ghetnet metiku - the human rights implications of the transformation of the oau into the au

Ghetnet Metiku Woldegiorgis [email protected]

The Human Rights Implications of the Transformation of the OAU into the AU

Ghetnet Metiku Woldegiorgis

Tuesday, July 22, 2014

Contents Acronyms ...................................................................................................................................................... 2

1 Introduction ........................................................................................................................................... 3

2 The Organization of African Unity ....................................................................................................... 3

2.1 Establishment and Objectives ....................................................................................................... 3

2.2 The OAU and Human Rights ........................................................................................................ 4

3 The African Union ................................................................................................................................ 5

3.1 Establishment and Objectives ....................................................................................................... 5

3.2 The AU and Human Rights ........................................................................................................... 6

4 Points of Comparison ............................................................................................................................ 7

4.1 Recognition of Human Rights....................................................................................................... 7

4.2 Normative Framework .................................................................................................................. 7

4.3 Institutional Arrangements ............................................................................................................ 8

4.4 The Impact on the Ground ............................................................................................................ 9

5 Conclusions ......................................................................................................................................... 10

List of References ....................................................................................................................................... 11

List of Instruments ...................................................................................................................................... 13


Acronyms

ACHPR African Charter on Human and Peoples’ Rights

ACRWC African Charter on the Rights and Welfare of the Child

AEC African Economic Community

AU African Union

IDPs Internally Displaced Persons

NEPAD New Partnership for African Development

OAU Organization of African Unity

UDHR Universal Declaration on Human Rights


1 Introduction

The establishment of the Organization of African Unity (OAU) in 1963 was a watershed moment

in the history of the African continent. While the institution was established in the context of

Pan-Aficanism and calls for decolonization and economic development, the human rights agenda

was not completely absent from its organization and operations. In fact, the right to self

determination and the violations of the rights of people under colonial rule constituted an

essential part of the struggle. Yet, human rights issues have only come to the front in Africa in

more recent decades. The transformation of the OAU in to the African Union (AU) is often seen

as necessitated by this consideration among others.

This brief paper seeks to explore the implications of the transition from the OAU to the AU in

terms of its impact on the promotion and protection of human rights in Africa. The paper is

organized in four parts. The first two parts provide brief overview of the OAU and AU and

approaches to human rights in each organization. Then, the two organizations are compared in

terms of their human rights regimes. This is followed by the last part presenting conclusions

drawn from the foregoing discussion.

2 The Organization of African Unity

2.1 Establishment and Objectives

The Organization of African Unity (OAU) was established by 32 African countries on May 25,

1963, and based in Addis Ababa, Ethiopia, it became operational on September 13, 1963, when

the OAU Charter, its basic constitutional document, entered into force. The membership of the

OAU came to include membership eventually encompassed all but one of African states.1 The

OAU was dissolved in 2002, when it was replaced by the African Union.

The purposes of the OAU as stipulated in the OAU Charter included the promotion of the unity

and solidarity of African states; defense of their sovereignty, territorial integrity, and

1 The exception is Morocco, which withdrew in 1984 to protest the admission of the Saharan Arab

Democratic Republic, or Western Sahara.


independence; and the eradication of all forms of colonialism from Africa.2 To this end, member

states were to coordinate and harmonize their policies in various areas, including politics and

diplomacy, economics, transportation, communications, education, health, and defense and

security. The Charter also outlined the guiding principles of the OAU including the sovereign

equality of all member states, non-interference in the internal affairs of states, respect for

sovereignty and territorial integrity, the peaceful settlement of disputes, and the emancipation of

dependent African territories3. Although the organization’s primary motivation initially was the

liberation struggle and the defense of the independence and territorial integrity of African states,

the OAU later expanded its scope of activities to encompass economic cooperation and the

protection of human rights.

The OAU has registered a number of significant achievements during its life-time. Among these

are decolonization of the continent, the end of apartheid and the establishment of majority rule in

South Africa, the establishment of the African Economic Community (AEC) in 1997, and

mediation of several boarder and internal disputes in the continent. However, the OAU faced

significant challenges from disputes and conflict among member states, separatist movements

and the collapse of law and order in some member states. The credibility of the OAU was also

undermined by its failure to advance democracy, tendency to tolerate dictatorships and inability

to prevent and respond to gross human rights violations.

2.2 The OAU and Human Rights

Human rights did not have a central place in the OAU Charter, which did not provide for human

rights as a continental objective despite the reference to the UN Charter and the UDHR in its

preamble. The Grand Bay Declaration and Plan of Action, adopted by the First OAU Ministerial

Conference on Human Rights in Africa, held in Grand Bay, Mauritius, from April 12 to 16,

1999, was the first instrument to recognize the critical importance of human rights as cross-

cutting issues in Africa. This non binding declaration comes short of formal recognition of

human rights in the OAU framework.

2 Article 2 of the OAU Charter

3 Article 3 of the OAU Charter


However, the OAU is credited with significant achievements in relation to human rights. Most

notably, the African Charter on Human and Peoples’ Rights (ACHPR) was adopted under the

auspices of the OAU. The ACHPR is still the primary normative instrument on human rights at

the regional level.4 Other important OAU human rights instruments include the OAU Refugee

Convention5, the African Children’s Charter

6 and several declarations relevant to human rights.

Although the OAU was dissolved before achieving this goal, the establishment of a court of

human rights was envisaged during the OAU.7

3 The African Union

3.1 Establishment and Objectives

The Assembly of Heads of State and Government of the OAU declared the establishment of the

African Union (AU) during their extraordinary session held in Sirte, Libya in March 2001. The

newly established body was designed as a successor organization to the OAU. The Constitutive

Act (Act) of the Union entered into force on 26 May 2001 and the AU finally replaced the OAU

in 2002 after a period of transition.

Unlike the OAU, the AU was devoted to the political and economic integration of Africa based

on respect for democratic values, good governance, the rule of law, and human rights. The

promotion and protection of human rights figures clearly in the preamble of the AU Constitutive

Act and statement of its objectives. While maintaining most of the objectives stipulated in the

OAU Charter, the Act includes objectives relating to the democracy, good governance and

human rights.8 This more expansive list of objectives reflects a realization of the need for

political, social and economic integration based on the principles of democracy, popular

participation, good governance, and protection of human rights.9 The Constitutive Act of the AU

also reiterates many of the principles identified under the OAU Charter and introduces additional

4 Vincent O. Nmehielle, Development of the African Human Rights System in the Last Decade, 2007, p. 6

5 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 1969 and came

into force 1974) 6 African Charter on the Rights and Welfare of the Child (adopted 1990 and came into force 1999)

7 ACHPR Protocol on the African Human Rights Court (adopted 1998 and came into force 2004

8 Article 3 of the Act

9 Konstantinos D. Magliveras and Gino J Naldi, The African Union—A New Dawn for Africa? International

and Comparative Law Quarterly, 51, pp 415-425, 2002, p. 416


principles.10

The newly introduced principles relate to participation of the African peoples in the

activities of the Union; establishment of a common defence policy for the African Continent;

prohibition of the use of force or threat to use force; the right of the Union to intervene in a

Member State in respect of grave circumstances; promotion of gender equality; respect for

democratic principles, human rights, the rule of law and good governance; promotion of social

justice; respect for the sanctity of human life; and, condemnation and rejection of

unconstitutional changes of governments.11

3.2 The AU and Human Rights

The Constitutive Act of the AU gives human rights a prominent place. This is evident from the

preamble to the Act, its objectives and principles. The preamble to the Act refers to the

determination of member states to promote and protect human and peoples’ rights in an explicit

manner while the same is included in the objectives of the AU12

. The promotion of gender

equality and protection of human rights are also identified among the principles of the AU.13

Thus, the AU’s Constitutive Act is different from the OAU Charter in a number of ways,

including:14

“moving from non-interference to non-indifference, including the right of the AU

to intervene in any member state’s affairs; explicit recognition of human rights;

promotion of social, economic and cultural development; an approach based on

human-centred development; and, gender equality”.

The Kigali Declaration adopted by the First African AU Ministerial Conference on Human

Rights in Africa on May 8, 2003, in Kigali, Rwanda endorses the Grand Bay Declaration and

calls on states parties to support African human rights initiatives.

10

Article 4 of the Act 11

See: John Akokpari, The OAU, AU, NEPAD and the Promotion of Good Governance in Africa, EISA

Occasional Paper Number 14, November 2003 12

Article 3(h) of the Act 13

Articles 4(l) and (m) of the Act 14

Bience Gawanas, The African Union: Concepts and implementation mechanisms relating to human rights,

pp. 135-163, 2010, p. 128


4 Points of Comparison

This section compares the OAU and the AU to see if there have been changes in the human

rights regime under the two organizations. The comparison is structured in three sub-sections

relating to recognition of human rights as a regional agenda, the normative content of the

regional human rights instruments and the impact on the ground in terms of implementation and

enforcement.

4.1 Recognition of Human Rights

The OAU Charter mainly focused on issues of development and stability to the exclusion of

human rights concerns. This is evident from the fact that the preamble and first provisions of the

Charter emphasize issues of ‘unity, non-interference and liberation’ and conception of rights as

peoples’ rights.15

Thus, the contribution of the OAU Charter to the human rights regime in

Africa is at best doubtful.16

The Constitutive Act of the AU, on the other hand, expressly

addressed human rights in its preamble and provisions. This reflects a recognition of the crucial

importance of human rights in the organization and operations of the regional body.

4.2 Normative Framework

In relation to the normative framework for human rights in Africa, the ACHPR adopted during

the tenure of the OAU remains to be the most important regional instrument.17

The ACRWC and

the refugee convention are also important today as they were upon their adoption by the OAU.

The establishment of the AU was followed by the adoption of various instruments contributing

towards the enrichment of the normative framework for human rights. Most notably, the Protocol

on the Rights of Women (Maputo Protocol)18

and the IDPs Convention19

The coming into being

15

EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, Human Rights in Africa -A New Perspective on

Linking the Past to the Present, 41 McGill Law Journal, pp. 219-854, 1996, p. 827 16

Vincent O. Nmehielle, 2007, p. 6 17

See: Michelo Hansungule, Towards a More Effective African System of Human Rights: “Entebbe

Proposals”, paper presented at the First International Conference on: The Application of the Death Penalty

in Commonwealth Africa organized by the British Institute of International and Comparative Law held on

10th

to 11th

May 2004 Entebbe, Uganda, 2004 18

Protocol to the ACHPR on the Rights of Women in Africa (adopted 2003 and came into force 2005) 19

AU Convention for the Protection and Assistance of Internally Displaced Persons (adopted 2009 and came

into force 2012)


of the Maputo Protocol is important not only in terms of providing for the rights of African

women at the regional level but also in relation to its emphasis on individual rights. This is an

exception to the overall trend in African regional instruments to emphasize the collective over

the individual20

. The AU has also re-affirmed its commitment to human rights in the framework

of the NEPAD, especially the NEPAD Declaration on Democracy, Political, Economic and

Corporate Governance adopted by member states of the AU in July 200221

.

4.3 Institutional Arrangements

One of the recurrent criticisms of the OAU relates to the inability and indeed impotence of the

organization to respond to gross human rights violations occurring in member states.22

The

principle of ‘non-interference in the internal affairs of States’ precluded the engagement of the

organization in this crucial function.23

While recognizing the same principle, the AU Constitutive

Act mandates the Union to intervene in a Member State where ‘grave circumstances’, namely

war crimes, genocide and crimes against humanity, are evident in accordance with a decision of

the Assembly.24

The importance of this provision to addressing grave human rights violations

occurring under the identified circumstances cannot be overstated25

. Countries across the

continent including Sierra Leone, Liberia, Sudan just to mention a few have faced these same

circumstances leading to gross human rights violations. One critic of the OAU was its failure to

address human rights violations in the context of armed conflict despite the establishment of the

OAU Mechanism for Conflict Prevention, Management and Resolution in 1993.

The ACHPR did not envisage the establishment of a court; that was achieved through a separate

protocol. The Protocol on the establishment of the African Court on Human and Peoples’ Rights

20

EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, p. 837 21

John C Mubangizi, Some reflections on recent and current trends in the promotion and protection of human

rights in Africa: The pains and the gains, African Human Rights Law Journal, Volume 6 Number 1, 2006,

pp. 146-165, p. 154 22

Article 58 of the ACHPR mandates the African Commission to draw to the attention of the Assembly of

Heads of State and Government the existence of serious violations of human and peoples’ rights which may

lead to specific action. However, this mandate can only be exercised with the consent of the affected

member state. 23

Article 4/2 of the Charter 24

Article 4(h) of the Act 25

Kithure Kindiki, The Normative and Institutional Framework of the African Union Relating to the

Protection of Human Rights and the Maintenance of International Peace and Security: A Critical Appraisal,

African Journal of Human Rights, Volume 3 Number 1, 2003, pp. 97-117


was adopted by the OAU in 1998.26

However, the establishment of the Court actually took place

after the coming into being of the AU when the Protocol came into force in 2004. This could be

considered another important development in the regional human rights framework that followed

the establishment of the AU.

Finally, we should note that the AU has incorporated the various human rights organs established

and operating under the OAU into its structure. These are the Mechanism for Conflict

Prevention, Management and Resolution (incorporated July 2001) as well as the African

Commission and the African Committee of Experts on the Rights of the Child (both incorporated

in July 2002)

4.4 The Impact on the Ground

It has been twelve years since the AU took over as the regional organization in Africa. This does

not afford sufficient time for a realistic assessment of the impact of the transition from the OAU

on the status of human rights on the ground. Such an attempt is further complicated by the fact

that the reality of human rights in Africa is a function of various factors most of which are

beyond the control of the AU.27

At the outset, one should note that the African human rights

system is in a constant interplay with international and national human rights systems that are

given effect in diverse national and local contexts. Issues relating to the socio-economic context

at the global, regional and national levels are also important.

The developments in the African human rights system following the transformation of the OAU

into the AU have for the most part taken place in the recognition of human rights as a continental

issue in the AU Constitutive Act and some normative developments along the lines already

pursued by the OAU. The implications of these changes to the situation on the ground appear to

be limited. For instance, the fact that the AU has a mandate to intervene in cases of gross human

rights violations within the specifically identified circumstances does not mean that it has been

effective in doing so. The responses of the AU to recent developments in Northern Africa, Sudan

and South Sudan leave much to be desired. The adoption of new regional human rights

26

The Protocol to the ACHPR on the establishment of the African Court on Human and Peoples’ Rights

(adopted 1998 and came into force 2004) 27

Paul J. Magnarella, Achieving Human Rights in Africa: The Challenge for the New Millennium, African

Studies Quarterly, Volume 4, Issue 2, Summer 2000, p. 17


instruments under the auspices of the AU also lacks the immediate effect in practice since the

process of domestication and implementation still has a long way to go. Similarly, the

establishment of the African Court has not yet borne fruits to ordinary citizens of members

states. In general, the effect of the transition to the AU on the ground is still to be seen.

5 Conclusions

The establishment of the AU should primarily be seen as a continuation of the establishment and

operation of the OAU. As such, the achievements of the AU could be traced back to the

achievements and experiences of former regional body. For instance, the adoption of the ACHPR

still remains the most crucial development in the normative aspect of the regional human rights

system. Similarly, the establishment of the African Court on Human and Peoples’ Rights, which

is a significant development in the institutional aspect, resulted from processes initiated long

before the coming into being of the AU.28

However, there have been some clear areas of improvement over the OAU that have come about

as a result of the transition to the AU. To begin with, the AU has made human rights an explicit

part of its mandate through the Constitutive Act. The preamble to the Act, its objectives and

principles clearly show a shift from the OAU’s emphasis on state sovereignty and non-

interference in the context of decolonization and economic independence. Progress has also been

made by the AU in terms of strengthening the normative and institutional framework for the

promotion and protection of human rights in Africa.

Based on the developments after the coming into being of the AU in the African human rights

framework, one could confidently expect things to improve on the ground. One would expect

improved protection of human rights on the continent. However, achievements in this respect are

diminished by a number of factors. First, the persistent poverty that provides a context for the

poor human rights performance of African states is still an issue across the continent. While

improvements in economic performance have been observed in recent years, abject poverty is a

reality for most Africans. The situation is aggravated by the prevalence of corruption, conflict

28

The resolution by the Assembly of Heads of State and Government that led to the drafting of the Protocol

took place in 1994 in Tunis. Similarly, the African Commission recognized the need for a protocol to the

ACHPR on the rights of women back in 1995.


and other socio-economic ills. Secondly, African human rights institutions still lack the resources

and political capital to ensure respect for human rights by African states and non-state actors.

This problem, which is among the causes attributed to the failure of the OAU to make progress

in the human rights arena, still persist. Strong implementation and enforcement mechanisms are

urgently needed to address these issues. Finally, the AU needs to address new and emerging

challenges from new processes such as globalization to realize its goal of promoting and

protecting human rights.

The most important factors for the future effectiveness of the African human rights system relate

to the commitment of the AU and individual states to translate the regional normative framework

on human rights into practical measures geared towards the realization of the rights of their

citizens. Such commitment is best expressed in terms of addressing barriers to the

implementation of human rights at various levels. These include working towards creating a

culture of human rights, addressing the socio-economic causes of violations, creating and

implementing a system of accountability for violations by state and non-state actors, and re-

defining the relationship between states and regional human rights institutions into one of

partnership. More specific forms of expression would be ratifying all relevant international and

regional instruments and regular reporting on the implementation of commitments under regional

human rights instruments. The allocation of adequate resources for the effective functioning of

the African Commission, the African Human Rights Court, and other monitoring institutions is

also essential.

Another possible area of improvement towards the effectiveness of the African human rights

system is a clear position on the role of non-state actors, especially civil society, in the promotion

and protection of human rights. This amounts to a recognition of the obvious and visible

constructive role played by non-state actors. Moreover, clarifying the role of civil society and

other actors would work towards achieving the stated objective of participation of the African

peoples in the activities of the Union.

List of References

Bience Gawanas, The African Union: Concepts and implementation mechanisms relating to

human rights, pp. 135-163, 2010


EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, Human Rights in Africa -A New

Perspective on Linking the Past to the Present, 41 McGill Law Journal, pp. 219-854, 1996

John Akokpari, The OAU, AU, NEPAD and the Promotion of Good Governance in Africa, EISA

Occasional Paper Number 14, November 2003

John C Mubangizi, Some reflections on recent and current trends in the promotion and protection

of human rights in Africa: The pains and the gains, African Human Rights Law Journal, Volume

6 Number 1, pp. 146-165, 2006

Kithure Kindiki, The Normative and Institutional Framework of the African Union Relating to

the Protection of Human Rights and the Maintenance of International Peace and Security: A

Critical Appraisal, African Journal of Human Rights, Volume 3 Number 1, 2003

Konstantinos D. Magliveras and Gino J Naldi, The African Union—A New Dawn for Africa?

International and Comparative Law Quarterly, 51, pp 415-425, 2002

Magnus Killander, African Human Rights Law in Theory and Practice, in Sarah Joseph & Adam

McBeth (eds) Research Handbook on International Human Rights Law Cheltenham, UK:

Edward Elgar, pp. 388-413, 2010

Michelo Hansungule, Towards a More Effective African System Of Human Rights: “Entebbe

Proposals”, paper presented at the First International Conference on: The Application of the

Death Penalty in Commonwealth Africa organized by the British Institute of International and

Comparative Law held on 10th

to 11th

May 2004 Entebbe, Uganda, 2004

Paul J. Magnarella, Achieving Human Rights in Africa: The Challenge for the New Millennium,

African Studies Quarterly, Volume 4, Issue 2, Summer 2000

Rachel Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge

University Press, 2004

Richard Gittleman, The African Charter on Human and Peoples' Rights: A Legal Analysis,

Virginia Journal of international Law, Volume 22 Number 4, pp. 667-714, 1982

Vincent O. Nmehielle, Development of the African Human Rights System in the Last Decade,

2007


List of Instruments

Charter of the Organization of African Unity (adopted 1963 and came into force 1963)

Constitutive Act of the African Union (2000/2001)

African Charter on the Rights and Welfare of the Child (adopted 1990 and came into force 1999)

Protocol to the African Charter on Human and Peoples’ Rights on the African Human Rights

Court (adopted 1998 and came into force 2004

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in

Africa (adopted 2003 and came into force 2005)

AU Convention for the Protection and Assistance of Internally Displaced Persons (adopted 2009

and came into force 2012)

Protocol to the ACHPR on the establishment of the African Court on Human and Peoples’

Rights (adopted 1998 and came into force 2004)

Grand Bay Declaration and Plan of Action, April 1999, Grand Bay, Mauritius