African Disunity: Comparing Human Rights Law and Practice of North and South African States

I. Introduction

Within the domain of respect for human and peoples' rights by African states there has been, until recently, little unity of purpose. The common standards that African states have maintained in their laws and practices regarding human rights have been their willingness to subscribe formally to international and regional norms, while at the same time, to violate those undertakings with near impunity. When the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights (Protocol) comes into force, ² it will provide for an African court having the responsibility to hold states to their obligations and to establish continent-wide standards. ³ Thus, within the domain of human rights, the states will take a step closer to realizing common norms worthy of a continent which has, as its fundamental underpinning and ethos, the notion of African unity.

The establishment of a human rights regime in Africa is manifest in the African Charter on Human and People's Rights of 1981 (African Charter). ⁴ African states passed this Charter under the auspices of the Organization of African Unity (OAU), which represents an effort on the part of African states to unite in the promotion of human and peoples' rights. Indeed, the Preamble to the founding instrument of the OAU expresses the desire "that all African States should henceforth unite so that the welfare and well-being of their peoples can be assured." ⁵ By accepting this Protocol to the African Charter, the Council of Ministers of the OAU has signaled that states are ready to go beyond the African Commission framework, ⁶ established by the OAU founding treaty, to a system of obligatory judgments and sanctions. ⁷

In this interim period, between the acceptance of the Protocol in principle by the OAU, which was achieved in 1996, and the arduous process of seeking state ratification, continuous emphasis must be placed on the need for the establishment of the African Court on Human and Peoples' Rights (African Court), which could assist states in determining norms applicable to the African experience as a whole. The following study demonstrates to what extent the current state of the law and practice on the northern and southern portions of the continent are at odds with this sentiment, being akin to African disunity. Consideration is given to human rights application, with a view to shedding light on the extent to which Africa lacks a unified approach to human rights protection. The selected sample will be confined to members of the OAU which form the poles of the African continental land mass. From northern Africa, this study will consider Algeria, Egypt, Libya, and Tunisia but excludes Morocco. ⁸ The analysis incorporates Angola, Botswana, Lesotho, Malawi, Namibia, South Africa, Swaziland, Zambia, and Zimbabwe from the southern region. ⁹

Both of these groups consist of states in close geographical proximity that have commonalties with their immediate neighbors. Certain features can instantly be identified as common to both groups of states, including a colonial history, large-scale poverty, and short periods of time since independence. However, as this study will demonstrate, what differentiates these states, primarily cultural norms, is most significant when the application of human rights law is at play. While an examination of Western and Eastern Africa would provide various nuanced differences in human rights law and its applications, by focusing on the other axis, this study seeks to demonstrate where the gap in the subscription to and application of human rights is most obvious. Through an analysis of treaty obligations, the extent to which human rights have been incorporated in the respective constitutions, and finally, the human rights situations in each state under review, this article considers the extent to which the approach to human rights in the two regions contradicts or alternatively bears out African...