The African Commission on Human and Peoples' Rights' perspective on power-sharing arrangements

Abstract

This article analyses the position of the African Commission on Human and Peoples' Rights with regard to power-sharing agreements and how they impact on the exercise of African charter-based human rights. The commission's view cannot be seen in isolation from the general African Union position on power-sharing, which is characterised by a lack of clarity and consistency. The commission's jurisprudence opposes power-sharing agreements that contain arrangements which are incompatible with state parties' obligations to investigate human rights violations and prosecute those responsible. On the other hand, through its state reporting procedure, promotional missions and communications procedure, the commission has shown a tacit approval for certain types of power-sharing agreements. An African human rights perspective vis-à-vis power-sharing must take into account the philosophy of the African Charter and the importance the African system attaches to collective rights. There is an urgent need to conceptualise and provide a proper legal framework for power-sharing within the African Union system.

Keywords:

• power-sharing
• African Union
• African Charter on Human and Peoples' Rights
• collective rights
• democratic governance
• conflict resolution

Disclaimer

Views expressed here are personal and do not necessarily or at all reflect the policies, opinions or positions of the Commission, the African Union or any other institutions I have been previously associated with.

Notes

Arend Lijphart, Democracy and Plural Societies. A Comparative Exploration (New Haven, CT; London: Yale University, 1977).

Andreas Mehler, ‘Introduction: Power-Sharing in Africa’, Africa Spectrum 44, no. 3 (2009): 3.

Kealeboga N. Bojosi, ‘Towards an Effective Right of Indigenous Minorities to Political Participation in Africa’, in Perspectives On the Rights of Minorities and Indigenous Peoples in Africa, ed. Solomon Dersso (Pretoria: Pretoria University Press), 282.

Ian S. Spears, ‘Anarchy and Problems in Powersharing in Africa’, in From Power Sharing to Democracy: Post-Conflict Institutions in Ethnically Divided Societies, ed. Sid Noel (Montréal: McGill-Queen's University Press, 2005), 184–97; Chandra Lekha Sriram and Marie-Joëlle Zahar, ‘The Perils of Power-Sharing: Africa and Beyond’, Africa Spectrum 4, no. 3 (2009): 22–5.

United Nations Charter, art. 52.

Charter of the Organization of African Unity, art. II.

Constitutive Act of the African Union [hereinafter AU Constitutive Act], art. 7.

Ibid., art. 3(f).

Ibid., art. 3(h).

Ibid., art. 4(h).

The Responsibility to Protect, Report of International Commission on Intervention and State Sovereignty, 2001.

Ben Kioko, ‘The Right of Intervention under the African Union's Constitutive Act: From Non-Interference to Non-Intervention’, International Review of the Red Cross 85, no. 852 (2003): 819.

Dan Kuwali, ‘Art. 4fH + R2P: Towards a Doctrine of Persuasive, Prevention to End Mass Atrocity Crimes’, Interdisciplinary Journal of Human Rights 3 (2008–2009): 55.

AU Constitutive Act, art. 3(g).

African Charter on Democracy, Elections and Governance, adopted by the Eighth Ordinary Session of the Assembly, held in Addis Ababa, Ethiopia, 30 January 2007, entered in force in February 2012.

African Charter on Democracy, Elections and Governance, art. 25 (9); Draft Protocol On Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Legal/ACJHRPAP/4 (II) Rev. 2 Art. 7.

African Charter on Democracy, Elections and Governance, art. 23.

Election-Related Disputes and Political Violence: Strengthening the Role of the African Union in Preventing, Managing, and Resolving Conflict, Report of the AU Panel of the Wise, International Peace Institute, July 2010, para. 42, p. 34 [Hereinafter AU Panel Report].

African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), art. 32.

Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (1998), art. 2.

Protocol Relating to the Establishment of the Peace and Security Council of the African Union, Adopted by the 1st Ordinary Session of the Assembly of the African Union, Durban, 9 July 2002.

The New Partnership for Africa's Development (NEPAD), Abuja, October 2001.

Arusha Peace and Reconciliation Agreement for Burundi, Arusha, 28 August 2000.

Democratic Republic of Congo: Lusaka Agreement Ceasefire Agreement, Lusaka, 1999.

The Comprehensive Peace Agreement between the Government of the Republic of the Sudan and the Sudan People's Liberation Movement/Sudan People's Liberation Army (Protocol on Power-Sharing, Naivasha, 26 May 2004).

Agreement on the Principles of Partnership of the Coalition Government, Nairobi, 28 February 2008.

For instance, the African Union Central Organ of the Mechanism for Conflict Prevention, Management and Resolution mandated the deployment of the African Mission in Burundi (AMIB) on 2 April 2003. 

Constitution of the Republic of Burundi, art. 164 and art. 180(2).

Ibid., art. 164.

Ibid., art. 129.

Rene Lemarchand, ‘Consociationalism and Power Sharing in Africa: Rwanda, Burundi and Democratic Republic of the Congo’, African Affairs 106, no. 422 (2007): 3.

Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, art. IX.

Jeremy I. Levitt, Illegal Peace in Africa. An Inquiry into the Legality of Power Sharing with Warlords, Rebels, and Junta (Cambridge: Cambridge University Press, 2012).

African Charter on Human and Peoples' Rights, art. 13 [hereinafter African Charter].

Levitt, Illegal Peace, 123.

Post-Conflict Reconstruction and Development framework (PCRD), 2006.

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, 11 July 2003.

Post-Conflict Reconstruction and Development framework, AU, para. 20(d).

Ibid., para. 20(c).

For instance, United Nations Security Council Resolution 1325 affirms the importance of full and equal participation and involvement of women in peace processes, in particular peace-building, see Resolution 1325 (2000), adopted by the Security Council at its 4213th meeting, on 31 October 2000 (S/RES/1325 (2000)).

Protocol Relating to the Establishment of the Peace and Security Council of the African Union, art. 11(2), adopted by the 1st Ordinary Session of the Assembly of the African Union in Durban, 9 July 2002, and entered into force on 26 December 2003.

The Panel of the Wise has been created according to Article 11 of the AU Protocol on Peace and Security. It has the mandate to support the efforts of the Peace and Security Council and those of the Chairperson of the Commission, particularly in the area of conflict prevention.

AU Panel Report, Election-Related Disputes and Political Violence, para. 84, p. 56.

Ian S. Spears, ‘Understanding Inclusive Peace Agreements in Africa: The Problems of Sharing Power’, Third World Quarterly 21 (2000): 105–6.

AU Panel Report, para. 33, p. 27.

Statement Delivered by Her Excellency Mrs Julia Dolly Joiner, Commissioner for Political Affairs, African Union Commission, at the Parliamentary Conference on Democracy in Africa Organised Jointly by the Inter-Parliamentary Union (IPU) and the Parliament of Botswana, 14 September 2009, Gaborone, Botswana, 5.

African Charter, art. 45.

Ibid., art. 13(1).

Ibid., art. 13(1).

Ibid., art. 2.

Ibid., art. 3.

Ibid., art. 5.

Commission nationale des droits de l'Homme et des libertés v. Chad; African Commission, Communication 74/92, para. 21.

Ibid., para. 21 ‘( …) even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter’.

In the Jawara case, the commission held that the suspension of the Bill of Rights after the coup d'état in the Gambia is a contravention of the charter; see Sir Dawda K. Jawara/Gambia (The), African Commission, Communication 147/95-149/96, para. 50.

Zimbabwe Human Rights NGO Forum v. Zimbabwe; African Commission, Communication 245/02, para. 211; Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l'Homme v. Mauritania; African Commission, Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, paras 82–3.

Most of the time power-sharing agreements are approved by national parliaments so that they become part of national law.

Concluding Observations on the Combined Ninth and Tenth Periodic Report Submitted by the Government of Rwanda on the Current Implementation Status of the Charter, para. 13, Adopted at the 47th Ordinary Session of the African Commission on Human and Peoples' Rights held from 12–26 May 2010, Banjul, the Gambia.

Ibid., para. 43.

Ibid., para. 44.

Report on the Third Workshop on Multiculturalism in Africa: Peaceful and Constructive Group Accommodation in Situations Involving Minorities and Indigenous Peoples, Gaborone, 18–22 February 2002, 2; Commission On Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-Third Session, Working Group on Indigenous Populations, Twentieth Session, 22–26 July 2002, E/CN.4/Sub.2/AC.4/2002/417 June 2002, 2.

Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (hereinafter Endorois case), African Commission, Communication 276/2003, para. 149.

Burundi presented its periodic report last year, at the African Commission's 50th Ordinary Session. Concluding observations are not yet adopted.

Report of the African Commission's Working Group on Indigenous Populations/Communities Mission to the Republic of Rwanda, 1–5 December 2008, African Commission, adopted at its 47th Ordinary Session, 12–26 May 2010.

Report of the Promotional Mission to the Kingdom of Swaziland, 21–25 August, 2006; (http://www.achpr.org/files/sessions/41st/mission-reports/swaziland/misrep_promo_swaziland_2006_eng.pdf).

African Charter, arts 55–7.

Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan; African Commission, Communication 279/03-296/05; para. 299 (8).

Sudan case.

See the above section on anti-power-sharing jurisprudence.

Ibid., para. 181.

African Commission, ‘Kevin Mgwanga Gunme et al v. Cameroon’, Communication 266/03, para. 181.

Ibid.

African Commission, ‘Kevin Mgwanga Gunme et al v. Cameroon’, Communication 266/03, para. 203.

Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, para. 229 (8).

Fatsah Ouguergouz, ‘A Living and Evolving Instrument for the Promotion and Protection of Human Rights in Africa’, Commemorative Colloquium Marking the 30th Anniversary of the African Charter on Human and Peoples' Rights, Banjul, the Gambia, 23 October 2011.

Makau wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’, Virginia Journal of International Law 35 (1995): 365.

Kofi Annan, ‘Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa’, Report of the UN Secretary-General (1998), para. 8.

Mutua, ‘The Banjul Charter’, 365.

Annan, ‘Causes of Conflict’, para. 8.

Ibid.

African Commission, ‘Kevin Mgwanga Gunme et al v. Cameroon’, para. 181.

Annan, ‘Causes of Conflict’, para. 12.

AU Panel Report, para. 24.

Annan, ‘Causes of Conflict’, para. 8.

‘Protocol on the Rights of Women’; ‘African Charter on the Rights and the Welfare of the Child’.

International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966, art. 1(2).

Ibid., art. 27.

Mutoy Mubiala, Le système régional africain de protection des droits de l'homme (Bruxelles: Bruylant, 2005), 36; Fatsah Ouguergouz, La Charte africaine des droits de l'homme et des peuples. Une approche juridique des droits de l'homme entre tradition et modernité (Paris: PUF, 1993), 146.

African Charter, arts 19–24; Gabrielle Lynch, ‘Becoming Indigenous in the Pursuit of Justice: The African Commission on Human and Peoples’ Rights and the Endorois', African Affairs 111, no. 442 (2012): 36.

Report of the African Commission's Working Group of Experts on Indigenous Populations/ Communities, http://www.iwgia.org/publications/search-pubs?publication_id=116 (accessed 17 June 2012).

Mutua, ‘The Banjul Charter’, 376.

Christof Heyns, ‘A “Struggle Approach” to Human Rights’, in Human Rights, Peace and Justice in Africa: A Reader, ed. Christof Heyns and Karen Stefiszyn (Pretoria: Pretoria University Law Press, 2006), 20.

African Commission, ‘Kevin Mgwanga Gunme et al v. Cameroon’, para. 176.

African Commission, Endorois case, paras 3 and 19.

Ibid., para. 4.

Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, African Commission, Communication 155/96, para. 68.

Laurence Mushwana, Statement of the Network of African National Human Rights Institutions, 47th Session of the African Commission on Human and Peoples' Rights, 12–26 May 2010, Banjul, the Gambia, http://www.achpr.org/sessions/47th/speeches/laurence-mushwana/ (accessed 17 June 2012).

Kwadwo Appiagyei-Atua, ‘Minority Rights, Democracy and Development: The African Experience’, African Human Rights Law Journal 12 (2012): 87.

It is in perfect line with the definition of power-sharing advanced by Timothy Sisk ‘as a set of principles that, when carried out through practices and institutions, provide every significant identity group or segment in a society representation and decision-making abilities on common issues and a degree of autonomy over issues of importance to the group’, see Timothy Sisk, Power-Sharing and International Mediation in Ethnic Conflicts (Washington, DC: United States Institute for Peace, 1996).

Appiagyei-Atua, ‘Minority Rights’, 87.

Florian Bieber, ‘Power-Sharing at the Governmental Level’, in Political Participation of Minorities: A Commentary on International Standards and Practice, ed. Marc Weller and Katherine Nobbs (Oxford: Oxford University Press, 2010), 417.

According to one author, the elite does not only negotiate; it is also included in the distribution of power, rights and resources at the state level, see Stefan Lindemann, ‘Do Inclusive Elite Bargains Matter? A Research Framework for Understanding the Causes of Civil War in Sub-Saharan Africa’ (Discussion Paper 15, Crisis States Research Centre), 19–21.

Bieber, ‘Power-sharing’, 284.

Kealeboga N. Bojosi, ‘The African Commission Working Group of Experts on the Rights of Indigenous Communities/Populations: Some Reflections on its Work so Far’, in Perspectives On the Rights of Minorities and Indigenous Peoples in Africa, ed. Solomon Dersso (Pretoria: Pretoria University Press, 2010), 95.

Bieber, ‘Power-Sharing’, 418.

Proceedings of the International Conference on Power-sharing, Netherlands Institute of International Relations Clingendael, Conflict Research Unit, April 2001, 8.