A speech delivered by JUSTICE KEY DINGAKE (PhD) at the 2017 Annual Jurists Conference on theme: “State “of Human Rights in Africa: Bridging the gap between Aspirations, Implementation and Enforcement” held at Serena Beach Hotel, Mombasa (November 21 -25, 2017)
Of recent I have been visiting your country regularly, undertaking several and diverse missions as a servant of the law. My singular task is to set the context of your conference by giving an overview of the state of human rights in Africa.
It is a sad reality of our time that human rights, although codified in our Constitutions, and supplemented in many international and regional instruments our governments have ratified are honoured more in breach; our governments, including ourselves as individuals, have not fully embraced the humanity of every person, in our daily interaction with each other, even as we openly acknowledge that human rights accrue to all persons equally.
Traditionally, human rights were considered a shield against governments; to protect the people against governmental abuse and neglect. Today, we know that even individuals and private entities can and do infringe human rights.
The story of human rights in Africa is a mixed one: there have been notable achievements especially in the area of civil and political rights compared to the past era of one party state. This is no so with socio-economic and cultural rights that have suffered noticeable neglect for most of the post independence era.
The state of human rights in Africa is closely linked, at a regional level, to the state of the African human rights system. The African human rights system was borne of the post-colonial euphoria and commitment to build a pan-African union of nations that thrived on human rights and respect. The interesting tension that continues to be played out even today was the equally foundational premise of sovereignty and non-interference. When the African human rights system was forged in the late 1970s and early 1980s, the possibility of an African human rights court was raised, but rejected. Participants in the drafting process concluded that the continent was not yet ready for a judicial institution to make pronouncements on human rights violations committed by States.”
It is noteworthy that the State machinery in member States often adopts this rhetoric of readiness when explaining away the failure to meet rights obligations that are owed to the citizenry, particularly when it comes to the protection and promotion of social economic and cultural rights. In this way, full realisation of rights is perpetually pending and postponed to a time when the State will supposedly have the capacity, mainly financial, to meet its obligations. In more recent years, this attempt to hide behind the age-old adage of empty coffers has been linked more directly with good governance principles of accountability and transparency and the human rights cost of corruption.
The establishment of the regional human rights system in Africa in the mid-to-late 1980s coincided with the onset of what has been termed African Renaissance. After the first three decades of independence had failed primarily because of bad government, African peoples across the continent were determined in the late 1980s to end years of despotic, unaccountable, single critical human rights challenges faced in Africa today
Africa is littered with countless human rights challenges. They are far too many to do justice to all of them in 30 minutes that has been availed solely for setting the scene. In providing an overview of the human rights challenges in Africa, I have considered it prudent not to name and shame any party or military governance.
Because of limitation of time, I have chosen to focus of a few thematic areas: These include issues of: (a) access to justice, (b)shrinking civic/democratic space, (c)repressive laws and practices that are inimical to freedom of freedom of expression, assembly and association, (d) rights of women and children, (e) issues of sexual and gender identity, (f) disability, (g)TB and human rights and (h) poverty.
Access to justice
Access to justice in our continent, especially by the marginalised and the poor is a major concern. For instance, sexual gender-based violence, (which is costing the continent all sorts of ailments, including lack of productivity and consequent decline in economic fortunes of our countries), is one of the most prevalent crimes against women.
Yet women are finding it difficult to access the courts on account of gender stereotypes, discriminatory legal provisions and cultural norms; including the requirement for corroboration in rape cases in some countries. Poverty is also one of the factors that frustrates access to the courts.When it comes to children, in the juvenile justice system, there is a disturbing trend where children are incarcerated with adults in some countries, with all the attendant problems of abuse that happen in prisons.
Shrinking civic/democratic space
There is a growing tendency in Africa for governments, usually operating outside the law, to silence dissenting voices by civil society, media, opposition parties, human rights defenders that seek to hold them accountable. In many countries in this our continent, human rights defenders, the media are often arbitrarily arrested and detained. Quite often, heavy-handed administrative measures are undertaken to de-register trade unions and other civil society groups, authorities sometime going so far as freezing bank accounts in order to clip the wings of some of these formations. Political intolerance and repression of political opponents has led to conflicts that have led to a serious refugee problem in Africa. In consequence of these developments, some countries end up carrying a disproportionate burden of hosting refugees. According to the UNHCR report of 2015, East Africa is the biggest contributor of the entire refugee problem in Africa.
Freedom of Expression, Assembly and Association
In many countries of Africa, repressive laws have been enacted curtailing citizens’ rights to free expression, peaceful assembly and freedom of association. Increasingly, counter –terrorism laws are being misused to target the legitimate work of human rights defenders. Non Governmental Organisations (NGO) and media laws are being passed with broad and vague terminology facilitating judicial proceedings against human rights organisations and media outlets under the guise of “threatening national security”. In many other countries, peaceful protests calling upon
Rights of women and children
In a number of countries in Africa, women and children are amongst the most vulnerable sections of our society. Notwithstanding progressive Constitutions that proclaim such values as human dignity and equality before the law women are still treated as second class citizens in most countries. In a number of countrie,s customary laws are still used to perpetuate discrimination against women such as customary laws that prohibit women from inheriting the estates of their deceased parents. Women’s rights in Africa are still a far cry notwithstanding strong progressive policy frameworks on women’s rights.
One of the most progressive regional instruments that a majority of African States have signed is the Maputo Protocol of 2005. Article 14 of the Protocol is clear on the rights to safe abortions in cases of incest, sexual assault, rape and when the pregnancy endangers the mental and physical health of the mother, or the life of the mother or foetus. However due to stigma and other factors, and notwithstanding laws to to legalise abortion consistent with the terms of the Maputo Protocol, countries are still faced with far too many cases of unsafe abortion. The sooner countries appreciate that having good laws on its own is not good enough, the better. To make a positive difference in peoples’ lives, good laws must be implemented.
In some jurisdiction,s women are still regarded as minors in the eyes of the law. Children are another group whose rights are wantonly breached – such as their rights to sexual reproductive health rights; denial to education during times of conflict.
Sexual and gender identity
The right not to be discriminated on the basis of sexual orientation and freedom to express one’s gender identity are heavily contested and denied in Africa. The myth that there are only two genders: male and female still holds sway. And although most of our Constitutions entrench the values of human dignity and equality, we are still a long way from fully complying with our Constitutions. In terms of the UDHR, human beings are all born free and equal. We all have our own different identities and thoughts and the fact that I may be different from you or from the majority does not mean I am less human.
In Afric,a the disabled persons usually receive a raw deal from their governments and society. They are stigmatised and denied opportunities that are availed to other members of society. Governments tend to adopt a charity model than a human rights model; and disabled persons are not sufficiently accommodated in public spaces.
Discrimination based on health status
Discrimination based on health status is rampant in our continent. Persons who are living with HIV, or are perceived to be HIV positive, are discriminated against and stigmatised. Discrimination against people with TB is also quite widespread. According to the most recent WHO Global TB report, there are more than one million reported TB cases in Africa. In Kenya, one of the 30 high burden countries in Africa, there are 169,000 people with TB, out of which 22,000 are children. TB is one of the leading causes of death in Africa. Many people with TB do not know their rights and their rights are routinely violated. For example, putting people into isolation when they can be treated in the community, dismissing people at work who have TB, is a violation of human rights which is all too common on this continent.
Poverty in Africa is endemic. It is a disconcerting fact that far too many of our people wallow in poverty, when in actual fact there are sufficient resources for all of us in the continent. What has gotten on the way of realising the socio-economic rights of our people is rampant and unmitigated greed, pervasive corruption and debilitating inefficiency or sheer incompetence in matters of governance and service delivery. As judges and jurists gathered here today, I am certain that none of us can credibly contest the view that there is no point in guaranteeing to me ‘the right to life’ without guaranteeing me the complementary right to the means of sustaining the life you are guaranteeing (i.e. economic means, a job, a decent income, etc.). The absolute poverty under which the majority of the people of this continent live, is the greatest violation of their rights as human beings.
The greatest challenge facing Africa today is the triple burden of inequality, unemployment and poverty. It is clear from the above narrative that Africa is beleaguered by “gaps” – gender gaps, learning gaps, accessibility gaps, service delivery gaps, economic gaps, sexuality gaps, rights gaps and age gaps. The question is whether the human rights system can adequately address these gaps, bridging them to bring human rights down to the level of even the most far-flung and almost forgotten of rural citizens.
The linchpin of the African human rights system: the Africa charter
The linchpin of the human rights system in Africa is the African Charter on Human and People’s Rights. Normatively, the African Charter is an innovative human rights document. It significantly departs from the narrow formulations of other regional and universal human rights instruments.
It weaves a tapestry which includes the three “generations” of rights: civil and political rights; economic, social, and cultural rights; and group and peoples’ rights.
Its most controversial provisions impose duties on individual members of African societies. The Charter links the concepts of human rights, peoples’ rights, and duties on individuals. Without making any false distinctions between the various categories of rights; civil and political rights are included next to socio-economic rights.
The major problem of the African human rights mechanism is the weak human rights institutions that do not have any power to make any meaningful difference. The other problem is the weak enforcement mechanism.