Human Rights in Africa -A New Perspective
on Linking the Past to the Present
EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua”
in
The discussion of human rights
in Africa must be
grounded in its political and ideological history and, more impor-
the continent’s history of nationalism and anti-
tantly,
colonialism. A rights discourse was an important tool of inde-
pendence movements. As a result, several post-colonial constitu-
tions embodied a bill of rights. Commitment to human rights re-
mained rhetorical, however, often sacrificed in the name of ide-
ology, tradition, or institutions.
After independence had been achieved in many countries,
African socialism offered an ideological justification for divorc-
ing human rights from nationalism and domestic constitutions.
This influenced the institutional accommodation of human rights
in Africa in the Organisation of African Unity. Traditional argu-
ments were also offered to justify the move away from constitu-
tional protection of human rights. These arguments were based
on a romantic view of traditional African society that portrayed it
as purely communalistic, homogenous, and cooperative.
This traditional view is also at the root of much of the
scholarship on human rights in Africa. That scholarship has two
schools: one emphasizing that human rights in Africa are com-
munitarian, the other denying their very existence. The authors
propose that the African perspective on human rights is neither
entirely individualistic nor purely communal. Further, the Afri-
can Charerast Hwnan and Peoples’ Rights is far from a realistic
reflection of human rights in Africa.
The authors conclude that human rights are central to Af-
rica’s development. The nation-state in Africa has ignored the
ethnic composition of the continent, leading to its present crisis.
The right to self-determination should, therefore, occupy a cen-
tral position in the human-rights debate in Africa. Properly inter-
preted, it can be used as an effective tool for resolving ethnic and
political disputes. To this end, the African Commission on Hu-
man and Peoples’ Rights will have to play a greater role in guar-
anteeing the right to self-determination.
Le ddbat des droits de Ia personne en Afrique doit se fon-
der sur l’histoire politique et idologique. et de mani’re plus im-
ponante, sur l’histoire nationaliste et anticolonialiste du continent
afficain. Le discours des droits de la personne constituait un outil
important des mouvements d’indpendance. Consdquemment
plusieurs constitutions post-coloniales comprennent une charte
des droits de la personne. Toutefois, I’engagement a respect des
droits de la personne demeure une simple rhdtorique, souvent sa-
crifide a nom des idologies, traditions ou institutions locales.
Suite it l’accession de plusieurs pays A I’inddpendance, le
socialisme africain proposa une justification iddologique pour
exclure les droits de Ia personne des constitutions nationales et
intemes. Cette id6ologie a influencd l’implantation institution-
nelle des droits de ]a personne en Afrique au sein de
l’Organisation de l’unit6 africaine. Des arguments traditionnels
ont 6galement
t6 avancds afin de justifier l’6loignement des
protections constitutionnelles des droits de la personne. Ces ar-
guments 6taient fondds sur une vision romantique de la socidtd
africaine traditionnelle, Is ddfinissant comme purement commu-
naliste, homogne et cooprative.
Cette vision traditionnelle est dgalement as la source de la
doctrine africaine sur les droits de la personne. Cette doctrine
compte deoux coles : une soutenant que les droits de la personne
en Afrique sont communautaires ; l’autre niant I’existence meme
de ces droits. Solon les auteurs, la perspective africaine des droits
de Ia personne n’est ni completement individualiste, ni puremont
communale. De plus, la Charte africaine des drois de la per-
sonne et des peuples ne reflte pas de fagon rialiste les droits de
la personne en Afrique.
Les auteurs concluent que les droits de Ia personne sont
primordiaux au d6veloppement de I’Afrique. L’Etat-nation en
Afrique a ignor6 la composition ethnique du continent, ce qui a
mend As Ia crise actuelle. Le droit A I’autodtermination devrait
done occup6 une place primordiale dans le d6bat sour les droits de
la personne en Afrique. Interprdt6 correctement, il pourrait 8tre
utilisd comme outil efficace pour Ia rdsolution des conflits ethni-
ques et politiques. Afin d’atteindre ces objectifs, la Commission
africaine des droits de la personne aura un plus grand rale ajouer
afrn de garantir cc droit Zt l’autoddtennination.
. El Obaid A. EI-Obaid completed his LL.B and Bar at the University of Sudan and his LL.M at the
University of Saskatchewan; Kwadwo Appiagyei-Atua completed his LL.B and B.L at the University
of Ghana, Legon and Ghana School of Law and his LL.M. at Dalhousie University, Halifax, N.S.
Both are currently doctoral students at the Institute of Comparative Law, McGill University, Mon-
tr6al, Qu6bec. The authors would like to thank their supervisor Dean Stephen J. Toope of the Faculty
of Law, McGill University and Martin J. Valasek for his valuable assistance in editing this text.
McGill Law Journal 1996
Revue de droit de McGill
To be cited as: (1996) 41 McGill L.J. 819
Mode de rfi6rence : (1996) 41 R.D. McGill 819
MCGILL LAW JOURNAL/REVUE DE DRO1T DE MCGILL
[Vol. 41
Synopsis
Introduction
I. A History of Human Rights in Africa
A. Human Rights and Independence
B. African Socialism
C. The Organization of African Unity
II. A Critique of African Socialism
MI. Scholarship on Human Rights in Africa
A. The Community School
B. Reaction to the Community School
C. Related Schools
D. The Individualist School
IV. The African Charter
A. An Outline
B. The Link between Individual and Collective Rights
C. The Peoples’Right to Self-Determination
1.
2.
Formulation and Implementation
A Tool for Dispute Resolution
D. The Link between Rights and Duties
E. Is the Notion of Economic, Social and Cultural Rights African?
V. The Individual in the Context of the Afrocentricity Debate
VI. Human Rights, the Nation-State and Militarism in Africa
Conclusion
1996]
E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTS INAFRICA
821
[lit is a commonplace to say that culture is not a mere as-
semblage of works and norms which can function automati-
cally in every climate and at all periods. These works and
these norms must have a subject which fires them with its
[culture’s] passions, its aspirations and its genius. The most
universal philosophical doctrine or literary work is only valid
by virtue of the men [and women] who live by it. It is only the
people who give it authority and dynamic force.
[Elvery effort towards the personification and enrichment of
national culture, and every effort to implant Negro men [and
women] of culture in their civilization, constitute in fact, prog-
ress towards universalization and are a contribution towards
the civilization of[hu]mankind’
Second Congress of Negro Writers and Artists, 1959.
Introduction
The human-rights debate in Africa is a reflection of the continent’s political and
legal history. Therefore, any discussion of human rights in Africa must be grounded
in the political and ideological history of the continent, covering four broad peri-
ods: pre-colonial, colonial, post-colonial (the struggle for independence) and con-
temporary. The history of nationalism and anti-colonialism is particularly impor-
tant.
Africa’s pre-colonial history (up to the early 1800s) witnessed the prevalence of
traditional ethnic communities living under various socio-political arrangements
(called traditional African political systems). These arrangements, ranging from the
simple to the complex, embodied elements of traditional forms of democracy and
human rights embedded in the religion and culture of these communities. Pre-
colonial history came to an end with European contact. These contacts, initially
commercial relations mostly with respect to raw materials, led to the slave-trade
and, when the demands of European imperialism and capitalism grew, developed
into colonisation of the continent. Although a number of treaties and agreements
were concluded between African kings and chiefs and the Europeans, most of these
kingdoms were denied any legal standing when the continent was declared terra
nullius at the Vienna Congress of 1815, which signalled the formal beginning of
colonialism.
‘Second Congress of Negro Writers and Artists, (1959) 24 Prdsence Africaine 321 at 321.
‘This treatment of Africa is in itself, in our view, a denial of international law. First, Africa was de-
clared terra nullius in spite of the existing agreements between African Kings and Europeans. J.
Westlake reported the blunt disregard of early international law: “[A newly discovered] region was
scarcely distinguished from a res nullius” (L. Oppenheim, ed., The Collected Papers of John Westlake
on Public hternational Law (Cambridge: Cambridge University Press, 1914) at 139). Second, Africa
and Africans were denied legal personality on the basis that they were “backward”, “uncivilised” and
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The period of European colonialism (from the late 1800s to the mid 1900s)
saw the most contradictions and transformations in Africa. Colonialism im-
posed far-reaching changes on the socio-political and economic context of Af-
rica: new boundaries, European legal systems, languages and religions. The
new boundaries and ethnic divisions permanently altered the geopolitical
make-up of the continent, leaving a legacy of haphazard and irresponsibly-
drawn cleavages. The imposed religions, languages and legal-education sys-
tems demonized and exorcized the African equivalents. Acknowledging these
changes is a sine qua non for any successful conceptualisation of human rights
in Africa.
Post-colonial African history (from the mid 1900s to the late 1980s) could
be described as a period of great disillusionment. Although initially a period of
hopeful transition from European control and institutions to national independ-
ence, post-colonialism was marked by repression and corruption, leading to a
concentration of wealth in the ruling 6lite. During this period, the African rul-
ing
socialism, one-partyism, pro-
Americanism, pan-Arabism and pan-Africanism.
the gamut of
61ite ran
ideologies:
Contemporary Africa is also characterized by contradictions and confu-
sions, at the centre of which lies the question of human rights and democracy.
There are some positive developments, such as a decline in foreign manipula-
tion of the ruling 61ite, following the end of the cold war, and popular revolts
for a more participatory form of government. There are also setbacks. The
continent is experiencing an increase in inter-ethnic atrocities and religious in-
tolerance and a return to the support of Africa’s “Big Men” by the West. All of
this has led to more shameless repression by regimes in countries such as Ni-
geria, Sudan, Zaire, Morocco (against the people of Western Sahara) and
Kenya.
hence unfit for membership in the “Family of Nations.” Oppenheim stated: “[I]t is irrelevant whether
or not some agreement is made with the natives by which they submit themselves to the sway of the
occupying State. Any such agreement is usually neither understood nor appreciated by them …” (L.
Oppenheim, International Law: A Treatise, vol. 1 (London: Longman, 1905) at 277 [hereinafter In-
ternational Law]). He went further to say:
Outside Europe there are numerous States under the protectorate of European
States, but all of them are non-Christian States of such a civilisation as would
not admit them as full members of the Family of Nations … And it may there-
fore be questioned whether they have any real position within the Family of
Nations at all (International Law, ibid. at 139).
1996]
E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTS IN AFRICA
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I. A History of Human Rights in Africa
A. Human Rights and Independence
The starting point for analyzing human rights and democracy in contemporary
Africa is African nationalism and pan-Africanism’ Early on, these movements
were engaged in the fight against rights abuses in Africa and the plundering of Af-
rica’s resources by colonial authorities.” African nationalists appealed to colonial
authorities and the international community regarding the need to respect the rights
of colonized people! Just as important, they made Africans aware of their rights. At
the 1945 pan-African Congress, for instance, part of the Declaration read:
We are determined to be free. We want education. We want the right to earn a
decent living; the right to express our thoughts and emotions, to adopt and cre-
ate forms of beauty. We will fight in every way we can for freedom, democ-
racy, and social betterment.
Human rights were, therefore, an important basis of the struggle for independ-
ence. S.K.B. Asante has outlined three international documents that contributed to a
favourable environment for human rights: the Charter of the United Nations,7
which consigns six articles to “encouraging” or “promoting” respect for human
rights;8 the Universal Declaration of Human Rights, which he describes as provid-
ing “a powerful source of inspiration for the founding pattern of African nations”;
and the European Convention for the Protection of Human Rights and Fundamental
3 African nationalism is identified with the political revolt against colonialism; Pan-Africanism with
the aspiration for continental solidarity and equality (see M. Roberts, “A Socialist Looks at African
Socialism” in W.H. Friedland & C.G. Rosberg, eds., African Socialism (Stanford: Stanford University
Press, 1964) 80 at 82ff). For a detailed analysis, see: N. Sithole, African Nationalism, 2d ed. (London:
Oxford University Press, 1968); J.K. Nyerere, Freedom and Socialism/Uhuru na Ujamaa (London:
Oxford University Press, 1968); D. Nelkin, “Socialist Sources of Pan-African Ideology” in Friedland
& Rosberg, eds., ibii., 63; N. Azikiwe, “The Future of Pan-Africanism” (1962) 12 Presence Africaine
7; K.A. Busia, The Challenge of Africa (New York: Praeger, 1962) Part 4 [hereinafter The Chal-
lenge].
4See e.g.: W. Rodney, How Europe Underdeveloped Africa (Washington: Howard University Press,
1974); R.E. Howard, Human Rights in Commonwealth Africa (Totowa, NJ.: Rowman & Littlefield,
1986) [hereinafter Hunan Rights]; S. Kiwanuka, From Colonialism to Independence: A Reappraisal
of Colonial Policies and African Reactions, 1870-1960 (Nairobi: East African Literature Bureau,
1973) c. 1.
sSithole, supra note 3, outlines various strategies adopted by African nationalists in their fight
against colonial rule.
6 Cited in G.B.N. Ayittey, Africa Betrayed (New York: St. Martin’s Press, 1992) at 99 [footnotes
omitted].
7 26 June 1945, Can. T.S. 1945 No. 7, 145 U.K.T.S. 805 [hereinafter U.N. Charter].
‘ See ibid. at arts. 1, 13, 55, 62, 73, 76.
9 10 December 1948, GA Res. 217 (111), UN GAOR, 3rd Sess., Supp. No. 13, UN Doc. A/810
(1948) 71 [hereinafter Universal Declaration].
” S.K.B. Asante, “Nation Building and Human Rights in Emergent African Nations” (1969) 2
Cornell Int’l LJ. 72 at 72.
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Freedoms,” which played a role in shaping the human-rights provisions in the
constitutions of various African states, such as Nigeria and Sierra Leone.’2 Yet Afri-
can nationalists used an important tool which was missing from the Universal
Declaration, that is, the right to self-determination, which entitles all “peoples” to
freely determine their political status and freely pursue their economic, social and
cultural development.” It is no surprise, then, that this right was brought to the fore-
front by the struggle of Africans to free themselves from European colonialism.’
African leaders of newly-independent states translated their human-rights
rhetoric into internal constitutional provisions,” which were negotiated with the de-
parting colonial authorities.’6 The human-rights platform in nationalist and pan-
Africanist campaigns, coupled with the promise of improvement in general welfare
under indigenous rule, created in the African populace an expectation of firm hu-
man-rights guarantees with the arrival of nationhood. This hope was re-inforced by
continued promises of respect for rights at the dawn of independence. Yet, in spite
of this rhetoric, rights-abuses soon became common as African leaders began to di-
vorce human rights from their respective constitutions and, eventually, even from
the speeches and writings that gave birth to African socialism.”
B. African Socialism
African socialism represented a new trend in the political philosophy of African
leaders in the post-independence period. Devoted to establishing a new social order
founded on the best traditions of pre-colonial African society,” African socialism
“4 November 1950,213 U.N.T.S. 221, Eur. T.S. 5.
‘2 See Asante, supra note 10 at 72.
” See: International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 17 1,
Can. T.S. 1976 No. 47 at art. 1(1) [hereinafter I.C.C.ER.]; International Covenant on Economic, So-
cial and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 at art. 1(1)
[hereinafter Covenant on Economic, Social and Cultural Rights].
‘4 For a historical and jurisprudential analysis of this right, see Part IV.C, below.
Asante identifies three types of post-independence constitutions in Africa: the Nigerian type, with
an elaborate bill of rights spelled out in “precise legal language”; the Chad type, in which the Pre-
amble proclaims “in general terms” a commitment to the principles set forth in the French Declara-
tion of the Rights of Man and of the Citizen of 1789, and in the Universal Declaration, supra note 9;
and the Ghana type, without a bill of rights or any other institution to protect the rights of the ordinary
citizen (see Asante, supra note 10 at 74-75).
6 The goal was largely to protect the property interests of the settler minorities and foreign compa-
nies against nationalisation (see Asante, ibid. at 73-74). See also I.G. Shivji, The Concept of Human
Rights in Africa (London: CODESRIA, 1989) at 19.
” For an analysis of the contemporary human-rights situation in Africa, see e.g. B.P. Ambrose, De-
mocratization and the Protection of Human Rights in Africa: Problems and Prospects (Westport,
Conn.: Praeger, 1995).
” For an account of traditional socio-political life in the African society, written from a local, ethnic
perspective, see: K.A. Busia, The Position of the Chief in the Modern Political System of Ashanti
(London: Oxford University Press, 1951) [hereinafter The Position of the Chiej]; K.A. Busia, Africa
in Search of Democracy (New York: Praeger, 1967) c. 1, 2; The Challenge, supra note 3 at Part 1; J.
Kenyatta, Facing Mount Kenya: The Traditional Life of the Gikuyu (London: Heinemann, 1979).
1996]
E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTS INAFRICA
825
was defined as “democratic socialism as conceived by Africans in Africa, evolving
from the African way of life and formulated in particular terms as the result of a
continuing examination of African society”.’9 African socialism argued for an Afri-
can concept of democracy distinct from Western notions. For instance, J. Nyerere
writes:
[T]he African’s mental conception of “government” was personal – not insti-
tutional. When the word government was mentioned, the African thought of
the chief; he did not, as does the Briton, think of a grand building in which a
debate was taking place.20
Thus, one element of this distinct tradition was the existence of a leader in whom
all authority was vested.2′ This idea merged with the contention that traditional Af-
rican politics was socialistic in extraction, with the people united under the chief or
king and acting according to his will. Another element of the tradition was that de-
cisions were taken by consensus.22
African leaders saw in a mass party united under one leader the gateway to
rapid economic development. For example:
Ghana has chosen the socialist form of society as the objective of her social
and economic development. This choice is based on the belief that only a so-
cialist form of society can assure Ghana a rapid rate of economic progress
without destroying that social justice, that freedom and equality, which are a
central feature of our traditional way of life.”
A unified front was needed to avert a derailment of development by centrifugal
forces which African socialists identified as including tribalism2′ and a privileged
upper class. The single party was, therefore, to act as the conscience of the state
under the direction of the executive leader.’
9 This definition is from a conference on “Democratic African Socialism and its Challenges” organ-
ized by the East African Institute of Social and Cultural Affairs in Nairobi, 1-6 February 1964.
‘0 J. Nyerere, “The African and Democracy” in J. Duffy & R.A. Manners, eds., Africa Speaks
(Princeton, N.J.: Van Nostrand, 1961) 28 at 33. Antonio Cassese argues that this view typifies the so-
cial structure of many African and Asian communities, with leaders more or less exercising unfettered
powers as benevolent dictators (see A. Cassese, International Law in a Divided World (Oxford: Clar-
endon Press, 1986) at para. 69).
2, See text accompanying notes 141-142.
22See Nyerere, supra note 20 at 30ff.
23 Ghana, First Seven Year Development Plan (Accra: Office of the Planning Commission,
1962) at 1, cited in Friedland & Rosberg, eds., supra note 3 at 267.
2 For a counter-view on tribalism by Nnamdi Azikiwe, first President of Nigeria, see N. Azikiwe,
“Tribalism: A Pragmatic Instrument For National Unity” in J.A. Langley, ed., Ideologies of Libera-
tion in Black Africa: 1856-1970 (London: Rex Collings, 1979) 458.
‘ See C.F. Andrain, “Guinea and Senegal: Contrasting Types of African Socialism” in Friedland &
Rosberg, eds., supra note 3, 160 at 173.
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C. The Organization of African Unity
African socialism found a home in the Organization of African Unity
(“O.A.U.”).26 Though not all African states subscribed to African socialism –
at
least not by name –
its core ideas were clearly incorporated into the O.A.U.’s Pur-
poses” and Principles. 8 The idea for the formation of the O.A.U. was mooted
through the activities of socialist-oriented African-Americans like Henry Sylvester,
W.E.B. Dubois, George Padmore and others.” Pan-Africanism thrived on three key
principles – African unity, black nationalism and socialism” –
and called for “the
government of Africans by Africans for Africans”:3′
Economically and socially, Pan-Africanism, [sic] subscribes to the fundamental
objectives of Democratic Socialism, with state control of the basic means of
production and distribution. It stands for the liberty of the subject within the
law and endorses the Fundamental Declaration of Human Rights, with empha-
sis upon the Four Freedoms…. Pan-Africanism sets out to fulfil the socio-
economic mission of Communism under a libertarian political system. Finally,
for Pan-Africanism, the self-determination of the dependent territories is the
prerequisite to the federation of self-governing states on a regional basis, lead-
ing ultimately to the creation of a United States of Africa.”
An overview of the O.A. U. Charter indicates that it did not give human rights
prominence among its concerns. For example, while article 20 recommended the
establishment of five specialized commissions, none of them was devoted to the is-
26 The O.A.U. was founded in Addis Ababa, Ethiopia, in 1963. For detailed analysis of the history
of the O.A.U., see e.g.: C.O.C. Amate, Inside the OAU: Pan-Africanism in Practice (London: Mac-
millan, 1986); A. Sesay, 0. Ojo & 0. Fasehun, The OAU After Twenty Years (Boulder: Westview
Press, 1984).
” The Purposes of the Charter of the Organisation of African Unity, 13 September 1963, 479
U.N.T.S. 39, 2 I.L.M. 766 [hereinafter O.A. U. Charter], refer to a comprehensive list of the objectives
to be achieved by African states under the auspices of the O.A.U., and the areas of cooperation to be
covered while working towards the achievement of these objectives. The objectives include the pro-
motion of unity and solidarity, achievement of a better life for the peoples of Africa, defence of their
sovereignty, territorial integrity and independence, eradication of all forms of colonialism from Africa
and the promotion of international cooperation. The areas of cooperation cover political and diplo-
matic, economic and social, educational and cultural, health, sanitation and nutritional, scientific and
technical, and defence and security (see O.A.U. Charter, ibid. at art. 2). These fit in with the three
elements of African socialism described in detail above (see text accompanying notes 18-25, above).
28 e Principles of the O.A.U. detail the basis for the cooperation of African states and cover re-
spect for sovereign equality, non-interference, respect for sovereign and territorial integrity of each
state, and peaceful settlement of disputes through negotiation, mediation, reconciliation or arbitration,
etc. (see O.A. U. Charter, ibid. at art. 3).
29 According to Amate, Sylvester, who was the first to organize a pan-African congress until Dubois
took over after his death, was also the first to use the term “pan-Africanism” (see Amate, supra note
26 at c. 1).
3See Nelkin, supra note 3 at 63.
MG. Padmore, Pan-Africanism or Communism? (London: Dennis Dobson, 1956) at 21.
32 Ibid at 21-22.
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E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTS INAFRICA
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sue of human rights.” The O.A.U. was pre-occupied with “more pressing” issues,
such as unity, non-interference and liberation.’ For instance, the first, second and
third paragraphs of the Preamble recognize, respectively: “the inalienable right of
all people to control their own destiny”; that “freedom, equality, justice and dignity
are essential objectives for the achievement of the legitimate aspirations of the Afri-
can peoples”; and the “responsibility [of Member States] to harness the natural and
human resources” of the continent “for the total advancement of our peoples in
spheres of human endeavour”.” Keba M’baye, the father of the African Charter on
Human and Peoples’Rights,’ wrote:
Thus, the African governments appear clearly to have sacrificed rights and
freedoms for the sake of development and political stability. This situation can
be explained and even justified. In mobilizing the masses in order to secure
economic and social development, everyone’s attention is directed exclusively
towards the prospect of improved standards of living. Inaction or idleness thus
came to be regarded as an infraction and the exercise of certain freedoms, even
in the absence of any abuse, an attack on public order.
Human rights in Africa were to be peoples’ rights; freedom, for example, was
seen as national freedom, not individual freedom. The class struggle was to be
between the “developed” and “developing” nations; the widening gap between the
emerging political 61ite and the nouveaux riches, on the one hand, and ordinary citi-
zens, on the other, was overlooked. The O.A.U.’s commitment to human rights was,
therefore, vague and weak. This situation influenced the human-rights provisions of
the subsequent African Charter.
3, The Commissions were: Economic and Social; Educational and Cultural; Health, Sanitation and
Nutrition; Defence; Scientific, Technical and Research. Two more Commissions, Transport and
Communications, and the Commission of Jurists, were added at the first ordinary session of the
O.A.U. in 1964. One might expect that the Commission of Jurists would promote and protect human
rights, but this Commission was only established as an instrument for legal research (see K. M’baye
& B. Ndiaye, “The Organisation of African Unity” in K. Vasak, ed., The International Dimensions of
Human Rights, vol. 2 (Westport, Conn.: Greenwood Press, 1982) 583 at 593). In any case, the Com-
mission was disbanded after only one year, while others were merged, reducing the number of com-
missions from seven to three.
This was spelled out by Haile Selassie, then Head-of-State of Ethiopia, at the Conference of Ad-
dis Ababa on May 22, 1963 (see M’baye & Ndiaye, ibid. at 592) and confirmed in the O.A.U. Char-
ter, supra note 27 at “Preamble”, and specifically articles 2(l)(c) and 3, which talk about guarantee-
ing the national sovereignty and territorial integrity of the member states, and art. 3(6), which stipu-
lates an “absolute dedication to the total emancipation” of African territories not yet independent.
” O.A.U. Charter, ibid., “Preamble” at para. 4 [emphasis added].
3626 June 1981, OAU Doc. CAB/LEG/67/3, 21 I.L.M. 59 (in force 21 October 1986) [hereinafter
African Charter].
3 M’baye & Ndiaye, supra note 33 at 599.
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II. A Critique of African Socialism
In our view, African socialism misinterpreted democracy and the place of hu-
man rights in the traditional African political system. It failed to draw the necessary
link between traditional human rights and the traditional democratic system. Rather,
it presented the myth of an idealized, conflict-free traditional society – Merrie Af-
rica” –
and blamed the colonizers for disrupting this paradise. In this regard, we
agree with J.E. Wiredu that the emphasis on African authenticity was often “merely
a political slogan”. 9 However, we disagree with his view that the return to authen-
ticity might signify the confirmation of black Africans’ inferiority complex. To
agree with that is equivalent to believing that African culture is inherently inferior,
and that the solution is to shed it and adopt a new culture altogether. It is our firm
belief that one cannot forget the past in trying to chart the future, but it iust be re-
called truthfully, fairly and critically. This is what African socialism failed to ac-
complish. African leaders of that period failed to analyze the political forms’ of
traditional African societies and the concept of rights that went with each and, then,
to use the product of that analysis as the foundation for African socialism. They
missed “the great structural variety of African forms [that reflect] certain basic as-
sumptions that [previous generations of] Africans made about the nature of human
collectivities, the nature of societal interaction, and the desired relationship between
power and authority.”‘
Merrie Africa is also wishful thinking: in reality, there were despotic rulers who
abused the rights of citizens and strangers alike. For example: there was slavery;
capital punishment was practised;’ and abuse of women and handicapped persons
was prevalent in some communities. It is in response to such abuses that Africans
of old rejected certain political systems and developed new ones,” and it is within
” This is borrowed from T. Fernyhough, who in turn picked it from A.G. Hopkins, An Economic
History of WestAfrica (London: Longman, 1973) at 10. It connotes “a morally immaculate image” of
Africa (. Fernyhough, “Human Rights and Precolonial Africa” in R. Cohen, G. Hyden & WP. Na-
gan, eds., Human Rights and Governance in Africa (Gainesville: University Press of Florida, 1993)
39 at 40). Yet, we add to it the image of a homogenous, conflict-free, cooperative and communalistic
society, as African socialists portray it.
39 J.E. Wiredu, “How Not to Compare African Thought with Western Thought” in R.A. Wright, ed.,
African Philosophy: An Introduction, 2d ed. (Washington, D.C.: University Press of America, 1979)
133 at 135.
40 C.P. Potholm writes that “[these] forms can be regarded as indicators of the basic societal values
that underpinned the political system and permeated the political value systems of the group” (CE
Potholm, The Theory and Practice of African Politics, 2d. ed. (Lanham, MD: University Press of
America, 1988) at 4).
‘ Ibid. African socialists, therefore, are subject to the same criticism levelled by Potholm against
Western anthropologists (see ibid. at 9-10).
42 See O.C. Eze, Human Rights in Africa: Some Selected Problems (Lagos: Nigerian Institute of In-
ternational Affairs, 1984) at 13. He also notes: “In Africa, it could be said that the predominant socio-
economic formations before colonial penetration were primitive communalism, slave-owning society,
and feudalism” (ibid. at 9-10).
In the Ashanti kingdom, for instance, there were paid executioners in the service of the king.
‘See Eze, supra note 42 at 11.
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E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMANRIGHTSINAFRICA
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this context that we posit the role of human rights in the shaping of the traditional
political society. For it is in the face of abuse that individuals come together to pro-
tect themselves and their property, enhance their claim-making capacities and find
ways to chart their own path to freedom and development.
Many of the different political systems in traditional Africa emerged through
the reaction of oppressed peoples to tyrannical leadership who severed existing al-
legiances and established their own political communities. In the Ashanti political
system, for instance, the claim against tyrannical rule is reflected in the following
pre-installation oath for newly elected chiefs:
We do not want you to abuse us. We do not want you to be miserly; we do not
want one who disregards advice; we do not want you to regard us as fools; we
do not want autocratic ways; we do not want bullying; we do not like beating.
Take the Stool. We bless the Stool and give it to you. The Elders say they give
the Stool to you. 5
On the face of it, one would assume that the address, being couched in a nega-
tive tone and imposing limitations on the chief, is a reflection of typical civil and
political rights, which, in the Western liberal context, are referred to as “negative”
rights. However, in the traditional political system, the role of the chief and his eld-
ers and the rights of the subjects were not seen in this negative sense. Rights were,
and still are, seen as “giving one the way” or “empowering someone” to go about
one’s normal duties with the goal of promoting and preserving the community’s
well-being.
Il1. Scholarship on Human Rights in Africa
A. The Community School
Human-rights scholarship in Africa, distinct from African socialist thought and
practice, has presented a dichotomy between the communal basis of African socie-
ties and the notion of individual rights predominant in Western liberal thought.
Some Western anthropologists concluded that traditional African political systems
did not possess a notion of rights.’ Most African scholars, however, defend a no-
45 The Committee of Experts that drew up a proposal for a draft constitution for Ghana’s Fourth Re-
public, 1992, referred to this quotation in its report. In its view, the address was a demonstration of
hatred of oppression, demand for popular participation in the decision-making process, mutual respect
between the ruler and the ruled and an insistence that government must be for and in the interest of
the governed.
46 The initial view of Western anthropologists was that traditional African societies did not know
democracy. No effort was made to examine whether they had any notion of rights. We attribute this to
the Western liberal idea of linking rights to democracy, a constitution, a bill of rights, individualism
and cosmopolitanism, all of which were absent from such societies (see e.g. J. Donnelly, The Concept
of Human Rights (London: Croom Helm, 1985)).
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tion of rights in Africa. For example, one school” argues that the traditional African
concept of rights is the direct opposite of the Western model, emphasizing com-
munity rights over individual rights and freedoms:
The pursuit of human dignity is not concerned with vindicating the right of any
individual against the world. The African notion of family seeks a vindication
of the communal well-being. The starting point is not the individual but the
whole group including both the living and the dead.”
The writings of these scholars echo those of African socialists with regard to the
Merrie Africa idea. What distinguishes them is that they look beyond governmental
institutions and the socio-economic setting and address the key issue of human
rights. Thus, for example, relying on the socio-political setting of the traditional
African society, Mojekwu asserts:
[The communitarian] concept of human rights in Africa was fundamentally
based on ascribed status … One who has lost his membership in a social unit or
one who did not belong – an outcast or a stranger-
lived outside the range of
human rights protection by the social unit. 9
B. Reaction to the Community School
Jack Donnelly and Rhoda Howard argue that traditional African societies did
not have a concept of rights, since fundamental human rights, which they believe
are universal in scope and application, are inherent in one’s humanity, not com-
munity. At best, these communities had notions of human dignity but not of human
rights.”
This argument suffers from two major shortcomings. First, Donnelly bases his
conclusions principally on Mojekwu’s faulty analysis. In traditional African socie-
‘” See e.g.: C.C. Mojekwu, “International Human Rights: The African Perspective” in J.L. Nelson
& V.M. Green, eds., International Human Rights: Contemporary Issues (Stanfordville, N.Y.: Human
Rights Publishing Group, 1980) 85; L. Marasinghe, “Traditional Conceptions of Human Rights in
Africa” in C.E. Welch, Jr. & R.I. Meltzer, eds., Human Rights and Development in Africa (Albany,
N.Y.: State University of New York Press, 1984) 32; A. Legesse, “Human Rights in African Political
Culture” in K.W. Thompson, ed., The Moral Imperatives of Human Rights: A World Survey
(Washington, D.C.: University Press of America, 1980) 123; D.M. Wai, “Human Rights in Sub-
Saharan Africa” in A. Pollis & P Schwab, eds., Human Rights: Cultural and Ideological Perspectives
(New York: Praeger, 1979) 115.
‘, J.A.M. Cobbah, “African Values and the Human Rights Debate: An African Perspective” (1987)
9 Hum. Rts. Q. 309 at 321.
‘9 Mojekwu, supra note 47 at 86 [footnotes omitted].
See: J. Donnelly, “Cultural Relativism and Universal Human Rights” (1984) 6 Hum. Rts. Q. 400;
R. Howard, “The Full-Belly Thesis: Should Economic Rights Take Priority Over Civil and Political
Rights? Evidence from Sub-Saharan Africa” (1983) 5 Hum. Rts. Q. 467 [hereinafter “The Full-Belly
Thesis”]; R.E. Howard, “Is there an African Concept of Human Rights?” in R.J. Vincent, ed., Foreign
Policy and Human Rights: Issues and Responses (Cambridge: Cambridge University Press, 1986) 11;
Human Rights, supra note 4.
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E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTs INAFRICA
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ties, not all rights were denied to strangers, as Mojekwu claims. In some cases,
strangers and slaves –
could rise to the status of ordinary
citizen and even hold public office.’ Thus, in traditional Africa, the situation was
analogous to today’s distinction between citizens and non-citizens with each coun-
try granting to its citizens particular rights that are not enjoyed by non-citizens. 2
especially the former –
Second, even if one accepts Mojekwu’s analysis, rights were never universally
enjoyed at the time and place where they are said to have developed, that is, West-
em Europe during the Enlightenment.” In fact, the concept of natural rights was
largely only a means for middle-class men to argue for the right to own property. In
support of this view, Kathleen Lahey writes:
The notion of equality was originally devised by men in order to promote
wider distribution of political and economic power among male members of
the state. … In Locke’s view, women had to be enslaved within the family if
property relations were to be legitimated and maintained.’
However, Lahey’s criticism is incomplete because Locke’s conception of equality
not only excluded women, but also slaves and serfs (both male and female). Thus
Locke’s conception of liberty and equality was shared only by “free” persons. 5
Rights were also denied to colonized peoples during the Enlightenment. Eide notes:
[G]enocidal actions … were carried out by self-proclaimed freedom-lovers
emigrating from Europe at a time when human rights jargon was blossoming
5′ Busia notes that among the Ashanti of Ghana, strangers could rise to the position of leader of the
“Opposition party”, whose ranks are filled by the youth of the community. Slaves could own property.
Indeed, in order to protect the interests of slaves, the pre-installation pledge for elected chiefs included
a commitment not to disclose the origin of the people falling under his jurisdiction (see The Position
of the Chief, supra note 18 at 9-12). The same approach is present among the Tswanas of southern
Africa.
5 For example, the right to work is not automatically enjoyed by non-citizens of a country, and even
in the Convention on Economic, Social and Cultural Rights, supra note 13, less industrialized states
(“L.I.S*”) are given the right to “economically discriminate” against foreigners (ibid. at art. 2(3)).
5 3 See J. Berting, “Technological Impacts on Human Rights: Models of Development, Science and
Technology, and Human Rights” in C.G. Weeramantry, ed., The Impact of Technology on Human
Rights: Global Case-Studies (Tokyo: UN University Press, 1993) 13 at 20 (Sales No. E92.11I.A.7).
, K.A. Lahey, “The Charter and Pornography: Towards a Restricted Theory of Constitutionally
Protected Expression” in J.M. Weiler & R.M. Elliot, eds., Litigating the Values of a Nation: The Ca-
nadian Charter of Rights and Freedoms (Toronto: Carswell, 1986) 265 at 267. See also M.E. Turpel,
“Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences”
(1989-90) 6 Can. Hum. Rts. Y.B. 3 at 15.
” See: J. Locke, Two Treatises of Government, ed. by M. Goldie (London: J.M. Dent, 1993); R.W.
Grant, John Locke’s Liberalism (Chicago: University of Chicago Press, 1987). Indeed, C.B.
MacPherson extends the set of those denied their rights to include the poor. He remarks that the clas-
sical liberal theory was dedicated to “the individual right to unlimited acquisition of property, to the
capitalist market economy, and hence to inequality, and it was feared that these might be endangered
by given votes to the poor” (C.B. MacPherson, “Politics: Post-Liberal-Democracy?” in R. Blackburn,
ed., Ideology in Social Science (Glasgow: Fontana, 1972) 17 at 19).
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there and was warmly endorsed by the emigres –
society was concerned, but not embracing the peoples they met.16
in so far as their own emigre
Were the Western concept of human rights truly based on universal humanity, and
not on “ascribed status”, then “others” – women, slaves, serfs, the poor and colo-
nized peoples – would not have been denied their rights.
In traditional Africa, community leaders enjoyed some “special” rights or
privileges to facilitate the performance of their duties, just as in modem societies,
heads-of-state, parliamentarians and diplomats are given certain immunities and
privileges to enable them to perform their public duties more effectively.” Thus, the
motivation in many – but, admittedly, not all –
situations of traditional leadership
was efficiency and reward, not discrimination. We conclude, therefore, that both
Western and African notions of rights are concerned with personal, human rights.”
Furthermore, the exercise and enjoyment of rights is essential to the perform-
ance of one’s duty to attain human development and dignity. Thus, contrary to the
view of Howard and Donnelly, all societies, irrespective of the stage of their devel-
opment, exercise and enjoy rights, in the absence of which there would be no de-
velopment. 9 We contend that individual rights have existed in African communi-
ties, and that their exercise helped to strengthen those societies. This is not to deny,
however, that the African notion of rights is also communitarian.
Others have supported the idea that
[t]he African social order is, strictly speaking, neither purely communalistic nor
purely individualistic. But the concept of communalism in African social
thought is often misunderstood, as is the place of the individual in the commu-
nal social order.’
56 A. Eide, “Linking Human Rights and Development: Aspects of the Norwegian Debate” in I. Bre-
cher, ed., Human Rights, Development and Foreign Policy: Canadian Perspectives (Halifax: Institute
for Research on Public Policy, 1989) 5 at 8.
57 See e.g. J.G. Starke, Introduction to International Law, 10th ed. (London: Butterworths, 1989) c.
8, 15.
58See Fernyhough on “popular rights”, supra note 38 at 53ff, for a similar argument.
59Compare AJ.M. Milne, Human Rights and Human Diversity: An Essay in the Philosophy of Hu-
man Rights (Albany, N.Y.: State University of New York Press, 1986), who writes:
A community consists of its members in the sense that, unless there are members, there
cannot be a community. Since to be a member is inter alia to have rights, without
rights there can be no community….
A community in which all the members had obligations and none any rights is logically
impossible and therefore inconceivable. To be a member is necessarily to have rights as
well as obligations (Milne, ibid. at 115-16).
60K Gyekye, An Essay on African Philosophical Thought: The Akan Conceptual Scheme
(Cambridge: Cambridge University Press, 1987) at 154.
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Of course, we need to first note that individualism is not necessarily submerged by
communalism nor is communalism antithetical to individualism. Gyekye writes:
Communalism may be defined as the doctrine that the group (that is, the
society) constitutes the focus of the activities of the individual members of the
society. The doctrine places emphasis on the activity and success of the wider
society rather than, though not necessarily at the expense of, or to the detriment
of, the individual.
61
Gyekye continues by stating that for the Akans, individuals are born into a hu-
man society: an individual’s capacities are deemed insufficient to meet basic
needs.’ In other words, communalism does not negate individualism; it simply re-
flects “the limited character of the possibilities of the individual …,.63 Consider, for
example, the following Akan and Sudanese adages: ‘”The left arm washes the right
arm and the right arm washes the left arm”;” “A single hand cannot clap.” In this
view, “the success and meaning of the individual’s life depend on identifying one-
self with the group. This identification is the basis of the reciprocal relationship
between the individual and the group.”‘
Identification with the group, however, should not be mistaken for a negation
of individuality. Based on the following criteria, African social thought grants a
role to individuality as well:
(1) Since individual capacities are not equal, their contributions to the com-
munity are expected to be unequal. In other words, individuals are recog-
nized on the basis of their merits to some extent.’
(2) The individual qua individual has a will, identity, aspirations and desires
which can be described as peculiar. ‘
The exercise of individual rights in the African community is a reality and not
anathema to the community’s development. Rather, the exercise of these rights
leads to the attainment of human dignity and the proper functioning of the com-
munity. The missing link in Donnelly’s analysis on human dignity and proper func-
6, Ibid. at 155.
See ibiL
61 Ibid at 156.
61 Ibid
r6 Ibid.
66 W.E. Abraham has written: “The responsibility of a member of the clan for the welfare of other
members is nevertheless not calculated to encourage the lazy and indolent. It has no suggestion of
anyone rushing out of step to save the needy but foolish” (W.E. Abraham, The Mind of Africa
(Chicago: University of Chicago Press, 1962) at 64).
‘ This is not to deny the individual’s obligations that are based on communal spirit. Abraham has
explained: “The obligations are still there; what has altered is their visibility. But because these obli-
gations become more narrowly centred now, the individual obtains a sense of liberation, initiative and
creativeness” (Abraham, ibid at 66).
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tioning of the society in the African community is provided by the very concept of
human rights the existence of which he denies in African communities. The issue,
therefore, is not a lack of the concept, but the lack of the expression “rights”.” In
fact, the African notion of rights, described above, is similar to the Western notion
of civil and political rights; the difference lies in regard to the entity (or entities)
that ensures, and benefits from, the exercise of those rights. ‘9 The African concep-
tion of rights is, therefore, community-based, resulting from the community’s inter-
est in ensuring and benefitting from the exercise of rights; but personal or individ-
ual rights are emphasized first.”
C. Related Schools
Another view emphasizes the notion of the duties corresponding to rights. For
example, M’baye writes:
In Africa, the individual, completely taken over by the archetype of the totem,
the common ancestor or the protective genius, merges into the group. … In
traditional Africa, rights are inseparable from the idea of duty. They take the
form of a rite which must be obeyed because it commands like a “categorical
imperative.” In this, they tie in, through their spiritualism, with the philosophy
of Kant.”
A.A. An-Na’im contributes to the discourse on rights in Africa from a religious
perspective. His view is that an Islamic concept of human rights can be merged
with international human-rights covenants through a progressive reconciliation of
the former with the latter, relying on the discretion of the particular religious com-
munity.
72
” See E. Groffier, “Les aspects juridiques de Ia tolrance : essai de terminologie” in E. Groffier &
M. Paradis, eds., The Notion of Tolerance and Human Rights (Ottawa: Carleton University Press,
1991) 67, where she writes: “Certaines langues ne possbdent pas les termes approprids pour exprimer
des droits fondamentaux. Ainsi, le chinois classique n’avait pas de mot pour ‘moral’,
‘libertd’,
‘autonomie’, … ‘droit’
(Groffier, ibid. at note 13, p. 84)
, Other differences exist. For example, the African formulation of civil and political rights is not
only negative, but also positive-oriented, whereas the Western formulation is predominantly negative.
7 A.A. Mazrui has noted: “Within the cooperative structure of kinship and common ownership,
there was still room for individual effort and for individual rewards of such effort’ (A.A. Mazrui,
“The Monarchical Tendency in African Political Culture” in M.E. Doro & N.M. Stultz, eds., Govern-
ing in Black Africa: Perspectives on New States (Englewood Cliffs, N.J.: Prentice-Hall, 1970) 18 at
19). In Ashanti, there is a saying: “It is man that counts. I call upon gold it does not answer. I call
upon drapery, there is no answer. It is man that counts.” The emphasis is on “man” (onipa) –
the in-
dividual- not on the community (oman).
7′ M’baye & Ndiaye, supra note 33 at 588-89. The community/duty argument is treated in detail in
72 See e.g.: A.A. An-Na’im, ed., “Toward a Cross-Cultural Approach to Defining International
Standards of Human Rights: The Meaning of Cruel, Inhuman and Degrading Treatment or Punish-
ment’ in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: Uni-
versity of Pennsylvania Press, 1992) 19; A.A. An-Na’im, “Religious Minorities under Islamic Law
and the Limits of Cultural Relativism” (1987) 9 Hum. Rts. Q. 1.
Part IV.D, below.
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An-Na’im’s view supports our argument that rights stem from a community’s
culture and religion. Hence, in talking about human rights in the African context,
religion cannot be ignored. While the foundation of human rights in Africa is its
traditional religion, as well as traditional African political systems,” Islam and
Christianity, now part of African culture, are also important influences. Because
these religions, including the traditional religion, profess individual responsibility,
individual rights should be respected in Africa. On An-Na’im’s assertion regarding
the reconciliation of rights under Islam with international rights, our view is that his
approach should not be understood as indicating that human rights emanating from
non-Western communities are defective. Nor should we imagine that the interna-
tional system is perfect. Rather, it should be seen that human rights in every com-
munity today have been corrupted by human greed and selfishness. The best ap-
proach, therefore, is to give and take and, thereby, create a “comprehensive” whole,
but only if the contribution of Africa, for instance, is rid of its Merrie Africa bias.
D. The Individualist School
There are other African writers who argue that the notion of rights in Africa is
not solely communalistic, but also individualistic. We include in this group the
works of Asante, Eze and Fernyhough.
Asante argues that “[h]uman rights, quite simply, are concerned with asserting
and protecting human dignity, and they are ultimately based on a regard for the in-
trinsic worth of the individual.”7′ He therefore rejects “the notion that human rights
concepts are peculiarly or even essentially bourgeois or Western, and without rele-
vance to Africans”.75 The gist of Eze’s position is that the degree to which human
rights are recognized is dependent on a particular society’s stage of development.
He argues that while African societies did have a concept of rights qua rights, these
rights were abused. In other words, he rejects Merrie Africa.7 Fernyhough proposes
that human rights in African societies were not only derived from a struggle against
tyranny and elitism, but also through mutual individual claims in uncentralized and
centralized societies.77 This is important in one major respect: it goes beyond the
recognition of the fight against “ideological dominance of ruling elites” and sup-
” See The Challenge, supra note 3 at c. 1, for an example of the link between religion and politics
in the traditional African society.
” Asante, supra note 10 at 102. This shares the view with the Howard/Donnelly argument on the
nature of human rights. Yet, both Asante, on the one hand, and Howard and Donnelly, on the other,
use this foundation to come to different conclusions on whether concepts of human rights existed in
Africa.
” Asante, ibiL at 102. This shows that Asante believes in the recognition of individual rights in the
African context while Howard and Donnelly do not.
7 See Eze, supra note 42 at 12-13.
n In traditional African political systems, leadership in uncentralized societies vested in family
heads (power was diffused). In contrast, centralized societies had chiefs or kings at the apex, with
devolution of powers to a council of elders and to other political entities.
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ports Potholm’s finding on the diverse political forms that existed in traditional Af-
rica and how traditional Africans cherished their freedom and dignity.’
IV. The African Charter
A. An Outline
The African Charter is divided into three sets of conceptual arrangements:
peoples’ and individual rights; duties of states and individuals (not peoples); and
implementation. Its uniqueness derives mainly from its cultural component and the
question of African development, as embodied in the guidelines submitted to the
Committee of Experts that drafted the Charter: namely, the Charter “should reflect
the African conception of human rights, [and] should take as a pattern the African
philosophy of law and meet the needs of Africa.”‘”
Based on these guidelines, the O.A.U.’s member states took into account “the
values of African civilization which should inspire and characterize their reflection
on the concept of human and peoples’ rights”” in drafting the Charter, consequently
coming up with such unique features as the assignment of duties to the individual, 2
the community and the state and the relationship between community, and individ-
ual rights.”
78 See Potholm, supra note 40 at c. 1.
‘ The African Charter came into force on October 21, 1986 after its unanimous adoption in June
1981 by O.A.U. heads-of-state and government summit in Nairobi, Kenya. For a general background
on the Charter, see e.g.: E. Kannyo, “The Banjul Charter on Human and Peoples’ Rights: Genesis and
Political Background” in Welch & Meltzer, eds., supra note 47, 128; R. Gittleman, “The Banjul
Charter on Human and Peoples’ Rights: A Legal Analysis” in Welch & Meltzer, eds., ibid., 152.
“‘ Quoted in Amnesty International, The Organization of African Unity and Human Rights, Al In-
dex IOR 03/04/87 at 8.
“African Charter, supra note 36, “Preamble” at para. 5.
‘2 See ibid at arts. 27-29. See also the preamble of the African Charter, which states, inter alia, that
“enjoyment of rights and freedoms also implies the performance of duties on the part of everyone”
(ibid., “Preamble” at para. 7). However, the African Charter is not the first human-rights instrument
to incorporate rights and duties. Article 41 of the Constitution of the Republic of Ghana, 1992, repro-
duced in A.P. Blaustein & G.H. Flanz, eds., Constitutions of the Countries of the World, vol. 7 (Dobbs
Ferry, N.Y.: Oceana, 1996), provides that the exercise and enjoyment of rights and freedoms is in-
separable from the performance of duties and obligations. However, this article does not fall under the
chapter guaranteeing human rights and fundamental freedoms but, rather, under the chapter on direc-
tive principles of state policy. The attachment of duties to rights has led an Amnesty International re-
search paper to the conclusion that African society attaches importance to the community (see Am-
nesty International, supra note 80 at 9).
” Other unique elements in the Charter include, among other things, the absence of a court system,
the incorporation of economic, social and cultural rights as exclusively peoples’ rights, and the infa-
mous claw-back clauses.
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B. The Link between Individual and Collective Rights
As noted above, it is generally assumed that African notions of human rights
are communitarian, while Western notions are individualistic. In the West, it is said
that individuals chart their own path to happiness and acquisition of property. They
are not to be helped by anyone; the state is not to interfere.’
In contrast, the person in the African context is given the opportunity to attain
his or her full potential by being supplied the wherewithal by the community
through the exercise of his or her rights. These rights include the rights to life, to
education (largely informal, and including the right to moral education), to love and
affection and other purely individual rights. These are the person’s rights to be. The
community then helps the individual to exercise and enjoy rights to do: the right to
land and to labour; the freedoms of thought, opinion, religion, expression, move-
ment, association and assembly; and the right to marriage. These rights are also in-
dividual but are exercised in a communal fashion. The exercise of rights to do leads
to the acquisition of property and to the third type of rights, rights to have, which
are embodied in the right to property. When the right to property is enjoyed, the
individual is said to have attained full development and is in a position to contribute
to the development of others.’ Rights to have are exercised to satisfy the needs of
the individual, the family (nuclear and extended) and the community, in that order.”
The right to property in the African traditional context had a dual nature. Indi-
vidual rights in land were recognized, in that individual creativity and enterprise
and any wealth accruing therefrom were respected, recognized and protected. These
rights were community-based, however: land was seen as a community asset and
resource, an ancestral heritage to be preserved for posterity and to which no indi-
vidual was entitled to lay absolute claim.’
See e.g. Madam Justice Wilson’s comment in Operation Dismantle Inc. v. R., [1985] 1 S.C.R.
441 at 488, 18 D.L.R. (4th) 481, that liberty amounts to a “right to pursue one’s goals free from gov-
ernmental restrainf’.
“One Ashanti maxim which expresses this is translated: “If I have helped you to develop teeth you
should in turn nurse me to lose mine.” This proverb stresses family duties. Community duties, of a
particularly skilled hunter, for example, are expressed in other proverbs, such as: “If all were equal
who would serve the other?”
” Some duties, however, are owed directly to the community, such as the duty to defend the com-
munity against attack. There are. times when the order changes and prominence is given to the family
or community. The important point to note is that the individual is given a substantial amount of rec-
ognition.
” This position is supported by West African caselaw and by writings on Ghanaian customary laws.
In the Nigerian case of Amodu 7jani v. Secretary (Southern Nigeria), [1921] 2 A.C. 399 at 404-405,
90 LJ.P.C. 236 (P.C.), for example, it was held that an individual could not own a substantial interest
in land. Yet the law seems to be swaying in favour of individual title due to the individualization of
African society (see G. Woodman, “The Allodial Title to Land” (1968) 5 U. Ghana L.J. 79).
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C. The Peoples’Right to Self-Determination
While we believe that the African Charter places undue emphasis on group
rights, our view is not that peoples’ rights have absolutely no place in that charter.
They do –
but within the context of self-determination, which deserves a re-
interpretation given Africa’s peculiar situation. Our conclusion is that rights of the
people should not be interpreted as rights of the state which are too often translated
into the rights of its leader.
In reality, if all peoples or groups were treated equally and none were op-
pressed, the reasons and rationale for the following discussion would likely vanish.
Present-day Africa unfortunately reveals the need for the discussion: states have not
treated nations and the nationalities within them democratically. This has led to
civil war, ethnic violence and massive flows of refugees. A reconstructed right to
self-determination would be a valuable tool in both the conceptualization and pro-
tection of human rights in Africa.
The right to self-determination has special relevance to Africa, since it occupies
a central position in its modem political history.8 The African struggle for inde-
pendence has no doubt shaped the contemporary formulation and implementation
of the right to self-determination.”
1.
Formulation and Implementation
The modem right to self-determination evolved out of the principle of “equal
rights and self-determination” as provided for in article 1 of the U.N. Charter and
in the context of the development of friendly relations among states.’ This evolu-
tion resulted in the 1960 Declaration on the Granting of Independence to Colonial
Territories and Peoples,9′ the General Assembly’s Resolution on Permanent Sover-
“Shivji states: “The experience of national and anti-imperialist struggles … shows that the ‘right of
peoples and nations to self-determination’ remains central in Africa to-day” (I.G. Shivji, ed., “State
and Constitutionalism: A New Democratic Perspective” in State and Constitutionalism: An African
Debate on Democracy (Harare, Zimbabwe: SAPES Books, 1991) 27 at 36).
9 Self-determination is said to date back to Greek and Roman civilizations. The terminology was
created by early German philosophers, and its application facilitated by the advent of the nation-state
in Europe (see e.g.: U.O. Umozurike, Self-Determination in International Law (Hamden, Conn.: Shoe
String Press, 1972) c. 1; W. Ofuatey-Kodjoe, The Principle of Self-Determination in International
Law (New York: Nellen, 1977) c. 2).
9 See Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States in Accordance with the Charter of the United Nations, 24 October 1970, GA
Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/8028 (1971) 121 [hereinafter
Declaration on Friendly Relations].
9’GA Res. 1541 (XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doe. A/4684 (1961) 66
[hereinafter Colonial Declaration], reproduced in Human Rights: A Compilation of International In-
struments (New York: UN Centre for Human Rights, 1988) at 47ff [hereinafter International hzstru-
ments].
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eignty over Natural Resources2 and in the inclusion of the right to self-
determination in both the I.C.C.P.R. and the Covenant on Economic, Social and
Cultural Rights.” The United Nations (“U.N.”) General Assembly described this
right as a “prerequisite for the full enjoyment of all fundamental human rights” and
“one of the pillars of the international human rights order”.’
The determination of political status guaranteed under this right entails both
international political status (external self-determination) and domestic political
status (internal self-determination). The external right involves the ability of a
“people” to choose their status within the international community.’ In Africa, this
status has traditionally taken the shape of either an independent or sovereign state
as in the case of Guinea and Ghana – or an association between independent
–
as in the case between Tanganyika and Zanzibar. The internal right to self-
states –
determination involves the right of the “people” to freely choose the form of asso-
ciation under which they wish to live collectively. This internal aspect to self-
determination is contentious and has yet to be clearly developed. We submit that
internal self-determination is vital to the present African situation: it is a useful tool
for resolution of disputes (civil wars and ethnic clashes) and a pillar of the African
conception of human rights. In other words, we argue for the continuing validity of
this right in post-colonial Africa.
The limits to self-determination are defined, first, according to who is entitled
to exercise the right. Although “peoples” are the designated holders of the right,
none of the instruments that guarantee it provide a definition of “people”.’ Earlier
U.N. sources, such as resolutions and declarations, tend to provide a vague and nar-
row definition of “people” by confining it to the inhabitants of non-self-governing
territories.’ Despite this lack of a clear definition of the right holders, the right to
GA Res. 1803 (XVII), UN GAOR, 17th Sess., Supp. No. 17, UN Doe. A/5217 (1962) 17, repro-
duced in International Instruments, ibid. at 49ff.
” See: I.C.C.P.R., supra note 13 at art. 1; Covenant on Economic, Social and Cultural Rights, supra
note 13 at art. I.
94Mr. Martenson, Under-Secretary-General for Human Rights, commenting on the right to self-
determination at the Third Committee (see UN GAOR C.3, 3rd Mtg, UN Doc. A/C.3/45/SR.3 (1990)
para. 27).
9′ Dinh Thi Minh Huyen, the delegate of Vietnam to the Third Committee of the U.N., commented
on the right to self-determination: in her view, the right is broader than achieving national independ-
ence and “should include respect for the sovereign equality of States, independence and territorial in-
tegrity and the right of peoples to determine their own future and choose their own system of gov-
ernment” (UN GAOR C.3, 1 lth Mtg., UN Doc. A/C.3/46/SR.11 (1991) at para. 75).
96Skeptics of the communitarian notion of rights in Africa conclude that “what ‘peoples’ rights”
appears to refer to is the rights of sovereign states.” Howard goes further to define “peoples” in the
Charter as “class-ruled ‘peoples’ as against “concrete people” (Human Rights, supra note 4 at 8). We
agree with this characterization but are hopeful for a more democratic interpretation and application
of the right.
‘ The issue arose before the International Law Commission (“I.L.C.”) in 1949. The Commission
opted to leave the meaning of peoples to be determined in accordance with the international practice
(see “Report to the General Assembly Part HI: Draft Declaration on Rights and Duties of States”
(1949) Y.B.IL.C. 286 at 289).
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self-determination remains, in our opinion, the clearest and best established of the
“Peoples’ Rights” set out in the African Charter.
Who are “peoples”? Avoiding either a minimalist or maximalist definition,
there seems to exist a consensus about the common features of groups of human
beings who might well be regarded as “peoples” for the purposes of the right to
self-determination. The United Nations Educational, Scientific and Cultural Or-
ganization’s (“U.N.E.S.C.O.”) Meeting of Experts on further study of the rights of
peoples, held in Paris in 1989, defined peoples for the purposes of peoples’ rights in
international law, including the right to self-determination:
1.
A group of individual human beings who enjoy some or all of the
following common features:
(a) a common historical tradition;
(b) racial or ethnic identity;
(c) cultural homogeneity;
(d) linguistic unity;
(e) religious or ideological affinity;
(f) territorial connection;
(g) common economic life; …
This definition also identified other considerations. For example, the group must be
of a certain size, not a mere association of individuals within the state, and it must
have the will and means to identify itself as a people.’ I. Brownlie summarizes the
requirements as a “distinct character”.”‘ In our view, while the U.N.E.S.C.O. defi-
nition captures most of the important elements, the criteria of size and territory,
which we believe to be of specific (but not necessarily exclusive) concern to Africa,
demand qualification.
The numeric size of the group identifying itself as a people might not have the
same significance in Africa as it would in other places, including Canada, where
questions of minority groups and indigenous people also exist. This is because the
relevant size (that is, within borders) of many groups in Africa varies according to
“U.N.E.S.C.O., “New Reflections on the Concept of Peoples’ Rights” (1990) 11:3-4 H.R.L.J. 441
at 446.
” See ibid. This latter part was also emphasized in the definition offered by Y. Dinstein who, and
after noting the importance of the existence of a common history, states: “It is essential to have a pres-
ent ethos or state of mind. A people is both entitled and required to identify itself as such” (Y. Din-
stein, “Collective Human Rights of Peoples and Minorities” (1976) 25 I.C.L.Q. 102 at 104).
“‘ He identifies a core of “reasonable certainty” regarding the definition of people. This core, to
him, consists of the right of a community to have its distinct character reflected in its political life:
The concept of distinct character depends on a number of criteria which may appear in
combination. Race (or nationality) is one of the more important of the relevant criteria,
but the concept of race can only be expressed scientifically in terms of more specific
features, in which matters of culture, language, religion and group psychology pre-
dominate (I. Brownlie, “The Rights of Peoples in Modem International Law” (1985) 9
Bull. A. Soc. Legal Philo. at 108).
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841
the population’s cross-border movement.'”‘ Although the nation-state is a reality in
Africa, it has not acquired the same status as it has in Western countries; in many (if
not most) cases, peoples or groups are not necessarily aware of the existence of
state boundaries and jurisdiction.
The emphasis on territory might similarly be qualified with respect to those
people who may live within the boundaries of two or more states. According to a
U.N. study by Aurelia Cristescu on the right to self-determination, territory, among
other factors, sets a “people” apart from an ethnic, religious or linguistic minority.'”
A distinction based on territory, however, lacks validity within the African con-
text.’ ‘ First, Cristescu’s distinction between peoples and minorities is based on the
belief that the exercise of self-determination entails secession or separation.'” We
believe that self-determination within the context of the African nation-state should
make available a wider range of possibilities, from protection of group rights to,
eventually, secession. Second, paying such attention to the territorial integrity and
stability of the state’ 3 perpetuates present political strife in Africa.” Stability during
“‘. A few examples are Ashante between Ghana and C6te d’Ivoire; Afar between Eritrea and Soma-
lia; BUa and BaniAamir between Sudan and Eritrea; and Masaleet between Sudan and Chad.
102 Mhe elements of a definition which have emerged from discussions on this subject
in the United Nations cannot and should not be ignored …
(a) The term “people” denotes a social entity possessing a clear identity and
its own characteristics;
(b) It implies a relationship with a territory, even if the people in question has
been wrongfully expelled from it and artificially replaced by another popula-
tion;
(c) A people should not be confused with ethnic, religious or linguistic mi-
norities, whose existence and rights are recognized in article 27 of the Inter-
national Covenant on Civil and Political Rights (A. Cristescu, The Right to
Self-Determination: Historical and Current Development on the Basis of
United Nations Instruments (New York: UN, 1981) at 41 (UN Doc.
E/CN.4/Sub. 2/404/Rev. 1) [emphasis added]).
103 “[A]n ethnic, religious or linguistic minority are [sic] a ‘people’ entitled to its right to self-
determination …” (A.A. An-Na’im, “The National Question, Secession and Constitutionalism: The
Mediation of Competing Claims to Self-Determination” in Shivji, ed., supra note 88, 101 at 108). He
seems to echo R.N. Kiwanuka, who described Cristescu’s exclusion as based on certain assumptions
which are no longer tenable (see R.N. Kiwanuka “The Meaning of ‘People’ in the African Charter on
Human and Peoples’ Rights” (1988) 82 A.J.I.L. 80 at 88).
” See e.g. Human Rights, supra note 4, where Howard argues: “The right to self-determination
clearly cannot be taken to apply to minority ethnic or national groups (peoples): their self-
determination would violate the rule of territorial integrity” (ibid. at 6).
0 A recurring provision, which has been echoed in several subsequent resolutions, was first stated
in the fourth principle of the Declaration on Friendly Relations, supra note 90:
Nothing in the foregoing paragraphs [stating the right to self-determination] shall be
construed as authorizing or encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of equal rights and self-
determination of peoples…
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the colonial period was maintained through imposed language and/or religion, not
necessarily through any shared national characteristics. Consequently, stability can
only be maintained under the same conditions. Furthermore, the O.A.U. was estab-
lished upon such cardinal principles as uti possidetisjuris.o
The requirements in the U.N.E.S.C.O. definition, especially of territorial con-
nection and common economic life, point to peoples in association with their state.
This is further consolidated by the U.N., the O.A.U. and state practice. There is,
however, an alternative: “‘Peoples’ could be used in contradistinction to their
state.”‘ This distinction, based on the spirit of the Algiers Universal Declaration
on the Rights of Peoples,'” is vital and indispensable.”‘
Article 20 of the African Charter, which deals with the right of peoples to self-
determination, states:
1. All peoples shall have the right to existence. They shall have the unquestion-
able and inalienable right to self-determination. They shall freely determine
their political status and shall pursue their economic and social development
according to the policy they have freely chosen.
We are not arguing in favour of fragmenting and destabilizing Africa. The U.N. Secretary-
General expressed the following concerns: “If every ethnic, religious or linguistic group claimed
statehood, there would be no limits to fragmentation, and peace, security and economic well-being for
all would become ever more difficult to achieve” (UN Doc. A/47/277 (1992) at para 17). The con-
temporary revival of ethnic politics in Africa is, as it has been in the past, a constant source of
destablization and is responsible for the loss of millions of human lives in post-colonial Africa. P.
Ndegwa calls for fewer states in Africa for two reasons: (i) most of the continent’s many countries are
not, because of their small size, economically viable; and (ii) their large number makes reaching
agreement on economic and political cooperation very difficult (see P. Ndegwa, “Africa and the
World: Africa on its Own” in 0. Obasanjo & F.G.N. Mosha, eds., Africa: Rise to Challenge (New
York: Africa Leadership Forum, 1992) 13 at 14).
” The provision for this principle in the O.A. U. Charter, supra note 27 at art. 3(3), was not a nov-
elty. It was adopted by the emergent Latin American states in the nineteenth century. Article 3(3) of
the O.A. U. Charter requires the solemn affirmation and adherence of member states to such principles
as “respect for the sovereignty and territorial integrity of each State and for its inalienable right to in-
dependent existence.” This article was further consolidated by a resolution issued by the Assembly of
Heads of State and Government in the year following the O.A.U.’s establishment which declared that
“the borders of African States, on the day of their independence, constitute a tangible reality”, and
therefore, the Assembly solemnly declared that “all Member States pledge themselves to respect the
borders existing on their achievement of national independence”.
.. Kiwanuka, supra note 103 at 83.
,94 July 1976, reproduced in R. Falk, Human Rights and State Sovereignty (New York: Holmes &
Meier, 1981) at 225. The Declaration identified some of the ways in which imperialism extends “its
stranglehold over many peoples” in our present world, including “manipulation of corrupt local poli-
ticians, with the assistance of military regimes based on police repression, torture and physical ex-
termination of opponents, through a set of practices that has become known as neo-colonialism …”
(ibid. at “Preamble”).
“‘ Richard Falk advocates a “populist and socialist” perspective in breaking away from the present
state of international law, which accords legitimacy to states by assuming that governments represent
the interests of their peoples. He stipulates, as a first step, the entitlement of people “to insist upon
their own legitimacy as a source of rights, even as against the state” (Falk, ibid. at 190).
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E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTS INAFRICA
843
2. Colonized or oppressed peoples shall have the right to free themselves from
the bonds of domination by resorting to any means recognized by the interna-
tional community. .
The wording of this article clearly allows for the right to both internal and external
self-determination. The first paragraph guarantees this right to all people, not just
colonized people (the subject of the second paragraph). Moreover, since the right is
consequential to the right to existence, the right to self-determination arises when-
ever this existence is threatened or endangered. The term “peoples” is, therefore, to
be given the widest possible interpretation within the African context.
2.
A Tool for Dispute Resolution
Self-determination can help resolve two different types of disputes: those re-
lated to external domination of dependent African territories, and those related to
internal conflicts. Resolving external domination is consistent with one of the main
purposes of the O.A.U., which is to “eradicate all forms of colonialism from Af-
rica””‘ through “absolute dedication to the total emancipation of the African terri-
tories which are still dependent”.”‘ The case of the Western Sahara, the last colo-
nized African territory, has been a source of conflict between Morocco and Algeria,
on the one hand, and Morocco and the O.A.U., on the other. The legal principles
governing the Western Sahara are clear: (1) it existed as an independent territory
(2) the Moroccan occupation of the
apart from both Morocco and Mauritania;.’
territory is in violation of one of the O.A.U.’s cardinal principles, uti possidetis ju-
ris;”‘3 and (3) the withdrawal of Morocco from the O.A.U., following the O.A.U.’s
admission of the Sahrawi Arab Democratic Republic, should not have halted the
O.A.U.’s support for the Sahrawi right to self-determination.”6
The case of Eritrea is an example of the resolution of an internal conflict. Al-
though the Eritreans fought for over thirty years against the occupying Ethiopian
.. African Charter, supra note 36 at art. 20 [emphasis added].
“,20.A.U. Charter, supra note 27 at art. 2(l)(d).
“Ibid. at art. 3(6).
‘”See Western Sahara Case (Spain v. Morocco), [1975] I.C.J. Rep. 12 at 68.
… Enshrined in the O.A.U. Charter and affirmed at the Cairo Summit of 1964 (see OAU, General
Assembly, Resolution on Border Disputes Among African States, OAU OR AHG/Res.16(l) (1964),
reproduced in I. Brownlie, Basic Documents on African Affairs (Oxford: Clarendon Press, 1971)).
The 1975 Madrid Declaration of Principles on Western Sahara by Spain, Morocco and Mauritania,
14 November 1975, reproduced at 14 I.L.M. 1512, which handed over the territory over to Maurita-
nia and Morocco, should have been declared void ab initio for it constituted a clear denial of the Sah-
rawi’s right to self-determination.
116 President Siaka Stevens of Sierra Leone made the following remark: “Not everything that is legal
is expedient, so we shelved it” (L. Dash, “New Skills to Heal Old OAU Bitterness”, The Guardian
(21 July 1980) 21). See also: J. Naldi, “The Organisation of African Unity and the Saharan Arab
Democratic Republic” (1982) 26:2 J.A.L. 152; International Commission of Jurists, “Western Sahara”
(1984) 32 Int’l Comm. Jur. Rev. 25.
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army, the dispute was never brought before the O.A.U.”‘ Eritreans were able to win
their independence in 1991, with no help from either the U.N. or the O.A.U., and
despite a diplomatic blockade by Ethiopia. Eritrea highlighted the O.A.U.’s lack of
commitment to the right to self-determination. ‘ The political situation in Africa, as
exemplified by the Western Sahara and Eritrea situations, as well as countless oth-
ers,”‘ demonstrates that the denial of the right to self-determination and the neglect
of “peoples” leads to violence and civil strife.” The topic of self-determination as
an important tool for dispute resolution dominated the twenty-ninth O.A.U. Sum-
mit.’2′ The Cairo Declaration mandated the O.A.U. to establish in Africa “a new
institutional dynamism, enabling speedy action to prevent or manage and ultimately
resolve conflicts when and where they occur”. E. Dumbutshena, former Chief Jus-
tice of Zimbabwe, doubted that the O.A.U. would be able to sustain intervention,
due to financial weakness.'” We add another reason: the O.A.U.’s lack of moral
credibility. The African Commission is better qualified to play such an important
role'” as part of its mandate to promote human and peoples’ rights.’
“. This was said to be due to the influence of Emperor Haile Selassie who was one of the founders
of the O.A.U. and host of its first meetings (see B.H. Selassie, Eritrea and the United Nations and
Other Essays (Trenton, N.J.: Red Sea, 1989)).
“. Eritrean President Isaias Afewerki noted, at the 29th O.A.U. Summit and on the occasion of
admitting Eritrea to the organisation, that the O.A.U. “has failed to deliver on its pronounced objec-
tives and commitments”, adding that the O.A.U. “championed the lofty ideas of unity, cooperation,
economic development, human rights and other worthy objectives [but] has failed to seriously work
for their concrete realisation” (“The Cairo Declaration” New Africa (12-18 July 93) 1197).
“9 For example, the continuing civil war in the Sudan, and the present tension, arising out of a bor-
der dispute between Nigeria and Cameroon. The tension was heightened by Nigeria’s deployment of
troops and Cameroon’s attempt to bring the dispute before the United Nations. The disputed area,
which was part of Nigeria during the colonial era, is said to be rich in oil and other mineral resources.
This brings the constellation of issues surrounding sovereignty over natural resources into the dispute.
In fact, of the 35 internal wars in the world where battle-related deaths exceed 1,000 a year, 16 are in
Africa” (see D. Davies, “Conflicts in Africa: a New Initiative” NewAfrica (24-30 January 1994) 114).
‘.. This is more true in post-Cold War Africa. The effect of the Cold War in Africa was summed up
by the United Nations Commission on Human Rights: “the proxy wars of the previous decades have
proved to have lives of their own after their patrons withdrew, leaving devastating armouries behind
in the hands of rival factions” (cited in Davies, ibid. at 114). “[S]trife between nations is not of itself a
consequence of the principle of self-determination but the reflection of a desire to resist it: in other
words, if the states involved are prepared to accept a result based on self-determination, then there is
no reason to presuppose violence will ensue …” (D.W. Bowett, “Self-Determination and Political
Rights in the Developing Countries” (1966) Proc. Am. Soc.’y I. L. 129 at 130).
“‘ OAU, General Assembly, 29th Sess., Declaration of the Assembly of Heads of State and Gov-
ernment on the Establishment within the OAU of a Mechanism for Conflict Prevention, Management
and Resolution (1993), reproduced in (1994) 6 R.A.D.I.C. 158 [hereinafter Cairo Declaration].
‘2See Davies, supra note 119.
‘ The Commission’s qualification stems from the fact that the question of politics with its central
issue of democracy has once again dominated the debate in Africa. The adoption of the African
Charter has placed the Commission in a central position in this debate (see P.A. Nyong’o, ed., Popu-
lar Strugglesfor Democracy in Africa (London: Zed Books, 1987)). Unlike the O.A.U. members, the
Commission is less likely, in theory, to be influenced by narrow political interests.
’24 SeeAfrican Charter, supra note 36 at art. 30.
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The Commission should adopt a position regarding constitution-making in Af-
rica that accounts for the needs and reality of the African (cultural) context.'” This
entails expanding the scope of the right to self-determination to include the follow-
ing:
(a)
(b)
(c)
(d)
(e)
(W
equality of all peoples and nations;
right of colonized people to independence and formation of their
own sovereign states;
right of oppressed nations to self-determination up to, and including,
the right to secession;
right of all peoples, nations, nationalities, national groups and
minorities to freely pursue and develop their culture, traditions,
religion and language;
freedom of all peoples from alien subjugation, domination and
exploitation;
right of all peoples to determine democratically their own socio-
economic and political system of governance and government. 126
Questions of internal self-determination should not, therefore, be treated as internal
state matters, within a state’s boundaries and exclusive jurisdiction. Indeed, since
the ratification of the African Charter, which implies a waiver of sovereign im-
munity, constitution-making is no longer an exclusively internal jurisdiction.
D. The Link between Rights and Duties
The element of duty underlies the concept of rights in the African community.
The community helps the individual to exercise his or her rights, and the individual,
in turn, ensures a contribution to general community development. Individuals ex-
ercise rights to enable them to perform duties owed to four entities in the commu-
nity: the community’s supreme moral being/authority, the individual, the family and
the community.”‘
The rights exercised by the individual correspond to duties that the whole
community, apart from that particular individual, performs for that individual. The
community, in turn, exercises its rights when individual members, jointly and sev-
‘ Every constitution represents a solution for the particular difficulties its authors perceive (see R.
Siedman, “Perspectives on Constitution-making: Independence Constitution for Namibia and South
Africa” (1987) Lesotho L.J. 25 at 50).
26 Shivji, supra note 16 at 80. These were described by Shivji as the principal elements of self-
determination, which are complemented by secondary ones that include: the right to seek assistance
in the struggle for self-determination, and the principle of state sovereignty and non-interference.
127 These entities are mentioned in the African Charter, as well as in all major human-rights instru-
ments. For example, the duty owed to a Supreme Being is indirectly provided for in article 8 of the
Charter, which guarantees freedom of conscience and religion. The duty the individual owes to her-
self is inherent in the rights she exercises. As already noted, that exercise leads to the acquisition of
property, which the individual uses for herself, thereby attaining self-development. These rights are
found in the African Charter, supra note 36 at arts. 2-17. For duties owed to other individuals, see
ibid. at art. 28; for duties to the family and the community, see ibid. at arts. 27, 28.
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erally, perform their duties to it. These duties are determined on the basis of the
needs of the particular community. The ability of the community to meet its needs,
thus, leads to its general development. In this analysis, it is worth noting the inter-
relatedness and inter-dependence of rights, duties and development and the com-
munal context in which rights are exercised in the African community. Unfortu-
nately, African socialism and the African Charter have restructured and confused
the order of priority, shifting the focus from the individual to the community and
from rights to duties.
E. Is the Notion of Economic, Social and Cultural Rights African?
On the face of it, African governments advocate the inter-relatedness and uni-
versality of civil and political rights in addition to economic, social and cultural
rights.’28 In practice, however, more importance is attached to these latter rights. The
exercise and enjoyment of these rights are made a condition precedent to the exer-
cise of civil and political rights.'” Moreover, they are presented as peoples’ or
communal rights.'”‘ It is our contention that such a conception of economic, social
and cultural rights is not truly African.
A truly African conception of rights would not identify civil and political rights
as distinct from economic, social or cultural rights. In other words, the distinction
between first and second generation rights might not be applicable to Africa. Sev-
eral specific rights support this contention, such as the rights to land, to education
and to marriage, which are exercised through a primary emphasis on the individual.
One does not, however, find this element of individualism in the economic, social
and cultural rights embodied in the African Charter.
The concept of economic and social rights under the African Charter is an
adoption of a blend of the Socialist doctrine of rights and the L.I.S. doctrine of
rights;” for it is the socialist concept of rights that makes the exercise of economic,
… The African Charter, ibid., “Preamble” at para. 8, reads: “Convinced that … civil and political
rights cannot be dissociated from economic, social and cultural rights in their conception as well as
universality…”
‘ See, for example, the concluding part of the eighth preambular paragraph to the Charter, ibid.: “…
and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of
civil and political rights.”
“0 See African Charter, ibid. at arts. 20-22. These articles mirror the Covenant on Economic, Social
and Cultural Rights, except that they are not couched as individual rights. See, however, T. van
Boven, “The Relations between Peoples’ Rights and Human Rights in the African Charter” (1986) 7
H.R.L.J. 183.
131 See Cassese, supra note 20 at para. 214. See also Ebua Lihau who asserts that the African Char-
ter blends “together Western liberal and socialist conceptions of human rights” (E. Lihau, “Comments
on the Banjul Charter” (1986) 11:4 Hum. Rts. Internet R. 13 at 15). Lihua’s view is that the Charter
blends the Western notion of civil and political rights and the socialist concept of economic, social
and cultural rights. This paper agrees with him on the second issue only and argues further that the
concept of civil and political rights is un-African, not Western but socialist. However, a full excursion
into that assertion is beyond the scope of this paper.
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social and cultural rights contingent on the performance of duties and emphasizes
people:
Such a conceptualization of the nature of society precludes the existence of in-
dividual rights rooted in the state of nature which are prior to the state. Only le-
gal rights exist, rights which are granted by the state and whose exercise is
contingent on the fulfilment of obligations to society and to the Soviet state.
Furthermore since capitalism is exploitive, and individual rights, inclusive of
the right to private property, are bourgeois rights, socialist rights, which satisfy
the basic needs of survival and security, constitute the substance of human
32
rights.1
The socialist notion of rights is founded on the social standing or abilities of the
individual, not solely on the individual’s existence. Protection of rights, therefore,
hinges on the performance of duties, which shifts the focus from the individual to
the people as the subject of rights. Only after performance of duties will the state
provide the wherewithal required for the enjoyment of rights. 3
This philosophy, however, misconceives the notion of rights. Rights are inher-
ent to the person, a part of one’s nature and being: without them one ceases to be
fully human.” They are also instrumental, in the sense that the individual uses them
to tap the potentials and talents with which he is endowed. In tapping this potential,
the individual is enabled to perform his duties to attain full self-development and,
thereby, contribute to community development. However, where a person is made
to perform duties before, or as a condition of, the exercise of rights, then that per-
son is being denied the conducive atmosphere that would facilitate the very per-
formance.
The argument that duties precede rights corresponds to emphasizing economic,
social and cultural rights at the expense of- or as a condition to –
the exercise of
civil and political rights. The argument that development will facilitate the exercise
of civil and political rights is also a reflection of African Socialism.
V. The Individual in the Context of the Afrocentricity Debate
We have argued both that traditional African communities were an amalgam of
communality and individuality and for the need to respect individual rights in a
community context. Further recognition of individual rights is mandated by
changes in contemporary African societies, in which the advent of Islam and
132 Professor A. Pollis, quoted in J.J. Shestack, “The Jurisprudence of Human Rights” in T. Meron,
ed., Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, 1984) 69
at 82.
’33 The use of “enjoyment” and not “exercise” of rights is important, for we see in it a key idea of
the socialist concept of rights: that rights are not to aid the performance of duties but rather a luxury to
be lavished on the people as a reward for performing their duties with efficiency.
“4 See “The Full-Belly Thesis”, supra note 50, where Howard argues: “That civil and political rights
are needed in and of themselves” (ibid at 469).
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Christianity has had an important influence.’5 This introduces into the debate the
“Afrocentricity” argument, as put forward by M.K. Asante, a self-declared
“American Afrocentric”.’. The Afrocentric vision of Africa is devoid of Islam
(equated with Arabs) and Christianity (equated with whites), a position developed
in critical response to Mazrui’s vision of an altered Africa. Asante writes:
Mazrui is incorrect … in granting to Christianity and Islam the same place as
the traditional and centering African culture found throughout the continent,
perhaps less so in some places because of the density and intensity of the op-
pression and suppression of the indigenous people. … [H]e does not transcend
his particular vision of Africa because of an ideological entrapment: combining
both European and Arab hegemonic positions over the intellectual and cultural
resources of Africa 37
If we were to accept Asante’s statement, we would find ourselves hunting in the
forest instead of the river,’8 because despite the fact that not all Africans are either
Christian or Muslim, Islam and Christianity are felt everywhere on the continent.
This does not mean that they take primacy over traditions or other aspects of Afri-
can life, but they are certainly part of the changes in African culture. Contemporary
African thought has long recognized these changes and identified them as chal-
lenges to be met.’39
Two of these challenges are particularly relevant.'” One is the desire to under-
stand Africans better in order to make it easier to accommodate changes induced by
Islam, Christianity and colonialism. A romantic vision of Africa is unhelpful, as is
the work of non-African scholars (and like-minded African scholars) who tend to
emphasize the “irrational” and “illogical” nature of African thought. The other
challenge is prompted by the rise of African nationalism and socialism. The strug-
gle for political independence signified the importance of mental liberation, a sense
of total detachment from Western (colonial) ways of doing things. The challenge,
however, is to balance this liberation with the needs created as a result of the Afri-
can acquisition of Western ways: languages, legal systems, political organizations.
In Africa, like anywhere else in the world, “traditional” life is no longer an
adequate comprehensive model. For example, social arrangements were based on
, Mazrui’s vision is known as “the triple heritage” thesis. See generally A.A. Mazrui, The African
6 See M.K. Asante, Kemet, Afrocentricity and Knowledge (Trenton, N.J.: Africa World Press,
Condition: A Political Diagnosis (London: Cambridge University Press, 1980).
“1
1990).
13 Ibid. at 115.
… Contrary to the African proverb: “However poor the crocodile becomes, it hunts in the river, not
in the forest” (K.A. Opoku, Speak to the Winds: Proverbs from Africa (New York: Lothrop, Lee &
Shepard, 1975) at 51).
“‘ See: Gyekye, supra note 60; T. Serequeberhan, ed., African Philosophy: The Essential Readings
(New York: Paragon House, 1991).
‘4 See P.O. Bodunin, “The Question of African Philosophy” in Serequeberhan, ed., ibid., 63 at 66-
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E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTS INAFRICA
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the principle of unquestionable obedience to elders. 4 ‘ The slow pace of change in
traditional African societies made it possible for knowledge of the history and cul-
ture of the community to be accumulated by an individual person within his or her
lifetime.’ 2 “Knowledge became wisdom, and wisdom, power”.43 In other words,
gerontocracy did not necessarily develop to promote authoritarianism; it was a
natural development, and, even, a necessity. In light of modem technology and
communications, however, the idea of the head of state as the elder and the reposi-
tory of all wisdom and power cannot be maintained. In contemporary African poli-
tics, it becomes authoritarianism.
Instead of promoting a romantic vision of Africa, it is more useful to develop a
pragmatic nexus at two levels: external and internal. Externally, the only role for
Afrocentricity is supporting continental African 61ites in resolving the continent’s
problems and dilemmas. The challenge is to overcome the anti-freedom aspects of
traditionalism while, at the same time, respecting its cultural forms. This cannot be
helped by advancing an emotive vision of Africa, as Asante is trying to do, which is
naive and demoralizing.'”
Internally, Africans should recognize the inherent difficulties with the tradi-
tionalist argument and seek support for human rights in Africa’s altered cultural
“‘ A Malawian official was quoted to say that elders, according to African traditions, ought to be
respected as long as they live (see B.B.C. World Service, World Today Programme, 31 March 1994,
1:15 A.M.). This statement was made in defence of the Malawian dictator Hasting Banda and his de-
cision to censor election campaigns.
42 See Potholm, supra note 40 at 31.
143 Ibid.
‘” This demoralizing impact is usually felt by those who live in Africa, but is often overseen by
others, “Afrocentrists” included. Two examples are illustrative. The first is to be found in the move-
ment known as Rastafarianism, which started in the late 1930s following the crowning of Halle Se-
lassie as Emperor of Ethiopia. The movement, which gained momentum and popularity in the 1950s
as part of the retur-to-Africa sentiment, is still popular among English-speaking Caribbeans and
black communities in Britain and the United States (for a very useful account of the movement, see
H. Campbell, Rasta and Resistance: From Marcus Garvey to Walter Rodney (Trenton, N.J.: Africa
World Press, 1987)). While the movement has positive aspects, the elevation of Haile Selassie (Ras
Tafari) to holy status demoralizes the millions of Eritreans and other non-Amharic Ethiopeans who
lived under his brutal regime.
The second example involves a different form of romanticism, the “fact of black rule.” This be-
came predominant among African-American intellectuals following their contacts with African writ-
ers in the late 1950s. African states in the 1970s and 1980s “benefitted from Black-American intellec-
tuals’ dilemma of lauding the fact of black rule while slighting the quality of black rule” (M. Kilson,
“African Americans and Africa: A Critical Nexus” (1992) 38 Dissent 368). While this movement was
instrumental in contributing to the anti-apartheid campaign, it had some negative aspects. For exam-
ple, African-American intellectuals were mute in the face of Idi Amin’s regime in Uganda, which
lasted between 1972-1979, and which committed over two hundred thousand political murders.
Similar attitudes were prevalent among O.A.U. members, who eventually elected Amin as Chairman
of the O.A.U.). Some African-American senators opposed the discussion of Amin’s regime because
of the “concern that a congressional investigation of Uganda might divert public attention from hu-
man-rights condition in South Africa” (this view was expressed by Charles Diggs, a black Congress-
man in 1977, quoted in Kilson, ibid. at 368).
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context. Culture is not static; therefore, any reference to it entails culture as it has
been changed or influenced: “Rain beats a leopard’s skin, but it does not wash out
the spots.””‘ Cultural changes have rendered certain traditional practices unaccept-
able, even repulsive. Female genital mutilation is one example of a practice that is
actively being combatted in Africa and which has received some attention. Recent
reports from South Africa provide disturbing examples of male genital mutilation,
part of traditional Xhosa initiation ceremonies.'” Another shocking example comes
from Ghana, involving young girls taken to shrines to serve a criminal sentence of
slavery to the fetish priest for crimes committed by their families.”
VI. Human Rights, the Nation-State and Militarism in Africa
Having argued for the issue of self-determination, it becomes pertinent to con-
sider the nature of the nation-state in Africa and its effect on human rights: “A cow
gave birth to fire: she wanted to lick it, but it burned; she wanted to leave, but she
could not because it was her own child.”” 8 The fire here, largely, resembles the na-
ture of the post-colonial state in Africa. Most of the crises facing Africa today can
be attributed to the nation-state, yet it does not seem possible, or logical, to abandon
this form of polity and find a new one:
“‘Ashanti proverb quoted in C. Leslau et al., African Proverbs (New York: Peter Pauper Press,
1962) at 7. African culture (the leopard skin) has undergone changes (the rain). Nevertheless, the rain
does have an impact on the leopard’s skin in the same way as it does on other kinds of leather. In re-
lation to human rights in Africa, the subsequent cultural changes are regarded as an integral part of
the leopard’s skin.
,6 “Since 1990, more than 20 initiates have died and 200 were attended in hospitals” (“Another
Way to Die in South Africa” New African (June 1994) 23). During 1993 alone, ten initiates died and
more than a hundred were admitted to hospital. “Some young men had been so badly mauled that
their penises had been removed altogether, by the drink-sodden witchdoctors” (ibid.).
‘7 The cases cited by the Ghana Committee on Human and Peoples’ Rights include stories of girls,
nine and ten years old, being forced to have sex with the priests in their early teens. It is estimated that
more than one thousand girls are still suffering from this tradition in the lower Volta Region of Ghana
(see “Slavery in Ghana” (1993) 1:4 Ghana Hum. Rts. Q. 1 at 1, 3). This practice reminds us of the
levirate custom, which was practised in some parts of Africa. Under this custom, a widow is inherited
by the brother of the deceased, or the closest male relative in the absence of a brother (see: J.S. Mbiti,
African Religions and Philosophy (New York: Praeger, 1969) at 144-45; A.A. Mazrui, A World Fed-
eration of Cultures: An African Perspective (New York: Free Press, 1976) c. 6, where he compares
the practices of Suttee and Levirate). A Ghanaian human-rights activist is quoted to have said:
“When we started setting up this project for the fetish girls, we had not yet realised
what we were going into. This slavery practice is deep rooted and the fetish priests and
the soothsayers possess enormous powers in society, even a lot of well educated people
would still seek advice from the fetish priest, thus it is very difficult to mobilise the
people to rise against this inhuman practise [sic]” (Rev. Walter Frimpong, Executive
Director of International Needs Ghana, quoted in “Slavery in Ghana”, ibid. at 3).
This practice also in fact contravenes the Ghanian Constitution, supra note 82, which prohibits “all
customary practices which dehumanise or are injurious to the physical and mental well being of a
person” (ibid. at art. 26(2)).
‘” Ethiopian proverb quoted in African Proverbs, supra note 145 at 26.
1996]
E.A. EL-OBAID & K. APPIAGYEI-ATUA – HUMAN RIGHTS INAFRICA
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It would be great indeed if we could evolve a new political system, a new so-
ciopolitical order which is different from those found elsewhere and based on
an autochtonous African philosophy. That indeed is a worthwhile aspiration
which one must not give up without trial. But I am disturbed at certain presup-
positions of attempts so far made. To begin with, I think that the past the politi-
cal philosophers seek to recapture cannot be recaptured.1 9
The absence of debate on the nature of the post-colonial state has led to a lack
of clarity among Africans, which has been compounded by excessive militarism. It
is not our intention here to undertake an analysis of the viability of the nation-state
in Africa; rather, we suggest that certain precautions against excessive abuses by
the state are warranted.
Pre-colonial Africa witnessed the rise and fall of many empires, kingdoms and
sultanates.’ These dynasties were not nation-states; they were not confined within
fixed boundaries or frontiers.’5′ The location of changing frontiers depended mainly
on two factors: military strength and cultural interaction. When the colonial nation-
states were formed, there were no “nations” within the frontiers but, rather, diverse
groups kept together through coercion and manipulation.’ 2 This ethnic diversity
was underestimated by independence leaders, who took the nation-state as a
given;’.. all that was needed, in their view, was to devise the institutions necessary
for a democratic government.'” Naturally, voters voted along ethnic lines, not
across them, as these leaders would have wished. Africa then tried a range of ide-
ologies and political orientations, resulting in widespread disillusionment and loss
of confidence in the existing political structures in Africa; the road was paved for
the military to assume its dominant role in African politics.
The African state is therefore weak, ineffective and often lacks legitimacy.’
There is a disconnectedness between state and society, a worsening of political and
legal dualism ‘ and internal relations between constituent elements of the state ap-
‘9 Bodunrin, supra note 140 at 69.
‘” See generally: R. Smith, Kingdoms of the Yoruba (London: Methuen, 1969); M. Abitbol, Tom-
bouctou et les Arma (Paris: Maisonneuve et Larose, 1979); D.T. Niane, Sundiata: An Epic of Old
Mali (London: Longmans, 1965); W. Rodney, A History of the Upper Guinea Coast: 1545-1800
(Oxford: Clarendon Press, 1970); D.A. Low, Buganda in Modem History (Berkeley: University of
California Press, 1971).
” See generally I. Kopytoff, ed., The African Frontier: The Reproduction of Traditional African
Societies (Bloomington: Indiana University Press, 1987).
‘ See G. Munda Carew “Development Theory and The Promise of Democracy: The Future of
Postcolonial African States” (1993) 4 Africa Today 31 at 33.
See A.A. Mazrui & M. Tidy, Nationalism and New States in Africa (Nairobi: Heinemann, 1984).
‘5 See Carew, supra note 152 at 32.
‘S See ibid. at 31. This seems to be a widely accepted view (see: E. Hutchful, “Reconstructing Po-
litical Space: Militarism and Constitutionalism in Africa” in Shivji, ed., supra note 88, 183; P. Chabal,
Power in Africa: An Essay in Political Interpretation (New York: St. Martin’s Press, 1992)).
156 See Hutchful, ibid. at 188.
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paratus remain ambiguous. As a result, militarism has been the means for attaining
certain political and economic interests. ‘ At the same time, it is an instrument of
dominance and oppression, as in the case of Rwanda and Burundi. Militarism
should, therefore, be viewed as a negative factor and be carefully dealt with to at-
tain a successful human-rights conceptualization.
There are different forms of militarism that affect human rights in Africa.”‘
State terrorism, directed indiscriminately against political dissent or opposition to
the ruling 6lite, has resulted in, what one might call, a continuing African holocaust.
For example, “more than 800,000 people perished at the hands of Idi Amin, Milton
Obote, and Tito Okello –
all former Ugandan heads of state.”” Militarism based
on ethnic conflicts has also played an unfortunate role in African development.
These conflicts stem from colonial economic policies that favoured some parts of
the colonies over others. Post-colonial governments, therefore, inherited unevenly
developed areas and communities, a situation they have very often either ignored or
used for their own political survival. These economic injustices added fuel to his-
torical animosities based on ethnic, social, national, racial and religious divisions
and are, in the end, responsible for most of the civil wars raging on the continent
(notably in Sudan, Somalia, Ethiopia, Kenya, Uganda, Rwanda and Burundi).
Militarism stemming from pastoralist and religious conflicts, from the Cold War
and from animosity between fellow nationalist fighters from different ethnic
groups, has also been prominent in Africa.
Conclusion
This article has sought to argue that, contrary to the view of most Western lib-
eral-rights theorists, human rights did exist in the traditional African context.
Moreover, the African notion of rights does not over-emphasize the community, as
most African leaders and writers would have us believe but, rather, strikes a bal-
ance between individual and communal rights.
The major factors that have shaped the “modem” African concept of human
rights have been economics and politics and not culture, as such. The economic ar-
gument is premised on the incorporation of African economies into a global eco-
nomic system that favours the industrialized world and which has weakened their
ability to meet the socio-economic needs of their citizens. Therefore, the insistence
of the West on democracy and human rights demonstrates its insensitivity to the
plight of African states. Unless a new international economic order is established,
” Indeed, it is argued by some African leaders that militarism is part of the African tradition. This,
however, is another misrepresentation of the relationship that existed between the heads of traditional
African governments, who remained civilians, and their military staffs, whose sole purpose was de-
fence. In fact, many political systems had no standing army (see Ayittey, supra note 6 at 69-70).
“‘ See ibid. at c. 7.
‘5’ Ibid. at 120.
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which gives less industrialized states more favourable trading terms, there can be
no guarantee of the promotion and protection of civil and political rights. It is,
therefore, argued that civil and political rights and democracy are a sophistication, a
Western imposition and a bane to development; economic development must pre-
cede their realization. The underlying notion of this economic argument is, there-
fore, that development automatically promotes or will lead to the realization of de-
mocracy and respect for human rights. Inextricably linked to the economic argu-
ment is the political argument for a strong, unified state. The two arguments merged
to create the concept of African Socialism, which post-independence African lead-
ers held out as the gateway to economic freedom and prosperity for their countries.
Our work seeks a re-thinking of the human-rights debate in Africa: while a
communitarian concept of human rights has existed in African communities,”‘s
the
exercise of rights is primarily based on the individual. Economic, social and cul-
tural rights are best promoted and protected by focusing first on the individual. An
organic connection exists between communal and individual rights'” as well as
between modem rights and rights in the African traditional society. Based on these
positions, we have criticized the African Charter for its incorrect portrayal of hu-
man rights in Africa.
Closely related to the position of the individual in the traditional African com-
munity is the Afrocentricity debate. The potency and relevance of challenging the
Afrocentric argument lies in portraying African societies as dynamic: the advent of
Islam and Christianity has altered African cultures to include the traditions embod-
ied in the tenets of these world religions. As a result, the obsession with communal
or peoples’ rights is misplaced.
Peoples’ rights as embodied in the right to self-determination, however, have an
important and positive role to play in contemporary Africa. The denial of the right
to self-determination combined with a narrow definition of “peoples” for the pur-
poses of that right share some of the blame for the civil wars and violence –
and
consequent violations of other rights –
that have plagued Africa.
We conclude that the best way for African governments to promote and protect
economic, social and cultural rights is to properly incorporate the traditional Afri-
can-rights model, which primarily emphasizes individual rights, into the African
Charter and their local constitutions. Adopting such a stance would mean that Afri-
can governments would have to pay greater attention to civil and political rights.
This would, in turn, imply the adoption of a progressive interpretation of the right
“‘ In fact, in all human communities, including pre-capitalist Western Europe (see PJ. Hountondji,
“The Master’s Voice – Remarks on the Problem of Human Rights in Africa” in Philosophical Foun-
dations of Human Rights (Paris: U.N.E.S.C.O., 1986) 319).
6’ See C. Scott, “The Interdependence and Permeability of Human Rights Norms: Towards a Partial
Fusion of the International Covenants on Human Rights” (1989) 27 Osgoode Hall L.J. 769.
854
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to self-determination, since it is a right that encompasses civil and political, as well
as economic, social and cultural rights.
