OAU - Watchdog With Rubber Teeth? Part 2
Mark Kwesi Gyebi Korang
In part one of this article first published last week, Mark Kwesi Gyebi Korang discussed the O.A.U. Charter and its shortcomings. In this final instalment he explains why he thinks the organisation is an important but not an effective tool for solving the numerous problems confronting the continent.In an article entitled "Human Rights and the three worlds of Power" (Round Table 1978 Vol. LXVIII) Prof. A.A. Mazrui argues that international debate about human rights has to be seen as part of a wider process of normative change in the world. According to him, there is a demand for a new international economic order based, as it is, on particular perceptions of what constitutes economic and social justice at the global level.
Secondly, there is the demand for greater respect of human rights - this, he says, is the reactivation of Liberal concern in relations among nations. Finally, he points out that, there is an attempt to realise a form of detente among normative or ideological adversaries; a striving to consolidate peace in spite of conflict in values between states.
He goes on to break this argument into distinct classifications namely:
- The juridical rights of states
- The human rights of individuals, and
- The collective rights of groups and races.
Diallo Telli, the first Secretary-General of the Organisation of African Unity died in prison in Guinea. The Human and Peoples' Right clauses in the Charter that he helped to set up could not save him.
The preamble of the charter declares the determination to eliminate Colonialism, Neo-colonialism, Apartheid, Zionism and to dismantle aggressiva foreign military bases and all forms of discrimination particularly those based on race, ethnic group, colour, sex, language, religion or political opinion. This has always been the stance of the OAU. What puzzles me is the presence of the word: Zionism in an African Charter? Having argued that the Charter was designed to deal with peculiar human rights problems appertaining to Africa, I now find it difficult if not impossible to justify the inclusion of ZIONISM in the Charter.
Zionism deserves condemnation, but then, this problem is unknown in Africa and therefore cannot possibly be considered as one of the immediate problems of Africa. The word Zionism is out of place in this charter and could to some extent taint the image of the charter as a legal instrument dealing with specific human rights problems in Africa. On this point, it is submitted that the drafters of the charter overstepped their mark a bit.
It is not so much what can be included in a charter that matters but rather how it can effectively be implemented. Art. 1 of the charter enjoins member states to adopt legislative or other measures to give effect to the rights and duties enshrined in the charter. It means that the Charter will have the binding force of immediate application when it is ratified by the requisite majority.
This could be an attempt to do the impossible because some of the rights embodied in the Charter can only be of progressive application in that they lay down standards for the future of better still, obligation to do something in the future. Not all the articles embodied in the Charter can be of immediate application although Art. 1 prescribes so.
Distinction must be made between rights that are of progressive application and those that are of immediate application. This is a problem that was foreseen and avoided by the architects of the UN Covenants on Human Rights. It may be recalled that the Universal Declaration of Human Rights of 1948 did not have a binding force of immediate application in that it was promotional in nature.
It was considered that a Convenant on Human Rights was necessary. It was realised that not all human rights issues can receive immediate application hence, the two Convenants of 1964 namely, the Convenant on Civil and Political Rights, and the Convenant on Economic Social and Cultural Rights. Whilst the former imposes on member states an obligation of immediate application the latter sets out obligations that must be put into practice in the future.
The difference in the obligations result from the very nature of the right in the Convenants. For instance, the Charter on economic and social rights is based on the premise that contracting parties have different stages of development and therefore need time to do some "spade work" before those obligations can be carried out. This very vital distinction is overlooked in the African Charter, the result would be that it will make implementation very difficult if not impossible.
Certain articles are worth discussing. There are few examples Article 7 refers to the right of the individual to have his course heard. This comprises access to a court of Law and the right to appeal. This is a very good proposition but the OAU did not find it expedient to create a court of its own which will serve as an appellate court of regional jurisdiction to which cases. can be referred to after exhaustion of Local remedies.
Article 10 & 11 deals with freedom of association and assembly, but there is a proviso that the exercise of their rights must be within the ambit of the domestic Law of a State. It begs the question How can people of one party state utilise this Law to their advantage? The same is true of countries under military dictatorships.
Vote
Equally worth mentioning here is Art. 12(5) which prohibits mass expulsion of non-nationals. It appears Nigeria has taken no hint from the grave mistake the Busia's Government of Ghana made and is reported to have expelled thousands of non-Nigerian Africans from Nigeria in the wake of the adoption of this Charter and the establishment of ECOWAS which allows free mobility of labour amongst member states.Article 13 refers to the right of the individual to take part in government and public office. What is missing here is the right to vote which in certain member countries is just a thing of the past.
Article 18(3) says "the state shall en sure the elimination of discrimination against women. I am tempted to ask, 'what could be the outcome of article 18(3) in Islamic states where their religious believes allow some form of discrimination against women considering the fact that International Law encourages freedom of religion?
Article 24 proposes the right to general satisfactory environment favourable to the people's development. Yet nowhere in the Charter is "satisfactory environment" defined. The architects of the Charter failed to say what must constitute a "satisfactory environment" or by what criterion this standard may be measured.
One peculiar aspect of this Charter is the duty imposed on the individual towards his state. Whilst the state parties undertake to guarantee the individual his rights, there is a corollary duty imposed on the individual to render services to his state. There are those who think that a state should not impose a duty on her citizens at least, not as a condition or exchange for human rights. I would like to think that this two-way traffic is most commendable for two reasons. Firstly, I believe that individuals must bear some responsibilities to their states and secondly, it is in-keeping with African tradition. One such example of an African tradition is 'Communal Labour'. Nevertheless, what remains to be seen is how effectively this can be enforced.
Unfortunately, all the articles in the charter can not be discussed for want of space. What cannot be left out, however, is the provision made for the enforcement of the Charter. In fact it is the focal point of this essay. The Charter makes provision for the establishment of an African Commission on Human and People Rights composed of 11 members of state parties, chosen by the assembly of Heads of States. It is baffling however, that the commission was only entrusted with investigative powers.
Implementation
Another point is that, the independence of the Commission is whittled down by the right vested in the Secretary General to attend the meetings of the commision. It is true that the Sec Gen. can neither cast a vote nor participate in the deliberations of the commission, nevertheless his presence alone at the meetings take away a certain amount of independence however minute.What is more puzzling is the fact that the Commission can only submit their findings to the assembly of Heads of State. When the Commission considers that there is a communication in which there are elements of a serious violation of human and peoples rights, they have to inform the assembly of Heads of State and Governments, who will then authorise them to carry out an in-depth study of the situation.
Watch-Dog
I have referred to the Charter as a watch-dog with rubber teeth or perhaps no teeth at all because it is meant to be the ultimate custodian of human and peoples right on the continent of Africa, but the drafters have provided it with a set of rubber teeth, as such it can only bark and not bite.The weakness of the Charter is so glaring it is unbelievable.
You may argue that there is a Commission fair enough, but note that there is no Court of Law to which the Commission can refer its findings to for effective action.
They only have powers of investigation after which they have to refer their findings to a group of politicians majority of whom are self-imposed dictators. They cannot even investigate until they have been granted permission by the Assembly of Heads of State.
Politician will always come out with political decisions which could lead to miscarriage of justice. Infact, looking at the records of some of our political leaders, and the so-called military redeemers, it is questionable whether the assembly of Heads of State should be entrusted with decisions concerning human rights.
Since governments are more likely to be the offenders of human rights, it is against one of the fundamental principles of natural justice to make them the final arbiters. "No one shall be a judge of his own course".
Article 43(3) empowers the Commission to interpret the provisions of the Charter at the request of a member State. It begs the question whether the commission is a court of Law? If not, why should they possess the power of interpretation?
The commission cannot give an enforceable verdict.
He who doubts the ability of our leaders to manipulate justice should cast his eyes back to 1975 when Idi Amin was at the peak of his massacre. No one raised a finger, instead they hid behind the curtain of "non-interference in the domestic issues of other states". They even went on and held a summit (meeting) in Kampala and to crown it all they elected Amina the Chairman of the OAU for 1975-78 Bokassa and Macias Nguema had a free hand to commit the most heinous crimes against mankind and no mentioned was made about their atrocities. What happened to Diallo Telli, the first Secretary-General of the OAU - we would like to know?
Remedies
Few remedies are recommended for the Charter: The establishment of a court of human and peoples rights is imperative. It could never be premature, as was argued in Banjul. The African Commission of Human & Peoples Rights must be given adequate powers, such as the right to investigate allegations of breaches of human rights without first of all seeking permission from the Assembly of Heads of States.The Commission must have a free hand to do its duty. There must be a method of expelling member states who seriously encroach upon human and peoples rights. So far, despite the enthusiasm with which the Charter was drafted, only seven countries have signed it.
At this point, I cannot but conclude that, in spite of the shortcomings pointed out, the Charter remains a very important document to advance the course designed of the silent majority. This is a step in the right direction, but until these suggested amendments have been made, it will remain a "watch-dog with rubber teeth".
