Kenya has a strong defender at the UN, the African Group. It comes as no surprise that the African Group has condemned the harsh indictment of Kenya’s prosecutorial and policing authorities by the special rapporteur on arbitrary executions, Professor Philip Alston. Any keen observer of the attitude of this regional grouping of 56 countries will have noticed that its actions have consistently been statist in orientation and largely anti-human rightist. To its credit however, the African Group appears strongly interested in ensuring that issues of global economic inequality are mediated and that Africa benefits from globalisation. It is important to consider the genesis, contested role and achievements of the African Group, lest its recent defence of Kenya be overemphasised or ignored.

Arising from Africa’s historical marginalisation from the more domineering UN Security Council charged with ensuring global peace and security, the choice of forum for the African Group's diplomatic activities has largely been the UN General Assembly (GA), where it commands a significant numerical majority. It is therefore within the GA that the African Group flexes its muscles and dramatises its role, often in coalition with the other developing countries’ groupings, notably Asia. The GA is the chief deliberative, policy-making and representative organ of the United Nations, comprising all 192 members of the UN. Indeed, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the charter, including the promulgation and codification of human rights standards, both declarative and treaty instruments. To the extent that the GA has adopted a number of significant human rights instruments that have a bearing on human rights in Africa – from the veritable International Bill of Human Rights to the recent Disability Convention – it can be admitted that the African Group has contributed to the overall universalisation of human rights norms and language. Nonetheless, it must be appreciated that such treaties, although duly adopted, would still require action at the state level, particularly where such states are monistic in orientation. The import of this is that African states often adopt and even ratify instruments but do not provide domestic imperatives to enliven these treaties. The limits of the actions of the African Group in terms of standard setting must therefore be considered from the less significant place of the GA within the larger institutional framework determinative of global policy.

With 13 members out of 47 at the new Human Rights Council, a subsidiary body of the GA specifically responsible for strengthening the promotion and protection of human rights around the globe, the African Group (working with the Asian Group, which has an equal number of representatives at the Council) has often stood in the way of more radical action against human rights violators, particularly in developing countries. Hence the council, originally designed to place human rights at the centre of global policy in the context of UN reform, has failed to rise to meet this intended purpose. Even the council’s flagship strategy, the Universal Periodic Review, a mechanism intended to systematically assess the human rights situations in all 192 UN member states, has been significantly watered down due to the recalcitrance of the African Group and its coalition of the complicit, backed by China and sometimes, Russia.

But the worst form of malfeasance on the part of the African Group has been its brazen defence of autocratic regimes in the continent in deference to notions of territorial integrity and national sovereignty. For instance, the African Group has strenuously counselled against stronger sanctions towards Zimbabwe in spite of the latter’s flagrant abuse of human rights, including the worst forms of arbitrary arrests and intimidation targeting civil rights activists. In the same vein, the group has stood up for the Khartoum regime to challenge the Security Council’s reference of the genocide in Darfur to the International Criminal Court (ICC). That over 300,000 people have been killed and millions displaced appears to have had no effect on the African Group’s determination to defend the continent’s hard-won sovereignty. In 2006, the African Group also led those opposed to the adoption of the UN Declaration on the Rights of Indigenous Peoples on the grounds, inter alia, that the declaration’s provision on consultation of indigenous people in development programmes was an affront to the sovereign rights of states, a fallacy of superlative magnitude. It is also to the Human Rights Council that the UN Special Procedures, including Professor Alston’s rapporteurship on extrajudicial executions, report. Consequently, the condemnation of Alston’s recommendation with regard to Kenya, and the ongoing lobby for the non-renewal of Alston’s mandate is consistent with the African Group’s disdain for strong international censure of the continent’s semi-authoritarian regimes.

In contrast to its dismal record as defenders and promoters of human rights, it must be stated that the African Group has strongly advocated for the international appreciation of the economic plight of Africa. Starting in the 1960s in the context of decolonisation and the new economic order led mainly by Eastern European countries, notably Tito’s former Yugoslavia, the African Group sought to reformulate its relationship with its former colonial masters in the West.

Specifically, the adoption of the Declaration on the Right to Permanent Sovereignty over Natural Resources in 1962, which has subsequently become part of customary international law, signalled Africa's intention to thwart the iniquitous appropriation of natural resources on the continent by Western states’ multinational capital enterprises in the guise of economic investments. Specifically, the declaration asserted the right of peoples 'to freely dispose of their natural wealth and … [that a people be] not deprived of its means of subsistence', a provision reiterated in Article 28 of the African Charter on Human and Peoples’ Rights.

The recent forays of the Chinese capital in the extraction of the African continent’s natural resources from timber to fossil fuels reveals however a duplicity in Africa’s approach towards natural resource exploitation. More recently, the African Group has engaged with international trade issues with a view to ensuring that Africa’s interests are articulated and protected. For instance, in the context of the World Trade Organization (WTO), the group has questioned TRIPS' (trade-related aspects of intellectual property rights) requirement for mandatory patenting of some life forms and some natural processes. It did propose clarity that plants, animals and micro-organisms should not be patentable. It also sought clarification that a 'sui generis' system of plant varieties protection would include systems that protect the intellectual rights of indigenous and farming communities. These proposals represent important milestones for the protection of vulnerable farming communities in Africa that would otherwise be further marginalised by a more circumscribed international intellectual property regime.

Whether the African Group at the UN is indeed a friend of Africa is thus a question that must be assessed from the context of the foregoing outline of its performance. It is clear that rather than a champion for human rights, the African Group appears more and more to be a champion for Africa’s development. This approach however is counterproductive since it is often the case that sustainable development is a coefficient of respect for human rights. The African Group’s posture, moreover, has succeeded in reviving the dichotomisation of human rights into civil–political rights that resonate with Western states, and economic, social and cultural rights that purportedly go well with countries burdened by poverty and want, especially Africa. This dichotomy however fails to appreciate the universality of human rights, acknowledged since the Vienna Human Rights Conference in 1993. As such, the approach creates excuses for African dictators to run amok rather than encouraging the entrenchment of a culture of accountability in governance.

* Korir Sing’Oei is an international human rights scholar at the University of Minnesota Law School and a co-founder of the .
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