Mmegi Online :: African states are worst violators of human rights – Part 2
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Friday 08 December 2017, 17:25 pm.
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African states are worst violators of human rights – Part 2

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)
By Correspondent Fri 01 Dec 2017, 14:53 pm (GMT +2)
Mmegi Online :: African states are worst violators of human rights – Part 2








Contribution to

 international human rights law

Despite the weaknesses identified above it is generally agreed that the African Charter has been pivotal in influencing the development of regional standards on human rights on the continent.

Some scholars have argued that the African Human Rights System has significantly contributed to and shaped the international human rights system on account of the fact that the African Charter makes a clear break with numerous dichotomies that prevailed in international law. For instance, in areas such as refugees, the environment and children are concerned, African states responded to defects or omissions in UN Treaties.

The UN Refugee Convention of 1951( and the 1967 Protocol thereto) was supplemented by the OAU Refugee Convention of 1969 providing, amongst other things, for an extended definition of ‘refugee’. In respect of the environment, the Basel Convention (1989) was taken a step further with the adoption of the Bamako Convention (1991). As far as children’s rights are concerned, the African Children’s Charter (1990) followed on the heels of the CRC (1989), elevating the protection of children in important respects of particular relevance to Africa.  Weakness of the African human rights system: clawback clauses, duties and women

According to Prof Hansungule, the most notable shortcoming in the African Charter is the imprecise and incomplete formulation of the system of human rights. Most human rights standards in the Charter are couched in the form of ‘clawback’ clauses.

No doubt, ‘claw-back’ clauses stand as the lowest point in the Charter. Even though the Commission has somehow found a way around this problem, the fact is that claw-back clauses constitute a significant source of concern. It must be understood that while the rights regime is not self-sufficient, a lot more can be done to try and minimize opportunities for abuses taking advantage of deliberate inadequacies.

As most African Charter rights stand at the moment, there is ample ground for suggesting that States are permitted greater latitude and extraordinary flexibility in trying to identify the extent of their obligations. Even more worrying, claw-back clauses constitute a form of a permit for the already unwilling State to engage in wanton and routine breach of the Charter obligations using the reasons of public utility or national security, etc.

 

The African State as a

violator of human rights

The painful reality in Africa is that generally, with a few exceptions, the new regimes are largely reincarnations of the old colonial masters.

The reality is that the African state has been such an egregious human rights violator that skepticism about its ability to create an effective regional human rights system is appropriate.   This calls for civil society to be active and vigilant in safe guarding the rights contained in the constitution.Cultural relevance and cultural relativism, One of the critical aspects of the African human rights system is that its documents are drawn up with a strong cultural contextualization as a foundation. The tension arises when culture and realization of rights are pitted against each other, also described as cultural relativism.

The cultural context –

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taking into account “African” cultural view of the community as being the main unit and not just the individual. This is the unique African contribution to international human rights discourse that has been most widely recognized. Although the African conceptualization of human rights is more expansive compared to the Western conceptualization of human rights, culture has often been used to deny rights to women, and marginalized sections of our community such as sexual minorities.

 

Conclusion: To bridge the gap

we need to bring human rights

to the local level

In Africa the gap between the bill of rights in our constitutions say and the reality is huge. Our institutions set up to support democracy are weak and beholden to the executive. The big man syndrome still reigns supreme. Elections have become rituals in which the oppressed return to power a new set of oppressors to oppress them.

We have a problem of ratified treaties that are not domesticated; and or implemented. Under human rights treaties, a ratifying state’s overarching obligation is to “give effect to” the rights provided for in each of the treaties. What is required, is domestication or incorporation (making international law part of national law); institutionalisation and operationalisation (establishing national institutions and processes to provide for specific channels of responsibility); and internalisation (changed conduct based on the acceptance of international norms).

It s important that the legal fraternity plays its part in ensuring that obligations arising out of international treaties are operationalized in practice to benefit common person on the ground.

African countries must ensure the protection of human rights defenders by observing the letter and spirit of the African Charter on Human and People’s rights and other human rights treaties to which most of our countries are signatories.

There is also an urgent need for the AU to call a halt to violent suppression of dissent that is common amongst many African countries. AU must not allow violations of human rights with impunity and must set up appropriate structures to bring offenders to book. In particular, the AU must quicken the process of establishing a hybrid court in South Sudan to deliver first steps towards accountability for the numerous violations of human rights committed since December, 2013.

It is also important that the AU should call upon those member states who have not done so, to deposit the declaration under article 34(6) of the Protocol on the African Court on Human and Peoples Rights to allow individuals and NGO’s to directly submit their cases to court; and to recognize that the rights in the African Charter apply to all people without discrimination on any grounds including sexual orientation and gender identity.

Poverty is one of the gravest concerns that is diminishing the dignity of our people. It is imperative that African governments manage the resources of our countries prudently and efficiently in order to build up sufficient resources to meet the socio-economic rights of the people. This means amongst others, that corruption and waste must be completely eliminated.

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