Human Rights, Peace and Justice in Africa: A Reader

Christof Heyns, Karen Stefiszyn

Description

This Reader contains materials on human rights, peace and justice relevant to Africa, extracted from academic writings, reports from the United Nations and non-governmental organisations, speeches, official documents, national constitutions and human right cases. Where possible, material from Africa has been selected. The Reader is part of an evolving Series on Peace and Conflict in Africa published by the United Nations-affiliated University for Peace (UPEACE). The main objective of the Series is to make material which can be used by African universities in courses dealing with issues of peace and conflict readily accessible to lecturers, students and researchers. In this particular Reader material of relevance to the relationship between human rights and peace and security is included.This Reader is a joint publication of the Africa Programme of the United Nations-affiliated University for Peace and the Centre for Human Rights of the University of Pretoria. It can be used in conjunction with other publications in the Series, particularly the Compendium of Key Human Rights Documents of the African Union and the Compendium of Key Documents relating to Peace and Security in Africa.About the editors:Prof Christof Heyns is Dean of the Faculty of Law at the University of Pretoria. Karen Stefiszyn is Project Officer, University for Peace: Africa Programme and Programme Manager: Gender Project, at the Centre for Human Rights, University of Pretoria.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2006
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 3 Mo

Extrait

HUMAN RIGHTS, PEACE AND JUSTICE IN AFRICA: A READER

Edited by Christof Heyns and Karen Stefiszyn

2006

Human Rights, Peace and Justice in Africa: A Reader

Published by:

Pretoria University Law Press (PULP)

The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see: www.chr.up.ac.za/pulp

Printed and bound by: ABC Press Cape Town

Cover design: Yolanda Booyzen and Lizette Besaans, Centre for Human Rights

Part of the UPEACE Series on Peace and Conflict in Africa Series Editor:Christof Heyns Titles in the Series include:  Compendium of Key Human Rights Documents of the African Union (also available in French and Arabic)  Compendium of Key Documents Relating to Peace and Security in Africa

To order, contact: PULP or Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.chr.up.ac.za/pulp

ISBN: 0 – 9585097 – 4 – 3

University for Peace Main Campus and Headquarters PO Box 138–6100 San José Costa Rica Tel: [phone] Fax: [phone] [e-mail] www.upeace.org

© 2006 Copyright subsists in this work. It may be reproduced only with permission of the editors.

INTRODUCTION

GLOSSARY OF TERMS

ACRONYMS

Table of Contents

SECTION 1 — HUMAN RIGHTS IN AFRICA

A.

THE CONCEPT AND LANGUAGE OF HUMAN RIGHTS AND RELATED IDEAS Introduction to the concept of human rights Shestack, The philosophic foundations of human rights Heyns, A ‘struggle approach’ to human rights Human rights in Africa Cobbah, African values and the human rights debate: An African perspective Eze, Human rights issues and violations: The African experience Zeleza, The struggle for human rights in Africa Address delivered by Leopold Sedar Senghor Mutua, The Banjul Charter and the African cultural fingerprint Kiwanuka, The meaning of ‘people’ in the African Charter Economic, social and cultural rights Agbakwa, Reclaiming humanity Howard, The full–belly thesis The relationship between conflict and human rights Parlevliet, Bridging the divide Nathan, The four horsemen of the apocalypse Criticism of the concept of human rights Pollis and Schwab, Human Rights: A Western construct with limited applicability Donnelly, Cultural relativism and universal human rights Chinkin, Charlesworth and Wright, Feminist approaches to international law Kennedy, The international human rights movement: Part of the problem? Bielefeldt, Muslim voices in the human rights debate Democracy and good governance Tomuschat, Human rights Positive peace and human security Galtung, Violence, peace and peace research Report: Commission on Human Security Annan, Peace and development — one struggle, two fronts Annan, In larger freedom UNDP Human Development Report 2005 International Crisis Group, HIV/AIDS as a security issue International Humanitarian law

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3 3 3 15 35

35

40 42 49

53 60 70 70 75 82 82 85 88

88 96

106

114 130 139 139 142 142 145 149 154 157 158 162

B.

C.

Pejic, Humanitarian law and human rights in armed conflict

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MECHANISMS FOR REALISING HUMAN RIGHTS AT THE DOMESTIC LEVEL165 Constitutional protection165 An–Na’im, Possibilities and constraints of the legal protection of human rights under the constitutions of African countries 165 Constitution of the Republic of Ghana 166 Constitution of the Republic of Cameroon 167 Udombana, Interpreting rights globally: Courts and constitutional rights in emerging democracies 169 An–Na’im, The legal protection of human rights in Africa: How to do more with less 172 The role of international human rights law in domestic courts173 Adjami, African courts, international law, and comparative case law 173 International human rights law in Nigeria176 Section 12(1) of the 1999 Nigerian Constitution 176 Section 1 of Cap 10 of the 1999 Nigerian Constitution 176 Abacha and others v Fawehinmi176 The role of the judiciary in the implementation of economic,  social and cultural rights177 An–Na’im, To affirm the full human rights standing of economic, social and cultural rights 177 Constitution of South Africa, Section 26 178 The Government of South Africa v Grootboom and others178 Budlender, Justiciability of socio–economic rights: South African experiences 179 The role of national human rights institutions180 Human Rights Watch, Protectors or pretenders? Government human rights commissions in Africa 180 Human Rights Watch, Ghana: Working with NGOs and traditional chiefs on women’s rights 182 The role of civil society184 Welch, The ‘NGO revolution’ 184 Odinkalu, Why more Africans don’t use human rights language 186 The Kampala Declaration on Strengthening the Human Rights Movement in Africa 188

MECHANISMS FOR THE ENFORCEMENT OF HUMAN RIGHTS AT THE INTERNATIONAL LEVEL191 Human rights in the United Nations191 Smith, The United Nations system of human rights protection 191 Committee on the Elimination of Discrimination Against Women 194 The African regional human rights system195 Heyns and Killander, The African human rights system 195 Report of the retreat of members of the African Commission 218

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Viljoen, Recent developments in the African Regional Human Rights System Motala, NGOs in the African system The importance of international law Heyns and Viljoen, The impact of the United Nations human rights treaties on the domestic level Cassel, Does international law make a difference?

SECTION 2 — CONFLICT IN AFRICA

A.

B.

C.

219 220 223

223 225

CAUSES OF CONFLICT IN AFRICA239 Annan, The causes of conflict and the promotion of durable peace and sustainable development in Africa 239 Cilliers, Human security in Africa: A conceptual framework for review 243 UNDP, Human Development Report 2005 249 Adejumobi, Citizenship, rights, and the problem of conflicts and civil wars in Africa 250 Renner, The anatomy of resource wars 256 Menkhaus, A ‘sudden outbreak of tranquillity’: Assessing the new peace in Africa 259

APPROACHES TO PEACE IN AFRICA

Traditional conflict resolution Mazrui, Toward containing conflict in Africa Malan, Conflict resolution wisdom from Africa Tuso, Indigenous processes of conflict resolution in Oromo society Osaghae, Applying traditional methods to modern conflict Regional conflict resolution Kindiki, The normative and institutional framework of the African Union Statement of commitment to peace and security in Africa Moni, The UN report on Darfur: What role for the AU? Report: The infrastructure of peace in Africa: Assessing the peacebuilding capacity of African institutions International conflict resolution Ghalt, An agenda for peace Annan. ‘We the peoples’: The role of the United Nations in the 21st century Report: The responsibility to protect Louis, Inconsistency and the tragedy of Africa’s neglect Feil, Preventing genocide

WOMEN AND PEACE

Beijing Platform for Action United Nations Security Council Resolution 1325 Heyzer, Women, war and peace Awad, Transition from war to peace in Sudan

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262 262 262 265

274 281 284

284 294 296

300 319 319

330 331 335 338

340 340 343 346 355

SECTION 3 — TRANSITIONAL JUSTICE

A.

B.

WHAT IS TRANSITIONAL JUSTICE? Boraine, Transitional justice Goldstone, Justice as a tool for peacemaking Mamdani, When does reconciliation turn into a denial of justice?

365 365 369

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APPROACHES TO TRANSITIONAL JUSTICE383 Wierzynska, Consolidating democracy through transitional justice: Rwanda’sgacacacourts 383 Habimana, What does ‘international justice’ look like in post–genocide Rwanda? 389 Graybill, Pardon, punishment, and amnesia: Three African post–conflict methods 391 Freeman and Hayner, Truth–telling 394 Minow, Truth commissions 402 Slye, The International Criminal Court 410 UN Press Release, International Criminal Court judges embody our collective conscience 413 Economist, Hunting Uganda’s child–killers: Justice versus reconciliation 415 Amnesty International, Sierra Leone: Ending impunity and achieving justice 418 Juma, The role of the African Union machinery in promoting gender justice in post–conflict societies 419

ACKNOWLEDGMENTS

PROFILES Organisations Editors

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431 431 432

Introduction

The Africa Programme of the United Nations–affiliated University for Peace (UPEACE) and the Centre for Human Rights at the University of Pretoria, are pleased to presentHuman rights, peace and justice in Africa: A reader. This publication introduces the topics covered from an interdisciplinary, and distinctly African perspective. ThisReader is part of the evolving Series on Peace and Conflict in Africa published by UPEACE, aimed at making the basic material on issues related to conflict and peace in Africa more accessible. The Africa Programme of UPEACE endeavours to facilitate the institutionalisation of peace and conflict studies at African universities and the development of increased capacity in this area in Africa. One facet of the work of UPEACE is to develop Africa–specific materials, such as thisReader, in the field of peace and conflict studies to be used by lecturers, students and other researchers. In doing so UPEACE works with partners based in Africa, in this case the Centre for Human Rights. The objective is to provide lecturers who can potentially integrate aspects of peace studies into their courses, as well as their students, with an overview of the field and to help make relevant material — international as well as Africa–specific — accessible to them. Where full courses on this topic already exist, the UPEACE material can serve as a guide for further development. The material provided is multi– disciplinary, and can be used in courses on, for example, law, sociology, political science, and media studies. The material covered in UPEACE readers, such as the current one, can be presented as a stand–alone course, or as a component of a larger course. In other words, the material provided here can be used on its own, or serve as an introduction or a component of a course on human rights, peace, and justice around which the lecturer can design his or her own course, targeted towards the circumstances of the country in question.

The currentReader, and other readers in the Series, consists mainly of extracts from published texts dealing with the topic under discussion, in this case human rights, peace and justice. The primary focus is on extracts from ‘classic’ or leading texts on the topic, although lesser known, but nevertheless illuminating texts by writers based in Africa are also included. It is foreseen that especially this last component will be expanded upon in future editions, with the addition of extracts not only from Africa–based academic journals, but also newspapers and other sources from the continent.

The material presented in theReaderis linked by an ‘editorial voice’, which introduces the material and attempts to place them in context. The references for the texts are also provided and where applicable, links to websites are given, whereby students are encouraged to locate the full text of the reading. Footnotes from the original texts have been omitted. Questions for discussion are suggested at the end of each chapter along with suggestions for further reading and useful websites.

In addition to publishing extracts from classical secondary texts in readers such as this one, UPEACE also publishes collections of official or primary documents in a series of publications called ‘compendiums of key documents’. So far, aCompendium of key human rights documents of the African Unionas well as aCompendium of key documents relating to peace and security in Africahave been published. Both these compendiums should be regarded as accompanying texts to the current reader. In other words, the primary documents referred to in theReader are accessible in these

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compendiums. If the African Charter on Human and Peoples’ Rights, for example, is referred to in theReader, the student is advised to refer to the Compendium of key human rights documents of the African Union, to find a copy of the Charter. Similarly, where the Protocol Relating to the Establishment of the Peace and Security Council of the African Union is referred to in theReader, the student would turn to theCompendium of key documents relating to peace and security in Africa.

ThisReaderis aimed at students in final year undergraduate courses, or post– graduate courses (typically at Master’s degree level), or other students at an equivalent level. If used on its own and in its entirety, the material contained in the readers is designed to sustain a course, which runs for approximately 14 teaching hours. The teaching curriculum could be guided by the following:

Week 1: The concept of human rights Week 2: Human rights in Africa and economic, social and cultural rights Week 3: The relationship between conflict and human rights Week 4: Critiques of the concept of human rights Week 5: Concepts related to human rights Week 6: Mechanisms for realising human rights Week 7: Causes of conflict in Africa Week 8: Approaches to peace in Africa Week 9: Approaches to peace in Africa continued Week 10: Women and peace–building Week 11: Introduction to transitional justice Week 12: Approaches to transitional justice Week 13: Approaches to transitional justice continued Week 14: Consideration of case studies related to the local context/possible role–play or simulation

It is suggested that in cases where theReaderas well as the compendiums mentioned above are used, students are given the reading material well in advance, and are required to read it before the lecture, to allow teaching to take the form of discussions. It may also be useful to assign the questions at the end of each chapter to students in advance. As its name indicates, the link between justice (which finds one of its strongest current expressions in the concept of human rights) and conflict and peace is explored in the currentReader. TheReaderproceeds from the view that sustainable and lasting peace can be built only on the foundation of justice, and consequently, that peace, human rights, development, human security, good governance and democracy are all inter–related concepts. In this context it is clear that where a transition from conflict to peace is attempted, transitional justice is a central concern, often with far–reaching implications for the durability of the transition.

At the end of a course covered by thisReader, students should be able to:  provide a description and analysis of the landscape of human rights protection in Africa, on the international (UN and AU) levels, and the domestic levels, and of the mechanisms for conflict prevention, management and resolution in Africa;  be able to participate meaningfully in a discussion on the relationship between the universality of human rights and claims of cultural relativism, especially in the African context;  identify explanatory factors which create and sustain pervasive insecurity and conflict;  critically assess African efforts towards the prevention, containment and resolution of conflicts;

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



appreciate the complexity of achieving justice in post–conflict environments; discuss the relationship between human rights, peace and justice.

UPEACE is in the process of producing a similar reader focused on conflict prevention, management and resolution, and plans to, in future, publish similar material on peace and development, gender and peace building, media and peace, non–violent transformation of conflicts, regional integration and peace, and endogenous methods of mediation and peace building.

The Africa Programme of UPEACE will soon start with the publication of an academic journal, called theAfrican Peace and Conflict Review. The submission of academic articles dealing with justice, human rights and peace in the African context, or any of the topics outlined above, for possible publication in theReview, is encouraged. Articles published in theReviewwill be among those considered for inclusion in future UPEACE readers.

Comments on theReader and compendiums, as well as suggestions and potential material for future editions, are most welcome, and can be sent to the address below.

We would like to thank the following people who assisted with the preparation of this Reader: Monica Juma and Charles Villa–Vincencio provided the introductions for chapters two and three respectively, as well as critical comments and suggestions regarding the selection of material. Michelo Hansungule and Magnus Killander assisted with the compilation of materials on human rights and Hye–Young Lim assisted in compiling the material on post–conflict justice. The production of the manuscript was done by Lizette Besaans with the assistance of Rafael Velásquez. We would also like to thank Jean–Bosco Butera, Director of the UPEACE Africa Programme, for his support. We also thank the donors that are supporting the Africa Programme of UPEACE: The Netherlands Government, the Canadian International Development Agency (CIDA), the Swedish International Development Co– operation Agency (SIDA) and the Swiss Agency for Development and Co– operation (SDC).

Christof Heyns, Academic Coordinator, UPEACE Africa Programme, and Director, Centre for Human Rights, University of Pretoria

Karen Stefiszyn, Assistant Academic Coordinator, UPEACE Africa Programme

UPEACE Africa Programme c/o Centre for Human Rights Faculty of Law University of Pretoria Pretoria 0002 Republic of South Africa www.chr.up.ac.za [e-mail]

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Glossary of terms

Civil rights:Rights relating to personal integrity, freedom, and equality, eg the right to life and freedom of expression. Together with political rights, commonly referred to as first generation rights. Collective rights:rights of groups to protection of their interests and The identities, eg the right to self–determination.

Communication:term used by the African Commission on Human and The Peoples’ Rights to refer to a complaint brought to the Commission alleging a violation of rights under the Charter. Convention: A legally binding agreement between states, entered into voluntarily, and enforceable to the extent acknowledged by the parties. The term is used more or less interchangeably with the words covenant and treaty. (See also ‘Protocol’.) Customary international law:A primary source of international law (together with treaties and general principles of law). Formed by state practice and the conviction of states that the practice follows from legal obligation. Declaration:A non-binding legal instrument containing standards to be observed by states. Economic and social rights: Rights related to material well-being and livelihood, rather than to individual freedoms, eg the rights to housing, health, and education. Also sometimes referred to as second–generation rights.

Human security:A concept that challenges the precepts of military security, by focusing on the security of people as opposed to that of the state. Democracy, human rights, sustainable development, social equity and the elimination of poverty are seen as essential elements of security. Instrument: Written legal document; in international law it includes declarations and treaties. International Bill of Rights:combined totality of the human rights The provisions of the Universal Declaration on Human Rights (UDHR), International Covenant on Economic, Social and Cultural rights (ICESCR), and International Covenant on Civil and Political rights (ICCPR), as well as the optional protocols to the ICCPR. Justiciable:Referring to an issue that can be decided by a court.

Negative peace:The absence of direct violence. (See also ‘Positive peace’.) Non–governmental organisations (NGOs): Organisations formed by people outside of government.

Political rights:Citizen’s rights to political participation.

Preventive diplomacy:to prevent disputes from arising between Action parties, to prevent existing disputes from escalating into conflicts and to limit the spread of the latter when they occur.

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Peacemaking:to bring quarrelling parties to agreement through Actions peaceful means as envisioned in Chapter VI of the Charter of the United Nations (Pacific Settlement of Disputes).

Peacekeeping:The deployment of a a military presence, with the consent of all parties, aimed at preventing, halting or resolving conflicts. Peacekeeping operations are considered to have ‘Chapter VI and a half’ mandates from the Charter of the United Nations. As the nature of international conflict has drastically changed, current peacekeeping operations rely heavily on civilian and police components.

Peace enforcement: Operations involving the use of force aimed at compelling combatants to cease fighting and seek peace. Peace enforcement operations require a Chapter VII mandate from the Charter of the United Nations and, hence, consent from the quarrelling parties is not mandatory.

Positive peace: The kind of peace which exists in the presence of social justice through equal opportunity, a fair distribution of power and resources, equal protection and impartial enforcement of the law. The concept of positive peace seeks to address the root causes of conflict and structural violence in a preventive way. (See also ‘Negative peace.) Protocol: An addendum to a convention or treaty which modifies it; sometimes used to add further norms (eg the Protocol to the African Charter on the Rights of Women in Africa) or enforcement mechanisms (eg the Protocol on the Establishment of an African Court on Human and Peoples’ Rights) to conventions.

Ratification:The formal agreement of a state to be bound by a convention. Through ratification a state becomes a ‘state party’ to a convention and as such is bound by its provisions under international law.

Reconciliation:A process that attempts to transform hostilities among parties previously engaged in a conflict or dispute into feelings of acceptance and even forgiveness of past animosities or harmful acts.

Reparation:Recognition and redress of a basic harm or injustice. Reservation:When a state ratifies a treaty, but wishes not to be bound by certain provision/s of the treaty, it can submit a document called a reservation to that effect, provided that the reservation is not incompatible with the object and purpose of the treaty.

Restorative justice: A process that encourages all those involved in a particular conflict to collectively determine how to deal with the aftermath of the conflict, and the injustices incurred, and its implications for the future.

Structural violence:Conditions of indirect and insidious nature typically built into the very system of society and cultural institutions, which do not entail the use of force, but which have comparable effects. Examples could include systems which repress, oppress or exploit, and lack of access to education, health or opportunities among others.

Transitional justice:to address challenges that confront societies Seeks within a period of political change and could be characterised by various responses to confront the wrongdoings of repressive predecessor regimes, such as truth commissions, prosecutions, amnesty, and traditional appli- cations of justice.

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