Emerging Voices: Engaging with African Human Rights Law

by Chelsea Purvis

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.]

The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law.

An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women.

The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography.

Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights.  In Centre for Minority Rights Development (Kenya) & Minority Rights Group International on behalf of the Endorois Welfare Council v. Kenya (Endorois), the African Commission found Kenya responsible for violating the rights of the Endorois community.  The government evicted the Endorois from their ancestral land to make way for tourism and ruby mining.

In the Endorois case the Commission consolidated international standards on the rights of indigenous peoples and found that the African Charter upholds these standards.  Drawing on the conclusions of its working group on indigenous populations, the Commission concluded that indigenous groups qualify as “peoples” for the purposes of the Charter.  This conclusion marked a watershed moment for indigenous peoples in Africa, where states have historically denied the existence of indigenous communities.

The Commission adopted cutting-edge standards on the rights of indigenous peoples when determining the Endorois’ rights to property and development.  Citing the 2007 UN Declaration on the Rights of Indigenous Peoples and the jurisprudence of the Inter-American Court of Human Rights (IACHR), the African Commission concluded that traditional possession of land conferred property rights on the Endorois.  In line with the Inter-American system, the Commission read a right to collective property ownership into Article 14 of the African Charter, and it required Kenya to take special measures to protect this right.  The Commission further drew IACHR law into its conclusions on the right to freely dispose of natural resources and the right to development.  Like the IACHR in Case of the Saramaka People v. Suriname, it concluded that a state must consult an indigenous community about, and share the benefits of, exploitation of any resource on ancestral land.

The Commission did more in Endorois than simply incorporate existing standards into the African Charter, however.  In an international first, it found that the right to culture is a collective right. By evicting the Endorois from their ancestral land, it determined, Kenya interfered with the Endorois’ ability to practice their culture as a group.  The Commission took another step beyond existing law on the issue of free, prior and informed consent (FPIC).  The IACHR held in Saramaka that “large-scale development projects with a major impact” trigger a state’s duty to obtain FPIC from an indigenous community.  The Commission in Endorois broadened this requirement, concluding that Kenya had a duty to obtain consent for “any” development or investment project that would have a major impact within the Endorois’ territory.  Presumably, a project of any size could qualify.

Human rights institutions outside the African region have largely failed to engage with innovative, African-made law like the Maputo Protocol and Endorois case.  With the Maputo Protocol, non-African jurisdictions have borrowed from the treaty’s provisions—but they have not credited it.  Consider, for example, instruments that borrow the Maputo Protocol’s ground-breaking prohibition of verbal and economic violence against women.  The Committee on the Rights of the Child (CRC Committee) in 2011 adopted a general comment on violence against children, recognizing verbal abuse as a form of psychological violence.  The CRC Committee does not reference the Maputo Protocol when discussing verbal abuse, although it cites Inter-American and European law elsewhere.  Similarly, the Council of Europe’s 2011 Istanbul Convention on violence against women contains several provisions similar to those of the Maputo Protocol.  But the Convention’s Explanatory Report gives the Maputo Protocol little credit—suggesting, in fact, that the Istanbul Convention’s drafters were responsible for “expand[ing]” the concept of violence against women to include economic violence.

Human rights institutions have likewise failed to engage with the Endorois case.  The IACHR cites Endorois in the 2012 Case of the Kichwa Indigenous People of Sarayaku v. Ecuador when finding that the right to culture is collective.  It does not discuss Endorois further, however, even when analysing the right to development FPIC.  The Special Rapporteur on the rights of indigenous peoples has similarly neglected to engage with Endorois.  The case is not mentioned in any of his annual reports released since 2010, even those focused on extractive industries operating within or near indigenous territories and corporate responsibility with respect to indigenous rights.

Why are non-African human rights institutions so reluctant to engage with African-made human rights law?  The most likely reason is that African human rights institutions are perceived to lack credibility—and non-African institutions are hesitant to cite what they believe to be poor sources of law.

It is true that African institutions have weaknesses.  Many treaties, including the Maputo Protocol, lack monitoring and enforcement mechanisms.  States do not sufficiently fund and staff the African Commission, and the African Commission historically has not made full use of its enforcement powers or publicized its own decisions.  These problems are common to human rights institutions, though—and the situation at African institutions has substantially improved in recent years.  The African Court is hearing cases.  The Commission now holds implementation hearings, and it recently released its first General Comment on the Maputo Protocol.  The African Commission holds regular meetings with the Inter-American and European Courts and with sub-regional human rights bodies.

African institutions, then, do not actually deserve a reputation as poor sources of law.  I would suggest that non-African institutions marginalize African-made human rights law for much the same reason that Western academics have done so.  Historical dynamics between Africa and the global North mean that Africa is assumed to be a follower, not a leader, in human rights—even when it proves otherwise.  It may simply not occur to Western jurists—or to the human rights advocates providing them with amicus briefs and reports—that there is worthwhile African law to which they should refer.

When non-African institutions consistently fail to engage with African-made law, they further damage the credibility of African institutions.  Even more importantly, this lack of engagement impedes the development of human rights law globally.  Human rights norms develop from an exchange of ideas. Omitting African ideas from this exchange means that innovative solutions to human rights problems are lost.

http://opiniojuris.org/2013/07/19/emerging-voices-engaging-with-african-human-rights-law/

6 Responses

  1. An excellent post, I couldn’t agree more.
    In my experience, the problem is also often a lack of awareness brought on by training which largely ignores African human rights institutions, possibly contributing to this image of African human rights law as second-class. In international criminal law, the predominantly European-educated lawyers turn reflexively to the European Court of Human Rights (and Latin Americans to the IACHR), ignoring not only Africa and other regions but even the UN human rights machinery, despite article 21(3) of the Rome Statute’s emphasis on internationally recognized human rights. This is the case even when there is African human rights law directly on point. Two critical steps needed to overcome this are: (1) much better integration of African human rights in so-called international human rights curricula and (2) much greater involvement of African lawyers in practice. 
    While fully agreeing that African human rights law can provide useful innovations contributing the development of the law, one of the ironies is that practitioners often will only look to African law in those cases where they need some source for innovation on a point not backed by the ECtHR. Being perceived as too innovative can also hamper an institution’s reception by others. To strengthen the contribution of African human rights law to international law, it’ll also be critical to emphasize and to develop its common core with other human rights regimes.   
     

  2. The reason for the lack of engagement that Chelsea Purvis decries, is the lack of effect on the African ground, that any of these treaties or decisions would be expected to have, but do not have. So far, we witness an elaborate building of facade villages, with no living quarters behind the fronts.

    Both the Endorois decision and the Ogiek injunction have had absolutely ZERO effect on the ground in Kenya. In fact, my Ogiek friends have strongly criticized the Mau Forest injunction, because of its counterproductive effects for First Peoples’ rights.

    What Purvis lauds here, is but an academic Glasperlenspiel; of great interest certainly for legal scholars who need new fields to toil and plough, but so far without any imprint on the condition of those whom such treaties and decision would be destined to serve.

  3. Transparent Freudian slip of mine:
    it should have been “to till and plough”, rather than to toil and plough. :-)

  4. David K and Alexander Eichener, thank you for your comments.  
    David, I agree with you that training is likely part of the problem. Lawyers outside of the African region don’t get enough exposure to African regional law and jurisprudence.  From what I understand, this situation is improving: Recent editions of textbooks on international human rights increasingly feature African jurisprudence.  But certainly regional systems (outside of ECHR) still need to be better integrated into human rights curricula, as do the voices of African lawyers.
    Your point on emphasizing the commonality between African jurisprudence and other systems is interesting.  The African system shares a great deal of normative content with other systems. When these commonalities are discussed, though, they are often presented as evidence that Africa is absorbing outside norms–rather than as evidence of the universality of the norms themselves.
    Alexander, implementation is undoubtedly a major problem in the African regional system.  As I note in my post, enforcement and monitoring issues are weaknesses of African human rights institutions.  But Africa’s problems here aren’t unique: All human rights bodies–even the oldest and most well-funded– rely on states to carry out their decisions and thus struggle with implementation.  Implementation of ECHR rulings has been a consistent problem, for example, in nine CoE member states.  Critics of the African system over emphasize its implementation problems compared to those of other human rights tribunals and UN treaty bodies.  And as I argue above, the insistence that Africa’s tribunals aren’t functioning–when in fact they’re producing innovative law and are improving their capacity to monitor judgments–hurts their credibility on the ground, rendering states less likely to implement judgments.
     

  5. I think the author and her critics still argue very incisively past each other. :-)  Both the involved folks on the ground (the wananchi, to use the Kenyan social parlance for the would-be-beneficiaries and actually-not-benefitting-at-all destinataries of the two mentioned AU court decisions), and this undersigned writer here who is mostly a legal practitioner, and only at times a scholar-pretender :-) , both have a totally different perspective from Ms. Purvis.

    Neither the Ogiek nor I are much interested in whether the African Commission of Human Rights (acting as a court) has already contributed interesting subjects for hungry junior academics to dissect and dissert upon, as to make subjects of future theses.
    Nor is it of interest to an Endorois fisherman or an Ogiot hunter whether a future footnote or in-text-citation in a decision, say, the European or Pan-American court of human rights, will also duly incorporate an African easter as just one more precedent to rely upon. As nicely multi-cultural and inclusive as that may FEEL.

    Our perspective, rather, is judging the effect. The legal effect on the ground. Either directly (via being enforced and executed) or indirectly (via influencing future decisions of national African courts).

    Once such effects come to be seen, the Commission or its presently deliberated court successor, will gain respect indeed. The very respect that PRESENTLY it does not yet deserve at all, and therefore does not get.

    This leads me to a second deliberation. Quality and juridic (dogmatic) substance of most national African jurisdictions are often incredibly inferior to much of the national jurisprudence that the majority of readers of this blog are intimately acquainted with. Mostly due to totally insufficient legal training. The newly instituted “Supreme Court” of Kenya has within mere months become the laughing stock not just of foreign jurists, but also of ordinary Kenyans. Because even lay people sometimes do well recognize the difference between legal prowess and legal expertise, and boastful legal ineptitude. This has led to the nickname of “Six Legal Toddlers” for the Kenyan SC.

    Now, to close the circle, international or supra-national courts can – indeed – play an important rule in demonstrating best standards of jurisprudential practice, and imparting them to national jurisdictions, via persuasive authority. The pre-trial and trial chambers of the ICC have already worked very hard to achieve that. But to achieve such effect, receptive and properly trained jurists on the national level are needed. In many African countries, they do hardly exist. And it is this fact that I see blinkered out in Purvis’ otherwise certainly very well-meaning and respectful article.

  6. “easter” =[really meaning]= “easter egg”.
    Sorry for the omission in spite of proof reading.

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