Archbishop Emeritus Desmond Tutu has strongly criticised the Anglican Church for its stance on homosexuals. In an interview with BBC Radio 4, the Archbishop accused the Church of being “obsessed” with the issue of gay priests, while ignoring pressing global needs such as poverty and HIV. "Our world is facing problems - poverty, HIV and Aids - a devastating pandemic, and conflict," said Archbishop Tutu, 76.

Uganda's Lord's Resistance Army says it will push ahead with talks to end two decades of conflict with the government despite expulsion of some fighters from the group. Godfrey Ayoo, an LRA spokesman, said several fighters had been dismissed after being found guilty of working with unnamed "external hostile forces" to destabilise the movement.

Rift Valley Fever has killed 92 people in Sudan since reports of an outbreak surfaced a week ago and it is still spreading, the World Health Organisation (WHO) says. The UN body has started holding daily meetings to monitor the spread of the disease, which has no effective human vaccine and can kill as many as half of those who contract it.

Syngenta and the Royal Society of Chemistry have announced the creation of the Pan Africa Chemistry Network to help promote the economic and social development of the continent. The Network, which will eventually span the whole continent, is being established initially in Kenya. Its purpose is to connect African chemists more effectively and to enable them to achieve greater levels of innovation and scientific development.

Researchers have developed a rapid, cheap and reliable field test to detect two strains of the Ebola virus. The study, carried out by Canadian, Congolese, Dutch, Gabonese and German scientists, was published on 15 November in the Journal of Infectious Diseases. In 30 minutes, the test detects viral proteins of Zaire and Sudan Ebola virus from samples of patients' urine and serum using an 'immunofiltration assay'. The samples are chemically deactivated to prevent infection to workers.

The chief executives of the Financial Gazette and Zimind Publishers Jacob Chisese and Raphael Khumalo respectively, were arrested for allegedly increasing cover prices without the approval of the National Incomes and Pricing Commission. They were questioned over the price increases at Harare Central Police Station where they explained that the high costs of newsprint, film, printing plates and fuel necessitated the increases.

Senegalese police fired tear gas to contain thousands of protesting street sellers barred from selling in the streets of the capital Dakar on Wednesday. The irate protesters invoked anti-government sentiments, threw stones, burnt vehicles and smashed car windows. The strikers polluted the air with smoke of dark clouds.

A planned investigation into alleged civilian killings by Guinean security forces is faltering as lawyers have suspended their participation and rights groups are looking elsewhere for a means to seek justice for victims. Citizens and international observers are worried that if people's grievances are not addressed then the upcoming anniversary of January's deadly military crackdown could trigger more protests and violence.

Despite laws forbidding the use of child labour - often viewed as the norm and an important source of income - enforcement has been anything but strict in Malawi, until recently. Since March 2007 up to 480 children have been 'rescued' from tobacco estates in the district of Mangochi, once an important centre of slave trading on the southern banks of Lake Malawi.

Zimbabwe's seven-year economic crisis has forced private companies to make some difficult decisions about workplace programmes for HIV-positive staff. How do you provide life-prolonging antiretroviral (ARV) medication, care and support, when you're struggling to keep your business afloat? "We are meeting real challenges in carrying out HIV/AIDS programmes at workplaces, and this inevitably comes from the macroeconomic problems that the country is going though," Nyika Mahachi, the HIV/AIDS programme advisor at the Zimbabwe AIDS Prevention Support Organisation (ZAPSO), told IRIN/PlusNews.

Mozambique will need to employ more than 100 000 teachers by 2015 in order to meet United Nations' millennium development goals for education, national media reported on Thursday. Radio Mozambique said in a report - quoting a study done by Action Aid International in Maputo - that the country needed to employ 109 000 teachers by 2015 in its primary schools to attain a ratio of 40 learners per teacher.

Africa is the "forgotten continent" in the fight against climate change and needs help to cope with projected water shortages and declining crop yields, the United Nations's top climate change official said on Sunday. Yvo de Boer said that damage projected for Africa by the UN climate panel would justify tougher world action to slow global warming even without considering likely disruptions to other parts of the planet.

United Nations peacekeepers will help the Democratic Republic of Congo's (DRC) army disarm eastern dissident groups by force in violence-plagued North Kivu province, UN and Congolese commanders said. Army soldiers and fighters loyal to renegade Tutsi general Laurent Nkunda clashed again on Thursday a few kilometres from Rutshuru, where the dissidents attacked an army base a day earlier and forced thousands of civilians to flee.

Korir Sing'Oei Abraham argues that Africa’s opposition to the adoption of rights for indigenous peoples — who are often nomads or hunter gatherers — has largely been informed by misconceptions and myths. He points out that the right to self-determination sought by these marginalised groups has been recognised by the AU as being consistent with the principles of a country’s territorial integrity.

It is late July 2006. A study and information visit by the Working Group of Experts on Indigenous Populations – part of the African Commission on Human and People’s Rights (the commission, hereafter) – is under way in Uganda. Uganda is one of the few African countries whose constitution boasts an extensive human rights regime of civil and political as well as economic, social and cultural rights. The visit, designed to disseminate the findings of a report by the commission in 2004 on the status of indigenous peoples in Africa, and thereby to engage in constructive dialogue with government officials and civil society in Kampala, is confronted with an insurmountable obstacle. A leading member of the Ugandan delegation overseeing the visit – Rosette Nyirinkindi, the head of the African Union division in Uganda’s Ministry of Foreign Affairs – is of the view that the visit’s objectives are contrary to the spirit of the country’s constitution, which seeks to foster peaceful coexistence among Uganda’s communities. According to Nyirinkindi, a seasoned diplomat who had previously served in her country’s mission in New York, the Ugandan constitution identifies all 56 ethnic communities residing in the country as indigenous. Therefore to set apart and focus on some of these communities to the exclusion of others, as the commission report had done, was a flagrant breach of Uganda’s constitutional and policy commitment to equality and a short cut to ethnic strife.

This is the classic scenario that confronts advocacy of indigenous rights in Africa. To raise indigenous issues in the continent demands that one respond to the question of to whom precisely indigenous rights may be ascribed. This then invites myriad other inquiries, including the usefulness of this distinction in promoting human rights and the link with the question of national integrity. This article will address some of these issues, and I hope give voice to the millions of pastoralists and forest communities who self-identify as indigenous people in Africa.

The context

It is difficult to analyse the question of indigenous rights in Africa without engaging with the question of statehood, and it is impossible to address the latter without considering its dubious origins. The colonial enterprise in Africa, marked by domination and annexation of territory, was masterminded by Leopold, the Belgian monarch, and Bismarck, the German chancellor. It reached its peak in the Berlin conference of 1884, which was convened ostensibly to regulate trading relations between European powers but ended by legislating for the partition of Africa. The result was the dismemberment of the continent into 53 multi-ethnic and odd states with no basis in scientific or social rationality save that of resolving territorial disputes between the colonisers. This certainly lends credence to the fledgling movement for the unification of Africa.

Colonialism was based on the ethnocentric belief that the morals and values of the European coloniser were superior to those of the colonised African. It involved egregious racial discrimination linked to pseudo-scientific theories that were buttressed by the Christian religious zealotry of the 17th and 18th centuries. This form of social Darwinism, that placed white people at the top of the animal kingdom ‘naturally’ in charge of dominating non-European indigenous populations, found a strong philosophical justification in the works of the German philosopher Hegel, amongst others. He claimed that sub-Saharan Africa was an ancient utopia which had remained shut up within itself: ‘the land of childhood, which lying beyond the day of self-conscious history, is enveloped in the dark mantle of night’. Its isolated character, argued Hegel, originated not merely in its tropical nature but essentially in its geographical condition. Hegel claimed that upland negroes continued to exist in a state of consciousness which he termed ‘the infancy of humanity’, hence the juridical concept of discovery that informed colonial property relations with conquered people’s territories.

The post-colonial state in Africa, emerging from this colonial artifice, reluctant to remodel itself, and having solidified the colonial boundaries through the ancient international legal principle of uti possidetis,[1] is fraught with weaknesses which have manifested themselves in serious ethnic conflicts, poor governance, wanton inequalities and chronic poverty. Indigenous rights in Africa must be assessed and asserted from this context.

Indigenous rights and people in Africa

While it is undeniable that the West ravaged and looted the entire continent through slavery, colonialism and neo-colonialism, the disproportionate disadvantage dispensed by these forces upon some communities in Africa is vehemently denied. Why is it so hard to appreciate that the Maasai, who lost over one million acres of grazing land in Kenya’s vast Rift Valley to the British, today constitute one of the poorest communities in the country? Does it take rocket science to appreciate that the expulsion of the Batwa from the Bwindi and Mgahinga National Parks in Uganda to pave the way for the protection of the mountain gorilla, a key tourist attraction, has led to the near-decimation of this hunter-gatherer community? Does one need to ask what contributes to the penury of the Herero in Namibia, whom the Germans butchered en masse and used as guinea pigs at the turn of the 20th century?

The worst part of the nightmare is that rather than pave the way for the reconstruction of Africa’s political and economic order, the departure of the colonialists ushered in a new set of black dominators who, taking advantage of the instruments and institutions of the colonial state, proceeded to plunder and loot the continent of its resources and completely closed the door to restitutive justice.

Contemporary public policy makers in Africa ignore the shame of colonialism and make vigorous attempts to construct a reality based on the ‘national interest’ rather than communitarian pursuits, which they consider provincial and therefore sectarian. It is this subsuming of identities, and its conflation with equality for all, that is largely responsible for the denial of indigenous rights.

Indigenous rights are considered a domain of rights which seeks to dislocate national priorities for communitarian purposes and does not fit the logic of state-centred development. That some communities have refused to align their interests with national development priorities is seen as failing to take on the responsibility and demands of progress. This view is part of a classical contention that disputes the relevance of recognising diversity in divided societies, a move that hegemonises the state. A critical analysis of indigenous rights and their beneficiaries would demonstrate the fallacy of this objection.

First, indigenous rights are grounded in the general notion of the universality of rights within a multicultural context as endorsed by the Vienna Declaration of 1993. That declaration unequivocally reaffirmed the inherent dignity and unique contribution of indigenous people to the development and plurality of society, and called for their full inclusion in the life of the state. It is therefore anathema to question the place of indigenous rights in the national discourse, for the two can comfortably coexist and support each other; the substantive inclusion of marginalised groups in national processes gives the latter broader legitimacy. By reinforcing the state where it would otherwise be absent, the promotion of indigenous rights, such as self-determined local governance and development, can lead to peace.

Second, indigenous rights must be seen as enabling substantive equality, thus spreading light to a group of people previously not reached by the transformative premise of the Universal Declaration of Human Rights. While non-discrimination is held up as a jus cogens,[3] the fact that it is still difficult to achieve equality for all means that marginalised groups, be they women, children, minorities or indigenous groups, have to pursue strategies that go beyond formal equality to attain the promise of dignity for all people. Some have questioned how effective non-discrimination provisions are as a bulwark against the human rights deficiencies experienced by indigenous groups. Professor Kingsbury of New York University has argued, for instance, that the existing mechanisms have completely failed to deal adequately with the concerns of indigenous groups, and have merely served a symbolic and didactic purpose, hence the demand for more specific mechanisms.

Third, the collective conception of rights has often seemed to be a child of a lesser god within a human rights system that has historically pitted civil and political rights against economic, social and cultural rights. Collective rights, which are central to the struggle of indigenous people the world over, have suffered from being poorly articulated, which has prevented them from being regarded as the norm. Thanks to Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and the progressive jurisprudence that has flowed from the Human Rights Committee on this article, a lot of ground has been laid for the protection of group rights to land and development, among other things. The rich array of solidarity rights provided for under the African Charter on Human and Peoples’ Rights (the charter, hereafter), which lend themselves well to the cause of indigenous peoples, is thanks to Keba M’Baye, the Senegalese jurist. His appreciation of the dynamics of African society inspired the document. In his 1972 monograph on the rights to development – Le Droit du Developpement comme un Droit de l’Homme – borrowing significantly from Karel Vasak, UNESCO’s director, M’Baye articulates solidarity rights to include the right to development, the right to peace, the right to an environment, the right to ownership of the common heritage of humankind, and the right to communication.

Thus, the notion of indigenous people and rights in Africa must be understood not merely in terms of a dictionary definition that emphasises people’s origins. The modern understanding of the term ‘indigenous peoples’ focuses on the lived experience of systemic marginalisation, discrimination, cultural difference and self-identification, in line with the emerging practice of the commission. The International Work Group for Indigenous Affairs (IWGIA) and the Working Group on Indigenous Issues of the commission have argued that:…the issue of indigenous peoples revolves around the assertion that certain marginalized groups are discriminated against in particular ways because of their particular culture, mode of production and subordinate position within the state and that state legal and policy frameworks have been impotent at addressing these challenges. This is a form of discrimination which other groups within the state do not suffer from. It is legitimate for these marginalized groups to call for the protection of their rights in order to alleviate this particular form of discrimination.[4]

The notion of indigenous people in Africa also overlaps with the concept of minority rights, another problematic but less controversial term in the continent.

Africa’s opposition to the adoption of standard-setting mechanisms and norms for indigenous peoples has largely been informed by misconceptions and myths. In 2006 an assault on the Draft Declaration on the Rights of Indigenous Peoples, led by Namibia and Botswana within the African group in the UN, caused the General Assembly to postpone its decision on the declaration, thereby holding in abeyance substantive recognition of indigenous rights under international law. When the African Union’s assembly of heads of state and government met in Addis Ababa a year later, they justified the position of the African group on the grounds that indigenous rights as elaborated in the declaration would affect territorial integrity. The question that baffles many is whether the Batwa in Uganda, the Endorois in Kenya or the Bushmen in Botswana have designs to create their own separate states. Is it not obvious that the right to self-determination sought by these groups is one that can empower them and lead to their recognition and enhanced participation in public affairs? The Katanga v Zaire communication of 1976, which established that a variant of self-determination that ensures the inclusion of marginalised groups within a state is consistent with the principle of territorial integrity, was reiterated nearly 20 years later in the Ogoni v Nigeria decision by the African Commission on Human and Peoples’ Rights.

The term ‘indigenous people’ should therefore be used in a practical way, to draw attention to and alleviate the particular form of discrimination from which communities suffer. In the African context these communities are almost always nomadic or hunter gatherers. By identifying with the term, they feel that the particularities of their suffering can be better articulated and can lend themselves to the protection of international human rights law and moral standards. The adoption of a flexible bundle of rights attributable to indigenous groups, rather than a constant struggle to achieve unanimous agreement on terminology (which has been elusive over the last two decades of discussion within the UN on indigenous rights) seems to me to offer a real possibility for appreciating indigenous peoples’ rights in Africa.

A cry from the dark: living on the fringes

Groups that self-identify as indigenous live a peripheral existence. Most governments in Africa do not have disaggregated data or indicators to monitor the social, economic and political status of indigenous people. How then can they track progress towards achieving the Millennium Development Goals if the poorest of the poor are not even properly recognised? A major concern is that many states will focus on the bottom line of reaching the MDGs, rather than the matter of who reaches them or how. This risk was noted in the Human Development Report of 2003.[5]

Take the Twa in Burundi, Rwanda, DRC and Uganda, for instance. Their lifestyle and the rate of deforestation has kept them moving for decades and left them vulnerable – falling through the cracks of a modern social and legal system which would normally secure tenure on both their lands and livelihood assets. Growing pressure to preserve the few remaining rainforests in the most densely populated countries of the Great Lakes region means that they find themselves excluded from their traditional habitats. The Rwandan state has for decades been tightening its control over forest areas, driven by the need for more protective conservation policies, the growth of the tourism industry and security concerns along its borders with DRC, Burundi and Uganda. The Batwa have been the most affected by these measures, which have uprooted them from their traditional lifestyle and means of earning a living. They have been unable to make a successful transition to a sedentary life and a market economy.

Most indigenous communities, including the Twa, were never compensated when expelled from the ‘protected areas’ or ‘state reserves’ they used to live in, due to their traditional marginalisation and to flawed legal and policy frameworks. As a result, their living conditions have degenerated further. Today, most Batwa lead a shockingly impoverished existence. A recent report by a UK charity called the Forest Peoples Programme predicts that the Twa are in danger of extinction unless massive and concerted action is taken to reverse their decline.

Such is the state of many other groups of indigenous people, both pastoralists and hunter gatherers, from the Barabaig in Tanzania to the Tuareg in Mali.

The road less traveled

Indigenous rights, shunned by politicians across the continent, have found solace in an unlikely quarter: the judiciary. Reputed to be incorrigibly corrupt and inefficient, judiciaries across the continent have yet to be acknowledged as bastions of justice for the weak. It is here that the struggle for recognition and respect for indigenous rights has been most vociferously waged. From Botswana to Kenya, South Africa to Uganda, courts have become the theatre for dramatising the plight of indigenous people and the sheer scale of their destitution. In Kenya, a toothless goat was produced to persuade a court of allegations of environmental genocide perpetrated against the indigenous Il Chamus community. In Botswana, hundreds of members of the Basarwa community, clad in their colourful traditional attire, endured a 200-day hearing to demonstrate that they were indeed a recognisable group, contrary to the state’s assertion. Judicial proceedings have been used with mixed results to seek land restitution for an indigenous group in South Africa, halt state displacement of the Ogiek from the Tinet forest in the Rift Valley of Kenya, procure provision of social services for the Benet in Uganda, stop a multinational mining company from procuring a land concession in the Magadi area of Kenya for soda ash production, and secure language rights in Namibia.

Disappointingly, just as in the days of Brown v Board of Education at the height of the civil rights movement in the United States, when the Supreme Court issued judgments in favour of desegregation but racist and belligerent states refused to implement them, African governments have been reluctant to embrace with open arms the decisions of their own judiciaries. The government of Botswana, for instance, side-stepped the decision of its constitutional court and refused to allow the Basarwa to return to their hunting livelihood in the Central Kalahari Game Reserve. A year after the Kenyan constitutional court held that a constituency should be created for the Il Chamus in Baringo to ensure their participation in policy making, no action has been taken. A similar state of affairs prevails in Uganda, where two years after consent judgment was entered allowing the Benet rights to graze and farm the land they occupy, there has been no action by the administration to back up the court’s decision. In a continent that professes respect for the rule of law as a central tenet of its constitutional order, the failure to implement judicial decisions is a mocking indictment of Africa’s commitments to good governance and democratic ideals.

Undeterred, indigenous groups have seized on regional mechanisms to develop standard-setting precedents on indigenous rights, but their attempts have yet to bear fruit. In 2006 the Bakweri lands claim against the Cameroonian government was defeated when the commission declared the communication inadmissible. Indigenous people in Africa wait with bated breath for the commission’s decision with respect to the Endorois communication against the Kenyan government, which seeks the restitution of ancestral territory.

The media houses, belatedly, have taken their cue from these dramatic scenes and begun to highlight the folly of non-recognition of indigenous communities’ plight in Africa, enabling the African public and policy makers to consider their predicament. Mainstream civil society organisations such as ActionAid and CARE in Uganda have begun to demand state attention to indigenous rights as a means of attaining the Millennium Development Goals. The rise of organisations such as the Centre for Minority Rights Development in Kenya and the Indigenous Peoples of Africa Coordinating Committee (IPACC) in South Africa, dedicated solely to the struggle for indigenous rights in Africa, is also helping give visibility to these issues.

Good news, difficult to come by, is slowly emerging. Countries such as South Africa and Cameroon have taken the bold step of commencing processes to ratify ILO Convention 169, which extends a substantive regime of rights for indigenous people, including the right to free, prior and informed consent in relation to development processes on indigenous lands.

Not yet out of the woods…

Indigenous people’s struggles for recognition of their rights must be considered within the context of building multicultural societies in Africa, where diverse identities contribute towards the well-being of the whole. Without this paradigm shift, indigenous rights will continue to be perceived negatively, as instruments of parochialism and division. Yet to achieve this shift, Africa must rise up to the challenge of its own identity. Until then, it is ‘not yet uhuru’ for indigenous groups in Africa.

* Mr. Sing’Oei is the executive Director of the Centre for Minority Rights Development (Cemiride)

* Please send comments to or comment online at www.pambazuka.org

For notes, see link below.

Roselynn Musa writes that despite the promises and the mobilisations by women from all over the continent, African women still lack adequate protection of their human rights. She argues that the root of the problem is the persistent lack of political will by governments to implement commitments to gender equality.

The 21st century marks a critical juncture in the promotion and protection of a human rights culture in Africa. As the world becomes more interdependent, regional systems of cooperation are playing an increasingly important role in the promotion and establishment of a positive international human rights order.

African states have committed themselves to various international and regional policy documents. The most significant international gender mechanisms are the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Beijing Platform for Action (BPfA) of 1995, the African Charter on Human and Peoples’ Rights (the charter, hereafter), the International Conference on Population and Development’s Programme of Action (ICPD PoA), the African Union’s Solemn Declaration on Gender Equality in Africa, the New Partnership for Africa’s Development (NEPAD), the Millennium Development Goals (MDGs), and the constitutive act of the African Union. In signing up to the MDGs, 191 governments resolved to promote gender equality as a goal in its own right, but also the empowerment of women in order to combat poverty, hunger and disease and to stimulate sustainable development. NEPAD also stresses equality and enhances women’s rights through its African Peer Review Mechanism (APRM). All these conventions and policy frameworks commit governments to address gender equality, equity and women’s empowerment. They are subject to periodic reviews to measure the extent to which they have been delivered.

Over the past year these reviews have generally shown that Africa has made some progress at all levels. Most countries have developed national gender machineries and policies, but the majority of their strategies have not been implemented. Despite all these promises and first-class commitments, African women are no better off than when they started. The promises have moved a shoe size further on, if at all. The stagnation in some respects and deterioration in others are worrying, particularly given the level of mobilisation of women and advocacy by women’s rights activists from all over the continent. At the root of the problem lies the persistent lack of political will on the part of African governments to implement commitments to gender equality.

This paper explores the relationship between the international and regional policy framework on women’s human rights in Africa and its actual implementation. It discusses the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (from here onwards referred to as the protocol), compares it with other instruments and highlights what makes it unique. It concludes with the challenges encountered in promoting women’s rights and recommends accelerated implementation of gender policy commitments in Africa.
The Protocol on the Rights of Women in Africa

The protocol seeks to address the shortcomings of the international instruments that preceded it in addressing African women’s rights. It has proven to be a much-needed improvement on the way in which the AChHPR addressed the position of women in Africa. It applies CEDAW and BPfA in an African context.

The protocol has three sections. The first sets out its rationale and refers to both regional and international commitments on women’s rights. The second outlines the rights to be upheld by the protocol, and the third covers its implementation and addresses the procedures for adopting, monitoring and amending it.

The protocol is the first instrument to be developed by Africans for women in Africa. It builds on and strengthens other regionally negotiated issues that have been detrimental to women’s human rights. It challenges cultural behaviour and traditions that often violate the fundamental rights of women in Africa. The inclusion of articles concerning widows and inheritance rights is regarded as a breakthrough, for these are issues particular to African women which are normally swept under the carpet. And it gives women a line of defence on which to base their appeals in cases where they have been unsuccessful in challenging national discriminatory laws or practices.

The entry into force of the protocol reflects a growing awareness that women are equal members of society, and that they are participants and not simply beneficiaries in the development process. Prosperity on the African continent requires the promotion and protection of the rights of all African peoples, as well as adherence to the principles of gender equality and non-discrimination.

From the above it can be seen that the African Union has plans and programmes to ensure that its member states are part of the global effort to advance the principle of gender equality in Africa.

Enforcement mechanisms

At the national level, the procedure for domestication of CEDAW and the protocol is a major challenge. While several countries have acceded to CEDAW, many have not taken the extra step to domesticate it and make it part of their national laws. What this means in effect is that its provisions cannot be directly applied in national courts. States parties do not always have the political will to implement commitments made at the international level.

The challenges faced in implementing CEDAW are a good indication of those the protocol will face, from which important lessons can be drawn. The mandate of the CEDAW Committee is to monitor its implementation by the states parties which have ratified it, and this is done through periodic reports. Unfortunately this is one area that has not been taken very seriously by states parties. Many have two or more reports outstanding, while some have submitted none. This is a major challenge to the committee’s work.

While the process of reporting is thorough, to a great extent it remains in the hands of governments; NGO participation is weak. The examination of states parties’ reports is not intended to be adversarial, but should be done in a manner that promotes constructive dialogue between the states parties and the committee.

The African Court on Human and Peoples’ Rights is an approach of last resort when all other domestic remedies have failed to provide satisfactory results. Pending the full establishment of the African Court, the African Commission on Human and People’s Rights (the commission, hereafter) is seized with matters of interpretation arising from the application and interpretation of the protocol. The commission was established under Article 30 of the charter. Its primary responsibility is to promote and ensure the protection of human rights on the continent. Its four areas of mandate are: promotional activities, protective activities, the examination of state party reports and the interpretation of the African Charter on Human and Peoples’ Rights. It holds regular sessions twice a year in around April and November and can hold extraordinary sessions.

The commission has 11 part-time members. They are independent experts and act in their personal capacity rather than as representatives of their governments. The integration of the protocol into the implementation mechanism of the commission is consistent with the provisions of the charter itself. It will ensure that women whose rights under the protocol have been violated will have final recourse to the African Court to have their rights established and enforced. Furthermore, individuals other than the victims themselves, as well as human rights NGOs, can bring a complaint on behalf of the victims to the court.

One of the challenges facing domestication of the protocol is the multiplicity of legal systems in most African countries. While in a few countries international treaties, once ratified, automatically become part of national law, in most cases they have to be passed by an act of parliament to bring them into effect.

It is encouraging that the constitutive act of the reinvigorated African Union, which replaced the Organisation of African Unity, and the creation of the African Court on Human and Peoples’ Rights has emboldened women’s rights advocates to press for more vigorous enforcement of international and regional commitments.
Unique features of the protocol
The protocol was drawn up after many other treaties and therefore has the advantage of hindsight. It was able to draw on the best parts of earlier documents while also dealing with issues they omitted. The protocol is closely modelled on CEDAW; there are more similarities than differences between the two. The differences are mainly in those areas that concern African women and that CEDAW mentions in the abstract or not at all. The protocol names specific rights and defines violence against women. Its definition of a woman is comprehensive and includes the girl-child. It is culture-specific and therefore very valuable in challenging negative cultural practices. Unlike CEDAW, the protocol places explicit obligations on states to set aside resources to eliminate discrimination against women and to punish people or organisations that practise it.

There was initially stiff resistance to the protocol on the grounds that women in Africa do not need a separate provision, and that a clause on non-discrimination against women in the African Charter on Human and Peoples’ Rights would suffice to take care of the women’s rights issues that were omitted from it. The charter is perhaps distinct from other regional systems of human rights protection in that it has specific provisions that address the rights of women. This is apart from the commonplace provisions on the rights to equality and freedom from discrimination characteristic of most international instruments of this kind. With regard to the rights of women, the charter provides that ‘The state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions’ (Article 18 (3)).

However, this provision has been regarded as too general, giving no substance to the rights of women, thereby placing these rights in a situation that has been described as a ‘legal coma’. Addressing the rights of women alongside those of children is also criticised. While recognising that both women and children have been victims of enduring violence, it raises the question of why the latter are equated with the former. Nevertheless, the charter is seen as creating the bedrock for the protection of women’s rights in Africa. It provides a basis from which states have to account for the status of women and the protection of their rights within national legal systems. And it enjoins African states to take positive steps to ensure that their national laws and policies seek or result in the attainment of these two primary goals. Since then there have been significant developments towards a more comprehensive legal regime for the protection of women’s rights in Africa, resulting in the drafting of the protocol to the charter.

The protocol can be a tool that forces states to prioritise legislative measures to eliminate harmful traditional practices. It provides a foundation on which human rights acquire legality in the African context, and a basis for assertions that African women’s rights to equality are no longer contested. What is critical at this point is to see greater dynamism from domestic courts, the charter and the African Court on Human and Peoples’ Rights in giving meaning and precedence to the protocol.

The protocol attempts to invigorate the charter’s commitment to women’s equality by adding rights that it omitted and by clarifying governments’ obligations. Only one of the charter’s more than 60 articles makes specific reference to women. These are some of its shortcomings:

• Its failure to define explicitly discrimination against women
• Its lack of guarantees concerning the rights of women to consent to marriage and equality in marriage
• Its emphasis on traditional values and practices that have long impeded the advancement of women’s rights in Africa.

Some of the most serious violations of women’s rights in Africa take place in the private sphere of the family and are reinforced by traditional norms and cultural values. Article 17 (2) and (3) of the African Charter on Human and Peoples’ rights states that every individual ‘may freely take part in the cultural life of his community’, and that ‘the protection and promotion of morals and traditional values recognized by the community shall be the duty of the state’. The only specific reference to women’s rights is contained in a clause concerning the family and the upholding of tradition, thereby reproducing the tension that plagues the realisation of women’s rights in Africa. Indeed, the charter has been interpreted as protecting customary and religious laws that violate women’s rights, such as their rights to equality and non-discrimination, to life, liberty and the security of the person, and to protection from cruel and degrading treatment.

The protocol recognises women as individual human beings rather than members of communities or families. It deals with discrimination in both the public and private realms and targets both direct and indirect discrimination. It also moves equality from an abstract concept to something that states parties are expected to take concrete measures to address.

Most importantly, however, the protocol offers a real remedy for women at the regional level. It gives women victims of human rights violations somewhere to turn, providing them with practical access to bodies which will understand the implications of their experience. But this potential will only be realised if states parties ensure that they protect women’s rights in practice and work to implement the commitments they have made.

The campaign: Solidarity for African Women’s Rights (SOAWR)

While acknowledging the scale of the challenges, I also want to celebrate our achievements by recognising the efforts of Solidarity for African Women’s Rights (SOAWR), a coalition that has been working tirelessly to advance the cause of the protocol.

SOAWR is a regional network of 26 civil society organisations and development partners working towards the promotion and protection of women’s human rights in Africa.[1] Since its inauguration in 2004, SOAWR’s main focus has been to get those countries that have not yet ratified the protocol to do so urgently, while at the same time encouraging those that have ratified it to domesticate and implement it at the national level. SOAWR also works to persuade countries that have ratified the protocol with reservations to remove harmful reservations that would constitute a denial of some of the most important freedoms and rights of women recognised in the protocol.

SOAWR has been using all the instruments at its disposal and has capitalised on every opportunity to move the campaign forward: writing petitions, direct advocacy with national and regional leaders, mobile phone SMS service, publications in different languages, AU pre-summit civil society forums, public forums, press conferences, coloured rating cards, and so on. SOAWR is currently documenting the advocacy strategies it has used in its campaigning. This was an idea which came from a meeting of SOAWR members immediately after the pre-summit activities they organised in Accra, Ghana, in June 2007. They decided to document their efforts to provide a clearer understanding of what was being done to encourage ratification and domestication of the protocol, and to offer inspiration and a means of action to the Africa-wide movement for the endorsement and domestication of the protocol.

I hope that SOAWR will continue to create a platform for debate and dialogue on the disjuncture between international instruments and their national implementation in Africa and to identify strategies that researchers, activists, and government officials can apply to bridge that gap. Gender activists should also join their voices to civil society coalitions such as SOAWR to continue calling for the removal of the structural barriers that face women.

Obstacles and challenges

The domestication and further ratification of the protocol have been slowed by a lack of political will. Even though most countries have established national gender machineries, these are weak and lack adequate authority, capacity, human resources and funding. This is coupled with inadequate skills in gender analysis among planners and implementers, and limited gender awareness within communities.

The African Court on Human and Peoples’ Rights, which is an important tool in interpreting the protocol, is not yet fully functional. Even when it is, access to it by civil society organisations, which have been the main champions of the protocol, will be limited to those countries that have signed a declaration to facilitate such action.

Women’s participation in politics and decision making remains low, and this slows down their influence on governments to carry out their obligations under the protocol. Women’s access to justice is further inhibited by illiteracy and ignorance of their rights and how to access them. Some cultural and traditional practices continue to hold back progress in realising the provisions of the protocol.

Most of the human rights instruments set a ceiling and a floor as frameworks that women can use to combat discrimination in its many forms. However, these tools in themselves are not perfect. For example, the language employed in some of them is either too complicated or too broad or both; this could create problems of interpretation, especially at the national level. They also fail to address the issue of recourse in cases of non-compliance. It has been said that they can only bark because they lack the teeth they need to bite. The consequences of non-compliance and non-enforcement need to be built into them.

Another problem is the strategy of placing reservations on some key provisions. This negates the principle of women’s rights as first and foremost being inalienable, integral and indivisible.

One other obstacle that has been identified at the national level is that few lawyers are aware of the protocol and are therefore unable to cite it in support of their arguments. Not many law students take up courses in gender and the law where these are part of the curriculum, hence their ignorance about the protocol and other women’s rights instruments.
Lessons learned

Effective implementation of international human rights standards for women has depended so far on the will of individual states. Cultural and religious practices are often used to undermine the implementation of provisions concerning women’s rights. Reliance on the good will of governments to implement international agreements has not yielded positive results. CEDAW was seen as foreign, but even though the protocol is home-grown, our governments have not treated it differently as far as implementation is concerned.

Women’s empowerment requires a higher level of involvement by women in governance and decision making. Systemic and structural barriers that prevent them from participating in decision making at all levels need to be removed.

The media can play an important role in promoting equality. Women’s press and communications initiatives and the use of technology to promote women’s activities should be supported.

The proliferation of instruments has also been cited as a possible factor hindering compliance because each one requires a different reporting and accounting procedure, thereby placing a huge burden on states. There is also inadequate dissemination of information about these instruments at the local level.

A number of African states have bound themselves to international human rights instruments, but only a few have actually taken steps to make them enforceable within their countries. It seems that our governments ratify such instruments not because of a political commitment to their content, but because of political expediency and in order to maintain a good image. The failure to domesticate these commitments remains a big problem.

The multiplicity of laws in different countries is such that most countries will have to enact new legislation to domesticate the protocol after ratification. A number of countries that have ratified the protocol, such as South Africa and Mauritius, did so with harmful reservations, signifying their unwillingness completely to abandon practices that discriminate against women. The legitimacy of entering reservations on the treaties may be questionable because of the substance of such reservations.

Mainstream international human rights standards are defined in relation to men’s experiences and are stated in terms of discrete violations of rights in the public realm, whereas most violations of women’s rights take place in the private realm. The public/private dichotomy that is so detrimental to women’s rights continues to exist.

The drafters of the protocol were very much influenced by the contents of CEDAW as well as the work of the CEDAW committee. It is therefore obvious that to ensure effective implementation of the protocol, Africa should draw on the experience of the CEDAW committee.

Conclusion

It is evident from the preceding paragraphs that the adoption of the protocol is a significant development that will ensure the full integration of women’s human rights within the overall human rights framework in Africa. The protocol will allow both the African Commission and the African Court on Human and Peoples’ Rights to elaborate how the rights recognised under it should be guaranteed in real-life situations.

The role of international instruments and other initiatives cannot be underestimated. Broad legitimacy beyond the nation state has created some leverage to pursue the gender agenda. However we are faced with growing failure to translate these instruments into reality in the domestic context. The gap between the commitments and their implementation is becoming ever larger, raising the question: what needs to be done? We should consider both individually and collectively what we can do to ensure that implementation takes place.

There is no denying that it is very important to have these commitments on paper as markers of progress. What is more important though is using them to ensure actual change in the lives of women. We have to be careful that the gains won in Beijing are not turned back.

Recommendations

There needs to be a specialist body similar to the CEDAW committee to monitor implementation of the protocol. The African Commission on Human and Peoples’ Rights, in its work to monitor the charter, has not paid enough attention to the protocol. Even though it has appointed a Special Rapporteur on the Rights of Women, this office needs more human and financial resources to carry out its mandate effectively. States parties are bound by Article 26 of the protocol to report on progress in its implementation, but they are not likely to take this seriously if they are not required to report to a particular body specifically set up to monitor the protocol.

The teaching of women’s rights should be incorporated into the curriculum of law faculties as a core discipline, to ensure that lawyers leave school knowing not only national laws but also regional and international instruments that protect women’s rights.

Women’s rights organisations and coalitions such as SOAWR should be supported to monitor implementation of the protocol. They should be assisted financially to participate in commission meetings and to prepare shadow reports when country reports are being considered.

Steps should be taken to institute in full the African Court on Human and Peoples’ Rights without further delay.

Women should be encouraged to participate in political processes at all levels and in portfolios that have significant policy roles. Members of parliament also have an important role to play in passing legislation, initiating private members’ bills and demanding ministerial statements on obligations undertaken.

The media could also contribute by disseminating information on the progress of the protocol and its benefits to citizens so that they can demand implementation.

All the rights in the protocol are interrelated, interdependent and indivisible. Thus the violation of any one of them affects the enjoyment of all the others. Countries should be encouraged to ratify the protocol without registering reservations.

Our leaders and policy makers should resolve to change not only what is outside of them, but also what is inside them as far as attitudes to gender equality are concerned. With a redefined notion of power and equality we will be able to bring about change.

* Roselynn Musa is the Advocacy Officer at the African Women’s Development and Communications Network, (FEMNET) in Nairobi, Kenya

* Please send comments to or comment online at www.pambazuka.org

For references and notes, see link below.

Otto Saki asserts that the case of Zimbabwe has provided an excellent example of the flaws and the achievements of Africa’s own system for defending its citizens’ human rights against attacks from their own governments.

The situation in Zimbabwe has continued to degenerate and attract widespread attention.[1] The African Commission on Human and Peoples’ Rights (the commission, hereafter) is an intergovernmental organisation which has been seized with several appeals about violations of human rights over freedom of expression, torture, politically motivated violence, undermining of the judiciary and independent national mechanisms and forced evictions under the guise of clean-up campaigns. There have been interventions over breaches and affronts against the African Charter on Human and Peoples’ Rights (the charter, hereafter) to which Zimbabwe is a party.[2] The level, nature and extent of intervention by the commission have been argued over, particularly its mandate, how it is carried out and nature of its recommendations. States parties, including Zimbabwe, have abused or utilised what would be ordinarily institutional formulation of the commission and charter at the expense of the progressive development of African jurisprudence and institutions.

While Africa is perceived to have the worst human rights abuses, its human rights mechanisms either remain heavily inadequate or, as in most cases, are deliberately and overtly undermined by state actions. This undoubtedly makes a mockery of the efforts of those who provide their services as commissioners and as judges before the African Court on Human and Peoples’ Rights (the court, herafter). The commission has gone through a remarkable phase of growth and has experienced its fair share of challenges, but it is safe to say its value as an African institution is second to none. For some states it has become a ‘source of marvel’ and for others a ‘source of pain’, but one cannot at this juncture wish the commission away.

Sessions of the commission

The work of regional and sub-regional intergovernmental human rights institutions remain very closely knitted with the work of human rights organisations, and Zimbabwe is no exception. Through the granting of observer status, organisations are recognised not only by the commission but effectively by the African Union. Currently, more than seven[3] organisations with observer status before the commission have been involved in the implementation of the charter in Zimbabwe.[4] The commission’s work on Zimbabwe gained significant momentum during its 31st session, when Zimbabwe topped the agenda during the NGO forum. As a result the government of Zimbabwe agreed to accept a fact-finding mission into its human rights record.[5] The African NGO Forum met ahead of the commission and adopted the first statement on Zimbabwe. The commission was further seized of the communication from the Zimbabwe Human Rights NGO Forum, making it the first substantial communication on Zimbabwe.[6]

With the commission’s decision to send a fact-finding mission, Harare became more and more aggressive in its public stance on human rights organisations and the commission itself. This marked the beginning of increased verbal attacks on the commission and the commissioners, sadly with the African Union providing little or no defence, at least publicly, of the work of the commission.[7] This made it possible for some to assume that the attacks on the commission were justified whereas in fact they were uncalled for and completely inappropriate.
Fact-finding mission to Zimbabwe
The commission conducted its first fact-finding mission to Zimbabwe from 24 to 28 June 2002.[8] Several meetings were held with government ministries, notably home affairs and justice, members of the judiciary, human rights advocates and lawyers, as well various civil society organisations.

When the report was presented to the government of Zimbabwe, unparalleled attacks and criticisms of the commission were published: The Herald, a state-controlled newspaper, wrote on 6 July 2004: ‘According to the sources, the [African Commission] report was similar to reports produced by the British-funded Amani Trust, which is well-known for its anti-Zimbabwe stance and falsifying the situation in the country.’ An editorial in The Sunday Mail on 11 July stated: ‘Reading through the [African Commission’s] report one detects the hand of a known Zimbabwean lawyer and the Amani racists.’[9]

In another related diatribe the papers bemoaned:

Pan-Africanists who want to take seriously the Organisation of African Unity (OAU) and its successor, the AU, find the debate over the fraudulent report quite confusing and demoralising because of the failure of the African journalists, especially, to go beyond the shallow events in the story: that is, that the African Commission on Human and People’s Rights held some hearings and produced a fraudulent report with the assistance of the British, other donors and some racist (non-governmental organisations) NGOs. What is missing from the story is the fact that this report is the latest in a series of lies, especially about and against Zimbabwe.[10]

Several other statements were later made by government spin doctors, attacking the work of the commission.

The report of the fact-finding mission was adopted by the commission in its 17th Activity Report. The government of Zimbabwe created unprecedented havoc when the report was being adopted by the Executive Council of Ministers, and effectively the African Union.[11] Zimbabwe was allowed to provide additional responses to the report, which was eventually adopted by the African Union, along with Zimbabwe’s response, almost three years later.[12] The findings of the commission remain largely unimplemented and rights are being further undermined.[13]

Following the forced evictions of May 2005, the United Nations dispatched a special envoy on human settlement, while the African Union hurriedly sent in its Special Rapporteur on Internally Displaced Persons, Refugees and Asylum Seekers. The government of Zimbabwe would not allow the special rapporteur to carry out any field visits, arguing that proper procedures of the African Union had not been followed.[14] The African Union envoy spent a week in ‘solitary confinement’ in his hotel, an unfortunate development given the importance of regional institutions.

Communications and special mechanisms

The various mechanisms under the commission, including the special rapporteurs on human rights defenders[15] and on freedom of expression,[16] have responded to the apparent increase in attacks on human rights defenders, women activists and journalists. However, the problem with these mechanisms, as in similar systems, is the failure to provide adequate human and financial resources to follow through most of the appeals. Governments have to a large extent taken the urgent appeals seriously, and the Zimbabwe government seems to have responded to most of the appeals, though it is arguable whether the responses addressed the issues raised or merely created excuses for continued violations under the guise of maintaining law and order.

The commission conducted a hearing on Zimbabwe under Article 46 of the charter,[17] which allows the commission to use any mechanism to investigate human rights in a state party. In its usual display of disdain for any practical and critical work of the commission, the delegation from Zimbabwe refused to participate in the meeting, citing unfair practices and procedural irregularities. It is interesting to note that during the same session the delegation from Zimbabwe was distributing print editions of New African magazine and two reports produced by the Zimbabwe Republic Police (ZRP).[18] The credibility of the national police and in particular its intelligence gathering have been challenged.[19]

It is arguable that, after the communications submitted on Nigeria during the military regime, Zimbabwe currently has the largest number of communications before the commission. The subjects of the petitions range from freedom of expression, to forced evictions, the independence of national institutions such as the judiciary, extra judicial and summary killings, torture, and inadequate legislative and constitutional mechanisms.[20]

Victories before the commission

Working with the commission has been simultaneously challenging and rewarding. Of the communications submitted, at least one has been concluded in which the government of Zimbabwe was found to have violated provisions of the charter. In April 2006, the commission issued provisional measures in respect of the forced evictions, directing the government to take urgent and appropriate measures to obviate the general deterioration of the health of terminally ill individuals who due to forced evictions carried out under Operation Murambatsvina had no access to anti-retroviral treatment.[21] The government was also asked to ensure that school-age children were able to sit their final exams, and to provide shelter and medical treatment for the elderly and the sick.[22]

While the procedures of the commission badly need reform, it is critical to note the importance of its decisions on the admissibility of a communication. In no fewer than four separate incidents, the commission has ruled communications submitted from Zimbabwe as admissible. These decisions provide irrefutable evidence of the inadequacies of human rights protection in Zimbabwe; they also imply the absence of effective domestic remedies for the rights violations alleged in the communications. Such decisions are an indictment of the judiciary as well as an unequivocal indicator that the judiciary and the justice delivery system in Zimbabwe no longer guarantee enjoyment of universally recognised human rights and fundamental freedoms.[23]

In Communication 245/02, Zimbabwe Human Rights NGO Forum/Republic of Zimbabwe, the commission made recommendations about the election- related violence of 2000 and 2002 as well as the violence orchestrated during the chaotic land reform. In a statement the NGO Forum noted that the:

Commission found the Government of Zimbabwe in violation of articles 1 and 7 of the African Charter. This means that the Government of Zimbabwe had violated the right to protection of the law and that it failed to put in place measures to ensure the enjoyment of these rights by Zimbabweans. The endorsement of the decision by the African Union is recognition by African Heads of States that there are human rights violations in Zimbabwe.

Political interference and undermining the work of the commission

With civil society and human rights organisations recording such public success, the government of Zimbabwe has begun to pay more attention to the commission. With like-minded countries that have equally poor human rights records, it attacks, undermines and ridicules the work of the commission, through subterfuge and unfounded interpretation of the rules of procedure of the African Union and the commission. Such procedural theatrics caused the delays in the publication of the report of the fact-finding mission of 2002, as well as the decision of Communication 245/05. With the latter, the government of Zimbabwe made submissions to the commission well after the completion of all inquiries and hearings. Of concern are the African Union leadership’s acquiescence and conspicuous silence;[24] to a large extent the African Union has failed to support the commission from government attacks. The non-implementation of the commission’s recommendations remains a paramount concern.

Lessons for Africa

The commission is a creation of the African Union, with a mandate to monitor, promote and protect the rights enshrined in the charter, the same charter which makes it mandatory to implement legislative and administrative mechanisms to deliver the rights in the charter. Because signing up to the charter and similar instruments are voluntary acts, limiting a nation’s sovereignty, the commission has a unique status and neither seeks to undermine national institutions such as courts, nor replace them. Zimbabwe has regressed from a country that was hailed as the symbol of progress and development to the antithesis of every principle of development, human rights adherence, promotion and protection.

The importance of supra-national institutions in enforcing universal and regional human rights standards remains critical. The weakness inherent in these institutions is an indictment of leadership in Zimbabwe – and in Africa. It remains the prerogative of every progressive citizen of Africa to safeguard these institutions from individuals who have bestowed upon themselves powers to govern, misgovern, build and destroy. Such powers, if unchecked and curtailed by invoking celebrated universal human rights standards, will lead us to bondage and slavery under our kith and kin. That day will indeed be a sad day for humanity and Africa.

* Otto Saki is a lawyer with Zimbabwe Lawyers for Human Rights

* Please send comments to or comment online at www.pambazuka.org

For references and notes, see link below.

Bahame Tom Mukirya Nyanduga, commissioner responsible for upholding the African Charter on Human and Peoples’ rights talks to Hakima Abbas about Africa’s commitment to protecting refugees and his belief that democratic states that tolerate diversity do not experience the conflict that generates the displacement of their citizens.

Hakima Abbas (HA): Please would you give us a brief overview of the situation of refugees and displaced people in Africa?

Bahame Tom Mukirya Nyanduga (BTMN): The situation of refugees and displaced people in Africa by and large reflects the political, economic and historical landscape of the continent. Over the last five decades many African countries have experienced instability of one kind or the other.

There are those countries which attained independence through the armed struggle. Their citizens were displaced because of colonial and racist repression and in the wars of liberation that followed. Then there are those countries which experienced military and one-party rule, which invariably suppressed civil and political rights. Opposition politicians and sections of society which expressed opposition to undemocratic rule, such as student movements, trade unionists and the general population, were subject to gross human rights violations.

For a better part of the period from the early 1960s until today, the continent has experienced civil wars based on ideological, ethnic or religious differences. The 1994 genocide in Rwanda marked the worst form of violation of human rights, the intended purpose being the extermination of the Tutsi ethnic minority. We are currently experiencing conflicts in the Darfur region of Sudan, Somalia, Central Africa Republic, Chad, and the north-east part of the DRC, causing serious human rights violations. All these conflicts have created refugees and internally displaced people (IDPs).

We cannot lose sight of the factors responsible for these situations. In fact, they should be lessons on how best to avoid conflict and therefore reduce displacement. The refugee population in Africa has gone down drastically in recent years, because many conflicts have been resolved and the respective states have adopted democratic reforms and democratic constitutions and have held successful elections. I can mention Liberia, Sierra Leone, Burundi and the DRC as examples, although there are still pockets of conflict in the DRC. The displacement of people in Northern Uganda is less of a problem now because of the peace talks between the government of Uganda and the Lord’s Resistance Army rebels. The security situation in Northern Uganda has improved so much that the government is closing some of the camps that it had established and displaced people are going back to their villages.

The same cannot be said for those countries where conflicts continue and where the numbers of IDPs continue to rise. Africa, the poorest continent of all, has the distinction of hosting the largest number of IDPs in the world, estimated at about 13 million people, or more than half the global total of 25 million people.

I must stress that these figures represent the majority of people who are displaced by conflict. There are other causes of displacement in Africa which happen regularly, such as development projects and natural disasters. Those displaced by conflict or natural disasters invariably receive humanitarian assistance, whereas those displaced by development projects receive little compensation even though their livelihoods are destroyed for good. It is high time that our governments adopted positive measures to assist all victims of displacement in order to restore their dignity and sustain development and stability.

HA: What mechanisms are in place to guarantee the rights of refugees and displaced people in Africa? Why is there a need for a regional mechanism? Are the international systems not sufficient?

BTMN: The African regional mechanism for guaranteeing the rights of refugees and IDPs is found in basic regional legal instruments and institutions. The constitutive act of the African Union reiterates the need to promote and protect respect for human rights and condemns all forms of action likely to lead to violations of human rights, such as unconstitutional access to power. The African Union has established institutions such as the African Human Rights Commission [the commission, hereafter], the African Human Rights Court, and the Peace and Security Council, all of which have mandates to protect human rights in Africa.

Speaking of refugees, we must first of all recognise the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. This was the foremost instrument which localised international refugee law in African realities. The convention was adopted at a time when Africa was experiencing the fight against colonial and racist regimes and the first wave of ethnic conflict, the two major causes of refugee outflows at that time. It expanded the definition of a refugee in Africa to include a person fleeing from external and colonial occupation and domination. It included causes other than those defined by the 1951 Geneva Convention. In other words, and in answer to the question, the regional system was established in response to particular problems and characteristics of Africa.

But secondly, and more importantly, the regional instruments do not substitute for the international system. They operate in tandem. The 1969 convention states that it complements the 1951 convention and recognises the importance of international cooperation in dealing with African refugee problems. The African Charter on Human and People’s Rights [the charter, hereafter] states specifically that it draws inspiration from international instruments.

It is in this context that the UNHCR, the United Nations agency responsible for refugees worldwide, has worked closely with affected African states to respond to refugee situations. The African Union (and the OAU before it) also works closely with the UNHCR. Through its executive council and commission (formerly the OAU Secretariat), it has established an institutional and policy framework to ensure that refugee issues are given an appropriate response.

The African Charter on Human and Peoples’ Rights established the right to seek and receive asylum, which may be enjoyed by any individual who is persecuted. It also recognises the right to return to one’s own country. The charter established the African Commission on Human and People’s Rights, which receives complaints against states and makes determination on violations of the charter, including where refugee rights are concerned. The idea of establishing these mechanisms is to develop a culture of respect and protection for all human rights, including the rights of refugees and displaced people.

The commission established the special rapporteur mechanism for refugees and IDPs in order to highlight their plight on a continuous basis and sensitise governments about the need to find durable solutions to these problems. The rights of African refugees are also recognised in other regional instruments, such as the Protocol on the Rights of Women, and the Charter on the Rights and Welfare of the Child in Africa.

As far as IDPs are concerned, I must emphasise that the responsibility to protect them rests squarely on the state of which they are citizens. IDPs are citizens who remain on a state’s territory when they flee a part of the country which is affected by conflict, natural disaster or a development project. Every state has a responsibility under international law to protect its citizens. This responsibility does not cease when a person is displaced from their village or town. It is the duty of a state to continue to ensure the human dignity, physical security and integrity of IDPs. International humanitarian assistance, as and when it is necessary, will continue to be provided to ameliorate the living conditions of IDPs during their displacement. However, this does not relieve the state of its primary responsibility to protect and assist them, and to ensure that they are safe and can return to their habitual places of residence or are resettled once the conditions which forced them into displacement improve.

In order to entrench the rights of refugees and displaced people there must be wider dissemination of information about all these instruments, because at the root of the problem is a lack of respect for the rights of these people at the community or national level.

HA: Where is the intersection and divergence between refugee law and human rights law in Africa?

BTMN: Intersection and divergence between refugee law and human rights law is not a peculiarly African issue. The analysis I have set out above is not a distinction between refugee law and human rights law. Nor am I suggesting that Africa treats these cases differently. If anything, one must speak of intersection rather than divergence. Africa recognises that refugee law is part of human rights law. The African refugee experience introduced certain concepts which until 1969 were not known to international refugee law. This was a result of historical and political conditions peculiar to Africa, which I explained earlier, as well as the conditions in which African refugees lived. These were experiences unknown at the time the international 1951 convention was drawn up.

The restatement of a number of legal principles in the 1969 convention – such as that asylum is a humanitarian act and shall not be considered an unfriendly act, that refugee camps shall be located at a reasonable distance from the border of the home state, and that refugee involvement in subversive activities is expressly prohibited – reflected very particular African situations and concerns, where armed conflicts and civil wars were conducted by liberation movements and groups from territories in states neighbouring the home countries. The legal principles and practices which have evolved through the African refugee experience, such as the principles of voluntary repatriation and those mentioned earlier, now form part of the core principles of international refugee law.

HA: What are the challenges in guaranteeing the rights of refugees and displaced people in Africa?

BTMN: In my view, the first major challenge is intolerance of diversity and inattention to the plight of the victims. African states that recognise diversity of opinion, nationality and ethnicity do not experience the same problems as those that are preoccupied by ethnicity or eschew political pluralism. Without a proper sense of nationhood, these problems will continue to occur. African states which have embraced democratic reforms and accountable forms of political and economic governance, and recognised racial and ethnic diversity as well as plurality of political views, do not experience conflicts caused by political or economic mismanagement, nor the refugee and internally displaced situations that follow.

The second challenge is the level of poverty in all African states, and the inadequate social and economic provisions within society that this entails. This may lead to the marginalisation of some sections of the population which in desperation become involved in conflict, hence creating refugees and IDPs. Lack of resources can also lead to a failure to provide for refugees’ basic needs in the countries of asylum.

The third challenge is a lack of knowledge on the part of refugees, IDPs, and the general population about their basic legal rights, such that they cannot advocate or demand them when they become refugees and IDPs.

HA: What is your role and mandate as Special Rapporteur on Refugees and IDPs in Africa?

BTMN: My mandate is outlined in a resolution adopted by the commission in December 2004 during its 36th session held in Dakar, Senegal. It requires me to study and highlight the plight of refugees, asylum seekers, internally displaced people and migrants in Africa, to engage African states and governments, the African Union and the international community, and consider strategies to reduce these problems by making recommendations through the commission. It involves work with different stakeholders, as stated above, including civil society and national human rights institutions, to address and focus attention on these problems in order to try and find lasting solutions to them.

My role is therefore one of facilitator, helping bring the human rights issues and problems encountered by these specific groups of African people to the attention of their governments and the African Union. The role of special rapporteurs is very flexible. It enables them to respond to any of the aforesaid situations depending on the access they are accorded by the organisation and states responsible, with whom they must interact in order to promote awareness about the problems facing these groups and to protect their rights.

HA: How do you feel that your role as special rapporteur, and the work of the African Commission on Human and People’s Rights more broadly, has affected the situation of refugees and displaced people in Africa?

BTMN: It is not for me to assess my role as special rapporteur. This I will leave to other observers. In any case it was one of the later mechanisms established by the commission, in 2004, unlike others which had been established a number of years earlier. I am the first person to hold it, so there was no experience to learn from. However, let me say that I feel that I have contributed, to a certain extent, to bringing visibility to human rights and to the issues facing refugees, IDPs and migrants in particular. My role has made it possible for these issues to be discussed at every commission session, since my reports are a regular part of the agenda.

In terms of the role and impact of the commission, it has made a number of decisions concerning complaints submitted on behalf of refugees, one of them concerning the mass refugee expulsion from Rwanda in the early 1990s. The commission found that Rwanda had violated the African Charter on Human and People’s Rights in expelling Burundian refugees. More recently it found Guinea in violation of rights in a complaint brought on behalf of refugees from Sierra Leone. The commission recommended that the two states find a solution to these violations.

The commission’s reports of activities are submitted to the AU summit every six months, which means that all states parties to the charter closely follow the activities of the special rapporteur and of the commission in general. I am confident therefore that, through our work, all our stakeholders recognise that much still needs to be done in protecting the rights of all these people.

HA: The recent debate around continental unity at the African Union saw many advocating for a borderless Africa. How would African citizenship affect the plight of refugees and internally displaced people in Africa? Is this an effective solution to the issue?

BTMN: Let me state that any answer that I will give to this question reflects my personal views, and is not an answer in my capacity as special rapporteur. This is because the larger question, or the ‘grand debate’, has not been raised for discussion within the commission, and therefore I cannot assume to speak on behalf of it.

Theoretically speaking, the answer to your question would be that a borderless Africa would precipitate an African citizenship, which means freedom of movement for all Africans from Cape to Cairo, and Dar es Salaam to Dakar, and therefore the absence of refugees. In other words, an African unity government would mean the absence of inter-state and intra-state conflicts. There could still be internally displaced people, because people are likely to be displaced from causes other than internal conflict.

The problem, in my view, is that in several countries on the continent the intolerance to diversity which I explained earlier makes it difficult for democratic values to thrive. The repression of opposition groups illustrates this point. Many African states, including the leading proponents of this debate, lack the kind of political and economic liberalism which gives rise to a divergence of political views and a culture of freedom of expression and opinion. Very few general elections are held on the continent without allegations of vote rigging, intimidation and outright disdain for the opposition.

Therefore, much as I am a believer in continental unity, I am not a proponent of unity at the expense of stability and the need for shared social, economic and political values. A rushed union without basic shared values, such as unequivocal respect for fundamental human rights, will create a worse situation. For me, the ultimate test of continental unity will be when the objectives and principles enshrined in the constitutive act of the African Union and the NEPAD programmes, including the African Peer Review Mechanism, become a reality for all 53 AU member states, and when the processes of the regional economic communities are implemented in good faith. If these minimum standards are hard to achieve, then it is my gut feeling that African unity is still far ahead of our time. If these programmes succeed, then a foundation will have been laid for sustainable continental unity.

HA: Under President Nyerere, Tanzania had an open policy on refugees and displaced people in Africa that provided for broad assimilation into Tanzanian society. This policy seemed to maintain stability in the country despite the flares of conflict that spread throughout the region. Present-day South Africa, on the other hand, has a very closed policy toward refugees and migrant workers, which the government justifies as a means to maintain national stability. How do national policies toward refugees and displaced people affect political stability, and what are the ideal policies that governments must adopt?

BTMN: The refugee policy of any state is informed not only by the obligations it has assumed under international and regional instruments but also by the material conditions obtaining in the country at the time the policy is adopted and implemented. In comparing the refugee policies pursued by President Nyerere’s government with those adopted by the later South African government we must recognise that they were informed by different conditions and epochs. Many of the refugees during President Nyerere’s time came from Southern and Central Africa. Members of liberation movements trained and went to fight for the freedom of their countries. The refugees from Central Africa did not fight their home states until the 1990s, and they did not do so from Tanzanian soil.

It must be said as well that, as a result of hosting refugees for the last five decades, the open door policy pursued by the Tanzanian government has changed. A number of factors may have accounted for such a shift. Assistance to refugees in Africa decreased in the early 1990s when the international donor community shifted its support and assistance to Eastern Europe after the collapse of the communist regimes there. Secondly, security issues associated with the conflicts in the Great Lakes region became problematic in areas where refugee camps were located, which was not the case in the early 1960s to the mid-1980s. The conflicts of the 1960s and 1970s did not significantly affect the people living in the Tanzanian border regions. The exceptions were a few cases of the Portuguese colonial army bombing Southern Tanzania. But since the 1990s, acts of banditry associated with the flow of small arms in the Great Lakes region have affected many communities close to the refugee camps and beyond. This has had a negative impact on the local people, some of whom have become proponents of anti-refugee policies.

On the other hand, after the democratisation of South Africa, its government had to contend with an influx of refugees and economic migrants. The fact that the democratic government had to deal with the inequities of the apartheid era, and make provision for the majority of its people who had lived in conditions of poverty for a century, must not be overlooked. It is my hope that as she faces the challenge of dealing with refugee issues, in particular the dire political and economic situation across her northern border, and since she is the leading economy in Africa, South Africa’s refugee policy will distinguish genuine refugees from economic migrants, while addressing these very serious concerns. The government must also undertake sensitisation campaigns to encourage tolerance by its people towards foreign citizens, particularly those from African countries beset by conflicts, such as Somali asylum seekers who are said to be subject to victimisation by unknown assailants.

Persistent conflict in refugees’ home country cannot foster political stability in their host country. The instability experienced in Northern Uganda for about 20 years was linked to its support for the Sudan People’s Liberation Movement, which led Sudan to support the Lord’s Resistance Army. The resolution of one conflict has created conditions for the resolution of the other. The same is true of the Darfur conflict vis-à-vis those in Chad and the Central African Republic. Resolution of the Darfur conflict is likely to lead to resolution of the others, all of which have generated major refugee and IDP situations.

Tanzania and many other African states, such as Angola, Chad, Kenya, Uganda, Sudan, Guinea and Zambia, have borne the brunt of hosting refugees despite their poor economies and to the detriment of their land and environment. This has never been quantifiable in monetary terms, yet it has not discouraged them from fulfilling their responsibilities towards refugees.

States must respect the rights of their citizens and their obligations to protect them. Where a refugee or IDP situation arises as a result of conflict, the country’s political leadership must seek peaceful solutions rather than embark on military strategies. Experience in many conflicts in Africa, such as in Burundi, DRC, Liberia, Mozambique, Sierra Leone and Southern Sudan to mention but a few, shows that military solutions do not succeed. The peace and stability we have seen in these countries is because they have been underpinned by peace agreements rather than outright military victories.

HA: Some might say that given the continuing human rights violations that plague the continent, including for instance the situation in Darfur, the African human rights system is a failure. Would you agree?

BTMN: I don’t think that the answer to this question is as simple ‘yes’ or ‘no’. The situation in Africa is more complex than that. I outlined earlier the historical and political aspects of the human rights situation in Africa. We have to recognise that Africa has made positive gains in a number of areas. For instance, the number of democratically elected governments on the continent today, compared with 10 or 15 years ago when military or one-party regimes were the norm, is far larger. This does not mean that the level of democratic governance on the continent is perfect. But there is definitely progress in developing a culture of democracy and human rights.

I stated earlier that the African Union does not recognise undemocratic means of access to power. What does this mean? It means that Africa will not have another Idi Amin or Abacha, hence the kind of violations which were perpetrated then are not likely to recur. What happens now is that, even when there is a ‘progressive coup’ in an African state, the state is immediately sanctioned and suspended from AU activities. It has to conduct elections within a very short time to restore constitutionality. It is these kinds of measures that are restoring dignity to the system. With these developments, the remnants of undemocratic tendencies and the conflicts that we are seeing in places like Darfur or Somalia are the last kicks of dying horses. Some of them are sustained by ideology or the greed of foreign economic interests. None of them serves the interests of the people.

The human rights system in Africa reflects African realities. I mentioned one of the challenges to the guarantee of human rights in Africa being lack of resources. The institutions which have been established to protect human rights on the continent cannot be condemned as failures when we know the capacity and resource limitations. I may add another challenge: political will is necessary to make them effective. The establishment of the Peace and Security Council and its proactive involvement with the Darfur and Somali conflicts should not be underestimated. The contribution of peace monitoring troops by a number of African states to assist in the resolution of these conflicts must be recognised as part of the system for dealing with these conflicts.

My analysis does not paint a picture of a continent plagued by conflict, but of one where conflicts are on the decrease. For me, the system is in evolution, not a failure. If you look at it carefully you will see successes, however small. After all, Rome was not built in a day.

HA: In November the African Commission on Human and People’s Rights will celebrate its 20th year of existence. What do you feel has been the greatest accomplishment of the commission in this time?

BTMN: The greatest accomplishment in my view is the fact that the commission has continued to exist, increased its visibility, and carried out its mandate under very difficult circumstances. The lack of resources has not diminished the commitment of the members of the commission and its staff to continue working within the limitations imposed on them by political circumstances and budgetary constraints. Human rights issues in Africa, as is the case everywhere else, are very politically emotive. They touch on the sensitivities of states and governments.

By commenting on the various human rights concerns across Africa in the form of decisions rendered on communications, or by conducting investigations during missions and publishing resolutions on the human rights situation in a number of African states, the commission has been able to influence official policies in these countries as well as opinion throughout the continent and elsewhere about what is happening.

I believe that there is still great scope for enhancing the visibility of the commission and the accomplishment of its promotion and protection mandate, resources permitting.

HA: Moving forward, what do you think would strengthen the work and impact of the commission?

BTMN: The commission cannot carry out many of its plans because of lack of resources. More resources will ensure that it recruits the best staff for the secretariat. This also requires political will from member states and the African Union Commission, both of which are responsible for ensuring that adequate resources and competent staff are put at its disposal.

Finally, the states parties to the African Charter on Human and People’s Rights must cooperate with the commission. There is no point in having a commission if it cannot point out violations of the charter, but when it does so it is labelled a tool of external interests. The yardstick to any finding of violations is the facts on the ground and how they relate to the obligations assumed by member states under the charter.

HA: How can civil society and citizens in Africa help to guarantee the rights of refugees and displaced people on the continent?

BTMN: As I stated elsewhere, dissemination of the charter as well as all other regional and international human rights instruments will enable people to know their rights. I believe that dissemination is best done by civil society because they regularly interact with people at different levels. The citizenry has a corresponding duty to learn and understand their rights and respect the rights of others. An ignorant citizenry is not good for democracy or for human rights. The introduction of human rights education must be a priority pursued by civil society and the general population. This is a long- term process which needs to be started immediately. I hope that when the culture of human rights is entrenched we shall see less and less conflict and, as a consequence, no more refugees or internally displaced people.

* Hakima Abbas is the AU Policy analyst for Fahamu Networks for Social Justice

* Please send comments to or comment online at www.pambazuka.org

Black Inventors, Crafting Over 200 Years of Success From the beginning of the oldest and greatest civilization - the ancestral link from the Blacks in Kamit (Ancient Egypt) to their descendents who are now scattered to the four corners of the world - the world of creating, inventing and designing has always been a part of the Black experience.

Women politicians who gathered for a workshop organised by the Botswana Media Women's Association (BOMWA) and the Gender and Media in Southern Africa (GEMSA) complained that women were accused of earning political office by providing sexual favours. The workshop on "Gender is not about women; it's about development" attracted the women's wings of the Botswana Democratic Party (BDP), Botswana Congress Party (BCP), the Botswana National Front (BNF) and the Botswana Alliance Movement (BAM).

Applications are invited for participation in the Pan-Commonwealth Forum on Open Learning to be held 13-17 July 2008 at the University of London. This forum has grown to become one of the world’s leading conferences on learning and global development. PCF5 in London will explore how open and distance learning can help achieve international development goals and education for all. The conference theme is "Access to Learning for Development" with a focus on children and young people, health, livelihoods, social justice, conflict and governance. The deadline for applications is 30 November 2007.

Equalinrights is engaged in the initial phase of a long term action research project for the realisation of economic, social and cultural rights in East Africa. This project will centre on how the most impoverished and marginalised groups in communities can demand greater accountability and responsiveness of governance structures and mechanisms for their fundamental human rights. Men and women involved will gain greater sense of their human rights and how they can use them to meet their critical needs, their capacity to claim them, and negotiation space to do so.

The Kenyan Community Abroad (KCA) has set the stage for the first Presidential Debate in Kenya's history. The debate will be held in November 22nd at the United States International University, Nairobi. There are currently four candidates vying for the position of the President of the Republic of Kenya and we, Kenyans abroad and the people of Kenya at large, look forward to their participation in this historic event that will set forth a new chapter in the advancement of an African democracy.

The Georgetown M.A. Program in Conflict Resolution seeks to equip its graduates with the theoretical and practical tools necessary to better understand the nature of, and solutions to, many types and degrees of conflict. Applications will be accepted through February 15, 2008 for the fall 2008.

The International Women's Program is currently seeking an Advocacy and Armed Conflict Specialist in the NY Office to assist IWP in the development and implementation of its work related to gender and conflict. The Specialist will report to the Director of IWP. Deadline for applications is December 10 2007.

This is an to participate in an online discussion on “Women in Leadership Roles” hosted by WomenWatch – the UN Internet Gateway on Gender Equality and Empowerment of Women. The discussion, which will take place from 19 November to 15 December 2007, is organized by the United Nations Division for the Advancement of Women, Department of Economic and Social Affairs, in its capacity as Task Manager of WomenWatch, with support from the Office of the UN High Commissioner for Refugees.

Given the specificities of women in migration, particularly their potential to contribute to gender equality and the empowerment of women both at home and abroad, IOM is creating an adjunct database for African women diaspora members. This women database is a crucial component of the database initiative, and we are excited to involve women of various talent and leadership capacities. For this reason, we would like to encourage you to check out our website and take just five minutes to register in the women database here:

Journalists from all corners of Africa yesterday launched a new continental federation to provide a unified voice for newsroom staff campaigning for better working conditions and professional rights. The Federation’s first public statement was to issue a strong protest over African governments that jail journalists and encourage a culture of impunity by failing to investigate violent attacks on media staff.

The biofuels bonanza will crash unless producers can guarantee their crops have been produced responsibly, the UN's environment agency chief has said. Achim Steiner of the UN Environment Programme (Unep) said there was an urgent need for standards to make sure rainforests weren't being destroyed.

Thousands of teachers and hundreds of nurses in Burundi went on strike last month to protest the government’s inability to meet its commitments to increase wages and improve working conditions. In an attempt to end the strike, the government reiterated its promises to grant civil servants the 34 percent pay raise that it announced in May 2007. It remains unclear, however, whether the government will be able to keep up its end of the bargain.

Africa’s rural poor are facing a “perfect storm” of rising food prices, climate change and population growth, the head of the United Nations World Food Programme (WFP) has warned, urging the international community to take more concerted action to help the continent’s most vulnerable people.

The United Nations refugee agency has this week begun an operation to return hundreds of internally displaced persons (IDPs) in the Democratic Republic of the Congo (DRC) to their homes in the troubled north-eastern province of Ituri by the end of the year.

South Africa's agriculture and land affairs minister, Lulu Xingwana on Thursday fired five of the embattled Land Bank's senior board members. The five including board chairperson Lungile Mazwai, and Directors Litha Nyhonyha, Charles Davies, Raisibe Morathi and Moira Tlhagale were fired amid claims that they mismanaged over R1 billion of bank fund.

Student organizations have said they believe university officials are under government instruction to target influential student leaders and remove them from campuses around the country, ahead of the elections scheduled for next year. They referred to the escalating assaults, arrests and evictions of student leaders at major universities as evidence of this campaign.

South African Foreign Affairs Minister Nkosazana Dlamini-Zuma said she would not refuse a nomination to head the ruling African National Congress, which is due to choose a new leader next month. The ANC's dominance of South African politics means whoever wins is almost certain to become the next president in 2009.

Some viruses being used in experimental AIDS vaccine may damage the immune system by exhausting key cells, researchers reported on Thursday in a finding that may further cloud the field of HIV vaccines. They said vaccines using the viruses should not be tested on people until more studies are done. But other vaccine experts said the findings, while scientifically interesting, were not a cause for immediate alarm.

The Kenya National Commission on Human Rights is investigating a large number of alleged executions and disappearances. Preliminary investigations suggest that between June and October 2007 close to 500 bodies of young men have been deposited in various mortuaries in the country by the police and the KNCHR has evidence suggesting that other bodies were dumped in the wild for hyenas and other wild animals to eat

The real danger in the US militarization of Africa, otherwise known as Africom, is not so much in the escalation of the tension, conflict and political dependency of the continent reminiscent of the cold war years, but in the likelihood that the opposition to it may not be significant until it is too late, says Wandia Njoya.

The Netherlands has told its ambassadors in countries receiving foreign aid they must lobby those nations to decriminalize homosexuality and provide LGBT civil rights. The announcement was made in the Netherlands' Parliament by Development Minister Bert Koenders. The Netherlands is a major donor to developing nations giving almost $6-billion annually - mostly in Africa, Latin America and Asia.