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  • Implementing Universal Human Rights Standards in and by Sub-Saharan African States in the Shade of Local Traditions
ABSTRACT

The article examines the roots of the conception of human rights in Sub-Saharan Africa and highlights some aspects of African human rights policies, considering some strengths and weaknesses, whilst drawing a realistic portrayal about the situation of universal human rights implementation in the continent. The paper demonstrates how African human rights priorities are translated into practice within the UN system in general and the UN Human Rights Council in particular. Besides the strong regional characteristics of Sub-Saharan African human rights policy, there are significant differences among states in the region towards approaches for addressing contemporary human rights challenges.

"For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others." Nelson Mandela1

I. INTRODUCTION

There is not one single Asian, African, Arab, or Latin American perspective on human rights. Joanne Bauer distinguishes two broad types of societal perspectives: first, a cultural nationalism that is often tied to, and manipulated by, governments and the second, the so-called "activist-intellectual [End Page 217] perspective."2 This second group of perspectives—whose representatives are outside of the West—focuses its energies on two areas: "to look within their cultures for values and practices that resonate with the current human rights regime; and second, to attempt to enrich the current international rights regimes with values and practices" extracted from their particular cultural norms, which may also resonate with the universal human rights regime, but do not currently form part of it.3 Using the palaver political system of communal Africa, where chiefs routinely consult elders, as an argument for the right to political participation is an example of the first, and promoting Confucian ideas about respect for the elderly, a notion that is not found in existing UN international human rights documents, is an example of the second.4 This article intends to depict the aforementioned dilemma for African states regarding how they should approach the international human rights system, especially in cases when it is difficult to reconcile the universal standards with local norms. There are several approaches to identify in Africa. Some countries have rejected it; others accept it selectively with serious reservations; and still others try to adapt themselves to its presumed dictates, considering such harmonization a solution for the legacy problems found in many African societies.

Analyzing the different phases of the human rights debate in Sub-Saharan Africa gives us a clear picture about the political and ideological history of the continent.5 This article discusses this human rights evolution in four distinct periods, starting with the pre-colonial stage, which ended at the beginning of the 1800s with the large-scale arrival of the Europeans. The article then continues with the colonial period through the mid-1900s, moves into the post-colonial era lasting until the late 1980s, and finally offers a review of the contemporary human rights situation in Sub-Saharan Africa.

The second part of this article analyzes how different human rights policies of the countries in the region are manifested in a multilateral context, demonstrating that, notwithstanding the common priorities of the continent, there are significant differences among the approaches of Sub-Saharan African states regarding the most important human rights challenges of our contemporary world. The article pays special attention to the role of Sub-Saharan [End Page 218] countries in the UN Human Rights Council (HRC),6 which gives a comprehensive picture about the priorities of a given region, particularly as compared to other continents. For the purpose of this research, the author has decided to focus on three sessions of the Council in 2017, as most of the resolutions are repetitive and submitted with almost the same content annually; thus, one entire year covers the whole HRC work cycle. The review of the work of the Sub-Saharan African states in the UN Human Rights Council offers a clear and comprehensive picture of how they reconcile their local values with universal standards in light of the complicated human rights development process in the region. The author intends to demonstrate that, in many instances, local values can strengthen the acceptance of international standards and can then be brought into harmony with them. Therefore, the reference to special cultural values in order not to follow universal standards is invalid; this practice is only used by the political elite of a given country to legitimize the human rights violations committed in order to keep their power.

II. A SHORT OVERVIEW OF THE HISTORY OF HUMAN RIGHTS IN SUB-SAHARAN AFRICA

A. Human Rights in Pre-Colonial Africa

One of the focuses of the academic debate between Western and African researchers regarding the pre-colonial period is whether law and a European concept of human rights existed on the continent. The argument of most Western researchers is that due to the traditional nature of African societies at that time, the people were governed by customs and not by laws.7 As a consequence, Western scholars such as Rhoda Howard and Jack Donnelly are of the view that human rights did not exist as a concept in pre-colonial Africa. According to Howard, [End Page 219]

the African concept of human rights is actually a concept of human dignity, of what defines "the inner" (moral) nature and worth of the human person and his or her proper (political) relations with society. Despite the twinning of human rights and human dignity in the preamble to the Universal Declaration of Human Rights and elsewhere, dignity can be protected in a society not based on rights. The notion of African communalism, which stresses the dignity of membership in, and fulfilment of one's prescribed social role in a group (family, kinship group, tribe), still represents accurately how many Africans appear to view their relationship to society.8

In Donnelly's view, researchers who argue in favor of the existence of human rights in pre-colonial African societies either confuse human rights with measures intended to limit governmental powers or are referring to rights that were not based upon the humanity of someone but rather on criteria such as age, sex, lineage, achievement, or community membership.9 He concludes that "[t]raditional African societies had concepts and practices of social justice that simply did not involve human rights."10

In this context, it is worth mentioning how Timothy Fernyhough—one of the few non-African scholars supporting the idea of human rights in precolonial Africa—reminds Howard and Donnelly that "if [these authors] believe that human rights derive directly from a person's humanity and embody human dignity, which makes them inalienable and universal, it would be contradictory for them not to apply their own definitions and philosophical concepts of human rights to pre-colonial Africa."11

On the other hand, African scholars like Vincent O. Orlu Nmehielle argue that while religion or metaphysics had a great influence on African customs, these philosophies did not discredit the legal nature of predominant norms in African societies.12 Makau Mutua criticizes Donnelly and Howard's position that only European liberalism can serve as a foundation for the notion of human rights. In the view of Mutua, this position undermines the universality of human rights, as it situates the whole concept in the context of one particular culture.13

African scholars most frequently refer to the examples of the Akamba of Eastern Africa and the Akan of Western Africa to prove the existence of human rights in the pre-colonial period of the continent.14 According to researchers, both societies considered the individual to be an inherently valuable being that possessed certain basic rights, including the right to choose their rulers. [End Page 220]

Nmehielle correctly criticizes those African researchers who overemphasize the uniqueness of the African human rights concept and use it to build up a cultural relativist theory. The author of this article shares Nmehielle's final assessment that although human rights were present in pre-colonial Africa, they were certainly not codified or formally articulated in a European manner but rather existed more at the concept level. Such formal articulation of human rights only happened in the West, particularly under the auspices of the United Nations.15

Mutua underlines that the pre-colonial past of Africa is not an ideal one, but the authoritarian and far-reaching control of the individual by the allpowerful state was unknown, as it happened in Europe.16 He puts the African societies in two categories: those with centralized authority, administrative machinery, and standing judicial institutions—like the Zulu—and those with more communal and less intrusive governmental structures, such as the Akamba. According to Mutua, all societies of the region considered human beings special and worthy of protection. Therefore, ethnocentric universality is counterproductive and results in the manipulation of the human rights concept in order to support repressive regimes.17 Mutua suggests a reasonable solution: by searching each culture for norms that appear to be in conformity with universal standards, it is possible to establish the cultural legitimacy of certain human rights and to mobilize societal will behind enforcement of these rights' implementation. Mutua is correct in claiming that this internal cultural legitimacy would prevent those in power from considering them as external value, thus referring to national sovereignty in order to avoid the implementation of human rights.

B. The Situation of Human Rights During the Colonial Period

As mentioned earlier, the pre-colonial phase of human rights ended with the large-scale arrival of Europeans on the continent. This interaction began with commercial cooperation regarding raw material, led to slave trading, and culminated in the near total colonial occupation of the African continent. At the Vienna Conference in 1815, Africa was declared terra nullius, denying any legal standing to treaties and agreements between the African kings and chiefs and the Europeans. This official start to colonialism had a devastating effect on the relative dignity and human rights enjoyed by Africans in the pre-colonial period.18 [End Page 221]

During the colonial period, the organic development of African law was interrupted, as the artificially-drawn borders did not respect the existing ethnic divisions and thus the religions, languages, and legal-education systems imposed, demonized, and expelled their African equivalents.19 International standards, such as the Conventions of the International Labor Organization, were deliberately violated by the colonial powers, as the African territories were considered outside the scope of international instruments.20

It is worth comparing the main characteristics of British, French, and Belgian colonial practices, as their divergent philosophical bases and distinct technical implementation of colonial systems resulted in diverse effects on the human rights of colonized peoples.

French colonialism was based on the ambition to politically and culturally assimilate the population under their rule. In this system, the colony was an integral part of the mother country, and French law and jurisprudence prevailed.21 The ultimate aim was to transform the Africans to French, and the colonial powers even made the attainment of French citizenship theoretically possible. This system posed the biggest danger to indigenous African institutions by disregarding the traditional African societies' rights.22

The Belgian colonial administration of Congo was even more brutal and exploitive than the other two colonial powers under consideration. King Leopold II originally administered the Congo as a personal undertaking, so the Belgian Congo was directly governed from Brussels and all directives came from there as a consequence.23 Belgium controlled every aspect of life, as "Africans were considered to incapable of guiding their own destinies."24 Contrary to the French approach, the people of Congo never had the opportunity to become Belgian citizens and, unlike the French and British, the Belgians wanted to prevent their subjects from coming to Europe.

The British colonial administration was characterized by the policy of indirect rule, using the administrative machinery created by the "natives" whereby the African chief played the role of the local government.25 As a consequence, African institutions were preserved and this resulted in serious savings for the British Crown. Britain was always more occupied with its Asian empire and never intended to turn the Africans into Britons. This indirect rule gave more power to indigenous chiefs than would have been tolerated in traditional African societies, but unfortunately, this power was frequently abused. The courts established by the British had the duty to [End Page 222] implement the native law and customs, provided they were not barbarous.26 In addition, the British abolished certain customary practices such as trial by ordeal, the custom of killing twins, caste systems, and witchcraft. However, "British colonial law accepted continuation of polygamy provided it could not be combined with other forms of marriage, such as civil marriage."27

Some researchers are of the view that the indirect rule applied by the British was better than the direct administration by Paris and Brussels as it gave "the dependent peoples the greatest possibilities of acquiring selfdetermination by constitutional means."28

As mentioned earlier, international instruments adopted even under the auspices of the United Nations, like the Universal Declaration of Human Rights (UDHR), had no effect on the colonized nations. As a result, some African scholars are of the view that until the adoption of the Declaration on the Granting of Independence to Colonial Countries by the United Nations in 1960, no serious consideration was given to the plight of peoples under colonial rule.29

C. Post-Colonial History of Human Rights in Africa

The Atlantic Charter of 1941, declaring the "right of all peoples to choose the form of government under which they will live," provided the framework for African elites to demand political reforms.30 However, the War Cabinet in London made it very clear in 1942 that it only referred to nations under Axis occupation and not the British Empire. This move provoked a protest memorandum to the British government by Nnamdi Azikiwe, the first president of Nigeria, who called for an African Human Rights Charter.31 In 1945, the Fifth Pan African Congress made an effort to establish a link "between human rights and the fight against colonialism on the one hand and between Pan Africanism and human rights on the other."32 However, it was the liberation of Sub-Saharan Africa—starting with Ghana in 1957—that opened the door for Africans to promote the human rights situation on the continent, and as a result, several constitutions that included positive human rights content were adopted.33 [End Page 223]

During the "Year of Africa" in 1960, when seventeen African states became independent, US officials, including the President, made skeptical statements about the value of human rights in developing countries and, as a result—as it was put by several observers—"they opted for supporting dictators… and forgot about rights."34 In 1961, during the first inter-African meeting, several recommendations were formulated to improve the human rights situation in Africa, compiled in a document entitled "The Law of Lagos."35 That was the first occasion that the idea of an African Human Rights Charter and a related court was suggested. However, the general sentiment among African leaders concerning the cause of human rights was very well reflected by Julius Nyerere in his Independence Address at the United Nations, where he considered the rights' protections contained in the UDHR a goal rather than something Africa had already achieved.36

The 1963 Charter establishing the Organization of African Unity (OAU) was based upon the principles of state sovereignty and non-interference, and it considered the fight for decolonization as one of its main objectives.37 However, although the OAU's founding document proposed the establishment of five specialized commissions, none of them were devoted to the cause of human rights.38 In spite of this, during its first period between 1963 and 1979, the OAU addressed two major human rights issues. First, it was heavily involved in the fight for self-determination of peoples still under colonial domination, and second, it had to tackle the problem of refugees arising from the numerous conflicts on the continent.39

During the OAU period, several human rights instruments were adopted, such as the African Charter on the Rights and Welfare of the Child and the Protocol establishing the African Court of Human and Peoples' Rights. Despite the fact that the OAU Charter of 1963 reiterated the principles contained in the UN Charter and referred to human rights several times, the Organization did not expressly uphold the human rights norms. As a result of its position on non-interference, it was ineffective in the promotion and protection of human rights in a decolonized and free Africa.40

The notion of an African Human Rights Charter was further discussed under the auspices of the OAU, but member states were not willing to proclaim [End Page 224] individual rights for African people.41 It took strong pressure from the international community, nongovernmental organizations (NGOs), and the African public within the member states of the OAU to force the adoption of the Charter. Many observers stated that its drafting and adoption was a necessary political response partly to serious human rights violations that occurred in Uganda, Equatorial Guinea, and Bokassa's Central African Empire and partly to positive international developments, such as the adoption of the Helsinki Final Act in 1975 and the human-rights-friendly policy of US President Jimmy Carter.42 Another factor frequently mentioned in the literature is the Uganda-Tanzania War of 1979, which was the first occasion that an OAU member invaded another member state in order to overthrow the incumbent government.43 Another traditional explanation for the creation of the African Charter is that it helped the OAU carry out its conflict-solving role in relation to inter-African disputes.44

However, as scholar Kofi Oteng Kufuor very clearly explains, none of the aforementioned factors were conducive to the adoption of the African Charter. The alternative factors, in his view, were "the quest for legitimacy by African governments; the rise of an increasingly active civil society within the OAU's member states; and the strategic role that international organizations play."45 In support of this position, a majority of the African governments were not able to deliver economic growth and development and, as a result, an increasing military challenge endangered their authority. By respecting civil and political rights, the adoption of the Charter represented a reinterpretation of the government's legitimacy.46 Kufuor argues that NGOs profoundly influenced the adoption of the Charter, which can be seen as a kind of compromise between them and the governments. Despite serious human rights violations in most of the African states, NGOs were not passive and, although they were not as visible at a regional level, they played an important role in several states in the promotion and protection of human rights.47 Here, Kufuor uses the argument of Roland Vaubel, who was of the view that, when national governments are reluctant to adopt national reform programs, they willingly shift the responsibility to international institutions. In this manner, the adoption of a regional human rights instrument proved to be "a convenient escape mechanism for national elites threatened by challenges from the military and pressure from a nascent civil society."48 [End Page 225]

The African Charter on Human and Peoples' Rights, or the so-called Banjul Charter, was adopted in 1981 and came into force on 21 October 1986. It was a drastic curtailment of the principle of non-interference.49 The adoption of the document also indicated that human rights became an issue of regional concern, providing the basis for the development of an African human rights system.50 In 1987, the African Commission on Human and Peoples' Rights was established as the implementing institution of the rights enshrined in the Charter, but it only became fully functional in 1989.51 It is interesting to see how the Commission managed to expand the scope of its authority by gradually changing its original rules of procedures between 1988 and 1995. These changes enabled the body to receive communications from individuals regarding the alleged violations of the Charter. They also enlarged the scope of autonomy of the Commission's Secretary by removing the ability to control the agenda from the OAU Secretary General and giving it to the Commission Chairman and Secretary instead.52 Additionally, these changes gave the Commission the authority to independently establish working groups or committees and to issue press releases about its activity.53 As a consequence of all these changes, the Commission had three main tools for promoting and protecting human rights: the examination of state reports, the passing of resolutions, and the consideration of communications from member states and individuals.54

One of the main objectives of the OAU is captured by Article 20 (2) of the Charter stating that "colonised or oppressed peoples shall have the right to free themselves from the bonds of oppression by resorting to any means recognised by the international community."55 The Preamble of the Charter refers to traditional African values, which "should inspire and characterize their reflection on the concept of human and peoples' rights."56 References to African cultural values can also be found in substantial, operative articles, including Article 29 (7), which enumerates that the individual shall have the duty to "preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-being of society."57 Although, there is no official interpretation by [End Page 226] the Commission or the Court about the meaning of traditional values, the concept has been used by the political bodies of the African Union (AU) to challenge the universality of human rights, particularly in the context of LGBTI rights.58

One of the most important, distinctive features of the Charter is the "peoples" in its title, indicating that the drafters accepted group or collective rights. Another notable element of the Charter was the pivotal role that economic, social, and cultural rights were given, putting them on an equal footing with civil and political rights.59 It also contained the first official recognition of the right to development.60 However, there was no provision in the Charter for the enforceability of these rights. Many African leaders looked at civil and political rights as a Western construct which, if fully implemented, would slow down the economic development of their countries or, in extreme cases, undermine their social stability.61

One of the most frequently criticized parts of the Charter is the one imposing duties on the individuals towards the state and community, which runs against the classical Western concept of human rights. For example, Article 27 (2) clearly stipulates that rights can only be exercised "with due regard to the rights of others, collective security, morality and common interest."62 It is not surprising that while the concept of peoples did not find its way to national constitutions, individual duties were incorporated into several African constitutions where they were not threatening the sovereignty of states; on the contrary, they could be used by oppressive regimes to undermine individual rights.63 The Charter has also been subject to criticism concerning its clawback clauses, which may restrict rights by stipulating that they are subject to the law and order of the given country. As scholar Frans Viljoen explains, this can mean that the level of protection provided by the Charter is equated to the level of domestic protection.64 However, it is worth noting that the progressive interpretation of such clauses by the African Commission on Human and Peoples' Rights served to virtually nullify them.65

Overall, the post-colonial period could be described as a time of great disillusionment—when initial hopes for a successful transition from the colonial time to an independent and democratic Africa based on the rule of law were not fulfilled—and a time when most African countries were characterized by repression, corruption, and serious human rights violations.66 [End Page 227] African governments disregarded internationally recognized human rights standards and often justified their policies as being in the interest of collective good, referring to African values as distinct from Western ones. This approach implied two assumptions; first that the African notion of human rights is more collective than individualistic, and second, that "civil and political rights are not realized in full as long as social and economic rights remain rudimentary."67 In order to understand the human rights developments of the period, it is important to acknowledge that for most of the African nationalists, human rights were an issue of minor interest compared to matters like nation building or fighting poverty.68

D. Human Rights Development in Contemporary Africa

The end of the Cold War brought the wind of change to Africa during the 1990s. Multi-party elections took place in several states, and Namibia, the last country under colonial rule, gained its independence in 1990.69 The Algiers Declaration, adopted by the OAU in 1990, established the two main preconditions of economic development: one, a participatory political environment in which human rights are respected and in which the rule of law prevails, and two, the effective resolution of conflicts in order to promote and maintain peace and stability.70

The African Children's Charter was adopted in 1990 to complement the UN Convention on the Rights of the Child and the Maputo Protocol to the African Human Rights Charter on the Rights of Women, which was drafted in 1995, signed in 2003, and came into force in 2005.71 The Protocol is mostly in line with the provisions of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), with one notable difference regarding polygamy. The Maputo Protocol recognizes monogamy as the preferred form of marriage without requiring states to abolish the practice of polygamy, which is considered by CEDAW as a violation of the prohibition of discrimination based on gender.72

Initial efforts to deepen the economic integration of the OAU began as early as 1977, but the treaty establishing the African Economic Community (AEC) was only adopted in 1991. While the primary objective of the AEC [End Page 228] was "to promote economic, social and cultural development and integration of African economies," it also recognized the promotion and protection of human rights as one of its guiding principles.73

In 1993, the OAU's Cairo Declaration established the Mechanism for Conflict Prevention, Management and Resolution, which certainly continued to erode the principle of non-interference and acknowledged the link between human rights and security.74 It was in 1994, upon the initiative of NGOs with the support of the African Commission on Human and Peoples' Rights, that negotiations were launched, aiming at drafting a Protocol to the African Charter on the Establishment of an African Court on Human and Peoples' Rights. The OAU Assembly cautiously supported the process in this year but finally took ownership of it when the Protocol was adopted in 1998.75 The Protocol's purpose was to complement and reinforce the functions of the African Commission on Human and Peoples' Rights. The Protocol came into force on 25 January 2004 after ratification by fifteen member states. Later, the AU Constitutive Act provided for an African Court of Justice as one of the main bodies of the organization and, although the relevant Protocol was adopted in 2003, the Court did not become operational. Rather, in 2008, the AU Assembly passed the Protocol on the Statute of the African Court of Justice and Human Rights, which merged the African Court of Justice with the African Court on Human and Peoples' Rights, establishing the new African Court of Justice and Human Rights. This court has jurisdiction over—among other things—all cases related to the interpretation of the Constitutive Act, union treaties and all subsidiary legal instruments, the African Charter, and any question of international law.76 As of February 2018, the Protocol has been signed by thirty-one of fifty-five members and ratified by six member states of the AU.77 The ratification of fifteen members is needed for its entry into force.

In 1999, the OAU adopted two important decisions: one on the right of political participation, and a second one on unconstitutional changes of government. The second decision was followed by the Declaration on the Framework for OAU Response to Unconstitutional Changes of Government. According to this document, the perpetrators are given six months to "restore constitutional order" in the country. In the absence of that, limited and targeted [End Page 229] sanctions are possibly imposed by the OAU, including the suspension of participation in the political organs of the OAU.78

In July 2000, the OAU adopted the Constitutive Act of the African Union, which entered into force on 26 May 2001. In 2002, when the Durban Summit launched the AU, it brought about a new era by making human rights an explicit part of its mandate, as embodied in its Constitutive Act. The AU was a merger of the OAU (with its mainly political ambitions) and the AEC (with an economic focus in its work).79

The adoption of the Constitutive Act represented a significant departure from the philosophy of the OAU in several aspects. It moved from noninterference—although the principle was retained in the document—to nonindifference, including the right of the Union to intervene in any member states' affairs; the explicit recognition of human rights; and the promotion of social, economic, and cultural development, which was an approach based on human-centered development and gender equality.80 It is indicative of the Union's new focus that six of the sixteen guiding principles of the AU reference human rights either explicitly or implicitly. The most far-reaching provision of the Constitutive Act is 4 (h), which gives the Union the right to intervene in a member state upon the decision of the Assembly that war crimes, genocide, or crimes against humanity have occurred.81 In this respect, the AU was the first organization to codify the notion of the responsibility to protect, even before it was approved by the United Nations.

However, researchers usually highlight three aspects in which the AU could have more effectively protected and promoted human rights in the Constitutive Act. As mentioned earlier, the principle of non-interference, Article 4 (g), was retained. Secondly, the observance of human rights is not among the preconditions for membership in the Union. Finally, the Constitutive Act is unclear regarding the use of sanctions in cases of state non-conformity.82

Another important development was the New Partnership for Africa's Development (NEPAD), which places human rights at the center of development.83 The integration of NEPAD to the AU and the existing human rights regime is under way, but its African Peer Review Mechanism, established in 2003, already represents a significant step towards a better human rights protection system on the continent, even preceding the similar UN Universal Periodic Review Mechanism.84

The African Commission, the African Human Rights Court, and the African Children's Rights Committee are the main human rights bodies of [End Page 230] the AU. The AU has done its utmost to mainstream human rights through its organs, activities, and programs; however, during the first decade of its existence, this effort was not very successful and led to the isolation of the Commission from the AU.85 The African Charter on Democracy, Elections and Governance (African Democracy Charter) provides that "State Parties shall respect ethnic, cultural and religious diversity, which contributes to strengthening democracy and citizen participation."86 One of the main objectives of the Charter is to "promote the holding of regular free and fair elections to institutionalize legitimate authority of representative government as well as democratic change of governments."87 It has a very progressive paragraph related to civil society, stating that state parties shall "create conducive conditions for civil society organizations to exist and operate within the law."88

In 2010, the AU established the African Governance Architecture (AGA) and its Platforms to support member states in promoting democratic and participatory governance.89 One of the five clusters of the AGA is the Human Rights and Transitional Justice Cluster. The Human Rights Strategy of Africa, implemented in 2012 as part of the AGA, seeks to unite the various national, regional, and continental stakeholders and to move the AU towards a more rigorous and homogenous embrace of its various human rights platforms.90 The UN Office of the Special Adviser on Africa (OSAA) and the Office of the UN High Commissioner for Human Rights in New York declared 2016 the "African Year of Human Rights" with special focus on the "Rights of Women."91

Finally, it is worth mentioning a few promising court decisions addressing harmful traditional practices in the continent. In 2008, the Constitutional Court of South Africa decided in favor of a daughter inheriting her father's chief position, which was against the Valoyi people's tradition, but the court noted that tradition is not static and that it should adhere to human rights standards laid out in a right-based constitution.92 [End Page 231]

Kenyan courts ruled in 2005 and 2008 that, despite customary laws of particular ethnic groups favoring sons for inheritance purposes, daughters must have an equal right to inherit a father's property. The courts noted that where discrimination is at stake, human rights must prevail.93

In a 2012 Botswana case, the High Court ruled in favor of four sisters versus a nephew who claimed ownership of the family home. The court ruled that the customary law contravened constitutional guarantees of equality for men and women, and it also noted that "culture changes with time."94

Despite all these positive changes, there are several concerns about the African human rights system, namely the lack of necessary resources and political backing to make a real difference, organizational and financial challenges of the AU, the inefficiency of the system due to its huge number of institutions, toothless implementation and enforcement mechanisms, differing approaches with respect to the domestication of ratified international instruments, and the failure of countries to comply with reporting requirements of ratified instruments.

II. THE IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS STANDARDS REGARDING AFRICA AND BY AFRICA IN A MULTILATERAL CONTEXT

E. International Criminal Court (ICC)

In 2016, with Burundi's withdrawal from the ICC imminent, South Africa announced plans to withdraw as well.95 In the case of Burundi, the decision may have been motivated by an announcement of a preliminary examination by the Court concerning alleged crimes against humanity in the country. The South Africans considered the Court's charge that the government had an obligation to turn over foreign diplomats to be a violation of their domestic laws guaranteeing diplomatic immunity.96 As the South African minister of [End Page 232] justice put it, the ICC is producing a "scenario of forced regime change by one country on another."97

The decisions of Burundi and South Africa are particularly challenging in light of the fact that Africa is the largest regional group of countries within the ICC's Assembly of States with thirty-four signatories.98 It is not a secret, however, that since its inception in 2005, the Court has indicted thirty-nine people, all of them African.99 This has prompted scholars and politicians to question why the ICC seems to be so focused on Africa.100

Of course, a simple solution for this political problem would be to prosecute some non-Africans.101 Looking at the ICC's current work, there are ongoing preliminary investigations relating to Afghanistan, Columbia, Iraq and the UK, Palestine, the Philippines, Ukraine, Venezuela, and Georgia.102At issue here is the basic requirement for an international legal entity not just to be balanced but also to appear so. Right now, it is obvious that there is no confidence in the ICC in Africa and, in light of its case law, it is not going to change in the near future. An alternative solution to address ongoing impunity on the continent could be to wait for the establishment of an African Criminal Court. An easier and much faster method could be to instrumentalize universal jurisdiction in various African supreme courts, changing their statutes and giving them the authority to try cases of genocide and other mass atrocities committed on the continent.

Apparently, the African leaders at the 2014 African Summit in Equatorial Guinea have decided to follow the first approach, adopting the so-called Malabo Protocol, which includes in its annex an amendment to the Statute of the African Court of Justice and Human Rights. According to the amended statute, the Court will have three sections, namely the General Affairs Section, the Human and Peoples' Rights Section, and the International Criminal Law Section. As of February 2018, eleven of fifty-five member states had ratified the Protocol.103 Critics of the idea of an African Criminal Court consider this an attempt to undermine the ICC. The supporters, on the other hand, [End Page 233] acknowledge the new court's potential to contribute to the development of international criminal law by complementing the ICC. The regionalization of international criminal law may result in extending the regional courts' justiciable catalog of crimes beyond the four crimes recognized under international law (namely genocide, crimes against humanity, war crimes, and aggression).104 Accordingly, the Malabo Protocol contains crimes with special relevance to the continent, especially the crimes of unconstitutional change of government, piracy, terrorism, mercenaries, trafficking in drugs, trafficking in persons, corruption, money laundering, and environmental crimes.105

During the Twenty-Eighth Ordinary Session of the AU Assembly held on 30–31 January 2017, the AU adopted a decision to support a strategy for a collective withdrawal from the ICC.106 However, the strategy is more like a recommendation and does not have a binding effect on the member states. Several states, like Nigeria, Senegal, and Tanzania, have already made clear their reservations regarding the document.107

B. Other Judicial Organs

1. International Court of Justice (ICJ)

The ICJ is the principal judicial organ of the United Nations, but it is not a typical human rights body. The Court had two important advisory opinions affirming the right of self-determination regarding the people of Western Sahara and Namibia.108 These decisions follow the application of the uti possidetis principle,109 meaning that the territory determines the fate of the people rather than the people determining the fate of the territory.

From a human rights perspective, the Democratic Republic of the Congo v. Belgium case from 2002 is notable, as the ICJ accepted the argument by the Democratic Republic of the Congo (DRC) that Belgium violated international law by attempting to prosecute the incumbent Foreign Minister of the country under the Geneva Conventions and Protocols.110 [End Page 234]

On 19 February 2009, Belgium filed an application instituting proceedings against Senegal relating to Mr. Hissène Habré, the former President of Chad and resident in Senegal since being granted political asylum by the Senegalese government in 1990. Belgium submitted that, by failing to prosecute Habré for certain acts he was alleged to have committed during his presidency, including acts of torture and crimes against humanity, or to extradite him to Belgium, Senegal had violated the so-called obligation aut dedere aut judicare (that is to say, "to prosecute or extradite") provided for in Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary international law.111

The court accepted the arguments of Belgium and requested that Senegal take "the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it did not extradite Mr. Habré."112

2. International Criminal Tribunal for Rwanda (ICTR)

The UN Security Council established the ICTR on 8 November 1994 to prosecute and punish individuals responsible for genocide and other serious violations of international humanitarian law committed in Rwanda between 1 January and 31 December 1994. The Tribunal indicted ninety-three individuals, resulting in eighty completed proceedings and eight fugitive cases transferred to other jurisdictions.113 The ICTR stopped its work on 31 December 2015. The Court had an important role in the development of international criminal law, as it was the first Court to find someone guilty of the crime of genocide (Jean Kambanda) and it was also the first judicial organ that applied the crime of rape in an international context (Jean-Paul Akayesu).114

With respect to the way the international community and Rwanda addressed the horrible events in Rwanda, the Gacaca Courts should be mentioned.115 The word gacaca refers to "a bed of soft green grass" on which a community and leaders known for their integrity and wisdom would gather to discuss and resolve conflicts. They were traditional councils and tribunals made up of elders to resolve conflict and administrate justice. The Gacaca Courts played a significant role in finding out the truth of what happened during the genocide against the Tutsi. They allowed communities across Rwanda to meet face-to-face and talk about the events of 1994. In this way, they laid the foundation for peace and reconciliation, and it was considered [End Page 235] the most extensive post-conflict justice system in human history. The activities of the Gacaca Courts produced an enormous archive of an estimated 1,200,000 case files.116

3. Special Court for Sierra Leone (SCSL)

The SCSL was established by an agreement between the United Nations and the government of Sierra Leone in accordance with a Security Council resolution.117 A total of twenty-two people were indicted in the SCSL prior to its closure in 2013. It was a hybrid international-national court, which could prosecute crimes both under international and domestic Sierra Leonean law.118 One of the most important decisions by the SCSL was its ruling that recruiting children under the age of fifteen into the armed forces was a crime under customary international law.119

C. The United Nations

1. General Assembly

In 1945, there were four African states present at the establishment of the United Nations. Besides Egypt, they were Ethiopia, Liberia, and the Union of South Africa, with its system of apartheid. During the course of the decolonization process, UN membership was the first and most visible sign of a country's independence. At this time, the United Nations was the organization that helped establish former colonial states lacking moral and political legitimacy.120 At this moment, there are fifty-four African member states among the 193 member of the United Nations. Prior to the 1960s, African states did not play a significant role in the work of the General Assembly. Rather, they remained skeptical of the United Nations, as they considered it to be an ally of colonial powers who intended to exclude their colonies from the human rights achievements of the world organization, as they were, in their view, "at the lowest stage of development."121 During the negotiations of UN General Assembly Resolution 843 of 1954 on the Status of Women in Private Law, there were non-Western states on the front line to eradicate [End Page 236] customs and cultural practices considered harmful to women.122 In the '50s and at the beginning of the '60s, it was typical for former colonial states to represent the pro-human rights position in the General Assembly, as most post-colonial African governments, which were democratically elected, enjoyed the support of their people. They considered human rights questions to be one of the most important elements of their foreign policy. The rise of cultural relativism in the Third World was clearly associated with the rise of dictatorships in the 1960s and 1970s.123

The adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples by the United Nations General Assembly on 14 December 1960 was a crucial moment for African states, as it was the first occasion that their right to self-determination had been acknowledged during the colonial period. The General Assembly was a deliberate choice for the location of the vote in order to avoid a vote by the Security Council, where veto power would have been available to any of the three permanent members with remaining colonial legal ties or associations.124 Similarly, in 2000, it was the General Assembly that adopted the Millennium Declaration and established the Millennium Development Goals, which were vital for Africa in its fight against poverty, hunger, malaria and other diseases, and infant child mortality.125

2. Security Council

The UN Security Council is the only principle organ of the United Nations that can take mandatory, enforceable action, such as imposing sanctions or even using force against a member state. Although the mandate of the Council does not specifically refer to human rights, maintaining international peace and security certainly involves human rights-related issues. Unfortunately, African issues usually dominate the agenda of the Council. This is particularly the case since, in Africa, there are several ongoing crises almost constantly that seriously violate the peace of the region, but this is also the case because the permanent members of the Council (US, Russia, China, UK, France) can find an easier consensus on these situations as there is no African state among them to have a veto power. Presently, the three non-permanent members of the Council representing the African continent are Ethiopia, Equatorial Guinea, and Côte d'Ivoire, and they do not have much influence on the agenda of the Council. Each of the five permanent members has a strong enough veto power to control Council decisions.126 [End Page 237]

The first UN peace-keeping operation was the one in Congo (known as the ONUC) in 1960, which was initially welcomed by African states but later came to be regarded by many as an imperialistic means of undermining African independence.127 The role of peace-keeping missions in the promotion and protection of human rights was initially very limited, but they gradually became more and more active in this field and, after the end of the Cold War, the linkage between peace-keeping and human rights became much stronger. One of the most bitter failures of the United Nations in this field is related to Africa; due to its inadequate size and misguided mandate, the UN Assistance Mission for Rwanda (UNAMIR) was unable to prevent the mass atrocities and the genocide in the country.128 This failure certainly contributed to the discreditation of the world organization in the eyes of the African peoples, but this moral damage was partly curbed by the establishment of the International Criminal Tribunal for Rwanda after the horrible events at the end of 1994.

The first Secretary-General from the African continent was Boutros Boutros-Ghali (an Egyptian) but, as his 1996 reelection bid was not supported by the United States, the chance was given to the first Sub-Saharan African to serve as the Secretary-General of the world organization. Ghanaian Kofi Annan, a former UN Under-Secretary-General, filled this important position for two consecutive terms from 1997 to 2006.

As mentioned earlier, the African continent has dominated the agenda of the Security Council since its establishment. Just looking at the year 2017, we can find resolutions on Sudan, South Sudan, the Great Lake Region, the Central African Republic, Somalia, Mali, the DRC, and Guinea-Bissau, as well as resolutions dealing with the Group of Five for the Sahel (Burkina Faso, Chad, Mali, Mauritania, and Niger).129

3. Economic and Social Council

According to Article 68 of the UN Charter, the Economic and Social Council (ECOSOC) was instructed to set up commissions in order to promote and protect human rights worldwide. From 1946–1947, the ECOSOC established the Commission on Human Rights, its Sub-Commission on the Prevention of Discrimination and Protection of Minorities (later renamed the Sub-Commission on the Promotion and Protection of Human Rights), and the Commission on the Status of Women. The actual human rights work carried out by the ECOSOC has always been relatively limited, focusing mainly on the election of the members of the Commission on Human Rights and [End Page 238] on the adoption of its reports. Even these functions disappeared in 2006, when the Human Rights Council replaced the Commission and became the subsidiary body of the General Assembly.

IV. THE UN HUMAN RIGHTS SYSTEM

A. UN Treaty Bodies

According to Article 9 of the General Assembly Resolution 60/251 of 2006 establishing the Human Rights Council, "members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council."130 In light of the aforementioned provision, it is worth analyzing the cooperation by Sub-Saharan African states with UN treaty bodies. Looking at the ratification of the eight UN human rights instruments131 upon the report prepared by the Universal Rights Group,132 it is quite impressive that the average number of treaties ratified by African members133 of the Council is 7.1, which is just a bit lower [End Page 239] than in case of the Latin America and Caribbean Group (GRULAC) (7.5) and the Eastern European Group (EEG) (7.2), the same as the Western Europe and Others Group (WEOG), and higher than the Asia-Pacific Group (APG) (6.5). The real problem starts when we look at the performance concerning their reporting obligations. There is only one state on the whole continent (not just among the HRC members) that is fully up-to-date with its treaty body reporting. That state, Rwanda, belongs to an exclusive club of thirtythree states within the same category in the world as was highlighted by the High Commissioner for Human Rights in his statement during the thirtyfifth session of the Council.134 Among the eleven Sub-Saharan African HRC members, there are countries with reports overdue by twenty-seven years (Congo), twenty-three years (Côte d'Ivoire), and nineteen years (Burundi), and there are quite a few states that did not submit any reports on schedule (Nigeria and Botswana).135 This phenomenon may be the result of the poor technical capacities of the given countries that make it extremely difficult to meet all the reporting obligations, but in certain cases, it can be traced back to the lack of political will, which indicates that cooperation with the United Nations is not a high priority.

B. UN Human Rights Council (HRC)

1. Universal Periodic Review (UPR)136

During the period of the UN Commission on Human Rights, African states frequently referred to the fact that, at the time of its establishment, most of them were still under colonial rule and therefore they did not have a say about its modalities.137 During the consultations regarding the establishment [End Page 240] of the UN UPR, many states mentioned the example of the African Peer Review Mechanism (APRM) as a possible model.138 Not surprisingly, African states were in favor of a state-driven process, limiting the role of civil society and the Office of the High Commissioner for Human Rights (OHCHR).139 Given the large number of inter-state and internal military conflicts in the continent, African states were not supportive of the idea that international humanitarian law would be among the areas forming the normative basis of the review.140 They wanted to base the review exclusively on human rights norms, like the United States.141 On one hand, African states were mostly in favor of a simplified process with minimal reporting obligations; on the other hand, they were afraid of ascribing too much influence to international and national NGOs. Ultimately, they accepted the formula providing equal status for contributions coming from UN treaty bodies, the national government, and other national stakeholders.142

Researcher Edward R. McMahon investigates the premise that, unlike other HRC functions or the work of the General Assembly, the UN UPR process is not regionally driven, and as a result, states are making decisions separate from their regional affiliations, thus disrupting the typical NorthSouth dichotomy.143 The results of his study, however, demonstrate visible regional patterns. African and Asian states are making much smaller numbers of recommendations than representatives of other regional groups, a fact that McMahon attributes either to the avoidance of tough decisions or to cultural particularities that show a strong preference for consensual rather than confrontational approaches.144

It is important to see how the different regions implemented the recommendations they received and accepted during the UN UPR, which is the only truly global human rights mechanism we have now. The highest percentage of recommendations that triggered action during the first fouryear cycle of the UN UPR was 63 percent in case of the EEG, followed by 53 percent of the WEOG, 50 percent of Africa, 49 percent of GRULAC, and 33 percent of Asia.

Former UN Special Rapporteur on Minorities Rita Izsak conducted interesting research on minority-related recommendations during the UN UPR. [End Page 241] Such recommendations were mostly focused on Europe, where forty-three states received recommendations, followed by twenty-eight African states.145 It is interesting to note that the African region received only seventy-four recommendations in total. Most were received by Egypt (six), Namibia (five), Nigeria (eight), Sudan (five), and Tanzania (six). Just to compare, the EEG received 368, Asia received 169, and the WEOG received 230. Only the much smaller GRULAC received less, with fifty-four recommendations. This trend tracks the fact that African states are still not willing to propose sensitive recommendations to the countries of their own region.146

There has been interesting research done about which states were challenging the universality of human rights during the first round of the UN UPR. These researchers detected fourteen states: eleven from Asia and three from Latin America.147 According to its assessment, there were no African states making cultural relativist statements during the UN UPR.148

However, Gayatri Patel researched recommendations concerning women's rights during the first two cycles of the UN UPR. One of the main findings of her paper was that challenges to the normative universalism of the UN UPR were made on two grounds: on the basis of national sovereignty and on the basis of a strict cultural relativist approach.149 For example, concerning the recommendations on polygamy, Burkina Faso, Tanzania, Ghana, and Libya used religious and cultural norms as a justification of this practice. Regarding female genital mutilation, Mali and Liberia mentioned that this practice was deeply embedded in their culture and that therefore the reforms suggested by the observer states could not be accepted.150

The question of polygamy has been raised in the case of eighteen states during the first two cycles of the UN UPR. A total of twenty-two recommendations were formulated on that topic, ten of which were adopted, and twelve were noted by the states under review.151 It is interesting to note that despite the fact that fourteen of the eighteen states under review were African, there was not one recommendation from the region.152 This clearly indicates the importance of regional solidarity on a highly sensitive issue, [End Page 242] which is closely related to traditional practices and cultures deeply rooted in many African societies.

V. THE HUMAN RIGHTS POLICY OF SUB-SAHARAN AFRICAN STATES DURING THE REGULAR SESSIONS OF THE UN HUMAN RIGHTS COUNCIL IN 2017

A. 34th Session of the UN Human Rights Council (27 February–24 March 2017)

The human rights situation of Sub-Saharan Africa was remarkably present in the annual report of the High Commissioner for Human Rights. Zeid Ra'ad Al Hussein expressed his concerns about the serious human rights violations in Burundi, in the DCR, in Mali, and in South Sudan, though he welcomed the improvements in Gambia and was pleased to acknowledge the accession of Togo to the Second Optional Protocol of the International Covenant on Civil and Political Rights.153

1. Country Situations

The Council adopted a strong resolution on South Sudan without a vote, which extended and strengthened the mandate of the UN Commission on Human Rights on South Sudan to "determine and report the facts" and make all information and evidence about alleged human rights violations available to all transitional mechanisms—including the Hybrid Court for South Sudan—should one be established in cooperation with the AU.154 The report by the Commission affirmed that there was deliberate targeting of civilian populations by the government on the basis of victims' ethnic identity.

The HRC adopted a resolution without a vote on the Technical Assistance and Capacity-Building for Mali in the Field of Human Rights, which welcomed the close cooperation between the Independent Expert, the implementation of the Peace Agreement, and legal reform, and it also renewed the Mandate of the Independent Expert.155

During the interactive dialogue with the Commission of Inquiry on Burundi, the Chair of the Commission underlined that they had decided to [End Page 243] focus their investigation on those human rights violations which may amount to crimes against humanity. The Commission regretted that Burundi was not willing to cooperate with them and that there was almost complete impunity for the serious human rights violations in the country.

It is also interesting to analyze the voting behavior of the eleven SubSaharan members of the Council regarding country situations. There were five resolutions on the human rights situation in the Middle East (concerning human rights in the occupied Syrian Golan, human rights violations in the Occupied Palestinian Territories (OPT), accountability in the OPTs, selfdetermination, and Israeli settlements). The Sub-Saharan countries typically ally with their North African Muslim neighbors and support these resolutions condemning Israel. While this was the case with most of the Sub-Saharan members, there was one remarkable exception, namely Togo, which was the only member of the HRC (other than the United States) voting against all five resolutions. However, this is not surprising in light of the close cooperation between the Togolese government and Israel in the last few years. Israeli Prime Minister Benjamin Netanyahu met Togolese President Faure Gnassingbé twice in 2017. It was very indicative of their relationship that the Togolese president wrote the following in the guestbook during his visit: "I dream of Israel's return to Africa and Africa's return to Israel."156 The Togolese Minister of Foreign Affairs Robert Dussey's opinion is also very telling in this regard: "The African continent is booming and Israel holds the solution for African development."157 Besides establishing strong political and economic ties with Israel, the Togolese government—despite the questions about the legitimacy of the president and the serious human rights violations—still receives a significant amount of development aid from the United States (over $13 million in 2016).158

It was also notable that, regarding resolutions involving the Middle East, Botswana abstained in the case of one, Congo in the case of two, and Rwanda in the case of four, indicating a small shift in the Middle East policy of Sub-Saharan African states. The fact that the members of the African Group were not condemning Israel in a block was not in line with their historical heritage established in the early post-colonial period, when the Sub-Saharan countries used to support unanimously all the initiatives condemning Israel in solidarity with their North African partners.

With regard to the voting on the human rights situation in Iran, there were significant discrepancies among the positions of the different SubSaharan HRC members. While Botswana and Rwanda supported the US-led [End Page 244] resolution, Burundi and Kenya voted against it and Congo, Côte d'Ivoire, Ethiopia, Nigeria, Ghana, and Togo abstained. The situation was quite similar to the resolution on Syria, where Botswana, Côte d'Ivoire, Ghana, Rwanda, and Togo supported the resolution while Burundi voted "no" and the others abstained. The Sub-Saharan HRC members were even divided regarding the resolution on the Cooperation with Georgia, where Botswana, Ghana, and Togo supported the resolution submitted by the country concerned, and Burundi—in line with its firm policy opposing all country resolutions—voted against it. The other Sub-Saharan African states abstained.

The African Group submitted two country-specific resolutions during the session, one for Mali and one for Libya, both focusing on technical assistance and capacity-building to improve human rights. Both were adopted without a vote.

2. Thematic Issues

The African Group submitted its three customary resolutions on racism, namely on the Mandate of the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action; the Mandate of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance; and the Elaboration of International Complementary Standards to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It submitted a new one on the establishment of a Forum for People of African Descent. This last one, together with the resolution on the Special Rapporteur's mandate, was adopted without a vote while the other two were voted upon. From a legal standpoint, the most interesting vote was on the resolution of the ICERD, which resulted in a three-way split within the European Union (EU), as Germany and the United Kingdom voted against the resolution, Portugal supported it, and the other HRC members in the EU abstained. The majority position within the EU regarding this issue was that the international community should focus on the implementation of the ICERD rather than on developing complementary standards, as there is no evidence that the Convention is not addressing all contemporary forms of racism. It did not exclude, however, the option of non-legally binding instruments like declarations.

A fifth resolution submitted by the African Group was on the Negative Impact of NonRepatriation of Funds of Illicit Origin on the Enjoyment of Human Rights and the importance of improving international cooperation. The United States voted against this resolution, and sixteen other countries abstained. The West's major point of contention was that the resolution focused on non-repatriation of illicit funds to countries of origin rather than focusing on the obligation of states to prevent this illegal activity. Furthermore, they were not convinced about the link between the repatriation of illicit [End Page 245] funds and the right to development. They did not consider that problem a human rights issue.159

It is worth mentioning that there was a joint statement of the Group of Friends on the Responsibility to Protect (R2P), which is an informal grouping of those UN member states in New York who are supportive of the notion of R2P, led by Rwanda and the Netherlands. The statement highlighted the preventive aspect of the R2P. It is important to note that the R2P notion has several strong supporters in Africa and, other than the Friends of R2P in New York, there is also a Geneva-based R2P core group consisting of three African states (Rwanda, Nigeria, and Ghana) as well as Australia, Uruguay, and Hungary. These countries are willing to argue, even with their African partners, on the real meaning of the concept, as they do not share the negative sentiments of many African and Asian countries concerning the whole notion of R2P, which some fear can be used for military intervention against them, as was the case in Libya.

During the sixteen interactive dialogues (seven clustered and nine individual) with mandate holders (Special Rapporteurs, working groups, and Independent Experts) of the HRC and from the 277 statements delivered by states individually or collectively, only 13 percent were from the African Group compared to 17 percent from the Asian Group, 18 percent from the EEG, 36 percent from the WEOG, and 16 percent from the GRULAC.160 These statistics indicate that most of the African states are still very much focusing only on African issues and are not very active in other issues. However, the examples of Botswana, Rwanda, Togo, and Ghana show that certain countries have started to open up their foreign policy, becoming more active in issues that did not directly relate to Africa or that were not in the mainstream of African human rights priorities.

3. 35th Session of the UN Human Rights Council (6–23 June 2017)

During the presentation of his annual report, the High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, focused on the cooperation with UN human rights mechanisms. He highlighted Burundi as a country which, despite being an HRC member since 2015, was not able to improve its human rights record. In fact, serious human rights violations continued to occur in the country and Burundi had suspended all forms of cooperation with the OHCHR. Tanzania was mentioned by the High Commissioner for refusing to allow any visits by UN Special Rapporteurs in the last five years. Zimbabwe was highlighted as an even more serious case, never allowing a [End Page 246] single UN human rights mission in the country. As a result, it has fourteen pending requests from different mandate holders of the HRC. From the African continent, Eritrea was listed among those countries that did not let the Special Rapporteur for Eritrea to visit the country. It was also quite striking that, according to the High Commissioner, seventy-four states have reports to UN treaty bodies that are a decade or more overdue. On the positive side, Rwanda is one of only thirty-three member states to be fully up-to-date on reporting, and Mozambique was mentioned among those states where access for the OHCHR has been improved.161

4. Country Situations

The Council adopted a resolution on the human rights situation in Eritrea without a vote. The resolution was submitted by Djibouti and Somalia, and it reflected the recommendations of the Special Rapporteur and encouraged the establishment of an OHCHR presence in the country.

One of the most chaotic procedures surrounded the adoption of the resolution on the DRC. The essence of the problem was that, despite all the efforts during the review of the HRC in 2011, the Council still lacks a sufficient toolkit to address the situations of individual countries. The African Group emphasized that the Council should engage constructively with the DRC by providing technical assistance and capacity-building. The EU, on the other hand, highlighted the need for proper balance between the international support and the DRC's obligation to address the serious human rights violations in certain parts of the country.162 This disagreement led to the tabling of two resolutions, one by the EU and another by the AU. After lengthy and last-minute negotiations, the EU agreed to merge the two resolutions. The end result was a resolution that looked more like a technical assistance resolution but included an accountability mechanism, which is more typical for resolutions of human rights situations that require the Council's attention. Finally, the African Group-led resolution on the Technical Assistance to the DRC and Accountability Concerning the Events in the Kasai Regions was adopted by the Council without a vote.163

During the interactive dialogue with the Commission of Inquiry on Burundi, the Chair of the Commission regretted that there was no cooperation from the side of the government and that, unfortunately, the human rights crises did not seem to improve over the last two years.164 [End Page 247]

Like in the case of the thirty-fourth session of the Council, the voting behavior of the eleven Sub-Saharan African members of the Council regarding country situations was far from being unified. On the resolution on Syria, Burundi voted negatively, as usual, while Botswana, Côte d'Ivoire, Ghana, Rwanda, and Togo supported the text, and Congo, Ethiopia, Kenya, Nigeria, and South Africa abstained. African states were seemingly more cautious regarding the two East European country situations. Regarding the EU initiative on Belarus, only Ghana supported the resolution, Burundi voted no, and all the others abstained. Given the hostilities between Ukraine and Russia and thus the more politically-charged nature of the resolution on Ukraine, Côte d'Ivoire and Rwanda joined Ghana in support of it and the rest of the African Group voted as they had for the Belarus resolution.

5. Thematic Issues

Due to the fact that, during this session, most of the controversial thematic resolutions were strongly influenced by North-South cultural differences, the African members of the Council voted unanimously on all of them (international solidarity, right to peace, international cooperation, protection of family, and contribution of development).

The fact that there were increasing numbers of African members joining core groups submitting non-African initiated resolutions indicates the opening up of certain African states' human rights policies. Some African states were even willing to co-sponsor other countries' resolutions, indicating their strong political support for the cause included in the given initiatives. For example, Sierra Leone, Ethiopia, and Zambia were members of a bigger core group submitting a resolution on Child, Early and Forced Marriage, including in Humanitarian Settings.165 Ethiopia took part in the core group submitting the resolution on the Elimination of Discrimination Against Persons Affected by Leprosy and Their Family Members. Last but not least, we should mention the participation of Botswana in the Hungary-led core group running the resolution on the independence of judges and lawyers.166

During the fifteen interactive dialogues (six clustered and nine individual) that took place during this session, eighty states delivered statements. The African Group's participation was similar to the previous session—in which they joined the GRULAC at the end of the rankings for participation—and both groups combined made just 28 percent of the statements. For comparison, 16 percent of the statements were made by the EEG, 19 percent by the Asian Group, and 35 percent by the WEOG.167 [End Page 248]

B. 36th Session of the UN Human Rights Council (11–29 September 2017)

In his regular update, the High Commissioner for Human Rights focused on the lack of consistency between many states' internal and external human rights policies, a problem he claimed undermines the credibility of the HRC. As in previous sessions, Sub-Saharan African states were often referred to in his statement. The High Commissioner expressed concerns over the human rights situation in the Central African Republic, South Sudan, and Burundi. On the other hand, he noted positively the steps taken in Sudan, Congo, and Ethiopia with regard to the relations with his Office, as well as improved national legislation and the rule of law.168

1. Country Situations

During the interactive debate regarding the Commission of Inquiry on Burundi, the Chairman of the Commission stated that the human rights violations and abuses of the country beginning in April 2015 were still happening and constituted crimes against humanity.169 The Council voted to renew the mandate of the Commission of Inquiry on Burundi for a period of one year, a resolution submitted by the EU.170 Although there were neither comments by Burundi nor by the African Group on the EU resolution, the African Group started parallel negotiations with Burundi and, as a result, Tunisia (on behalf of the African Group) submitted a competing resolution on technical assistance and capacity-building to Burundi.171 The resolution of the African Group was largely based upon the EU draft, but it replaced the renewal of the Commission of Inquiry with a request to send an expert team to reinforce the OHCHR Office in Bujumbura by making suggestions for technical assistance and by collecting and preserving information. However, the African Group did not agree to grant this new mechanism the same investigative power and independence as the Commission of Inquiry had under the original resolution. It is significant to note that Botswana and Rwanda did not join the African Group in submitting the draft and, when the EU asked for a vote regarding the text—which was adopted with twenty-three [End Page 249] votes in favor, fourteen votes against, and nine abstentions—Botswana abstained, and Rwanda did not participate in the voting.172 As a result of the adoption of two competing resolutions on Burundi in 2018, there were a total of six debates on Burundi in the HRC during this session.

The HRC adopted a strong resolution on the Technical Assistance and Capacity-Building in the Field of Human Rights in the Central African Republic (CAR) without a vote.173 The resolution was submitted by the African Group and the CAR, and the President of the CAR, speaking to the HRC on 27 September 2017, confirmed his country's commitment to fight impunity and to progress towards justice.

The African Group presented a resolution on the Technical Assistance and Capacity-Building to Improve Human Rights in the Sudan, which renewed the Mandate of the Independent Expert for a period of one year. The resolution, which was adopted without a vote, focused on the positive developments in the country, and it was mainly the result of bilateral negotiations between the United States and the Sudan with the aim—which was finally achieved—of preventing the transfer of the role of the Independent Expert to an OHCHR Office.174

Similar to the previous sessions of the Council, the voting behavior of the members of the African Group was not uniform when it came to the human rights situation in Syria. While Burundi voted against the resolution, as usual, five African states (namely Botswana, Côte d'Ivoire, Ghana, Togo, and Rwanda) supported it. The other Sub-Sharan African states (Congo, Ethiopia, Kenya, Nigeria, and South Africa) abstained.

2. Thematic Issues

The African Group submitted four thematic resolutions during the session. One of the resolutions—adopted without a vote—renewed the Mandate of the Working Group of Experts on People of African Descent. Another one established a new Intergovernmental Working Group to elaborate the content of an international regulatory framework on the regulation, monitoring, and oversight of the activities of private military and security companies. This later one was also adopted without a vote as the EU, despite its concerns, finally joined the consensus. South Africa expressed its gratitude for this gesture exercised by the EU. The most controversial initiative by the AU was entitled "From Rhetoric to Reality: A Global Call for Concrete Action against Racism, Racial Discrimination, Xenophobia, and Related Intolerance." The major difference between the positions of the AU and the EU on this resolution was that the African states were not willing to delete a reference to [End Page 250] the negotiations commencement of an additional protocol on criminalizing acts of racist and xenophobic nature. The EU eventually asked for a vote and the African resolution was adopted by a vote of thirty-two to five, with ten countries abstaining. The delicate nature of the issue was demonstrated by the fact that even the EU states were divided, and while Germany and the United Kingdom rejected the resolution, the other EU Council members abstained. The fourth initiative brought forward by the AU was on the renewal of the Mandate of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes. This resolution was adopted without a vote although the EU was not supportive of a reference to the Declaration on the Right to Development in the text.175

Concerning most of the sensitive thematic resolutions, the African members of the Council voted in a coherent way. However, it is interesting to note that, regarding the Cuban resolution on the Composition of the Staff of the OHCHR, Togo abstained as they did on the resolution on Human Rights and Unilateral Coercive Measures. It was not the first time that the position of Togo was completely different from the rest of the group, as it had happened concerning the Middle East resolutions earlier that year. The African states were strongly divided during the vote on the reprisals resolution, which was critical for the support of those who want to cooperate with the United Nations. While Botswana, Congo, Côte d'Ivoire, Ghana, and Rwanda supported this initiative, the other African states abstained. The African states were even more divided in the case of the death penalty resolution, where Congo, Ghana, Rwanda, South Africa, Togo, and Côte d'Ivoire supported the initiative; Botswana, Burundi, and Ethiopia rejected it; and Kenya and Nigeria abstained.

As observed during the previous sessions, several African states were involved in different core groups running initiatives that were not traditionally in the mainstream of African human rights priorities or that divided African states. A classic example of this is the participation of Ghana in the Hungary-led core group running the resolution on Cooperation with the United Nations, Its representatives and Mechanisms in the Field of Human Rights176 (the so-called "reprisals" initiative), which became one of the most controversial initiatives in the Council and was seriously attacked by several developing countries and Russia. Another example is the resolution on the death penalty submitted by a core group containing Benin. It was Egypt who asked for a vote on this initiative, which strongly divided the African states. In addition to these controversial resolutions, Senegal was a member of the core group running the initiative on the World Programme [End Page 251] for Human Rights Education, and Côte d'Ivoire was part of the core group behind the initiative on the Special Rapporteur on the Promotion of Truth, Justice, Reparation, and Guarantees of Non-Recurrence.177

During the twelve interactive dialogues that took place in course of this session, sixty-two states delivered statements either individually or collectively. Unlike during previous sessions, the African Group was more active, as its members delivered 18 percent of the statements, which was higher than the EEG (10 percent) or the GRULAC (12 percent). Only the Asian Group members (28 percent) and the WEOG members (28 percent) were more active during the interactive dialogues.

VI. CONCLUSIONS

The social and political concerns of Africans are shaped mainly by the legacy of colonialism and the memory of post-colonial instability. Together, these concerns are also shaped by the severe socioeconomic challenges the continent faces, including huge international debt, the highest number of refugees in the world, and widespread starvation. In this context, many Africans still consider human rights as a Western-inspired imperialist notion.178 The fact that Western powers supported African dictators in the past raised suspicions about the intent of the West. The inability of the international community to stop the genocide in Rwanda further discredited human rights in the region. Perhaps the greatest failing of the international community was that it did not address the biggest problem of the continent: the violation of self-determination.

Cultural nationalists argue against the applicability of a human rights doctrine that is based upon the notion of the individual—a notion which does not exist in Africa, where the worth of the individual can be found only in the context of the community. Therefore, Africans put the emphasis on duties and obligations over rights. Another common understanding of why human rights are inapplicable in Africa is the well-known argument that human rights in the West developed over a long period of struggle for democracy and that Africa has yet to go through these stages.

In spite of the resistance to human rights as mentioned above, the emerging African human rights system clearly indicates the political will of most African countries to establish a sound foundation guaranteeing the fundamental freedoms and rights of the people on the continent. However, besides the lack of the necessary financial preconditions for the sufficient regional protection system, the lack of political will frequently results in [End Page 252] the poor implementation of the highly sophisticated African human rights instruments. The public frustration caused by this deficiency meant that civil society often turned towards UN mechanisms as a real solution. In the long run, the fact that the United Nations was highly regarded as a resource for many African states aiming at changes in their human rights situation resulted in the gradual opening up of several Sub-Saharan African states—like Rwanda, Botswana, Ghana, and Togo—that started to be involved in broader initiatives within the Human Rights Council, representing global, rather than exclusively African, interests. AU states generally support resolutions on the human rights violations of other countries but seem reluctant to support certain thematic issues that are important to almost all of the states supporting country situations. The voting behavior of the African Group in Geneva is becoming less and less uniform, and they are voting in a block only on a few issues, like the right to development, which still represents the classical North-South division.

In conclusion, the development of the protection and promotion of human rights in Sub Saharan Africa makes the region perfectly suitable to accept and implement universal human rights standards. The reference to local cultural traditions is only serving the political aims of the elite, who try to avoid international scrutiny about the serious human rights violations committed in order to keep power and influence. [End Page 253]

István Lakatos

Istvan Lakatos is a career diplomat, a former human rights ambassador of the Ministry of Foreign Affairs and Trade of Hungary, currently the senior human rights advisor of the Ministry of Human and Minority Rights of Montenegro. The opinions expressed herein are strictly personal and do not necessarily reflect the position of the Hungarian MFAT. lakatistvan@yahoo.com

Footnotes

1. Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela 385 (1994).

2. Joanne Bauer, The Challenges to International Human Rights, in Constructing Human.Rights in the Age of Globalization 238 (Mahmood Monshipouri, et al. eds., 2003).

3. Id. at 239.

4. Id.

5. According to the United Nations, Sub-Saharan Africa consists of all African states that are fully or partially located south of Sahara. Although Somalia, Djibouti, Comoros, and Mauritania are geographically in Sub-Saharan Africa, they are Arab states. They will not be addressed in this article, as the author intends to devote a separate article on the implementation of human rights within the Arab World. El-Obaid Ahmed El-Obaid & Kwadwo Appiagyei-Atua, Human Rights in AfricaA New Perspective on Linking the Past to the Present, 41 McGill L. J. 819, 821 (1996).

6. The Human Rights Council is an inter-governmental body within the UN system responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them. It has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year. It meets three times a year at the UN Office at Geneva. The HRC is made up of forty-seven United Nations member states which are elected by the UN General Assembly. The Human Rights Council replaced the former UN Commission on Human Rights in 2006. See https://www.ohchr.org/en/hrbodies/hrc/pages/home.aspx.

7. Vincent O. Orlu Nmehielle, The African Human Rights System: Its Laws, Practice, and Institutions 7 (2001).

8. Id. at 11–12.

9. Jack Donnelly, Universal Human Rights in Theory and Practice 78 (3d ed. 2013).

10. Id. at 79.

11. Nmehielle, supra note 7, at 15–16.

12. Id. at 11.

13. Makau Mutua, Human Rights: A Political and Cultural Critique 80 (2002).

14. Nmehielle,supra note 7, at 13–14.

15. Id. at 16.

16. Mutua, supra note 13, at 75.

17. Id. at 81. See also Abdullahi Ahmed An-Na'im, Muslims and Global Justice 66 (2011).

18. El-Obaid & Appiagyei-Atua, supra note 5, at 821.

19. Id. at 822.

20. Nmehielle, supra note 7, at 19.

21. Id. at 20.

22. Id. at 21.

23. Id. at 22.

24. Id.

25. Id. at 23–24.

26. Id. at 25.

27. Id. at 26.

28. Id. at 27.

29. Id. at 29.

30. Andreas Eckert, African Nationalists and Human Rights, 1940s-1970s, in Human Rights in the Twentieth Century 283, 292 (Stefan-Ludwig Hoffmann ed., 2011).

31. Kofi Oteng Kufuor, The African Human Rights System: Origin and Evolution 1 (2010).

32. Nmehielle, supra note 7, at 68.

33. Lennart Wohlgemuth and Ebrima Sall, Introduction: Human Rights, Regionalism and the Dilemmas of Democracy in Africa, in Human Rights, Regionalism and the Dilemmas of Democracy in Africa 4 (Lennart Wohlgemuth & Ebrima Sall eds., 2006).

34. Eckert, supra note 30, at 300.

35. Wohlgemuth & Sall, supra note 33.

36. Id. at 299.

37. Bience Gawanas, The African Union: Concepts and Implementation Mechanisms Relating to Human Rights, in Human Rights in Africa: Legal Perspectives and Promotion 135, 136 (Anton Bösl & Joseph Diescho eds., 2009), https://www.kas.de/documents/252038/253252/7_dokument_dok_pdf_16347_1.pdf/353a974e-b79e-27e0–2cf4–3bcfec6fabb1?version=1.0&t=1539662407836.

38. Eckert, supra note 30, at 297.

39. Frans Viljoen, International Human Rights Law in Africa 157 (2d ed. 2012).

40. Gawanas, supra note 37, at 137.

41. Wohlgemuth & Sall, supra note 33, at 4.

42. Viljoen, supra note 39, at 158.

43. Kufuor, supra note 31, at 17.

44. Id. at 18.

45. Id.

46. Id. at 33.

47. Id. at 33–35.

48. Id. at 35–36.

49. Viljoen, supra note 39, at 158.

50. Kufuor, supra note 31, at 16.

51. Viljoen, supra note 39, at 161.

52. Kufuor, supra note 31, at 85–87.

53. Id. at 88–91.

54. Katharina HÄusler, et al., European Commission, Human Rights, Democracy and Rule of Law: Different Organisations, Different Conceptions? 82 (2016). See African Charter on Human and Peoples' Rights, adopted 27 June 1981, art. 20, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 1520 U.N.T.S. 217 (entered into force 21 Oct. 1986) [hereinafter African Charter].

55. Gawanas, supra note 37, at 137.

56. African Charter, supra note 54, pmbl.

57. Id. at art. 29 (7).

58. HÄusler, et al., supra note 54, at 83.

59. Wohlgemuth & Sall, supra note 33, at 5.

60. Kufuor, supra note 31, at 9.

61. Id. at 11.

62. African Charter, supra note 54, art. 27 (2).

63. Viljoen, supra note 39, at 240.

64. Wohlgemuth & Sall, supra note 33, at 5.

65. Kufuor, supra note 31, at 7.

66. El-Obaid & Appiagyei-Atua, supra note 5, at 822.

67. Eckert, supra note 30, at 284–85.

68. Id. at 285.

69. Viljoen, supra note 39, at 161.

70. Id. at 161.

71. 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, held in Maputo, Mozambique (11 July 2003), https://www.refworld.org/docid/3f4b139d4.html.

72. HÄusler, et al., supra note 54, at 86.

73. Viljoen, supra note 39, at 162.

74. Id. at 163.

75. Id. at 162.

76. Protocol on the Statute of the African Court of Justice and Human Rights, adopted by the 11th Ordinary Session of the Assembly, held in Sharm El Sheikh, Egypt (1 July 2008), https://au.int/sites/default/files/treaties/36396-treaty-0035_-_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf.

77. See List of Countries which Have Signed, Ratified/Acceded to the Protocol on the Statute of the African Court of Justice and Human Rights, African Union (2 June 2019), https://au.int/sites/default/files/treaties/36396-sl-protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights.pdf.

78. HÄusler, et al., supra note 54, at 163.

79. Viljoen, supra note 39, at 164.

80. HÄusler, et al., supra note 54, at 138; Gawanas, supra note 37, at 138.

81. Viljoen, supra note 39, at 165.

82. Id.

83. Gawanas, supra note 37, at 138.

84. Viljoen, supra note 39, at 167–68.

85. Id. at 169.

86. HÄusler, et al., supra note 54, at 87–88.

87. African Charter on Democracy, Elections and Governance, art. 2 (3), adopted by the 8th Ordinary Session of the Assembly, held in Addis Ababa, Ethiopia (30 Jan. 2007), https://www.refworld.org/docid/493fe2332.html.

88. Id. art. 12 (3).

89. Dr. Khabele Matlosa, Dir. for Pol. Aff. of the African Union Commission, Opening Statement at the 56th Ordinary Session of the African Commission on Human and Peoples' Rights (21 Apr. 2015) (on file with author).

90. Dep't. of Pol. Aff., Afr. Union Commission, Human Rights Strategy for Africa (2011).

91. Press Release, African Union, 2016: African Year of Human Rights with Particular Focus on the Rights of Women (27 Jan. 2016), https://au.int/en/pressreleases/19615/2016african-year-human-rights-particular-focus-rights-women.

92. Graeme Reid, The Trouble with Tradition: When "Values" Trample Over Rights, Hum. Rts. Watch: World Rep. 2013, https://www.hrw.org/world-report/2013/country-chapters/africa.

93. Id.

94. Id.

95. Gambia also threatened to leave the ICC in the same year, but the new government reversed that decision.

96. South Africa justified the decision to withdraw from the ICC by reference to the clash it had with the court in June 2015 when it failed to comply with a request by the ICC to arrest Sudanese President Omar al-Bashir while he was in South Africa for an African Union (AU) summit. South Africa's Reasons for Leaving the ICC Don't Quite Add up, The Conversation (25 Oct. 2016), http://theconversation.com/south-africas-reasons-forleaving-the-icc-dont-quite-add-up-67481

97. Noah Feldman, International Criminal Court Is Too Focused on Africa, Bloomberg Opinion (25 Oct. 2016), https://www.bloomberg.com/view/articles/2016–10–25/internationalcriminal-court-is-too-focused-on-africa.

98. Vukile Ezrom Sibiya & Michelle Nel, Withdrawal from the International Criminal Court: Does Africa Have an Alternative?, ACCORD (12 Sept. 2017), http://www.accord.org.za/ajcr-issues/withdrawal-international-criminal-court/#.

99. Feldman, supra note 97, at 1.

100. Sibiya & Nel, supra note 98.

101. Id.

102. For the ICC's website, see International Criminal Court, https://www.icc-cpi.int/Pages/Main.aspx.

103. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), adopted 17 June 2014, art. 16, at 11, https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights [hereinafter Malabo Protocol].

104. Gerhard Werle & Moritz Vorbaum, The Search for Alternatives: The "African Criminal Court," ISPI Commentary 2 (28 Mar. 2017), http://www.ispionline.it/sites/default/files/pubblicazioni/commentary_werle_wormbaum_28_03.2017.pdf.

105. Malabo Protocol, supra note 103, at 18.

106. See Draft Decision by the AU Assembly on the International Criminal Court, 28th Ordinary Sess., Doc. EX.CL/1006(XXX) (30–31 Jan. 2017), https://www.hrw.org/sites/default/files/supporting_resources/assembly_au_draft_dec._1_-_19_xxviii_e.pdf.

107. Sella Oneko, Will AU Members Really Withdraw From the ICC? DW.com (1 Feb. 2017), http://www.dw.com/en/will-au-members-really-withdraw-from-the-icc/a-37374040.

108. Viljoen, supra note 39, at 67.

109. Uti possidetis juris or uti possidetis iuris (Latin for "as you possess under law") is a principle of international law which provides that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence.

110. Viljoen, supra note 39, at 67.

111. International Court of Justice, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), https://www.icj-cij.org/en/case/144.

112. Id.

113. See Key Figures of ICTR Cases, United Nations Int'l Residual Mechanism for Criminal Tribunals(Feb. 2019), https://unictr.irmct.org/en/cases/key-figures-cases.

114. Viljoen, supra note 39, at 69.

115. Rinakuusipalo, Gacaca Courts: Community Justice in Rwanda, Participedia (6 June 2017), https://participedia.net/case/83.

116. Leslie Haskell, Justice Compromised: The Legacy of Rwanda's Community-Based Gacaca Courts (2011).

117. Resolution 1315 (2000), adopted 14 Aug. 2000, S.C. Res. 1315, U.N. SCOR, 4186th mtg., U.N. Doc. S/RES/1315 (2000), http://www.rscsl.org/Documents/Establishment/SRes-1315–2000.pdf.

118. Viljoen, supra note 39, at 70.

119. Id. at 71.

120. Id. at 45.

121. Roland Burke, Decolonization and the Evolution of International Human Rights 114 (2010).

122. Id.

123. Id. at 143–44.

124. See Audiovisual Library of International Law, http://legal.un.org/avl/ha/dicc/dicc.html.

125. Viljoen, supra note 39, at 48–49.

126. Id. at 50.

127. Id. at 52.

128. Id.

130. Resolution on the Human Rights Council, G.A. Res. 60/251, U.N. GAOR, 60th Sess., U.N. Doc. A/RES/60/251 (2006), https://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf.

131. The eight human rights instruments are the following: International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, G.A. Res. 2106, U.N. GAOR, 20th Sess., 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966); International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976); International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976); Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., U.N. Doc. A/34/46 (1980), 1249 U.N.T.S. 13 (entered into force 3 Sept. 1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., U.N. Doc. A/39/51 (1985), 1465 U.N.T.S. 85 (entered into force 26 June 1987); Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3 (entered into force 2 Sept. 1990); International Convention for the Protection of All Persons from Enforced Disappearance, adopted 12 Jan. 2007, G.A. Res. 61/177, U.N. GAOR, 61th Sess., U.N. Doc. A/RES/61/177 (2007) (entered into force 23 Dec. 2010); Convention on the Rights of Persons with Disabilities, adopted 13 Dec. 2006, G.A. Res. 61/106, U.N. GAOR, 61th Sess., U.N. Doc. A/RES/61/106 (2007) (entered into force 3 May 2008).

132. Universal Rights Group, The Human Rights Council in 2017: Leadership, Resolve and Coopera tion at the UN's Main Human Rights Body 38–39 (2017), https://www.universal-rights.org/urg-policy-reports/human-rights-council-2017/.

133. The following eleven Sub-Saharan African states were members of the Human Rights Council in 2017: Botswana, Burundi, Congo, Côte d'Ivoire, Ethiopia, Ghana, Kenya, Nigeria, Rwanda, South Africa, and Togo. Egypt and Tunisia represent North Africa in the HRC.

134. Denial of access and lack of cooperation with UN bodies will not diminish scrutiny of a state's human rights record. Zeid Ra'Ad Al Hussein, U.N. High Commissioner for Human Rights, Opening Statement at the 33rd Session of the Human Rights Council, (13 Sept. 2016), https://reliefweb.int/report/world/denial-access-and-lack-cooperationun-bodies-will-not-diminish-scrutiny-states-human.

135. Universal Rights Group, The Human Rights Council in 2017,supra note 132, at 43–44.

136. The UN Universal Periodic Review (UPR) is a unique process which involves a periodic review of the human rights records of all 193 UN Member States. The UPR is a significant innovation of the Human Rights Council that is based on equal treatment for all countries. It provides an opportunity for all states to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights. The UPR also includes a sharing of best human rights practices around the globe. Currently, no other mechanism of this kind exists. The UPR was established when the Human Rights Council was created on 15 March 2006 by the UN General Assembly in resolution 60/251. This mandated the HRC to "undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States." Resolution on the Human Rights Council, supra note 130, ¶1(e), at 3.

137. Allehone Mulugeta Abebe, Of Shaming and Bargaining: African States and the UPR of the United Nations Human Rights Council, 9 Hum. Rts. L. Rev. 2 (2009).

138. Id. at 4.

139. Id. at 8.

140. UN Human Rights Council, Basic Facts about the UPR, http://www.ohchr.org/EN/HR-Bodies/UPR/Pages/BasicFacts.aspx.

the upr will assess the extent to which states respect their human rights obligations set out in: (1) the un charter; (2) the universal declaration of human rights; (3) human rights instruments to which the state is party (human rights treaties ratified by the state concerned); (4) voluntary pledges and commitments made by the state (e.g. national human rights policies and/or programs implemented); and, (5) applicable international humanitarian law.

141. Abebe, supra note 137, at 6.

142. Id. at 10–11.

143. Edward R. McMahon, Herding Cats and Sheep: Assessing State and Regional Behavior in the Universal Periodic Review Mechanism of the United Nations Human Rights Council 34 (July 2010), https://www.upr-info.org/sites/default/files/general-document/pdf/-mcmahon_herding_cats_and_sheeps_july_2010.pdf.

144. Id.

145. Rita IzsÁk, U.N. Special Rapporteur on Minority Issues, Minority Issues in the First Cycle of the Universal Periodic Review (UPR) (n.d.) http://www.ohchr.org/Documents/Issues/IEMinorities/MinoritiesIssues1stcycleUPRProcess.pdf.

146. Id. at 4–5.

147. Roger Lloret Blackburn, Cultural Relativism in the Universal Periodic Review of the Human Rights Council 15–36, (Int'l. Catalan Inst. for Peace, Working Paper No. 2011/3, 2011), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033134.

148. Id.

149. Gayatri Patel, How "Universal" is the United Nations' Universal Periodic Review Process?: An Examination from a Cultural Relativist Perspective 257 (Sep. 2015) (unpublished Ph.D. Thesis, University of Leicester), https://lra.le.ac.uk/bitstream/2381/37501/1/2016PATELGPhD.pdf.

150. Id. at 257.

151. Id. at 467.

152. Id. at 150.

153. Zeid Ra'Ad Al Hussein, U.N. High Commissioner for Human Rights, Annual Report and Oral Update to the 34th Session of the Human Rights Council (8 Mar. 2017), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21316&LangID=E.

154. Report of the Human Rights Council on its Thirty-Fourth Session, 27 Feb. to 24 Mar. 2017, U.N. GAOR, Hum. Rts. Comm,. 34th Sess., U.N. Doc. A/HRC/34/2 (14 June 2018), https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session34/Pages/34RegularSession. aspx [hereinafter Report of the Thirty-Fourth Session].

155. Id.

156. Simon Hooper, Togo: How Repressive West African State Built Close Ties with Israel, Middle East Eye (22 Dec. 2017), http://www.middleeasteye.net/news/togo-how-repressivewest-african-state-built-close-ties-israel-1894664807.

157. Id.

158. Id.

159. Report of the Thirty-Fourth Session, supra note 154, at 49.

160. Universal Rights Group, Report on the 34th Session of the Human Rights Council 9 (27 Mar. 2017), https://www.universal-rights.org/urg-human-rights-council-reports/report-34thsession-human-rights-council/.

161. Report of the Human Rights Council on its Thirty-fifth Session, 6–23 June 2017, U.N. GAOR, Hum. Rts. Comm,. 35th Sess., U.N. Doc. A/HRC/35/2, https://www.ohchr.org/Documents/HRBodies/UPR/A_HRC_35_2_EN.docx.

162. Universal Rights Group, Report on the 35th Session of the Human Rights Council 16 (2017), https://www.universal-rights.org/urg-human-rights-council-reports/report-35th-sessionhuman-rights-council/.

163. Id.

164. Id. at 5.

165. Universal Rights Group, The Human Rights Council in 2017,supra note 132, at 41.

166. Id. at 41.

167. Universal Rights Group, Report on the 35th Session, supra note 162, at 6.

168. Universal Rights Group, Report on the 36th Session of the Human Rights Council 3 (2 Oct. 2017), https://www.universal-rights.org/urg-human-rights-council-reports/report-36thsession-human-rights-council/.

169. Id. at 7.

170. It was interesting to note that among the Sub-Saharan African States only Burundi, Congo, Ghana, and South Africa rejected the EU led resolution, while Côte d'Ivoire, Ethiopia, Kenya, Nigeria, and Togo abstained and Botswana supported the text.

171. Report of the Human Rights Council on its Thirty-sixth Session, 11–29 Sept. 2017, U.N. GAOR, Hum. Rts. Comm,. 36th Sess., U.N. Doc. A/HRC/36/2 (14 June 2018), https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session36/Pages/36RegularSession.aspx.

172. Id. at 14–15.

173. Id. at 161.

174. Id at 167.

175. Id. at 37.

176. Id. at 54–63.

177. Universal Rights Group, The Human Rights Council in 2017,supra note 132, at 40.

178. Eckert, supra note 30, at 284–85.

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