protection of minority rights under the african human rights system

Ghetnet Metiku Woldegiorgis [email protected]

Protection of Minority Rights under the African Human Rights System

1 International Protection of Minorities International law has been grappling with the definition of minorities or national minorities for

quite a while without any apparent success. There is to date no internationally accepted and

binding definition of minorities. This difficulty mainly arises from the variations among groups

or people seeking protection as minorities among themselves as well as the sensitive nature of

the issues they raise. Attempts have however been made by various actors to reach at such a

definition. One among these is the one offered by Special Rapporteur Francesco Capotorti, while

drafting a study in 1977 for the UN Sub-Commission on the Prevention of Discrimination and

Protection of Minorities. His definition reads:

“A group numerically inferior to the rest of the population of a State, in a non-

dominant position, whose members-being nationals of the State-possess ethnic,

religious or linguistic characteristics differing from those of the rest of the

population and show, if only implicitly, a sense of solidarity, directed towards

preserving their culture, traditions, religion or language” (Capotorti 1979)

Jules Deschenes has also given a similar definition of minorities as part of a study by the UN

Sub-Commission on the Prevention of Discrimination and Protection of Minorities specifically

focusing on the definition of minorities. (Hidayat and Zubair 2013, 54) Along with a third

definition of ‘national minorities’ provided by the Parliamentary Assembly of the Council of

Europe1, these definitions are generally accepted in international law though not binding.

The most important binding document for the protection of minorities under international human

rights law is the ICCPR, which under article 27, provides that:

“In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with

other members of their group, to enjoy their own culture, to profess and practice

their own religion or to use their own language.”

1 This provision is found under article 1of Recommendation 1201 on an additional protocol on the rights of

national minorities to the European Convention of Human Rights (1993)


This provision has been clarified through General Comment No. 23 of the Human Rights

Committee (HRC).2 The general comment stated that the existence of a minority is not subject to

the determination of a state and expansively interpreted the notion of minorities and the

obligations of states towards these groups. Accordingly, the Committee found that a group need

not be composed of citizens of the state to constitute a minority. The Declaration on the Rights of

Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which was

adopted in 1992, took the issue further but remains a non-binding UNGA declaration.

2 Protection of Minority Rights in Africa The emergence of minority issues on the African continent is attributed to the advent of

colonialism and the partition of Africa among the major colonial powers. (Dersso 2010, 6)

Colonial conquest brought the diverse African communities with different forms and levels of

organization into arbitrarily drawn nation states. The logical result was the emergence of

relationships of discrimination and domination among unequal groups living within the

framework of the colonial state.3 The unitary postcolonial African state merely accentuated and

entrenched these inequalities and perpetuated the subordination of some communities by the

dominant groups and the state. (Dersso 2010, 9)

Despite the existence of minorities in Africa, the OAU and the African Commission gave little

attention to minority issues. For the most part this related to the principle of non-interference in

the internal affairs of states (article 3/2 of the OAU Charter) and the principle of respect for the

sovereignty and territorial integrity of states (article 3/3 of the OAU Charter). The Cairo

Resolution on Border Disputes further entrenched this situation by declaring the inviolability of

colonial borders. Similarly, the African Commission did not give attention to the issue of

minorities until very recently despite the recognition of a range of collective and peoples’ rights

in the ACHPR.

The ACHPR does not refer to the protection of minorities per se. However, there are various

provisions of the Charter that are directly relevant to the protection of minorities. These are: non

discrimination (article 2); right to equality before the law (article 3); right to take part in the

cultural life of one’s community (article 17/2); People’s right to equality (article 19); and, the

right to self-determination (article 20/1-3).

The OAU Mechanism for Conflict Prevention, Management and Resolution established in 1993

could be considered an attempt to address the resulting gap in the context of conflicts arising

from tensions between minority groups and African states. In 1994, the OAU Assembly of Heads

2 General Comment No. 23: The rights of minorities (Art 27): 08/04/1994 CCPR/C/21/Rev./Add. 5, General

Comment No. 23 3 This set up is a result of a range of political, economic, demographic, geographic, social and cultural factors

that gave some groups the upper hand. In many cases this process was facilitated by a conscious process of

stratification dictated by the colonial state to ensure division among the various groups subservient to it.


of State and Government also called for "the protection of the ethnic, cultural, linguistic and

religious identity of all our people, including national minorities, and the creation of conditions

conducive to the promotion of this identity" (Declaration on a Code of Conduct for Inter-African

Relations).

In 1999, the African Commission on Human and Peoples' Rights (Commission) appointed three

of its members to undertake research on the situation of minorities in Africa. However, the issue

of minorities did not become a focal issue in the African human rights system until the

establishment of the African Commission’s Working Group of Experts on Indigenous

Communities/Populations in 2003. The Commission in 2005 adopted the report of the Working

Group.

3 Bibliography Capotorti, F. "Study on the Rights of Persons Belonging to Ethnic, Religious, and Linguistic Minorities."

New York: United Nations, 1979.

Dersso, Solomon A. "Introduction." In Perspectives on the Rights of Minorities and Indigenous Peoples in

Africa, by Solomon Dersso (ed.), 3-22. Pretoria: Pretoria University Law Press (PULP), 2010.

Hidayat, Rehman, and Muhammad Zubair. "Development of Minorities’ Rights and Critical Analysis of

Contemporary Comparative International Human Rights Law for their Protection." International

Research Jouranal of Social Sciences, Vol. 2(7), 2013: 55-58.