concerned with the promotion and protection of human and peoples' r i g h t s . 260 2. Ensure the protection of human and peoples 1 r i g h t s under the conditions l a i d down i n the present Charter. 3. Interpret a l l the provisions of the present Charter at the request of a State party, an i n s t i t u t i o n of the OAU, or an Af r i c a n Organization recognized by the OAU. 4. Perform any other tasks which may be entrusted to i t by the Assembly of Heads of State and Government. CHAPTER I I I . PROCEDURE OF THE COMMISSION ARTICLE 46 The Commission may resort to any appropriate method of inv e s t i g a t i o n ; i t may hear from the Secretary-General of the Organization of Afr i c a n Unity or any other person capable of enligh t i n g i t . COMMUNICATIONS FROM STATES ARTICLE 47 I f a State party to the present Charter has good reasons to believe that another State party to t h i s Charter has v i o l a t e d the provisions of the Charter, i t may draw, by written communication, the attention of that State to the matter. This communication s h a l l also be addressed to the Secretary-General of the OAU and the Chairman of the Commission. Within three months of the receipt of the communication, the state to which the communication i s addressed s h a l l give the inqu i r i n g state written explanation or statement elu c i d a t i n g the matter. This should include as much as possible relevant information r e l a t i n g to the laws and rules of procedure applied and applicable, and the redress already given or course of action a v a i l a b l e . ARTICLE 48 I f within three months from the date on which the o r i g i n a l communication i s received by the State to which i t i s addressed the issue i s not s e t t l e d to the s a t i s f a c t i o n of the two States involved through b i l a t e r a l negotiation or by any other peaceful procedure, eit h e r State s h a l l have the r i g h t to submit the matter to the Commission through the Chairman, and s h a l l n o t i f y the other States involved. ARTICLE 49 Notwithstanding the provisions of A r t i c l e 47, i f a State party to the present Charter considers that another State has v i o l a t e d the provisions of the Charter, i t may r e f e r the matter d i r e c t l y to the Commission by addressing a communication to the Chairman, to the Secretary-General of the Organization of A f r i c a n Unity, and the State concerned. 261 ARTICLE 50 The Commission can only deal with a matter submitted to i t a f t e r making sure that a l l l o c a l remedies, i f they ex i s t , have been exhausted, unless i t i s 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 i t with a l l relevant information. 2. When the Commission i s considering the matter, States concerned may be represented before i t and submit written or o r a l representation. ARTICLE 52 Aft e r having obtained from the States concerned and from other sources a l l the information i t deems necessary and af t e r having t r i e d a l l appropriate means to reach an amicable sol u t i o n based on the respect of Human and Peoples' Rights, the Commission s h a l l prepare, within a reasonable period of time from the n o t i f i c a t i o n referred to i n A r t i c l e 48, a report s t a t i n g the facts of i t s findings. This report s h a l l be sent to the States concerned and communicated to the Assembly of Heads of State and Government. ARTICLE 53 While transmitting i t s report, the Commission may make to the Assembly of Heads of State and Government such recommendations as i t deems useful. ARTICLE 54 The Commission s h a l l submit to each ordinary session of the Assembly of Heads of State and Government a report on i t s a c t i v i t i e s . OTHER COMMUNICATIONS ARTICLE 55 1. Before each session, the Secretary of the Commission s h a l l make a l i s t of the communications other than those of States p a r t i e s to the present Charter and transmit them to the members of the Commission, who s h a l l indicate which communications s h a l l be considered by the Commission. 2. A communication s h a l l be considered by the Commission i f a simple majority of i t s members so decide. ARTICLE 56 Communications r e l a t i n g to human and peoples' r i g h t s referr e d to i n A r t i c l e 55 received by the Commission s h a l l be considered i f they: 1. Indicate t h e i r authors even i f the l a t t e r request anonymity, 262 2. Are compatible with the Charter of the Organization of A f r i c a n Unity or the present Charter, 3. Are not written i n disparaging or i n s u l t i n g language directed against the State concerned and i t s i n s t i t u t i o n s or to the Organization of A f r i c a n Unity, 4. Are not based exclusively on news disseminated through the mass media, 5. Are sent a f t e r exhausting l o c a l remedies, i f any, unless i t i s obvious that t h i s procedure i s unduly prolonged, 6. Are submitted within a reasonable time from the time when l o c a l remedies are exhausted or from the date the Commission i s seized of the matter, and 7. Do not deal with cases which have been s e t t l e d by these States involved i n accordance with the p r i n c i p l e s of the Charter of the United Nations, or the Charter of the Organization of A f r i c a n Unity, or the provisions of the present Charter. ARTICLE 57 P r i o r to any substantive consideration, a l l communications s h a l l be brought to the knowledge of the State concerned by the Chairman of the Commission. ARTICLE 58 1. When i t appears a f t e r d e l i b e r a t i o n of the Commission that one or more communications apparently r e l a t e to s p e c i a l cases which reveal the existence of serious or massive v i o l a t i o n s of human and peoples 1 r i g h t s , the Commission s h a l l draw the attention of the Assembly of Heads of State and Government to these s p e c i a l cases. 2. The Assembly of Heads of State and Government may then request the Commission to undertake an in-depth study of these cases and make a factual report, accompanied by i t s findings and recommendations. 3. A case of ermegency duly noticed by the Commission s h a l l be submitted by the l a t t e r to the Chairman of the Assembly of Heads of State and Government, who may request an in-depth study. ARTICLE 59 1. A l l measures taken within the provisions of the present Chapter s h a l l remain c o n f i d e n t i a l u n t i l such time as the Assembly of Heads of State and Government s h a l l otherwise decide. 2. However, the report s h a l l 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 a c t i v i t i e s of the Commission s h a l l be published by i t s Chairman a f t e r i t has been considered by the Assembly of Heads of State and Government. 263 CHAPTER IV. APPLICABLE PRINCIPLES ARTICLE 60 The Commission s h a l l draw i n s p i r a t i o n from international law on human and peoples' r i g h t s , p a r t i c u l a r l y from the provisions of various A f r i c a n instruments on human and peoples' r i g h t s , the Charter of the United Nations, the Charter of the Organization of Af r i c a n Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by Af r i c a n countries i n the f i e l d of human and peoples' r i g h t s , as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members. ARTICLE 61 The Commission s h a l l also take into consideration, as subsidiary measures to determine the p r i n c i p l e s of law, other general or spe c i a l international conventions, laying down rules expressly recognized by member states of the Organization of Af r i c a n Unity, A f r i c a n practices consistent with in t e r n a t i o n a l norms on human and peoples' r i g h t s , customs generally accepted as law, general p r i n c i p l e s of law recognized by Af r i c a n States, as well as l e g a l precedents and doctrine. ARTICLE 62 Each state party s h a l l undertake to submit every two years, from the date the present Charter comes into force, a report on the l e g i s l a t i v e or other measures taken with a view to giving e f f e c t to the ri g h t s and freedoms recognized and guaranteed by the present Charter. ARTICLE 63 1. The present Charter s h a l l be open to signature, r a t i f i c a t i o n , or adherence of the member states of the Organization of Afr i c a n Unity. 2. The instruments of r a t i f i c a t i o n or adherence to the present Charter s h a l l be deposited with the Secretary- General of the Organization of Af r i c a n Unity. 3. The present Charter s h a l l come into force three months a f t e r the reception by the Secretary-General of the instruments of r a t i f i c a t i o n or adherence of a simple majority of the member states of the Organization of Af r i c a n Unity. PART I I I . GENERAL PROVISIONS ARTICLE 64 1. A f t e r the coming into force of the present Charter, members of the Commission s h a l l be elected i n accordance with the relevant A r t i c l e s of the present Charter. 264 2. The Secretary-General of the Organization of A f r i c a n Unity s h a l l convene the f i r s t meeting of the Commission at the Headquarters of the Organization within three months of the c o n s t i t u t i o n of the Commission. Thereafter, the Commission s h a l l be convened by i t s Chairman whenever necessary but at l e a s t once a year. ARTICLE 65 For each of the States that w i l l r a t i f y or adhere to the present Charter a f t e r i t s coming into force, the Charter s h a l l take e f f e c t three months a f t e r the date of the deposit by the State of i t s instrument of r a t i f i c a t i o n or adherence. ARTICLE 66 Special protocol or agreement may, i f necessary, supplement the provisions of the present Charter. ARTICLE 67 The Secretary-General of the Organization of A f r i c a n Unity s h a l l inform member states of the Organization of the deposit of each instrument of r a t i f i c a t i o n or adherence. ARTICLE 68 The present Charter may be amended i f a State party makes a written request to that e f f e c t to the Secretary-General of the Organization of A f r i c a n Unity. The Assembly of Heads of State and Government may only consider the d r a f t amendment a f t e r a l l the States pa r t i e s have been duly informed of i t and the Commission has given i t s opinion on i t at the request of the sponsoring State. The amendment s h a l l be approved by a simple majority of the States p a r t i e s . I t s h a l l come into force for each State which has accepted i t i n accordance with i t s c o n s t i t u t i o n a l procedure three months af t e r the Secretary-General has received notice of the acceptance.

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