development

www.pulp.up.ac.za

ISBN: 978-1-920538-84-2

Carol C Ngang Serges Djoyou Kamga Vusi Gumede

Pretoria University Law Press PULP

Perspectives on the right to development

The last couple of decades has not only witnessed an increased convergence between human rights and development but also a significant shift towards rights-based approaches to development, including especially responsiveness to the fact that development in itself is a human right guaranteed to be enjoyed by all peoples. This edited volume of peer-reviewed papers constitutes the first product resulting from the annual international conference series on the right to development, organised by the Centre for Human Rights, University of Pretoria, and the Thabo Mbeki African Leadership Institute at the University of South Africa. It explores the complex nature of the right to development from a diversified perspective, including from a conceptual, thematic, country and regional points of view. Conceived with the purpose to overshadow dominant economic growth approaches to development, the perspectives on the right to development articulated in this publication seek to locate the developmentalist discourse within the framework of accountability and people-centred development programming, necessitating appropriate policy formulation to ensure the constant improvement in human well-being. The book is written with the aim to reach out to researchers, academics, practitioners and policy makers who desire an in-depth understanding of the right to development as it applies universally.

PULP

right to Perspectives on the

development

Edited by

Carol C Ngang Serges Djoyou Kamga Vusi Gumede

Edited by

Carol C Ngang Serges Djoyou Kamga Vusi Gumede

2018

Perspectives on the right to development Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: Pinetown Printers, Durban To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 86 610 6668 [email protected] www.pulp.up.ac.za Cover: DN Ikpo, Centre for Human Rights, University of Pretoria

ISBN: 978-1-920538-84-2

© 2018

TABLE OF CONTENTS v vi viii

Acknowledgments Preface Contributors

1

Introduction: The right to development in broad perspective

1

Carol C Ngang, Serges Djoyou Kamga & Vusi Gumede

PART I: CONCEPTUAL PERSPECTIVES

2

‘Marianne’ – the symbol of freedom: A critical analysis in the light of the right to development

12

Clotaire Nengou Saah

3

The right to development under the African Charter: Is there an extraterritorial reach? 34 Romola Adeola

4

Access to justice as a mechanism for the enforcement of the right to development in Africa

47

Ebenezer Durojaye, Oluwafunmilola Adeniyi & Carol C Ngang

PART II: THEMATIC PERSPECTIVES

5

The impact of corruption on the right to development in Africa

6

The right to development: An African feminist view

70

Anzanilifuno Munyai & Avitus A Agbor

97

Rhoda Asikia Ige & Carol C Ngang

7

The right to sustainable development for women in Africa: A corollary of the right to peace

120

Paidamwoyo Mukumbiri

8

Reflections on the right to development for indigenous peoples in Cameroon

138

Land and the right to development in Africa

161

Esther E Njieassam & MLM Mbao

9

Robert K Home

PART III: COUNTRY PERSPECTIVES

10

‘O Cameroon, though cradle of our fathers, … : Land of promise’ and the right to development Carol C Ngang & Serges Djoyou Kamga

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182

11

The right to development in Uganda: myth or reality?

203

Ginamia Melody Ngwatu

12

‘Towards a happy, prosperous and fulfilling life’: Recognising the right to development in the Zimbabwean Constitution

233

Implementing the right to development at the domestic level: A critique of the Zimbabwean Constitution of 2013

255

Kucaca Ivumile Phulu & Serges Djoyou Kamga

13

Khulekani Moyo

14

The right to development in Africa: Lessons from China

273

Phoebe Oyugi

PART IV: REGIONAL PERSPECTIVES

15

Critical reflections on the prospects and challenges of the right to development in the ASEAN human rights system

298

Bright Nkrumah

16

Imagining Caribbean development: The right to development and the reparations nexus

314

Ramona Biholar

17

Opportunities and challenges in the implementation of rights-based approaches to development: An overview of the right to development in Africa

346

Thandiwe Matthews & Kwanele Pakati

18

The right to development and poverty eradication in Africa

364

Hesphina Rukato

387

Bibliography

iv

ACKNOWLEDGMENTS This book is the product of the Conference on Regional Perspectives on the Right to Development that took place from 28 to 29 September 2017 at the Centre for Human Rights, University of Pretoria. The financial support of the Thabo Mbeki African Leadership Institute (TMALI), University of South Africa and the Centre for Human Rights, University of Pretoria in bringing together leading and emerging researchers to create the forum for discourse on the right to development, is greatly appreciated. We are thankful to all the participants who presented a paper at the conference and thus stimulated the debates, which we acknowledge, influenced in one way or another the few contributions that eventually got selected to constitute the chapters of this book. We are also particularly indebted to the anonymous peer-reviewers for their insightful comments and recommendations, which contributed enormously in the selection of the chapters for this book. Our gratitude also goes to the PULP Editors and administrative staff for their contribution in making this publication possible. Pretoria, South Africa October 2018

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PREFACE The Centre for Human Rights, University of Pretoria (Centre), proudly associates itself with this publication, which brings together the reworked versions of papers initially presented at the first International Conference on Regional Perspectives on the Right to Development. The papers were reworked in the light of comments by fellow participants, and subsequent comments by independent peer reviewers. This conference, which was coorganised by the Centre and the Thabo Mbeki African Leadership Institute, University of South Africa, took place in September 2017 at the Centre. A second conference with a similar focus was held in August 2018. The contributions in the book advance a human rights-based approach to development, and underscore that human rights and development are not mutually exclusive, but mutually reinforcing imperatives. We live in an era in which the human rights paradigm is increasingly being eclipsed by development-focused approaches. While the first five decades since the adoption of the Universal Declaration of Human Rights (1948 to 1998) have witnessed the growth and rise of human rights, the last two decades (1998 to 2018) have seen a definite shift towards framing those issues previously viewed through a human rights lens, as issues of development. ‘Development’ is one of most pervasive concepts of our time. Countries are ranked according to their levels of economic ‘development’, and categorised as ‘least developed’, ‘developing’ and ‘developed’ countries. ‘Human development’ is measured with reference to indicators such as health care, education and gender empowerment. Global aspirations for human progress were captured in terms of ‘development’, in the Millennium Development Goals (singed in 2000, with a target date of 2015), which later made room for the Sustainable Development Goals (adopted in 2015, with a set of transformative goals to be achieved by 2030). To improve the lot of human beings, it is necessary to both ensure their ‘development’ and the protection of their rights. Clearly, each of the developmental gaols serves to attain an underlying human right. However, the danger of focusing on development outside the human rights framework is that our collective obsession for programmatic and indicatorbased improvements shifts the focus from the foundational reality that those whose development is at stake and are made the subject of measurement are also rights holders, and that the state primarily responsible for this development are also duty bearers. Maintaining a human rights perspective locates the developmentalist discourse within the framework of accountability, thus allowing for the interpretation of the right to development on the basis of actual disputes, giving rise to possibilities of redress including adjustment of policies, practices and laws. One of the most important attributes of this collection of essays is that it aims to establish and interrogate the bridge between the discursive frameworks of development and human rights.

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This is an African book. Its editors and most of its contributors are prominent and emerging African scholars. It is no coincidence that the focus falls on Africa. The contributors write with an acute awareness that the topic is of crucial interest to the continent and its peoples. It is an African thinker, Keba M’baye, who elevated the right to development into a subject of scholarly debate, and it is in the regional human rights treaty of this continent (the African Charter on Human and Peoples’ Rights) that this right was first recognised as legally binding. It is the quasi-judicial body with the mandate to supervise state adherence to the Charter, the African Commission on Human and Peoples’ Rights, that became the first international tribunal to adjudicate on the right to development in a contentious case. The African Court on Human and Peoples’ Rights subsequently followed suit. It is published by an African-based publishing house (Pretoria University Law Press). This book is a landmark on an issue of global concern to which African voices have much to contribute towards informing and shaping global debates and discussions. Frans Viljoen Director; Centre for Human Rights, Faculty of Law, University of Pretoria

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CONTRIBUTORS Avitus A Agbor is a Research Professor at the Faculty of Law, NorthWest University. He holds a PhD from the University of the Witwatersrand, a Master of Laws (LLM) from the University of Notre Dame, USA and a Bachelor of Laws (LLB) from the University of Buea, Cameroon. Prior to becoming a Research Professor, he was a Senior Lecturer at the same institution. He has authored papers on international criminal law and international human rights law. Bright Nkrumah is a Postdoctoral Research Fellow to the NRF/British Academy Chair in Political Theory, Department of Political Studies, University of the Witwatersrand. He holds a DPhil and MPhil from the University of Pretoria and BA (Hons) from the University of Ghana. He served previously as a researcher at the South African Human Rights Commission. His research interests include constitutionalism, socioeconomic rights, peace and security, good governance, resistance, freedom and democratisation. Carol C Ngang is a Researcher at the Centre for Human Rights, University of Pretoria. He holds a Bachelor of Laws (LLB) from the University of Yaoundé II, Cameroon; a postgraduate Certificate in Sustainable Development and International Human Rights Law (SUSTLAW) from the University of Antwerp, Belgium; an International Diploma in Humanitarian Assistance (IDHA) from Fordham University, New York; a Master of Laws (LLM) and Doctor of Laws (LLD) both from the University of Pretoria. He has published in local and international journals. His research interests include human rights and development, with focus on the right to development and socio-economic rights. Clotaire Saah Nengou is Assistant Professor of Comparative Literature and Semiology. He teaches Applied Linguistics in the Department of Foreign Languages, Obafemi Awolowo University, Ifè, Nigeria. He has published numerous papers in reputable French, Francophone and English journals in the field of literary semiotics, symbolism and colour semiotics. The latest of his publications is: ‘Semiosis of Barack Obama: Black President in the Black House?’ published in New York. Ebenezer Durojaye is Associate Professor of Law and Head of SocioEconomic Rights Project at the Dullah Omar Institute, University of the Western Cape. His research interest includes socio-economic rights with focus on the rights to health, housing and food. He is one of the Independent Experts of the African Commission on Human and Peoples’ Rights for the Committee on the Protection of the Rights of People Living with HIV and those at Risk, Vulnerable to and Affected by HIV. Ginamia Melody Ngwatu is a Doctoral candidate at the Centre for Human Rights, University of Pretoria. She holds a Master of Laws (LLM) in Human Rights and Democratisation in Africa from the University of Pretoria and a Bachelor of Laws (LLB) from Makerere University. She is also a Principal Legal Officer at the Uganda Judicial Service Commission, a constitutional body that is mandated to recruit and discipline judicial

viii

officers and conduct education programmes on the law and the administration of justice. Ginamia has worked previously with the Uganda Human Rights Commission. Hesphina Rukato is a Development Consultant and Associate Lecturer on Good Governance in Africa at the Thabo Mbeki Leadership Institute, University of South Africa. She holds a PhD in Environmental Management Standards, University of Witwatersrand, MSc in Environmental Policy and Planning, and BSc (Hons) in Politics and Administration, University of Zimbabwe. She is a board member of Great Dyke Investments and National Parks and Wildlife Authority in Zimbabwe and a Technical Committee Member for the Tana Forum on Peace and Security in Africa. Hesphina Rukato worked as Deputy Chief of Staff in the Bureau of the AU Commission Chairperson from 2012-2014. She has previously also worked as a consultant to the AU Commission and the Institute of Peace and Security Studies. From 2005-2009 she worked with NEPAD as Deputy Chief Executive Officer prior to her role as Advisor on Environment and Tourism. She has worked for the South African Government as Director for the World Summit on Sustainable Development and also for the Zimbabwe Government and the NGO sector. Her expertise is in governance and development, politics and peace and security. Khulekani Moyo is a Senior Researcher at the Mandela Institute in the School of Law, University of the Witwatersrand. He obtained a Doctor of Laws (LLD) from Stellenbosch University, Master of Laws (LLM) from the University of Oslo, Norway and a Bachelor of Laws (LLB Hons) from the University of Zimbabwe. He also holds two diplomas in the International Protection of Human Rights and the Justiciability of Economic, Social and Cultural Rights from Åbo Akademi University, Finland. He has held the positions of Head of Research at the South African Human Rights Commission, Senior Lecturer at the Nelson Mandela School of Law, University of Fort Hare and Researcher at the Norwegian Centre for Human Rights. His research interests include international law, international human rights law; business and human rights; intellectual property law; international criminal law; constitutional law and regional integration law. Kucaca Ivumile Phulu is a Senior Partner at Phulu & Ncube Legal Practitioners and Chairperson of Abammeli, a human rights lawyer’s organisation based in Bulawayo, Zimbabwe. He holds a Master of Laws (LLM) from Midlands State University and a Masters in Development Studies from the National University of Science and Technology in Zimbabwe. Kucaca has also been the Chairman of civil society organisations in Zimbabwe, including the Zimbabwe Human Rights Association; Bulawayo Agenda, Elections Resource Centre (ERC) and a board member of Zimbabwe Lawyers from Human Rights and Radio Dialogue. Kwanele Pakati is a Research Advisor at the South African Human Rights Commission and a PhD candidate, specialising in International Law at the University of Johannesburg.

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MLM Mbao obtained a Bachelor of Laws (LLB) from the University of Zambia. He also holds an MPhil and Ph.D from Cambridge University, UK. He is currently a Professor of Public Law, Legal Philosophy and recently the Executive Dean of the Faculty of Law, North-West University, Mafikeng Campus. He has researched and published widely in the area of public law, including public international law and human Rights. His current research interests are in good governance and human rights. Munyai Anzanilufuno holds a Bachelor of Laws (LLB) from the University of Venda and a Master of Laws (LLM) from the North-West University, Mafikeng Campus. She is a doctoral student in public law and legal philosophy at North-West University. Her doctoral research entitled ‘Overcoming the corruption conundrum in Africa: A socio-legal perspective’, identifies the difficulties in the construction of a watertight definition of corruption, examines international and national anticorruption instruments, the need for political will and the role of foreign governments in the fight against corruption. Esther E Njieassam obtained a Bachelor of Laws (LLB) from the University of Buea, Cameroon, Master of Laws (LLM) and a PhD in Human Rights from the North-West University, Mafikeng Campus. She is currently a Post-doctoral Research Fellow at the South African Research Chair in International Law, University of Johannesburg. She has attended and presented papers at international and local conferences. Her research interests are in human rights, the protection of minorities, including children and women. Oluwafunmilola Adeniyi is a Doctoral Researcher with the SocioEconomic Rights Project at the Dullah Omar Institute, University of the Western Cape. She holds a Bachelor of Laws (LLB) from Ahmadu Bello University and a Master of Laws (LLM) from the University of the Western Cape. Her research explores the impact of trade policies on the right to food in developing countries. Her research interests are socio economic rights with particular interest in the right to food, women’s rights and access to justice. She coordinates the Access to Food for Students Project at the Dullah Omar Institute, a national project probing food insecurity and the gendered implications in South African tertiary institutions. Paidamwoyo Mukumbiri is a Lecturer in the Department of Public Law, Zimbabwe Ezekiel Guti University, Bindura. She holds a Bachelor of Laws (LLB) from the University of Zimbabwe, Masters of Laws (LLM) in Human Rights from the University of Pretoria and Master in Women’s Law from the University of Zimbabwe. She is currently a doctoral candidate at the Centre for Human Rights, University of Pretoria with research focus on women’s right to peace. She is also a registered legal practitioner. Paidamwoyo’s research and academic interests are in the areas of human’s rights, gender and the law. She has previously worked with Zimbabwe women lawyers Association. Phoebe Oyugi is a Kenyan Lawyer specialised in international law. She holds a Bachelor of Laws (LLB) from the University of Nairobi and Master of laws (LLM) from Rhodes University. She is currently pursuing her

x

doctoral studies at Stellenbosch University. She works as a consultant in the Defence team of Charles BléGoudé at the International Criminal Court. Ramona Biholar is a Lecturer at the Faculty of Law, University of the West Indies, Jamaica. She holds a PhD from the Netherlands Institute of Human Rights, Utrecht University School of Law. she engages with sociolegal research in the Caribbean region. Her research areas comprise international and Caribbean human rights law, implementation, policy practice, gender and the law and gender-based violence in Jamaica and the Caribbean. Ramona is author of the book Transforming Discriminatory Sex Roles and Gender Stereotyping: The Implementation of Article 5(a) of CEDAW for the Realisation of Women’s Right to be Free from Gender-Based Violence in Jamaica. Her journal article: ‘From women’s rights in the books to women’s rights as lived realities: Can the disconnect be mended?’ The Netherlands Journal for Human Rights 39(5) 2014 won the University of the West Indies Principal’s Research Award for the Best Research Publication for the Faculty of Law in 2015. Rhoda Asikia Ige is a Senior Lecturer-in-Law and Coordinator of the Master of International Law and Diplomacy Programme at the University of Lagos. She has held Visiting Scholar Fellowships at the University of British Columbia, Vancouver and McGill University, Montreal in Quebec, Canada. She is Editor of the Nigerian Journal of African Law and also Assistant Editor of the Nigerian Journal of International Law. She has published in peer reviewed journals as well as chapter contributions in books. Robert K Home has degrees in History (Cambridge), Geography (PhD, London) and Town Planning (Oxford, Brookes). He is Professor in Land Management at Anglia Ruskin University. His research publications in planning history and land management include Of planting and planning: The making of British colonial cities (2013), Essays in African Land Law and Case Studies in African Land Law (2012), and Demystifying The Mystery of Capital: Land Titling in Africa and the Caribbean (2004). He has made recent chapter contributions to the Routledge Handbook of Planning History, Historical Perspectives on Squatting, Oxford History of the British Empire: Architecture and Urbanism, Urban Planning in Sub-Saharan Africa, and Routledge Handbook on Cities of the Global South. Romola Adeola is a Postdoctoral Fellow at the Centre for Human Rights, University of Pretoria. She has a Doctorate in Law (LLD) and Master of Laws Cum Laude (LLM) from the University of Pretoria. She was previously a Steinberg Fellow in International Migration Law and Policy at McGill University, Montreal, Canada and teaches international law and policy in relation to development and migration. Serges Djoyou Kamga holds a Doctor of Laws (LLD) from the Centre for Human Rights, University of Pretoria and is currently Associate Professor at the Thabo Mbeki African Leadership Institute (TMALI), UNISA. He previously worked as a Researcher at the Centre for Human Rights, University of Pretoria, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg. He is a member of the Cross-Cultural Human

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Rights Centre, a consortium of one European University, ten Chinese and four African universities aimed at bringing Southern concepts and ideas in the area of human rights to Northern audiences. His areas of interest include leadership and African renaissance, development and human rights, human rights from a cross-cultural perspective, and disability rights. He is also co-editor of the African Disability Rights Yearbook. Thandiwe Matthews is an Attorney and Senior Researcher on Civil and Political Rights at the South African Human Rights Commission. She is also a Research Fellow at the University of the Witwatersrand’s School of Law. She holds a Masters in Development Studies from the International Institute of Social Studies from the Erasmus University, Rotterdam. Vusi Gumede is the Head of the Thabo African Leadership Institute (TMALI). He has published two books and is editor/co-editor of 9 volumes and has authored numerous articles in accredited journals in addition to many book chapters and many other publications. He is, among other things, Editor-in-Chief of two academic journals and is on the Editorial Boards of five journals. He has also been guest editor for two internationally recognised Journals.

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CHAPTER

1

INTRODUCTION: THE RIGHT TO DEVELOPMENT IN BROAD PERSPECTIVE

Carol C Ngang,* Serges Djoyou Kamga** and Vusi Gumede***

1

General perception

The need to address concerns relating to human rights and development has for several decades remained topical in both academia and political discourses and, in essence, has eventually crystallised into the recognition that development in itself is a human right.1 In contrast to the orthodox understanding of human rights as basically individualistic in nature, the right to development is attributed a composite definition as an entitlement that can legitimately be claimed by individuals or by a collective of persons. However, because the right to development originated in developing countries,2 it has met with misgiving and cautious acceptance by developed countries over the question of whether there is a human right to development. Thus, despite the reasoning that necessitated the birth of the right to development, the ensuing politicised controversy with regard to its legal nature and conceptual clarity as a human right has inhibited its implementation. Despite recognising at the World Conference on Human Rights in Vienna in 1993 that the right to development is a universal and inalienable human right, on the basis of which some scholars argue that it is the most

* ** *** 1 2

Researcher, Centre for Human Rights, University of Pretoria, South Africa; [email protected] or [email protected] Associate Professor of Law, Thabo Mbeki African Leadership Institute (TMALI), UNISA; [email protected]. This chapter is based on the research supported in part by the National Research Foundation of South Africa (Grant Number 109395). Professor, Head of the Thabo Mbeki African Leadership Institute (TMALI), UNISA; [email protected] SP Marks ‘The human rights framework for development: Seven approaches’ (2003) François-Xavier Bagnoud Centre for Health and Human Rights 12. CC Ngang ‘Towards a right-to-development governance in Africa’ (2018) 17(1) Journal of Human Rights 111; F Ouguergouz The African Charter on Human and Peoples’ Rights: A comprehensive agenda for human dignity and sustainable democracy in Africa (2003) 41. 1

2

Chapter 1

important of all human rights,3 a host of other scholars see the right to development rather as an unattainable illusion.4 While developing countries champion the cause on the right to development owing to its relevance in addressing the development injustices resulting from the imbalances generated by the global system, most Western industrialised countries remain reticent in acknowledging that developing countries are entitled to such a right under international law.5 By implication, the right to development has only attained the status of soft law at the global level and, therefore, remains largely unenforceable. Meanwhile, at the African regional level and in a number of domestic jurisdictions, the right to development has not only gained recognition and protection, but has also successfully been enforced through litigation.6 The divergences indicated above could be attributed to the lack of a common understanding of the right to development. As broad and complex as the concept of development is, the notion of the right to development also does not respond to and cannot be attributed a harmonised or universally-acceptable definition.7 Accordingly, it is argued that to ascribe a unique definition to the right to development is theoretically not possible and pragmatically not necessary, as its 3

4

5 6

7

A Sengupta ‘The human right to development’ (2004) 32(2) Oxford Development Studies 179-203; A Sengupta ‘On the theory and practice of the right to development’ (2002) 24(4) Human Rights Quarterly 837-889; SP Marks ‘Obligations to implement the right to development: Political, legal and philosophical rationales’ in BA Andreassen & SP Marks (eds) Development as a human right: Legal, political and economic dimensions (2006) 59-80; SP Marks ‘A legal perspective on the evolving criteria of the HLTF on the right to development in commentary’ in SP Marks (ed) Implementing the right to development: The role of international law (2008) 72-83; D Rukare ‘The role of development assistance in the promotion and protection of human rights in Uganda’ LLD thesis, University of Pretoria, 2011. J Donnelly ‘The right to development: How not to link human rights and development’ in CE Welch Jr & RI Meltzer (eds) Human rights and development in Africa (1984) 261-283; A Vandenbogaerde ‘The right to development in international human rights law: A call for its dissolution’ (2013) 31(2) Netherlands Quarterly of Human Rights 187-209; J Whyte ‘Book review: Development as a human right edited by Bard A Andreassen and Stephen P Marks, Harvard University Press, London England, 2006’ (2007) 1(1) The Electronic Journal of Sustainable Development 47-49. CC Ngang ‘Differentiated responsibilities under international law and the right to development paradigm for developing countries’ (2017) 11(2) Human Rights & International Legal Discourse 265-288. African Charter on Human and Peoples’ Rights adopted in Nairobi on 27 June 1981, art 22; African Youth Charter adopted in Banjul, The Gambia on 2 July 2006, art 10; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa adopted in Maputo, Mozambique on 11 July 2003, art 19; Constitution of the Democratic Republic of the Congo (DRC) 1996, art 58; Constitution of the Federal Republic of Ethiopia 1994, art 43; Constitution of the Republic of Benin 1990, art 7; Constitution of the Republic of Malawi 1994, art 30; African Commission on Human and Peoples’ Rights (Ogiek Community) v Republic of Kenya (2017) Appl 006/2017, paras 201-217; Centre for Minority Rights Development (Kenya) & Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2009) AHRLR 75 (ACHPR 2009), paras 269-298; Democratic Republic of Congo v Burundi, Rwanda and Uganda (2009) AHRLR 9 (ACHPR 2009), para 95. AO Dąbrowska ‘Legal status of the right to development’ (2010) Haskoli Island University 6; CC Ngang ‘The right to development in Africa and the requirement of development cooperation for its realisation’ LLD thesis, University of Pretoria, 2017 50.

Introduction: The right to development in broad perspective 3

conceptual and practical dimensions can only be understood within a specific context.8 Notwithstanding the fact that most binding domestic, regional and international instruments are silent on the right to development, scholars have increasingly interpreted provisions of these instruments, among others, to justify the existence of the inalienable right to development.9 As this book will illustrate, owing to the fact that the right to development ultimately aims at achieving improved human well-being and better living standards, it has creatively been used to explain certain conceptual and thematic concerns and also how it applies as a development model with the transformative potential to redress systemic development injustices and structural imbalances.10

2

Commitment to make the right to development a reality

In adopting the Millennium Declaration in 2000, world leaders undertook the commitment to make the right to development a reality for everyone.11 Responding to the shifting global dynamics and aspirations for an equitable world order that is driven by the right to self-determination, respect for fundamental human rights and basic freedoms and the principles of equity and justice, global and regional framework agendas for development have consistently underscored the need to uphold the right to development for all the peoples of the world.12 Understood within the human rights framework to development, this would mean that the right to development ought to occupy central place in the combined effort to achieve development objectives simultaneously with the realisation of human rights. However, while commemorating 25 years since the adoption of the Declaration on the Right to Development, former United Nations (UN) High Commissioner for Human Rights, Navi Pillay, stated that the right to development is of the same ranking as other human rights.13 In reality

8 9

10

11

Ngang 2017 (n 7) 50. See A Ware ‘Human rights and the right to development: Insights into the Myanmar government’s response to rights allegations’ (2010) 18th Biennial Conference of the Asian Studies Association of Australia 3; F Kirchmeier ‘The right to development– Where do we stand?: State of the debate on the right to development’ (2006) Friedrich Ebert Stiftung – Occasional Paper 23 6-8; GM Johnson ‘The contributions of Eleanor and Franklin Roosevelt to the development of international protection for human rights’ (1987) 9(1) Human Rights Quarterly 36; P Alston ‘Making space for new human rights: The case of the right to development’ (1988) 1 Harvard Human Rights Yearbook 5-6. Ngang (n 2) 107-122; WP Nagan ‘The right to development: Importance of human and social capital as human rights issues’ (2013) 1(6) Cadmus Journal 30; UN Human Rights Realising the right to development (2013) 495; B Ibhawoh ‘The right to development: The politics and polemics of power and resistance’ (2011) 33 Human Rights Quarterly 103; NJ Udombana ‘The Third World and the right to development: Agenda for the next millennium’ (2000) 22(3) Human Rights Quarterly 762. UN Millennium Declaration Resolution A/55/L.2 adopted by the UN General Assembly on 8 September 2000, paras 11 & 24.

4

Chapter 1

this may not be the case, as the right to development has severally been portrayed to be unique both in nature and in what it aims to achieve, and there is evidence, as illustrated in chapter 13, of the advantage of prioritising the right to development as a composite of all other human rights. Theoretical guarantees suppose that the right to development has the potential to translate into practical assurances of freedom from want and from the fear of socio-economic deprivation.14 However, the prevailing reality is that initiatives intended to create development have often rather generated programmed poverty and systemic global inequalities that impede developing countries from advancing.15 In assessing the state of the debate on the right to development, Kirchmeier points out varied country positions with regard to recognition and modalities for implementation.16 It is worth noting that, in spite of the tepid acceptance of the right to development by developed countries following the adoption of the Declaration on the Right to Development and the Vienna Declaration and Programme of Action, the diverse perceptions have not changed much. It is within this framework of understanding of the multifaceted dimensions of the right to development that the chapters of this book are compiled, particularly envisaging concrete measures in translating the theoretical underpinnings into practical realities.

3

Overview of the book

The chapters in this volume are based on papers presented at the Conference on Regional Perspectives on the Right to Development organised in September 2017 by the Centre for Human Rights, University of Pretoria, and the Thabo Mbeki African Leadership Institute, University of South Africa. The conference presentations broadly focused on a range 12

13 14 15 16

Transforming our World: The 2030 Agenda for Sustainable Development Resolution A/RES/70/1 adopted by the UN General Assembly on 27 September 2015, para 10; Rio Declaration on Environment and Development adopted at the UN Conference on Environment and Development, Rio de Janeiro 3-14 June 1992, principle 3; Vienna Declaration and Programme of Action adopted by the UN World Conference on Human Rights UN Doc. A/CONF.157/24, 25 June 1993, para I(10); Report of the Meeting of Experts of the First Ministerial Conference on Human Rights in Africa, Kigali, Rwanda, 5-6 May 2003 EXP/CONF/HRA/RPT(II), para 42; Grand Bay Declaration and Plan of Action adopted by the First OAU Ministerial Conference on Human Rights held in Grand Bay, Mauritius, April 1999, para 2; Solemn Declaration on Gender Equality in Africa adopted by the AU Assembly of Heads of State and Government in Addis Ababa, Ethiopia, July 2004, para 6; African Charter on Democracy, Elections and Governance adopted in Addis Ababa, Ethiopia, on 30 January 2007, Preamble. UN Human Rights (n 10) iii-iv. UN Universal Declaration of Human Rights adopted by GA Res 217 A(III) 10 December 1948, Preamble. See I Illich ‘Development as planned poverty’ in M Rahnema & V Bawtree The postdevelopment reader (1997); A Melo ‘Is there a right to development?’ (2008) 1(2) Rizoma Freireano – Instituto Paulo Freire de España 3. Kirchmeier (n 9) 1-28.

Introduction: The right to development in broad perspective 5

of perspectives on the right to development, necessitating the structuring of this volume into four main parts which, however, do not exhaustively explore the composite nature and multifaceted dimension of the right to development

3.1

Part one: Conceptual perspectives

The first part of the book highlights some conceptual viewpoints that broadly emphasise the nature of the right to development and what its realisation entails. Saah examines the issue of recognition of the right to development from a philosophical point of the view. He uses the symbolism of ‘Marianne’ – the iconic embodiment of universal freedom from fear and from want – to analyse the right to development, particularly with regard to its non-recognition by many advanced democratic societies of the West that espouse the universality of human rights. Associating ‘Marianne’ to the freedom from want, which he describes as the legal conception of the fight against poverty that is at the centre of the right to development, Saah draws attention to the double standards of the West where the human rights architecture unjustifiably rejects the right to development. He argues that the distorted symbolism and/or iconic sign deviation from ‘Marianne’ could be rectified if the right to development is acknowledged to encompass the entire concept of freedom from want and poverty eradication, particularly in Africa. Obtaining from the foregoing is the question about states’ extraterritorial obligations on the right to development that informs the discussion in chapter 2. Focusing on the African Charter on Human and Peoples’ Rights (African Charter), particularly within the context of article 22, Adeola explores in chapter 2 the question whether the article 22 provision on the right to development under the African Charter applies extraterritorially. She makes the point that as the only binding treaty that explicitly provides for the right to development, the African Charter takes a significant stride towards recognising development as a binding obligation on African states. In effect, article 22 mandates state parties to either individually or collectively ensure that the right to economic, social and cultural development is achieved. Read together with article 1, state parties are obligated to take appropriate legislative and other measures to ensure that the right to development is adequately guaranteed and fulfilled within their jurisdictions. She conclusively highlights the fact that the extraterritorial reach of article 22(2) of the African Charter implies a duty on state parties to assist in the realisation of the right to development beyond their national territories which, because of the financial constraints involved, necessitates guidance on funding development assistance within the context of article 22(2).

6

Chapter 1

With the understanding that the right to development has attained the status of positive law in Africa, which means that it can be claimed through the courts and/or other judicial processes, Durojaye, Adeniyi and Ngang explore the element of access to justice as a mechanism for its enforcement, especially for the vulnerable, the marginalised and disadvantaged whom the right to development is actually intended to protect. They contextualise access to justice to imply not only the act of asserting claims through litigation, but also having assurance of equal access to the opportunities that entitle all peoples to essential needs for survival and the conversion of such needs into legitimate demands, which ought to be enjoyed collectively as a human right. They argue that within the developmental context in Africa, the emphasis on access to justice need not be seen only in terms of complying with legal procedural requirements but, more importantly, in advancing the right to development, which embodies the notion of equity and fairness as well as participatory and redistributive justice.

3.2

Part two: Thematic perspectives

Redistributive justice as conceptualised in article 2(3) of the Declaration on the Right to Development entails the duty to formulate appropriate development policies aimed at the constant improvement in human wellbeing, including through the fair distribution of the benefits resulting from the development process. To achieve this purpose requires addressing various thematic issues relating to the realisation of the right to development, some of which are dealt with in the second part of this book, consisting of five contributions that focus severally on corruption, women, the right to peace, indigenous peoples and land. The contribution by Munyai and Agbor examines the impact of corruption on the right to development in Africa. The authors reiterate the fact that corruption has a negative impact on socio-economic and political development; good governance; the rule of law; and respect for and promotion of human rights, including the right to development. Even though no society is immune to or free from corruption, they argue that Africa’s endemic corruption in defiance of anti-corruption measures and the range of instruments and institutions intended to combat corruption; the ill continues to thrive, adversely impacting on the right to development guaranteed to the peoples of Africa. They contend that unless the numerous anti-corruption initiatives are complemented by credible political will, the right to development will have no meaningful effect on the well-being and standard of living of the peoples of Africa. Drawing from the conviction stated in the Preamble to the African Charter that ‘it is henceforth essential to pay particular attention to the right to development’, Ige and Ngang direct their enquiry from an African feminist point of view, to determine how the right to development applies

Introduction: The right to development in broad perspective 7

to the women of Africa. Contrary to chauvinistic perceptions by which African women are generally perceived as vulnerable sexual objects, African feminism portrays the women of Africa as human beings with productive capabilities. Other than the African Charter, Ige and Ngang reiterate the fact that the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol) guarantees to the women of Africa the right to sustainable development. To this end, they advance the argument that African women need to become more assertive to ensure that the right to sustainable development to which they are entitled is achieved. Mukumbiri proceeds to look at the right to sustainable development for women in Africa, which she explains is closely linked to the right to peace. She points out that although the connection between the right to development and the right to peace has been emphasised in international and regional human rights instruments, their recognition at the global level remains contentious. She observes that both the right to peace and the right to development are guaranteed by the African Charter and the African Women’s Protocol. Accordingly, she points out that women’s participation constitutes a vital determining factor by which they are entitled to determine the implementation of the right to peace as a prerequisite for the realisation of the right to sustainable development. Njieassam and Mbao highlight the human rights situation of the indigenous peoples of Cameroon, focusing particularly on their right to development on account of their entitlement to special protection under international law on the basis of their vulnerability, social exclusion and marginalisation from mainstream society. The indigenous Pygmy and Mbororo communities in Cameroon are shown to face existential challenges, including marginalisation, environmental degradation and underdevelopment resulting from the encroaching activities of dominant cultures, which systematically deprive the indigenous peoples of their cultures and lifestyle. Njieassam and Mbao point out that despite the range of legal guarantees, the application of the right to development to the indigenous peoples of Cameroon remains a pipedream, as government policies tend to undermine and ignore their rights and interests in the execution of developmental projects in their territories. The Declaration on the Right to Development stipulates in article 1(2) that the human right to development implies the full realisation of the right to self-determination, which includes the inalienable right to full sovereignty over natural wealth and resources. The African Charter also stipulates in article 22(1) that the right to development entails the ‘equal enjoyment of the common heritage of mankind’. In the chapter on land and the right to development in Africa, Home notes that although land is not mentioned in the Declaration or in the African Charter, it constitutes an essential component (being an integral part of what is referred to as natural wealth and the common heritage) that is central to the realisation

8

Chapter 1

of the right to development. Because the right to development provides the policy tool by which to hold states accountable, Home posits that for Africa, the achievement of sustainable growth and development largely depends on how land is secured, used and managed, requiring appropriate land laws and policies that bring tangible benefits to the peoples.

3.3

Part three: Country perspectives

In accordance with human right standards, the right to development imposes an obligation on states to ensure its realisation. The enquiries in the third part of the book spotlight the extent of implementation of the right to development in Cameroon, Uganda, Zimbabwe and China. Ngang and Kamga’s enquiry on Cameroon’s commitments on the right to development is made against the backdrop of extensive human rights abuses and an unacceptably low ranking on the human development index, despite being the pioneer country to officially enshrine the right to development in the national Constitution. With clarification on what it entails for Cameroon to fulfil the right to development at the domestic level, they identify four interconnected factors related to the government’s failure to create the conditions for effective implementation. Without assurance that the right to development can be achieved through policy reforms, they point out that the peoples of Cameroon are left with the only alternative remedy to resort to radical activism on the basis of the right to self-determination as a legitimate means to claim the constitutional right to development. Ngwatu interrogates Uganda’s commitments and the extent to which it guarantees the enjoyment of the right to development, which she says is still couched in the controversy as to whether the right to development indeed is a human right. In spite of impediments, characterised by the futile development-related campaign promises that the government has spun around in the past 30 years to stay in power, Ngwatu notes that the push for the realisation of the right to development in Uganda has been persistent, especially with regard to the commitments that the state has undertaken by being party to various international human rights instruments and also by formulating national development policies, necessitating effective implementation. She concludes with propositions on how the right to development could be achieved in Uganda. In seeking to determine how and to what extent the right to development applies in Zimbabwe, Phulu and Kamga highlight the fact that domestic courts have a constitutional power to recognise other rights that are not enshrined in the Constitution. They point out that although the notion of development is interspersed throughout the Constitution, there is no specific reference to a right to development, which is a stand-alone right under the African Charter that Zimbabwe has ratified. Drawing from

Introduction: The right to development in broad perspective 9

the nature and constituent elements of the right to development as formulated in the African Charter and interpreted in the Endorois case, they make the argument that the right to development is established and protected in section 13 of the Zimbabwean Constitution as read with other sections and, accordingly, can be claimed as a justiciable entitlement. In another account on Zimbabwe, Moyo equally explores article 13 of the Zimbabwean Constitution of 2013, which he says is one of the few African constitutions that explicitly enshrines the right to development. His analysis focuses on the content of the right to development and the internal dimensions of its implementation both at the interstate (internal) and the intra-state (external) levels. In making this determination, he begins by providing an overview of the long-standing debate on the right to development, which is followed by a discussion and evaluation of its components, especially with regard to the specific constitutional entitlements under the 2013 Constitution of Zimbabwe and the challenges relating to their implementation. Oyugi draws inspiration from the Chinese experience to assess Africa’s commitment to the right to development. She illustrates how by prioritising the right to development, China has been able to uplift 700 million of its people from poverty. Oyugi reiterates the recommendation by the UN Deputy-Secretary-General for Economic and Social Affairs for other countries to learn from China’s gains on the right to development. She points out that although Africa has been at the forefront on the right to development, unlike China, the African continent continues to grapple with poverty and underdevelopment and is home to some of the poorest countries in the world. She concludes that to advance the right to development in Africa, African countries need to conduct a microscopic and detailed analysis of the Chinese development model that prioritises the right to development.

3.4

Part four: Regional perspectives

The contributions in the third part examine what the realisation of the right to development entails within the regional frameworks of the Association of Southeast Asian Nations (ASEAN), the Caribbean and Africa. Nkrumah draws attention to the fact that although guaranteed protection under international law, hundreds of millions of people in the Southeast Asian region are faced with poverty and a lack of access to basic socio-economic rights. Despite adopting a declaration on human rights, which recognises the right to development as an inalienable right of the ASEAN people, ASEAN member states have failed to adopt effective development policies to alleviate poverty. Nkrumah’s contribution reviews the prospects of guaranteeing legal protection of the right to development and discusses the challenges surrounding its operationalisation in the

10

Chapter 1

ASEAN human rights system. With the understanding that the right to development is only provided for in the ASEAN region in the form of soft law, and that the ASEAN Inter-Governmental Commission on Human Rights has a propensity towards the promotion rather than the protection of human rights, Nkrumah explores ways of ensuring its enforcement in the ASEAN region. The Inter-American human rights system is portrayed to be limited in its conceptualisation of the right to development. Focusing on the Caribbean, Biholar’s contribution shows ‘that the right to development is not conceptualised in the CARICOM instruments of the Caribbean region’. She notes that while claims for reparation (encompassing elements of the right to development) for historical injustices are current in Caribbean development discourses, the region is silent on the value of a human right to development to achieve that purpose. She makes the argument that because Caribbean history is deeply rooted in oppression, brutality and the denial of rights, the link between development and reparation for those injustices must be established, with the right to development as the connecting factor. On this account, her contribution centres on the reparatory justice nature of the right to development, which she argues needs to be guaranteed legal recognition and protection. In unpacking the nuances and contradictions generated by the debate on the right to development, Matthews and Pakati illustrate how the right to development, seen both as a human right concept and a development paradigm, could fast-track its implementation in Africa. They point out that a development agenda that does not prioritise the human rights principles of equity, non-discrimination, accountability and transparency is of little value when the outcomes thereof do not result in a society that promotes and protects human dignity. In relation to the global and regional commitments undertaken by African states, they argue that the implementation of the right to development constitutes a necessary first step in the allocation of resources and the crafting of appropriate national development policies necessary for advancing economic, social and cultural rights in the pursuit of human development. From a pragmatic and policy point of view, Rukato examines the right to development in relation to poverty eradication in Africa. Her perception of the right to development is that it imposes a responsibility on states to create development, rather than the attribution of historical victims, whereby the responsibility to develop is envisaged to be borne by the perpetrators of past wrongs. Against the backdrop of the challenges that hinder the realisation of the right to development, Rukato explores the opportunities that present and makes recommendations on practical measures for asserting the right to development as a response and remedy mechanism to poverty eradication as well as socio-economic and cultural development in Africa.

PART I: CONCEPTUAL PERSPECTIVES

CHAPTER

2

‘MARIANNE’ – THE SYMBOL OF FREEDOM: A CRITICAL ANALYSIS IN LIGHT OF THE RIGHT TO DEVELOPMENT IN AFRICA

Clotaire Nengou Saah*

1

Introduction

Matters of law and conscience are related but distinct. Matters of law generally are obtained in statutes, rules, treaties and conventions, whereas matters of conscience are discernible through scrutiny of mind, heart and soul as manifested in performance, and they concern arts, poetry and philosophy. Matters of law and conscience meet in the area of action, enforcement, realisation and impact in true life. This third dimension brings applause in verbal, written or artistic expression. The images of ‘Marianne’, the Statue of Liberty and the French Revolution belong to this dimension. The artistic expression of the image of ‘Marianne’ captures an attempt to reconcile law and conscience. ‘Marianne’ is an allegorical personification, whose bust is the embodiment of the French Republic. As a matter of fact, the rights of man’s principles of ‘freedom and fraternity’ (the platform on which the French people built their revolution 200 years ago) were enforced in France and also by its European and American counterparts. As a matter of fact, from its inception the symbolism of ‘Marianne’ should be universal and should stand for dialogue around the concept of freedom. However, the West that fought to free its peoples from tyranny and paradoxically want hate to see other men break the shackles of slavery and come out of the vicious circle of poverty. Consequently, Western rhetoric deceptively projects ‘Marianne’ as a universal icon of freedom for all men. The liberté, fraternité concepts have strangely been alienated in the course of France’s cooperation with its ex-colonies in Africa. Thus, ‘Marianne’, the icon and universal symbol of liberty, was a blessing that brought about other rights, which later on inspired vigilant minds that have conceived what is known as ‘third generation rights’, which includes the right to development (RTD).

*

Assistant Professor, [email protected]

Obafemi

Awolowo

12

University,

Ifè,

Nigeria;

‘Marianne’ – the symbol of freedom

13

Freedom from want is at the core of the right to development (RTD) and ‘it is an added value’ to the human rights framework, forming part of the ‘third generation of human rights or solidarity rights’, which calls for a collective responsibility in fighting poverty, for the realisation of Human Rights the world over.1 Yet, the RTD at the core of controversies is almost rejected, termed as ‘speculative discourse’ or ‘substantial indeterminacy’ by the same Western rationalistic and Cartesian nations that had praised the Marianne allegory. A concrete illustration of this double standard, on the one hand, is the adoption of the United Nations Declaration on the Right to Development (UN Declaration) that has been acclaimed like a universal hymn, and on the other hand is the ‘silencing’ of the RTD, which increasingly is forced to disappear from the human rights architecture. Despite poverty being real and articulated through demands for improved well-being embodied in the concept of the RTD, alienating this claim implies a denial that poverty exists, although actually it did fuel the French Revolution and set the pace for the current human rights discourse. We recall that the eighteenth century French statue of the revolution, Marianne, all along has been deemed to represent the universal principles of liberty, equality and fraternity, the mottos and slogans of the French Revolution. Many of us from other worlds do not fully accept these assumptions. A country that has long engaged in colonisation, exploitation and manipulation of the human and material resources of other lands embodies a negation of her own ideals symbolised by Marianne. If such ideals are vigorous pursuits for her, but are negative in her practices by the same nation in her dealings with Africa, for us it is a matter of conscience and bad fate, which makes us the victims, not only for our sufferings but also for our pity of the self-contradicting and negating country, exploiting our own lands and people. It is that deconstruction of the French Marianne statue that is the purpose and pursuit of this chapter concerning the RTD in Africa that has so long been denied, from colonial times. The argument is to unravel the hidden meanings of the concept of Marianne, an epitome of the French Revolution, which truly no longer appears to be a universal symbol. If human rights are universal, meaning they are a derivative of Marianne from which first generation rights were born, then it is fitting to

1

W Vandenhole ‘The human right to development as a paradox’ (2003) 36(3) Verfassung und Recht in Obersee 378. For further discussion about normative validity of the RTD, see eg J Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15(3) California Western International Law Journal 473-509 (rejecting the existence of the RTD); for a response to Donnelly, see P Alston ‘The shortcomings of a “Garfield the Cat” approach to the RTD’ (1985) 15(3) California Western International Law Journal 510-518. See also NG Villaroman ‘Rescuing a troubled concept: An alternative view to the right to development’ (2011) 29(1) Netherland Quarterly of Human Rights 13-53.

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Chapter 2

interrogate how the RTD differs from first generation rights, in such a way that it should be perceived by the custodians of ‘Marianne’ with as much derision. How can the notion of the universality of human rights and fundamental freedoms be fully realised in the midst of extreme economic, social, cultural and political underdevelopment? To what extent does Marianne capture the concept of freedom from want and how does the same Marianne become an iconic sign deviation? After centuries of celebrating universal freedom from fear (which is yet to be universal), poverty remains, stubborn, redundant, vicious, harsher and unpredictable like a frightening monster with many heads. To what extent does the Marianne ideology or symbol address poverty and underdevelopment in Africa, acknowledging that development is a human right? How can the wealthy advanced countries of the West understand development as a human right when they continuously interfere in and undermine other people’s rights to prosperity? Without sufficient answers to these questions, Marianne and the ideology they have erected around it look like an anachronism in the path to the realisation of the RTD. How can this trend be reversed for the RTD to be fully justiciable?

2

Development and human rights

2.1

Multifaceted concept of development

The definition of constituent words permits us to ask questions about the multifarious concept of ‘development’. Development is seen as an activity, an action or alteration that changes the underdeveloped into the developed:2 It refers to the quantitative and qualitative exchange in an economy where such actions can involve multiple areas including development of human capital, critical infrastructures, regional competiveness, environmental sustainability, social inclusion, health safety, literacy and other initiatives.

Development is perceived in an economic perspective as: a process that has many sides including economic, social, political and educational advancement. Most times, this concept is used in an economic perspective because the type of economy under scrutiny is an indication for other social features.3

Development is also health-wise:

2 3

HH Dang ‘Ending poverty: Organization for Economic Co-operation and Development’ (2013) Development and Co-operation Report. MP Todaro ‘Development is economic’ (1997) 3(6) Research Journali’s Journal of Economics.

‘Marianne’ – the symbol of freedom

15

Health and education have been given prime place as welfare indicates … good health and longevity are valuable outputs of life … Economic development can be looked at by essentially focusing on equitable distribution of health.4

The concept of human development has been broadened to include attitudinal change (absence of corruption), access to basic infrastructures and, in addition, per capita income measurement. In relation, a ‘developing country’ is defined as a country that is not economically or politically advanced as compared to industrialised countries, which has meant conceptualising the concept of development in stages.5

2.2

Sustainability

There is no serious development without sustainability. Sustainability has become the central focus in development studies. Development without sustainability is an empty concept. In respect of sustainable development, Ismael and Rosemary write:6 Sustainability echoes notes of equity in environmental resources utilization. The concept is diverse in application and meaning, depending on the orientation and profession framework used. The origin of sustainability concept is traced to the Club of Rome report titled ‘Limits to Growth’ published in the early 1970s.

They further note the following:7 Sustainability is development of present generation, without mortgaging the future generation (Declaration of the United Nations Conference on Human environment, 1972). Both natural and rational variables must be brought into our development thinking; economic growth, ecological quality and human rights must agree.

4 5

6

7

I Ogburu Readings in economic development and planning (2006). The conceptualisation of development is (1) an economic and political concept, which at the very start in the 1940s, referred mainly to ‘poor’ or ‘backward’ countries. (2) In the 1950s, the term ‘less developed countries’ was frequently used. (3) Currently, the term ‘developing countries’ is commonly used. See Paper for African Development Report: Structural Transformation and Natural Resources (2013) http://www. africaneconomicoutlook.org/ (accessed 12 July 2017). O Ismael & A Rosemary ‘Environmental degradation and sustainable economic development in Nigeria: A theoretical approach’ (2015) 3(6) Research journali’s Journal of Economics 5. At the Club of Rome, three specific areas were covered: (i) the maintenance of ecological processes; (ii) the sustainable use of ecological processes; and (iii) the maintenance of genetic diversity. Very little attention was paid to the economic dimension of the concept. Ismael & Rosemary (n 6) 6.

16

2.3

Chapter 2

From rights of man to human rights

Human rights are the ‘freedoms, immunities and benefits that according to modern values (at an international level) all human beings should be able to claim as a matter of right in the society in which they live’.8 The Universal Declaration of Human Rights (Universal Declaration) is an international bill of rights which the UN General Assembly in 1948 adopted and proclaimed in a set of 30 articles. An overview of the RTD shows that the right was first recognised in 1981 in article 22 of the African Charter on Human and Peoples’ Rights (African Charter) as a definitive individual and collective right.9 The RTD was subsequently proclaimed by the UN in 1986 in the UN Declaration.10 According to the African Charter, the RTD is a group right pertaining to peoples as opposed to the predominantly individual nature characterised by human rights. The 1993 Vienna Declaration and Programme of Action reaffirmed that the RTD indeed is a human right which, however, pertains to both individuals and peoples, as stated in article I(10).11 How can human rights and fundamental freedoms ideally and fully be realised in the context of economic, social, cultural and political development? Theoretically, the ground-breaking UN Declaration states that ‘development is a right that belongs to everyone’.12 Drawing from the provisions of the UN Declaration, Sengupta describes the RTD as a vector of all the component rights, where the vector is human rights and the

8

9

10 11

12

The Rights of Man is a declaration of fundamental human rights drafted during the French Revolution and embodied in all constitutions of the French Republic up to 1848. This document was a forerunner to the UN Universal Declaration of Human Rights adopted by the General Assembly on 10 December 1948. Art 22(1) of the African Charter provides: ‘All people shall have the rights to their economic, social and cultural development with due regard to their freedom and identity and the equal enjoyment of the common heritage of mankind.’ The Universal Declaration, the first instrument to enshrine human rights and fundamental freedoms, states in the Preamble that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Declaration on the Right to Development adopted by the UN General Assembly Resolution 41/128 on 4 December 1986. Vienna Declaration and Programme of Action adopted by the UN World Conference on Human Rights UN Doc A/CONF.157/24, 25 June 1993 para I(10). ‘The world Conference on Human Rights reaffirms the RTD as established to their freedom and identity and the equal enjoyment of the common heritage of mankind as a universal and inalienable right and an integral part of fundamental human rights. As stated in the Declaration on the Rights to Development, the human person is the central subject of development. States should cooperate with each other in ensuring development and eliminating obstacles to development. The international community should promote an effective international cooperation for the realization of the RTD and the elimination of obstacles to development.’ UN Millennium Declaration Resolution A/55/L.2 adopted by the UN General Assembly on 8 September 2000. The Declaration states: ‘We, Heads of States and Governments are committed to making the right to development a reality for everyone and to freeing the entire human race from want.’

‘Marianne’ – the symbol of freedom

17

equation is improvement in all other human rights vectors.13 Human rights are an interdependent chain, indivisible and mutually reinforcing. For example, the right to water reinforces the improvement of the right to health, while the right to freedom of speech complements the right to freedom of the press, and so forth. Accordingly, everyone is ‘entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised’.14 The RTD is conceived as a human right in the sense that, like all human rights, it belongs to everyone individually and collectively, without discrimination and with their participation. The UN Declaration puts people at the core of the development process. The pursuit of economic growth is portrayed as a means to achieve development, and people are at the centre of the development process, with the end goal of reaping the benefits of development to ensure improved well-being. The development process must aim to improve the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation and in the fair distribution of the resulting benefits. The RTD also recognises the right to self-determination and full sovereignty over natural wealth and resources. There are numerous contemporary challenges which the RTD is envisaged to address. These challenges include the widening poverty gap; food shortages; economic crises; armed conflicts; rising unemployment rates; health challenges; and environmental pollution. Other contemporary challenges concern the legal framework relating to the controversies as to whether the RTD at all is a right. The meaning of the RTD has been elaborated in a wide range of sources. According to Villaroman, the RTD is an ‘informal or a speculative discourse’, still in ‘murky waters not cast in an international legally binding document’ and, consequently, still not justiciable at the international level.15 The controversy surrounding the RTD draws from the lack of clarity about the concept, particularly because states fail to agree on a common conceptual framework. Consequently, there is a type of ‘normative indeterminacy’ of the RTD, and scholars disagree on its function and its lack of clarity. In the author’s humble view, this cloudy state results from a misinterpretation and misappropriation of the allegory of Marianne. Yet, the RTD, which embodies the human rights principles of equality, non-discrimination, participation, transparency and accountability as well as international cooperation, can theoretically guide our response to a series of real

13 14 15

A Sengupta ‘The human right to development’ (2004) 32(2) Oxford Development Studies 182-183. Declaration on the Right to Development (n 10). Villaroman (n 1) 299-332.

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Chapter 2

contemporary issues and challenges. It needs to be emphasised that the RTD does not concern charity but rather enablement and empowerment. The UN Declaration identifies obstacles to development, empowers individuals and peoples, and calls for an enabling environment at the national and international levels. While these theories are good, they need to be practicalised; one reason why former UN High Commissioner, Navi Pillay,16 called on governments and all concerned to seize the opportunity to move beyond political debates, controversy and to focus on practical steps to implement the Declaration.17

2.4

Hurdles on the road to implementing the right to development

The commemoration of the twenty-fifth anniversary of the UN Declaration in 2011 ‘was done amidst reigning uncertainty over the contents and the scope of the right’, as Donnelly puts it.18 Because the RTD was born out of decolonisation, considering its history, the challenges in the implementation and consolidation of the RTD in a legally-binding document of course is due to is highly-politicised nature. From the outset, the Cold War slowed down the implementation of the RTD, and the north-south tensions surrounding the conceptualisation of human rights were overtaken by the east-west Cold War tensions. The polarisation between states that found economic, social and cultural rights non-binding and those that found these rights legally binding or justiciable caused an effective standstill in international relations, and also made deliberations on the RTD impossible. While Western states were not eager to recognise the RTD, Eastern European countries provided political support to developing states in their struggle for the recognition of the RTD. Such support was founded on the idea that centrally-planned socialism was the only way to secure the enjoyment of economic, social and cultural rights. Nevertheless, many children, women and men, the very subjects of development, still live in need of the fulfilment of their entitlement to a life of dignity, freedom and equal opportunity. This directly affects the realisation of the RTD and the wide range of civil, political, economic, social and cultural rights. Where is Marianne and the universal legacy of the rights of man, when some Western countries well endowed with

16

17 18

Navi Pillay’s statement in 2011: ‘I am duty-bound to raise this anniversary call. We must end discrimination in the distribution of the benefits of development. We must stop the 500 000 preventable deaths of women in childbirth every year. We must free the millions of children from hunger in a world of plenty and we must ensure that people can benefit.’ During the 25th anniversary in 2011, the UN Human Rights office indicated to raise awareness, enhance understanding and promote dialogue on the RTD through a series of events and public activities. Donnelly (n 1).

‘Marianne’ – the symbol of freedom

19

freedom and rhetoric lessons on human rights, subject others to exploitation and alienation from the full enjoyment of their human rights? This clearly illustrates that if the RTD is controversial due to its hue and lack of clarity, sources also indicate that the interpretation of Marianne is not clear. Important notions such as freedom, equality of men and fraternity are of universal appeal, and in line with first generation rights. The RTD does not fall within this framework, while it does answer to Africa’s deepest aspirations to eradicate poverty. Nevertheless, is Marianne truly universal?

3

The symbolism of ‘Marianne’

Marianne is a national symbol of the French Republic, a metaphoric figure, a personification of liberty and reason, and a portrayal of the Goddess of Liberty. It is a significant republican symbol opposed to monarchy. Marianne in France is an icon of democracy, against all forms of dictatorship. The icon portrays a battlefield epic metaphorically titled ‘Marianne the liberty, leading people’, beautifully depicted by a French artist.19 This picture celebrates the July Revolution of 1830. Historically, the source of this allegorical personification dates back to the classical times, where it was common to represent ideas and abstract entities by gods and goddesses in the form of an allegory. Although less common during the Middle Ages, this practice resurfaced during the Renaissance and the French Revolution of 1789. The fall-outs of the Revolution could be summed up in three concepts, namely, freedom, equality and democracy. French people created the ‘republic of equals’ strongly backed by a Constitution, which stated the fundamental rights of citizens in the Republic. Our deconstruction of Marianne, the iconic sign, employs a semiotic process to explore its symbolism.

3.1

Semiosis

Semiosis is the study of signs as a branch of semiotics (in the tradition of the American, Charles Peirce)20 or sémiologie (in the tradition of the Swiss, Ferdinand de Saussure).21 Semiology involves designating likeness, analogy, metaphor, symbolism and communication. Semiotics often is divided into three branches: semantics, syntactic and pragmatics. In general, the semiotics theory takes signs or sign systems and symbols as 19 20 21

Marianne’s artistic picture and painting were produced by the renowned French artist Eugène Delacroix in 1830. Peirce Charles Sanders was an American philosopher, logician and mathematician, founder of sign theory or semiotics. Ferdinand de Saussure is one of the founding fathers of semiotics. His concept of the sign/signifier/signified/ referent forms the core of this field. The notion of linguistic sign is composed of the signifier and the signified. Semioticians classify signs system in relation to the way they are transmitted. This process of carrying meaning depends on the use of codes.

20

Chapter 2

their object of study. Of interest in this regard is the fact that Marianne is a sign and a symbol. A sign can be a word, a sound, or a visual image. Saussure divides a sign into two components: (i) the signifier (sound, image or word); and (ii) the signified, which is the concept of signifier represented.

3.2

A semiosis of Marianne

Marianne is an iconic sign. According to Nengou’s investigation on the semiotics of colours, the sign and the object, an icon can be a symbol, a logo, picture, name, face, building, colour or image that is steadily recognised, which generally represents an object or a concept with great cultural significance to a wide cultural group.22 This particular manifestation in the media has been described as iconic. Peirce categorised three ways that signs can stand for their referent, namely, (i) the ‘iconic sign referent’ where relation is based on a resemblance such as depicting a dog in a picture;23 (ii) the ‘indexical sign’ where a sign is associated with its referent, referring to its object psychologically, for instance, smoke is an indexical sign of fire;24 (iii) the symbol pulls together a specific object with ideas, values or way of life, into a direct relationship. A symbol might be regarded as a substitute for the element being signified, much as the flag stands for the ideals of a nation.25 For the symbolists, the power of words goes beyond ordinary denotative verbal limits through suggestive development in interrelated images. The symbol stands for its referent through convention. In other words, meaning is arbitrary and based upon an agreement. For instance, the word ‘dog’ is an arbitrary designation of a four-legged canine. The concept ‘Marianne’ is an arbitrary designation of a young woman symbolising freedom, a metaphor leading people to liberty and prosperity. Symbols also are perceived as vehicle of thoughts. A symbol shows something material and it means by virtue of association something else (referring to something immaterial). A symbol is regarded as a substitute for the element being signified. Marianne’s allegory in this regard is seen as a symbol that stands for the ideals of freedom and brotherhood. Likewise, Marianne’s picture is an icon representing concepts of freedom and unity with great cultural relevance. According to Peirce, the sign is anything ‘which is determined by something called, object … and so it determines an effect upon a person, which effect I call its interpretant’.26 Peirce also 22

23 24 25 26

CS Nengou ‘Barack Hussein Obama or the iconic-sign deviation’ (2013). In this paper, Nengou examines the signifieds of President Obama, in an African perspective. He studies the semiotics of colour, the iconic-sign, the indexical sign, the symbolic sign, and the ‘triadic sign relation’. Peirce CS ‘The basis of pragmatism in the normative sciences’ in Peirce, CS Philosophical Writings of Peirce (Dover Publications 1940). As above. As above. As above.

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proposes in his sign system the ‘triadic sign relation’ which involves three subjects: (1) A sign (represents), which is something interpretable: ‘Marianne’ is a sign that stands for an object. (2) An object (semiotic object) is the subject matter of a sign. It can be anything conceivable. An object is immediate to the sign, for instance, freedom is immediate to the icon of Marianne. (3) The interpretant sign is the quality of ideas of freedom (freedom from fear (first generation rights)), freedom from want (second generation rights) and possibly a third generation rights termed as the ‘solidarity rights’.

Perceiving Marianne as an ‘iconic sign’ makes one understand that the sign resembles its referent as shown in the following graphic:

In this correspondence, Marianne functions as an iconic sign in the mentality of French people, thus representing notions of freedom and equality, which originated from the French Revolution and are now of universal appeal.

3.3

Marianne and the concept of freedom from want

The Rights of Man drafted during the French Revolution (drawn from the American Revolution) in 1848 became a forerunner to the Universal Declaration in modern times (1948). The Preamble to the Universal Declaration clearly states, with regard to the principle of equality: ‘All humans are born free and equal in dignity and rights, endowed with reason and conscience and should relate towards one another in a spirit of brotherhood.’27 In concrete terms, after the collapse of the royalty, the revolutionaries painted Marianne as a force ‘leading the people to

27

Universal Declaration of Human Rights adopted by UN General Assembly, Resolution 217 A(III) of 10 December 1948, Preamble.

F

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freedom’. The French people created a public society that was strongly backed by a Constitution, which enshrined the fundamental rights of all French citizens. Truly, Marianne also represents the second generation rights (freedom from want and the struggle against poverty) because to be free and equal means to also have acquired the means to survive, to eradicate poverty and make it something of the past, which Western societies have successfully managed to achieve. From its inception, the French Constitution was founded on the principle of national sovereignty (although France later on did not respect the sovereignty of the people of other nations). There was also a genuine concern for the state and the idea of public service defended by an administration recruited on an egalitarian basis of merit. Ironically, France through the Françafrique instrument of cooperation rather indirectly helped to infest other peoples and their administration with international corruption, interference, military coups, dictatorships, and many other ills. A critical inventory of the French Revolution, its legacy and democratic potential, cannot be restricted to the period between 1789 and 1899 in France, but could also be extended beyond the nineteenth century to relations and cooperation existing particularly between France and its former African colonies. Throughout centuries poverty has been the main vector behind human suffering. The notion of ‘freedom from want’ involves an array of rights, including the right to development; the right to education; the right to feed well and to be treated humanely; the right to live in a safe and unpolluted environment; the right to observe one’s culture and freely express oneself in maternal or vernacular language; the right to free speech; the right to clothing and good shelter; the right to good housing and good health; the right to ballot and choose; the right to work; the right to peace; the right to self-determination; and even the innate right to have a right (free will), which are inclusively part of the vast legal frame of human rights. Prior to the French Revolution, severe poverty ravaged the countryside in France, creating inflation, famine, hardship and all manners of taxes levied on the peasants who fled from their farms to congested cities. It was as a result of the wave of unprecedented poverty, bitterness and revolt, coupled with the fact that the monarchy, the clergy and the nobility were tyrannising and exploiting the peasants that the French Revolution of 1789 exploded like gunpowder. It was a struggle between the nobility, the privileged class and the poor. Besides the freedom from fear lies the freedom from want that has characterised the people of old, and which is still peculiar to the developing world and to Africa in particular. The West erected Marianne with its allegory, which should strongly represent both the freedom from fear and also the freedom from want. However, the West rather has turned a blind eye to the right to development proclaimed by developing countries. The stance of France and other Western societies on the right to development

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often does not reflect the ideals of liberty in the framework of their cooperation with former African colonies, thus rendering Marianne (the iconic sign), inconsistent. Ideally, an icon functions by virtue of its similarity with its object or reference. Marianne, therefore, should connote all freedoms, reason and justice. Given France’s colonial and post-colonial cooperation with Africa and considering the fact that Africans colonised by France also embrace the universal values of liberté, fraternité, egalité, justice and prosperity in their society, it is relevant to ask whether Africans in their cooperation with the West are rewarded or rather frustrated in their legitimate aspirations for the principles of ‘freedom from fear’ and ‘freedom from want’. The dividends of the French Revolution, liberté, fraternité, which represent freedom from fear embodied in first generation rights, are a common heritage to all French citizens. The question is whether the universal consideration is also true for Africans who were once colonised by France. In answering this question, it is important to subject the allegory of Marianne to proper deconstruction.

3.4

Marianne and the iconic sign deviation

In light of controversies, there is a need to deconstruct or unravel the hidden meanings of Marianne, the allegory of human rights. Deconstruction here means to examine how language refers to itself (and not to some extra-linguistic reality) in order to bring to light the system of opposition on which the discourse of the ancient colonial empire is founded. Beyond the superficial meaning of Marianne there is a deeplyhidden agenda in the form of a sign that needs to be unravelled, which in semiotics could be a drawing, painting or photograph.28 According to this agenda, the painting or statue, which portrays the allegory of Marianne as a metaphor of liberty, connotes freedom on which the West has developed the concept of human rights. However, there is more to that as far as second and third generation rights are concerned, in the sense that the Marianne allegory of freedom stands for poverty eradication among all humans and not only French people. Unfortunately, sub-Saharan Africa, in general, and France’s former colonies, in particular, in spite of their numerous resources such as gas, oil and precious stones, still are not capable of asserting themselves in the area of socio-economic development and political relations. Ironically, there is a redundant state of poverty in the midst of plenty.29 Besides, so much is being said about freedom and democracy in sub-Saharan African

28 29

D Candler ‘Semiotics for beginners’ http://www.wikipedia.org (accessed 10 November 2010). Sub-Saharan Africa http://www.geolinks.fr/geopolitique/L’Afrique-subsaharienne (accessed 17 July 2017).

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countries, yet there is no real leadership and accountability, specifically within France’s sphere of influence. As is the case in most African nations, Francophone African countries had a painful colonial past, leading to a fragile political, economic and social set-up in these countries. Colonial powers such as France (the country of Marianne) were able to exploit raw materials and enrich themselves to the detriment of the colonies while impoverishing and degrading the peoples they colonised. The drain has continued to date (a replay of the exploitation that occurred in France in 1789 between the French monarchy and the people, which brought about Marianne and the Revolution). France did not respect the sovereignty of the peoples of other nations, which consequently triggered a number of failures, essentially in the domain of development. To explain this, several external and domestic vectors are considered.

3.5

The Françafrique spectre: A destructive concept of Marianne’s legacy

The concept of France-Afrique,30 a neologism otherwise coined as Françafrique by Vershave,31 was conceived by President HouphouetBoigny of Côte d’Ivoire to boost relations between France (the imperial power) and the newly-independent French colonies of Africa. Scornfully referred to as Françafric (France full of other people’s cash), the Françafrique ideology defines France’s cooperation with its former African colonies. It is a ghost-like concept that has especially haunted the Francophone African subconscious for many decades, which in reality designates the specific form of neo-colonialism that has been endured by former French colonies. Vershave later defined the Françafrique connection as a ‘“secret criminality” in the upper echelons of French politics and economy, where a kind of underground Republic is hidden from view’.32 Jacques Foccart, who was Chief Adviser on African policy in the Charles de Gaulle and Georges Pompidou governments (1958-1974), is believed to have contributed to the ‘Ivorian miracle’ that brought about the economic and industrial boom to Côte d’Ivoire.33 Indeed, from inception, FranceAfrique was used in a positive sense by President Houphouet-Boigny, who advocated that Africans should maintain a close relationship with France, 30

31 32 33

The ‘Françafrique’ concept is France’s relationship with its former colonies in Africa. The term is sometimes also applied to the former Belgian colonies in Africa. It was first used in a positive sense. However, the term has since 2012 been used to critique the neo-colonial relationship between France and its African colonies. Some French presidents have promised to revise this relationship. President François Hollande, eg, maintained the promise to abolish the ‘Françafrique’ structure. Paradoxically, in a pure demonstration of the game of euphemism, in February 2015 France launched the Fondation Afrique-France headed by Lionel Sinzou, to re-launch the relationship between Africa and France. FX Vershave La Françafrique: Le Plus Gros Scandale de la République (1999). As above. Jacques Foccart played an essential role in the negotiation of cooperation accords between France and newly-independent countries in Africa. He died on 19 March 1997.

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essentially to improve their development. However, everything changed for the worse as soon as Foccart, sole administrator on board, became the mastermind behind the apparatus and was regarded as the guarantor of this cooperation. One destabilising factor in the life of any country is a military coup d’état that brings about political destabilisation, which also fuels dictatorship and halts the democratic process, resulting in underdevelopment. Although the coups d’état ended with the nineteenth century turmoil in France (his own country), Foccart officially masterminded several coups during the 1960s, the 1970s, and right up until the 1990s, before the advent of democracy in Africa, which triggered the symphony of trouble that most of Francophone Africa is confronted with today.34 The litany of coup plots puts to question the logic of Marianne’s legacy, which paradoxically denies the right to peace and security to other peoples. Oblivious of the real meaning of its own national icon or simply expressing bad faith, France contradicts the legacy of Marianne by orchestrating plots against African countries. France’s cooperation with its former colonies henceforth became a sphere of influence where political ‘Mafia’ prevails against other people’s will and freedom. Even Foccart’s death did not ‘mark the end of an epoch or his influence on French colonial and post-colonial policy’.35 Beyond Foccart’s colonialist influence, the françafrique concept survived euphemistically to beget Afrique-France, and all this became much of a muchness (bonnet blanc, blanc bonnet). Bloody military coups and poverty

34

35

Symphony of coups d’état in the Francophone sub-Saharan Africa (1960s-1980s): (1) In 1961,a bloody coup masterminded by an inter-related plot by America, France and Belgium against a pro-Marxist regime led to the killing of Congolese Prime Minister, Patrice Lumumba, which brought to power Mobutu Sese Seko. (2) In 1970, a bloody coup in Togo by Gen Nyasingb EIyadema with the blessing of France killed Sylvanius Olympio for being pro-Marxist. (3) In 1973, a bloody coup in Chad, with the assistance of France, killed President Ngarta Tombalbaye, which brought in President Felix Malloum. Another coup in Chad years later led by Ngoukouni Oueidey ousted Hissène Habré. (4) In 1974, a bloody coup in Niger by Col Seyni Kountché, with the blessing of France, deposed President Hamani Diori. (5) In 1976, with the blessing of France, a bloody and unsuccessful coup failed to kill or depose Col Matthieu Kérékou’s Marxist regime in the then Dahomey (now Benin Republic). (6) In 1987, a bloody coup, with the conspiracy of France and President Houphuoet-Boigny of neighbouring Côte d’Ivoire, brought down the communist regime in Burkina Faso and Captain Thomas Sankara was killed by his close friend, Captain Blaise Compaoré. (7) In 1982, a coup in the Central African Republic, with the blessing of France (Jean Foccart) deposed Emperor Bokassa I who was replaced by Gen François Bosize. (8) In 1984, a bloody coup in Cameroon orchestrated by retired predecessor, Ahmadou Ahidjo (with the controversial neutrality of France) in an attempt to depose President Paul Biya was aborted. K Whiteman ‘The man who ran Françafrique: French politician Jacques Foccart’s role in France’s colonization of Africa under the leadership of Charles de Gaulle – Obituary’ National Interest 1 September 1997 http://nationalinterest.org/article/theman-who-ran-franafrique-1005 (accessed 20 July 2017).

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in the midst of abundance of resources still walk symbiotically hand-inhand, even after the democratic dispensation in the 1990s.36 Virtually all Francophone African countries in sub-Saharan Africa have experienced military coups, masterminded by Quay Dorsey in France, to depose those they dislike, and replace them with puppets. We know that without good governance, political stability, sound leadership and real freedom, poverty will linger and the rights of man will always lie at the mercy of abuse in Africa. The multiplicity of coups masterminded by France, a country that erected Marianne as the icon of freedom, tells much about France that does not respect even the elementary principles of first generation rights. Even worse, France contributes by conquering or destabilising other societies beyond its borders; frustrating free trade partnership for a sane socio-economic development that would eradicate poverty and enforce human rights. Sickened by this era of cyclic coups d’état and autocracy, France’s then President, François Mitterrand, proposed at the La Baule Summit a shift to another form of cooperation between ‘equal partners’, requiring all subSaharan Francophone heads of state to henceforth undertake changes in a new era of ‘good governance’, as a sine qua non for financial assistance. Although the La Baule lecture for democracy in Africa brought hope on the continent, this was shattered by unexpected coups d’état bearing France’s fingerprints, which continued to strike in Côte d’Ivoire, Congo Brazzaville and the Central African Republic beyond the 1990s.

3.6

‘Eyes wide shut’ on political malpractices: A catalyst for stagnation

Marianne is about freedom, the rule of people by the people fighting to escape from poverty and to live fearlessly in fairness and brotherhood. However, even at that point the democratic principles of free and fair elections enshrined in the UN Declaration,37 which would earn 98 per cent success in France, still are a nightmare in sub-Saharan Francophone African states. Rigging is a common practice, and the target is to keep or assist old regimes to eternally cling to power, which becomes like a ‘monarchy’. In 50 years, ten presidents have ruled France, while some Francophone African dictators have clung to power for over 35 years under the watchful eyes of France, the custodian of Marianne, the goddess

36

37

Military coups and destabilisation in the democratic era from the 1990s: In 1997, a bloody coup and civil war with the blessing of France in Congo Brazzaville that deposed president elect Pascal Lissouba and brought back President Denis Sassou Guesso. (9) In 2011, a coup in Côte d’Ivoire where the nationalist President Laurent Gbagbo (after a controversial presidential ballot) was deposed in a bloody civil war and replaced by President Alassane Dramane Ouattara (with the blessing of French President, Nicholas Sarkozy, who personally and openly supervised the military operations to de facto claim back Côte d’Ivoire). Art 2 Universal Declaration.

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of universal freedom, justice and equality. Nengou clearly states in his works38 that a good number of French democratic regimes have witnessed election malpractices in Africa while many Francophone leaders manipulate the democratic processes to achieve a mythic score of 90 per cent against 10 per cent for an often strong coalition of reputable opposition parties. In most instances, international election observers would gregariously come out with their overheard phraseology: ‘Despite some isolated incidents, these elections were free and fair and, therefore, satisfactory.’ Meanwhile, in the aftermath of elections, dissenting angry mobs would take to the streets to contest the results of a seemingly ‘stolen victory’ by the incumbent government, openly backed by the controversial silence of France and some Western godfather countries that supervised the balloting. How then will such African countries with recurrent electoral disputes come out of the vicious circle of physical and mental poverty? Poverty is a twofold concept. First, it describes a physical condition (peculiar to Africans) which is a state of necessity, a lack of minimum resources and adequate means to survive or exist. Second, poverty represents a mental condition, which is colour-blind (for rich and poor) and comes as result of the poor manner of dealing with knowledge, facts and the mishandling of experience. It is a bad conscience and the effects are limitation, short-sightedness and ignorance. Poor and single-minded people can be lured to live with clichés and ignore their elementary rights. Similarly the rich, moved by greed and selfishness, become mediocre when they maliciously lose common sense by refusing to consider the factual truth. In this vein, there is the questionable attitude of France, which does not faithfully convey by concrete examples to its African partners (former colonies) in search for development and welfare, the full meaning of their own erected ‘Marianne’. Unlike the situation in France where leaders are a product of the will of the people through the power of balloting, France through underground manoeuvres (‘eyes wide shut’) helps to perpetuate the power of tyrants and puppets through whom they keep their hands on the country’s wealth. France’s democratic experts can foresee all the long chains of ills that will crop up as a result of mismanagement and poor leadership in Africa. Fake balloting results in mortgaging the people’s freedom and bring about autocratic regimes and the absolute confiscation of power. These regimes

38

Saah Nengou Clotaire writes in Issues in European-African relations: France and Africa (2005), a detailed historical and analytical background, which enables one to follow the spiritual discussion of the impact of the French Revolution on the societal structure in France and former French colonies, most of which have become ‘independent’. However, the behest of France in its attempt to create an egalitarian society would have fizzled out with time outside of France. The spirit of the French Revolution is replaced by a new form of pseudo-colonialism, the France-Afrique. The paper illustrates the French Revolution from its brightness to the present hue.

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manipulate the country’s Constitution at ease when elections are approaching. African dictators have a self-style agenda to cling to power (whereas the Constitution in France has for many decades not been tampered with). Even worse, some African leaders prepare their ‘juniors’ (sons) for succession as legal heirs to the ‘throne’ of the republic, just as in ancient monarchies, two centuries ago in France, a custom which continues to be practised in sub-Saharan Africa under the guise of ‘democracy’. However, as a disclaimer France uses a strong rhetoric to disengage itself and avoid critics. France speaks in broad light of ‘non-interference in the domestic affairs of independent countries’ but behind the political scene it takes sides with autocrats and monarchs. Ex-President Jacques Chirac, a core colonialist, once hit the nail harder in 2000 by this straightforward statement that39 ‘[l]a démocratie est un luxe pour les Africains’ (democracy is a luxury for Africans). This paternalistic statement insulates African regimes from accountability for their political immaturity. By so doing, France justifies dictatorship, corruption and condones illegitimate despotism, while keeping for itself good democratic practices, the rule of law and accountability, which are vectors of sound development. The most harmful consequence of confiscating the Marianne allegory in the wheel of the RTD is the political instability that has become a stereotype that profits France and the West. These facts generate a chain of consequences, including mental and physical poverty that begets poor leadership, socio-economic backwardness and underdevelopment.

3.7

The doomed legacy of Marianne and the right to prosperity

The Françafrique concept was a good cooperation roadmap for development in Francophone Africa, but later turned into an oppressive machinery to guarantee France’s hegemony and economic interests, justifying its preying on raw materials from the former colonies to enrich itself. Undeniably, sub-Saharan Africa is endowed with resources that normally would enrich a well-governed nation and boost its per capita income and development. The resources in these former colonies include petroleum, gas, gold, diamonds, coal, platinum, chrome, zinc, iron, copper, nickel, uranium, cobalt and good varieties of wood and timber from the dense tropical forests of Gabon, Congo and Cameroon. Unfortunately, Africa’s resources paradoxically make Africans even poorer in the midst of plenty. The African soil and its resources have been

39

In an interview with Jacques Chirac on ‘Democratic regimes in Africa’ during an official visit to Abidjan, Côte d’Ivoire, in 2000, Chirac said: ‘Democracy in a luxury for Africans. They are too much in a hurry! Remember it took the Western world a couple of centuries to arrive at an up-to-date system of democracy … Africans should patiently walk step by step. They should proceed the same way. It is normal all these ills in the democratic process, for they help in building a strong background for future democratic success’ (Fraternité Matin).

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a grazing pasture for France in particular, which also prevents emerging countries such as Brazil, China and India in their pursuit for raw materials from coming close to areas of French interests. This attitude deters free partnership in economic development. Freedom and prosperity through free trade with emerging countries are skilfully confiscated by France, which monopolises trade and tightens control over its former colonies’ economy and money, for instance through the use of the Francs CFA currency as instrument for exploitation.40 Money also flies from African treasuries to European safe havens. With capital flight, the certainty is financial drain, resulting in poverty. It is no secret that France and other European nations such as Switzerland have always been accused of covering up ‘capital flights’ and protecting embezzler heads of state of Africa’s public funds, which are safely deposited in French or Swiss international and national banking systems. In fact, the siphoned monies only help to advance European economies. It has the advantage of boosting the revenue of these countries, developing their industries, creating jobs, and guaranteeing basic rights such as the right to social security, which many African countries are unable to provide to their peoples. On the other hand, this drain of the country’s money to overseas banks consolidates the impoverishment of the masses in Africa. Within the Françafrique framework, only self-interest counts. This is not at all surprising as the definite control over Africa was established with the advent of the Berlin Conference (1884-1885) and the so-called ‘scramble for Africa’ in which France, with other European powers conquered and divided Africa for their economic benefit. Therefore, this is an unscrupulous cooperation whereby ‘nothing goes for nothing’. When Western powers cover malpractices, it is for their self-seeking interests. In the game of interest, Marianne, an ideal of justice, has a very low profile. France loots and protects African prominent looters and, therefore, negatively shapes the destiny of its former colonies, which have never been truly independent and continue to wallow in poverty, thus depriving them of the RTD. Poverty is exacerbated by diseases resulting from the dumping of chemical wastes from Western industrialised countries which, however, care about the health of their own peoples (an elementary right), leaving the Marianne symbol of fraternity questionable in such instances. The artistic image of Marianne is an allegorical personification that captures law and conscience, the rights of man principles of freedom and fraternity. Fraternity would also mean to respect and protect all men’s rights on earth, among which is the right to a healthy environment and

40

The Francs CFA currency belongs to two sub-regions: the Central African Bank (BEAC) and the West Africa Bank (BCEAO). CFA Francs is guaranteed by the French treasury. Created in 1945, the CFA Francs remains one of the most potent symbols of dependence on the former colonial power; https://en.wikipediaorg.wiki.cfa.

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favourable living conditions. The dumping of waste on the African continent annihilates the elementary principles of human rights for which the ideology of Marianne stands. It is well stated in the UN Commission for Human Rights (1972) Charter that most rational and natural variables must be brought into development thinking and that economic growth, ecological balance and human rights must agree. On the contrary, the West rather has introduced what many commentators refer to as ‘toxic terrorism’ through which the African continent is polluted with toxic waste. Owing to safety laws in Europe and the United States of America, which have increased toxic disposal costs to $2 500 per ton, waste brokers are now turning their attention to the closest, poorest and most unprotected shores of West and Central Africa (Benin, Guinea and Congo, among others) who offer free dumping sites. The dumping of toxic waste is believed to be the latest in the series of historical traumas besides slavery, colonialism, neo-colonialism, the debt burden, poverty and the dumping of garbage,41 which constitute crimes against humanity and a violation of human rights. Some Western governments even directly or indirectly sponsor the dumping of toxic waste in Africa and remain unconcerned about the impact on the well-being of the peoples that could be affected. Western democracies that keep the icon of Marianne as a symbol of equal rights often jealously protect their own natural environments but are not concerned about other people also having their environment respected. A sane environment and ecological system in Africa seem to be a ‘luxury concept’ (like democracy) and the freedom from want in the past achieved by struggles to overcome poverty in Western societies has become a nonentity, devoid of meaning and languishing in the non-binding UN Declaration, when it applies to other peoples of the world afflicted and crippled by the same poverty. The logic here is clear: Someone’s garbage of toxic poisons becomes another person’s treasure for enrichment. Article 24 of the Universal Declaration emphasises the protection of human beings,42 which has been denied or nullified in Africa by colonisation, neocolonisation, political and economic interferences, and currently the dumping of wastes with hazardous substances such as sodium, hydroxide, sodium sulphide and the phenols.

41

42

The New York Times (World) ‘Dumpers turning to West Africa’ http://www. NYTimes.com.consulted (accessed: 5 September 2017). From Morocco to Congo, virtually every country along the West African coast reported receiving offers. In February 2017, officials in Guinea Bissau signed a five-year contract to bury 15 million tons of toxic waste from European tanneries and pharmaceutical companies. In return they received $120 million. In Congo, government officials signed a contract to store a million tons of chemical waste from Northern Europe, for a return of $84 million. However, when a furore erupted over what African newspapers called the ‘toxic terrorism’, the government quickly repudiated the contract. Art24 states that ‘[e]veryone has the right to a standard living adequate for health and well-being of himself and his family, including food, clothing, housing and medical care …’

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According to a 2006 BBC Report on Côte d’Ivoire, the UN reported strong prima facie evidence of toxic waste that was responsible for killing and injuring 30 000 Ivorian citizens.43 The report illustrates that France and other Western countries that understand the symbolism of Marianne keep a personal interpretation of the freedom from want only for their societies by ensuring that they eradicate their own pockets of poverty while allowing ‘ghettoes’ and inhumane living conditions for other people, especially in Africa. In a situation where people are denied the elementary right to health, to live and to work in a safe environment, by poisoning them with foreign toxic substances, it becomes a negation of equal rights, freedom and fraternity for which Marianne stands as a symbol.44 The curious question is whether there is fraternity in giving or doing to other people what one cannot tolerate to be done to oneself, and to still proclaim the virtuosity of the symbol of Marianne. The Rio Declaration on the Environment and Development recognises the RTD in one of its 27 principles, which states that the RTD ‘must be fulfilled so as to equitably meet development and environmental needs of present and future generations’. As far as sub-Saharan Africa is concerned, the future generation may be said to be doomed owing to an excess of injustice in the course of their partnership with the West. Marianne may capture other concepts such as the freedom from fear guaranteed to the people of France since 1789, but it does not speak for the rights of millions of Africans south of the Sahara in terms of alleviating poverty and fostering development. Marianne’s inspiration came through poverty of the masses who wanted freedom. The force of the Marianne allegory led them mythically and physically on the path of victory against fear and from want and, thus, exterminates their mental and physical poverty. Unfortunately, the poor men of yesterday, heirs of Marianne and the Revolution, no longer clearly represent other peoples in their revolutionary struggle to achieve the RTD.

3.8

No innocent ‘lambs’

In spite of the external political interferences and covetousness over Africa’s resources by the ‘wolves’ of Western industrialised societies (external factors), blame for Africa’s underdevelopment cannot always be

43

44

BBC News ‘2006 Ivory Coast toxic dump’ BBC News Night Programme. In 2006, there was toxic waste dumped by a ship, the Probo Koala, registered in Panama, which offloaded toxic waste to an Ivorian waste-handling company, which in turn disposed of it at the port of Abidjan. The local contractor, Tommy, dumped the waste at 12 different sites in and around the city in August 2006. The dumping allegedly led to the death of 17 and injured 30 000 citizens. Almost 100 000 Ivorians sought medical attention, due to headaches, nose bleeding and stomach pains. A series of resignations of Ivorian government officials followed this deal. The Declaration on the RTD rightly states that the human person is the central subject of development. It requires the human person to live in an environment that is safe and protected in order to coexist symbiotically for balanced development to take place.

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apportioned only to the West. Africans have also added to this heavy burden of troubles by their own sins and eccentricities (internal factors). Responsibility for the destruction of the ‘lamb’ is shared between the wolves and the shepherd. As a matter of fact, the loose attitudes from African leaders have largely contributed to the long suffering and misery of their people. There is a close collaboration between African leaders and the forces of Western imperialism, resulting in poor leadership and ineffective systems of governance. African countries have tended to constantly beg for assistance or seek foreign loans (resulting in more and more debts) which, once obtained, the leaders divert into personal accounts in foreign banks rather than invest in the development of their countries. The general poor culture regarding disease prevention and environmental protection in Africa, of course, cannot be blamed on exploitation by the West. Africa indeed is plagued with an array of political and economic malpractices, which combine to retard progress on the continent, in spite of Marianne, the iconic symbol of freedom, which Amartya Sen equates to development.

4

Conclusion

Sub-Saharan Africa has since colonial times been alienated by Western values and ideologies of freedom and equality, which they have constantly relied on, while still groping with poverty and disillusionment as if they had no rights at all. Much shrewdness, hypocrisy and false pretences have surrounded the symbolism of Marianne, biased and deviated from its original signification. From poverty in the distant past to current glory, thanks to the French Revolution, the West successfully eradicated poverty and conceptualised human rights in its present form for the welfare of its people. Unfortunately, the same people (once poor) are today reinforcing poverty in the lives of those to whom they introduced Marianne as a universal icon of freedom and prosperity. There is only a dim light of prosperity in Africa, while Marianne, a vehicle of blessing in the West, has become a nebula for the black man. In the game of interest, Marianne, the ideal of justice, maintains a very low profile. The West builds most of its fortune on the back of impoverished nations and peoples. The RTD thus is denied to other people through falsehood and a lack of sincerity, making Marianne itself a superfluity and, if a hyperbole should be used here, a ‘racist icon’ as well. How then will the Western world have a good conscience when they are accomplices of leaders who are also the undertakers of their own development as far as sub-Saharan African countries are concerned? Those who erected Marianne have not demonstrated the goodwill to ratify the RTD but rather only prioritise their own interests. Bromberger states it as follows:45

45

D Bromberger ‘J’ai mal à la France’ Le Monde February 2011.

‘Marianne’ – the symbol of freedom

33

I think in France, in Germany, in many other (Western) countries, politicians have simply got used to realising that there is no democracy in Africa … We in Europe, we in the West we don’t care as long as we can do business.

However, as far as the peoples of Africa who candidly believed in the principles of liberté, fraternité, egalité are concerned, the whole rhetoric practically has not shown any true liberty except the Western neocolonisation and destabilisation of African countries by the strategic use of modern-day technology to ‘fish in trouble waters’. We can see no real selfdetermination, no real autonomy except begging hands, despicable interference and the woes of an adulterated democracy rated to be a ‘luxury for Africans’. In spite of the iconic symbol of Marianne, there is no equality between Western nations and Africa among other developing countries.46 Countries in the sub-Saharan African region have been known to cling dangerously to clichés, make-beliefs and illusions built around the myth symbols of Marianne, the universal statue of freedom. The so-called ‘normative indeterminacy’ of the concept of the RTD, in my view, is the sin of Marianne, the symbolic sign, that becomes inconsistent or deviates from the interpretation of the elementary rights of the less privileged. The iconic Marianne ideally should be a universal symbol that must address situations universally but actually has become only a symbol of double standards. Marianne, thus, stands as a big statue of marble, a bust or a great painting, devoid of substance and useless as a nothing, if the West that erected it and that once has been a beacon of poverty, does not today focus on the eradication of poverty elsewhere in human societies beyond the shores of Europe. If the legacy of Marianne is as universal as poverty is, then the RTD must be seen in the same light as a universal entitlement. If the allegory of Marianne, the artistic painting, which reconciled law and conscience, metaphorically inspired and led the poor and the frustrated French revolutionaries of 1789 to freedom, it should today proceed from a universal monologue to a universal dialogue, by speaking for all the peoples on earth. One man alone is never truly free from poverty of the mind and conscience, until all men in the universe of Marianne are delivered from poverty, and have their right to development accepted and universally protected.

46

CC Ngang ‘Differentiated responsibilities under international law and the right to development paradigm for developing countries’ (2017) 11(2) Human Rights and International Legal Discourse 267-269.

CHAPTER

3

THE RIGHT TO DEVELOPMENT UNDER THE AFRICAN CHARTER: IS THERE AN EXTRATERRITORIAL REACH?

Romola Adeola*

1

Introduction

The aim of this chapter is to answer a definitive question: Does the right to development under article 22 of the African Charter on Human and Peoples’ Rights (African Charter) have an extraterritorial reach? Since the 1970s the question about development as a human right has been the subject of much critical reflection. While much credit is given to Kéba M’baye for articulating the idea of this right,1 at the 1967 Economic Conference of the Group of 77 in Algiers the Minister of Foreign Affairs of Senegal, Doudou Thiam, stressed the need for states to ‘proclaim, loud and clear, the right to development for the nations of the Third World’.2 Similarly, Léon-Étienne Duval of Algiers emphasised the need for the right to be ‘proclaimed for the Third World’.3 The emphasis at the time was for emerging colonies to develop on their own terms. Following independence in the 1950s to1960s, many former colonies embarked on consolidating economic freedom. To economically position Africa with the rest of the world, many African leaders carried out development projects.4

* 1

2 3 4

Post-Doctoral Fellow, Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa; [email protected] or [email protected] MA Tadeg ‘Reflections on the right to development: Challenges and prospects’ (2010) 10(2)African Human Rights Law Journal 325 326; OO Oduwole ‘Africa’s contribution to the advancement of the right to development in international law’ in CC Jalloh & O Elias (eds) Shielding humanity: Essays in international law in honour of Judge Abdul G Koroma (2015) 565. CC Ngang ‘Towards a right-to-development governance in Africa’ (2018) 17(1) Journal of Human Rights 111. Ngang (n 2) 112. See R Adeola ‘The legal protection of development-induced displaced persons in Africa’ (2017) 10(1) African Journal of Legal Studies 91. 34

The right to development under the African Charter

35

At the global level, developing states called for a New International Economic Order (NIEO) seeking to assert economic self-determination and to advance equitable development.5 Developing states soon realised that pragmatic models of development that place them on the same pedestal with the rest of the world was essential in realising genuine freedom.6 As such, radical economic transformation at the international level was essential.7 While states were divided on the approach towards economic development, there was consensus that it was a right that the international community had to protect:8 the right of states to ‘adopt the economic and social system that it deems the most appropriate for its own development and not to be subjected to discrimination of any kind as a result’.9 M’baye’s proposition, however, advanced a new angle for the conceptualisation of the subject of development. His thesis on development as a right of all men to live better refocuses the conceptual lens of development from simply being the right of states to human rights. Since M’baye drew a distinction between development as a human right and development law,10 a plethora of discourses have emerged on the normative content of the right to development. At the United Nations (UN) level, one of the earliest attempts was made by the Economic and Social Council imploring the UN Secretary-General to conduct a study on the ‘international dimensions of the right to development as a human right in relation with other human rights based on international co-operation’.11 In 1979, the same year the study was completed,12 the UN General Assembly adopted a resolution recognising the right to development as a right that fosters ‘equality of opportunity’.13 In an effort to further grapple with the content of this right, the UN established a 15-member Working Group of Governmental Experts on the Right to Development in 1981 to

5 6

7 8 9 10 11 12

13

R Adeola ‘How the UN’s Special Rapporteur can make the right to development a reality’ The Conversation 24 November 2016. The Declaration on the Establishment of the NIEO recognised that the ‘gap between the developed and the developing countries continues to widen in a system which was established at a time when most of the developing countries did not even exist as independent states and which perpetuates inequality’. See Declaration on the Establishment of a New International Economic Order, Resolution adopted by the UN General Assembly, UN Doc A/RES/S-6/3201 (1 May 1974). P Nobel ‘Notes on the right to development’ in P Nobel Refugees and Development in Africa (1987) 49. As above. As above. A Dieng ‘Background to the growth of the right to development: The role of law and lawyers in development’ in P Nobel Refugees and development in Africa (1987) 55. Commission on Human Rights, Report on the 33rd session, UN Doc E/CN.4/1257 7 February-11 March 1977 2. The international dimensions of the right to development as a human right in relation to other human rights based on international cooperation, including the right to peace, taking into account the requirements of the New International Economic Order and the fundamental human needs, report submitted by UNESCO in connection with para4 of Resolution 4 (XXXIII) of the Commission on Human Rights, note by the UN Secretary-General, UN Doc E/CN.4/1340 (1979). C Kuppuswamy The international legal governance of the human genome (2009) 91.

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define the ‘scope and contents of the right to development and the most effective means to ensure the realisation, in all countries, of the economic, social and cultural rights enshrined in various instruments’.14 Although the need for a right to development was acknowledged as pertinent, the right to development has been severally criticised both for its fluidity and lack of clarity.15 In the criticism of development as a right, scholars such as Cassese and Alston argue against the logic of a right to impose upon developed countries the obligation to foster the economic development of developing states.16 However, such framing of the right to development misses the point that the right to development is not merely a solicitation for international assistance but a recognition of the socioeconomic development of all human beings, which is essential to the promotion of ‘better standards of life in larger freedom’.17 In 1980, Theo van Boven, the Director of the UN Division of Human Rights, argued that the discourse on the right to development was a pivotal space to introduce human rights into the processes of development.18 While a definitive position on the right to development was being advanced at the UN level in the 1980s, African leaders emphatically affirmed the right of all peoples to ‘have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’.19 To date, this articulation in article 22 of the African Charter is the most definitive codification of the right to development.

2

Nature of article 22 of the African Charter

Even with contestations about the nature of the right to development, there is a building consensus that the right to development imposes a deontological duty on states. De Waart relates this right to a Martens Clause in that its derivative persuasions inures from the principles of

14 15 16

17 18

19

ID Bunn The right to development and international economic law: Legal and moral dimensions (2012) 42. SAD Kamga ‘The right to development in the African human rights system: The Endorois case’ (2011) De Jure 383-384. A Cassese International law in a divided world (1986); A Carty ‘The Third World claim to economic self-determination, economic rights of peoples: Theoretical aspects’ in SR Chowdhury, EMG Denters & PJIM de Waart The right to development in international law (1992) 43. Ngang (n 2) 112; United Nations Charter 1945. The Vienna Declaration and Programme of Action accentuates this point in emphasising that ‘lasting progress towards the implementation of the right to development requires effective development policies at the national level, as well as equitable economic relations and a favourable economic environment at the international level’. Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in Vienna 25 June 1993; Nobel (n 7) 49. African Charter on Human and Peoples’ Rights adopted by the Organisation of African Unity, OAU Doc CAB/LEG/67/3 rev 5 27 June 1981.

The right to development under the African Charter

37

humanity and public conscience.20 Drawing on Kant’s deontological ethics, the act of a state that does not treat people as an end to its existence but only as a means without more will be contrary to the ethical duty of the state. A counterfactual narrative to the ends-only duty would require states to be guided by the obligation to protect individuals by fulfilling their basic human needs. Under the African Charter, this ethical duty is framed as a legal obligation. This obligation requires a state to ensure development that is based on equity, transparency, participation, non-discrimination and accountability.21 Three distinctive kinds of development resonate from a textual reading of article 22 of the African Charter. The first is economic development. Factually, article 22 of the African Charter is clear on the fact that the economic capabilities of peoples in a state must be improved. An index for measuring a state’s realisation of the economic component of this right may be drawn from a critical analysis of the adequacy in the standard of living of the peoples in the state. To this end, the right to development synthesises existing rights,22 such as the right to an adequate standard of living, the right to work and participation.23 Article 22 of the African Charter is also clear on the point that development cannot be viewed simply as economic growth. Hence, it also requires a state to reflect on realising development in the social and cultural spheres. While much of the discourse on development from a rights-based socio-economic perspective has been advanced, not much has evolved in the conceptualisation of the right from the point of social development. From a human rights perspective, the closest articulation of social development resonates from the right to social security encompassing access to social services. However, the notion of social development encapsulates more than the ability of peoples to have access to social security. It encompasses the wellbeing of societies. The World Summit for Social Development articulates that the ‘goals and objectives of social development requires continuous efforts to reduce and eliminate major

20 21 22 23

See R Hallgren ‘The UN and the right to development’ (1990/1991) 23(1) Peace Research 40; see also UC Jha & K Ratnabali The law of armed conflict: An introduction (2017). Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 20009) (Endorois case) para 277. See A Pellet ‘The functions of the right to development: A right to self-realisation’ (1984) 3(9) Third World Legal Studies 130. It is argued that the right to development serves a tri-dimensional purpose in the African Charter. Aside from existing as an umbrella right, it incorporates rights that are not contained in the African Charter but integral to the realisation of development, such as the right to social security essential to the social dimension of the right to development under art 22 of the African Charter. It also serves as a jurisprudential springboard for articulating protection for individuals in situations where their rights are violated as a collective group.

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sources of social distress and instability for the family and for society’.24 Some of these social distresses include ‘corruption’, ‘intolerance and incitement to racial, ethnic, religious and other hatreds’ and ‘xenophobia’.25 The cultural dimension of the right to development is particularly important in the protection of certain categories of persons such as indigenous groups. For instance, in Sesana the High Court of Botswana condemned the state’s notion of development without reference to the culture of indigenous peoples as a yardstick for advancing protection. The state argued that its decision to relocate the San peoples from their home in the Central Kalahari Game Reserve was borne out of the belief that ‘it is totally unfair, to leave a portion of … citizens underdeveloped under the pretext [of] … allowing them to practice their culture’.26 However, the Court was emphatic on the point that in dealing with indigenous peoples, it is imperative for the state to protect their culture. Cultural development encompasses ‘cultural growth, the fostering of respect for all cultures and for the principle of cultural freedom’.27 The right to cultural development envisages the expression of a way of life. In Africa, this right is integral to the preservation of cultural heterogeneity and, as such, contemplates the protection of cultural diversity and the establishment of institutional measures that advance the plurality of expressions. The jurisprudential potency of the right to development was first tested in the landmark ruling of the Endorois case where the African Commission on Human and Peoples’ Rights (African Commission) had to consider the displacement of the Endorois community from their ancestral lands and territories in the Lake Bogoria area in the Rift Valley Province of Kenya.28 Emphasising that article 22 is both constitutive and instrumental, the African Commission stressed that the right to development requires the ‘creation of conditions favourable to a peoples’ development’.29 The notion of ‘peoples’, while relatable to the population of a given state,30 was interpreted in the Endorois case as including indigenous populations.31 However, a pertinent question is whether it is correct to assert that the notion of peoples also includes African peoples more generally. From the non-exhaustive featured list of the African Commission in the Endorois case, African peoples as a collective are contemplated within 24 25 26 27 28 29 30 31

Declaration on Social Development and Programme of Action (Annex I) adopted at the 14th Plenary Meeting of the World Summit for Social Development, Copenhagen, Denmark, UN Doc A/CONF. 166/9 6-12 March 1995), para 20. As above. Sesana & Others v Attorney-General (2006) AHRLR 183 (BwHC 2006), para 206(a). World Commission on Culture and Development Our Creative Diversity (1996) 14. Endorois case (n 21) paras 1-2. Endorois case para 298. African Commission on Human and Peoples’ Rights v Republic of Kenya Application 006/ 2012 (Judgment 26 May 2017). Endorois case (n 21) para 151.

The right to development under the African Charter

39

the subject scope of article 22 of the African Charter, given the existence of a ‘territorial connection’ and the presence of ‘identities and affinities’ collectively enjoyed. Scholars have rather favoured a more fluid approach to defining peoples which considers context in assuming its meaning.32 The African Commission has equally appeared to favour such interpretation in regarding the listed features as ‘some’ rather than a closed list of all ‘objective features’ for ascertaining the notion of peoples.33 However, a relevant question arising from this is whether state parties have a collective obligation to realise the right to development under the African Charter. In answering this question, it is relevant to consider two pertinent questions: Does the African Charter have an extraterritorial reach? If the answer is in the affirmative, to what extent is it in relation to the right to development and how can it be implemented in Africa? The next part answers these questions.

3

Extraterritorial reach of the African Charter

In discussing the extraterritorial application of article 22 of the African Charter, it is relevant to consider whether the African Charter can apply extraterritorially and, as such, interrogate the question of extraterritorial jurisdiction. As a rule of international law, a state has jurisdiction over its territories.34 However, there are instances where a state may exercise jurisdiction extraterritorially.35 This inquiry often raises the extent of control. The African Commission was faced with this issue in the inter-state complaint lodged by the Democratic Republic of the Congo (DRC) in the case of the DRC v Burundi, Rwanda and Uganda.36 In this case, the DRC alleged that the respondent states had committed immense and severe human rights violations in its eastern provinces in violation of a range of rights guaranteed under the African Charter. The African Commission found that the human rights violations committed by the respondent states were ‘reprehensible’ and ‘constitute[d] flagrant violations of article 2 of the

32 33 34

35 36

For a discourse on this, see R Adeola ‘Development-induced displacement in Africa: Striking a balance between the imperative of development and the rights of persons likely to be displaced’ LLD thesis, University of Pretoria, 2015 52. As above. Given that it is settled law that states have jurisdiction over their territories, customary international law prohibits extraterritorial jurisdiction in the absence of permissible circumstances. See The Case of the SS Lotus (France v Turkey) Judgment, Permanent Court of International Justice 9 7 September 1927; MR García-Mora International responsibility for hostile acts of private persons against foreign states (1962); HG Maier ‘Jurisdictional rules in customary international law’ in KM Meessen (ed) Extraterritorial jurisdiction in theory and practice (1996) 66; C Ryngaert Jurisdiction in international law (2015) 35. M Milanovic Extraterritorial application of human rights treaties: Law, principles, and policy (2011) 7. Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2003).

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African Charter’.37 The African Commission went further to decide that the respondent states, Burundi, Rwanda and Uganda, should pay ‘adequate reparations’ to the DRC on behalf of the victims who suffered human rights violations while the respondent states exercised ‘effective control of the provinces of the complainant state’.38 The African Commission spatially interpreted extraterritoriality as flowing from the effective control of the respondent states over regions in the DRC. The spatial model of jurisdiction previously had been established by the International Court of Justice (ICJ).39 Recalling its 2004 Advisory Opinion on the Wall40 in DRC v Uganda, the ICJ held that Uganda’s effective control in the Ituri region engaged its international responsibility ‘both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights … by other actors present in the occupied territory, including rebel groups acting on their own account’.41 The spatial model of jurisdiction was also recognised by the European Court of Human Rights (European Court) in Louizidou v Turkey and Cyprus v Turkey.42 Moreover, the African Commission has established that a jurisdictional link exists between a state and persons in another state for acts of the state that will have human rights consequences arising from the African Charter. The European Court has also affirmed responsibility based on the conduct of a state in another state not within its occupation.43 In Al-Skeini,44 the Grand Chamber of the European Court held that the United Kingdom had jurisdiction over Iraqi nationals killed by soldiers of the United Kingdom during a British invasion of Iraq. The European Court found that in engaging in security operations through its soldiers in a part of Iraq, the United Kingdom ‘exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention’.45

37 38 39

40 41 42 43

44 45

DRC v Burundi (n 36) paras 79-80. DRC v Burundi para 98. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion 9 July 2004 ICJ Reports 2004 (Advisory Opinion on the Wall) 136; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment, ICJ Report 2005, 168 (DRC v Uganda). Advisory Opinion on the Wall (n 39) 172. DRC v Uganda (n 39) paras 178-179. For further discourse, see Milanovic (n 35); R Wilde ‘The extraterritorial application of international human rights law on civil and political rights’ in S Sheeran & N Rodley Routledge handbook of international human rights law (2013) 635. See TS Bulto ‘Patching the “legal black hole”: The extraterritorial reach of states’ human rights duties in the African human rights system’ (2011) 27(2) South African Journal on Human Rights 249; R Mungianu Frontex and non-refoulement: The international responsibility of the EU (2016) 158. Al-Skeini & Others v United Kingdom Judgment, European Court of Human Rights 7 July 2011. As above.

The right to development under the African Charter

41

However, in its earlier decision of Bankovic,46 the Grand Chamber of the European Court considered jurisdiction primarily as a territorial construct and that if ‘the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants’, they would have adopted it. The applicants in the case contended that 17 state parties to the European Convention (also members of the North Atlantic Treaty Organization (NATO)) were responsible for the NATO bombing of Belgrade in 1999, which killed and injured certain individuals. On the question of jurisdiction, the applicant argued that ‘the positive obligation under article 1 extends to securing the Convention rights in a manner proportionate to the level of control exercised in any given extra-territorial situation’. The applicant contended that the states had jurisdiction based on their obligation under the European Convention. The states were dutybound to secure the Convention commensurate to the level of control they exerted over the airspace. However, the European Court was of the view that the Convention rights could not be divided and tailored. However, this view has been heavily criticised as constricting extraterritoriality. The underpinning assumption of the European Court’s decision is that no reference needs be made to context (such as human rights law) in the interpretation of jurisdiction. Oberletiner raises the point that it is widely thought that ‘the Court confused normative jurisdiction, as understood in general public international law, with the factual exercise of control as required under human rights law’. The Court has also been criticised for ‘relying, in an unduly restrictive manner, on an historic-subjective interpretation of article 1 without acknowledging the provision’s object and purpose’.47 However, post-Bankovic, significantly in Al-Skeini, the European Court expressed that48 whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under Article 1 [of the European Convention] to secure to that individual the rights and freedoms under section 1 of the Convention that are relevant to the situation of that individual.

In this sense, therefore, the European Convention rights can be ‘divided and tailored’,49 hence affirming the personal dimension of jurisdiction.

46 47 48 49

Bankovic & Others v Belgium and 16 Other States (2001) ECHR 890. G Oberleitner Human rights in armed conflict: Law, practice, policy (2015) 166. M Milanovic ‘Foreign surveillance and human rights, part 3: Models of extraterritorial application’ EJIL: Talk 27 November 2013. Al-Skeini case (n 44).

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This model resonates from the African Commission’s dictum in Association pour la Sauvegarde de la Paix au Burundi v Kenya, Rwanda, Tanzania, Uganda, Zaire and Zambia.50 In this case, the complainant argued that the embargo placed on Burundi by the respondent states violated the rights to life, education and development under the African Charter. In examining whether the imposed embargo violated the African Charter, the African Commission expressed that sanctions ‘cannot be open-ended’51 and, as such, ‘the effects thereof must be carefully monitored’.52 It further expressed that ‘measures must be adopted to meet the basic needs of the most vulnerable populations or they must be targeted at the main perpetrators or authors of the nuisance complained of’.53 Although the African Commission did not find that the acts of the respondent states were in violation of the African Charter, it was willing to find the states in violation of the rights of Burundians had the sanctions been indiscriminate, excessive, disproportionate and beyond the legitimate purpose.54 The African Commission appears to suggest that it is not essential to demonstrate that the human rights consequence was because of an act of its agent in another state.55 A jurisdictional link between a state and individuals in another state will thus be triggered where the action of the former has a human rights consequence on individuals in another state, albeit indirect.56 As such, an element of foreseeability of conduct is tied to determining jurisdiction. In General Comment 3, the African Commission accentuates the fact that a state’s jurisdiction extends to ‘conduct which could reasonably be foreseen to result in unlawful deprivation of life’.57 One might argue that, in part, the African Commission’s relaxed approach to the interpretation of jurisdiction resonates from the silence of the African Charter on its jurisdictional scope. Indeed, a cursory look at the provision of article 1 of the African Charter lends credence to this assertion in that it only provides that ‘[m]ember states of the Organisation of the African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter’.58 This provision does not establish a jurisdictional scope. Although each state has territorial jurisdiction to ensure the realisation of rights within its territories, a contextual analysis of peoples’ rights in the African Charter indicates the existence of extraterritoriality. The idea of peoples’ rights in the African 50 51 52 53 54 55 56 57 58

(2003) AHRLR 111 (ACHPR 2003). Association pour la Sauvegarde de la Paix au Burundi v Kenya (n 52) para 75. As above. As above. Bulto (n 43) 262. For a discourse on the effective control test, see Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) ICJ Reports 1984, p 392; General List No 70. See G Pascale ‘Extraterritorial applicability of the African Charter on Human and Peoples’ Rights’ (2014) 3 Dritti Umani e Diritto Internazionale 650. General Comment 3 on the African Charter on Human and Peoples’ Rights: The right to life (article 4) adopted during the 57th ordinary session of the African Commission on Human and Peoples’ Rights held 4-18 November 2015, Banjul, The Gambia. Art 1 African Charter.

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43

Charter developed from an understanding that solidarity among African states was essential in realising certain categories of rights. This position was iterated by Senghor. In his address to the expert meeting drafting the African Charter, Senghor inferred that realising peoples’ rights, and specifically the right to development, was a function of ‘the solidarity of … states’.59 Article 22(2) of the African Charter makes it a duty for states to ‘individually or collectively … ensure the exercise of the right to development’.60 Textually, this imposes two levels of duty. The first level of duty is on each state to act individually, while the notion of collectivity presupposes a necessity for states to act in solidarity towards realising the right to development. However, a relevant question resonating from this is what the nature of the collective duty on states is to act in solidarity. Article 22 of the African Charter is silent on this aspect, and neither the African Commission nor the African Court has given clear guidance on what this entails. However, a cursory look at another provision on peoples’ rights in the African Charter provides an indication of what the notion of collective duty implies as envisioned by the Charter. While recognising the right of peoples to existence, article 20(3) of the African Charter recognises a correlative duty on state parties to assist in the realisation of the right. Drawing on the treaty’s context, the notion of collectivity envisioned by the African Charter is a duty on member states of the African Union (AU) to assist in the realisation of the right to development. Globally, the duty to provide development assistance as envisaged by the Declaration on the Right to Development, among other international instruments, has generated a plethora of debates. These debates often collapse into contentions around global resource distribution. The discourse significantly animates the poser of international law as subjective, one of which scholarship from the Third Approaches to International Law (TWAIL) clarifies as the ‘dynamics of difference’ between the Global North and the Global South.61 The diametrical understanding of the right to development and development assistance resonates not only from the categorisation of rights into generations (first, second and third generations), but also from the narrow definition of international cooperation as excluding accountability in a globalised world. Development assistance for this purpose is considered a moral duty from the optics of the Global North. Donnelly articulates this position quite clearly in arguing that ‘“[t]he innate responsibility to help one’s fellowmen” establishes at most a moral obligation to act to promote

59 60 61

Gunme & Others v Cameroon (2009) AHRLR 9 (ACHPR 2009), para 173. Art 22(2) African Charter. A Anghie Imperialism, sovereignty and the making of international law (2004) 4.

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development, not a right to development’.62 He dismisses development assistance on the very ground on which he collapses the right to development, which is as a moral exercise and as solidarity which ‘does not establish a right to assistance, let alone a right to development’.63 However, the contextualisation of development as solidarity is not an argument against its status as a legal right, for even the international legal order is essentially built on the tenets of solidarity.64 However, Donnelly’s seemingly mild irritation with the right to development as counter-intuitive is better understood from his optics that the right to development ‘advocates want to be able to press stronger claims for development assistance and new forms of international cooperation, and they want to be able to play a more active even controlling role in such cooperation’.65 While he appears to advocate ‘more productive ways of linking human rights and development’,66 his summary conclusion on the right to development as a ‘threat to human rights’ contradicts his fervour fora more productive linkage. His categorical dismissal of the right to development and the correlative duty to assist abandons the history of human rights as a legitimisation of struggles.67 The struggle, which the right to development seeks to legitimise, is to create equity in economic power relations and freedom in the exercise of human capabilities. It is for this reason that it is strongly opposed, as the normative content of the right to development seeks to recalibrate the international economic order and has the potency of ‘altering an unjust system’.68 Although contentious, there is emerging recognition of development assistance as an imperative duty on states in the realisation of development globally, but this recognition is most explicit in the African Charter in relation to African states. However, a pertinent question resonating from this fact is how development assistance can be ensured pragmatically, for its existence is little less than rhetorical verbosity without a clear indication on how pragmatism can be realised. The next section engages this question.

62 63 64 65

66 67

68

J Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15 California Western International Law Journal 491. Donnelly (n 62) 490. UN General Assembly ‘Report of the Independent Expert on Human Rights and International Solidarity’, Note by the Secretary-General, UN Doc A/70/316 12 August 2015. Donnelly concludes this thesis by referring to the right to development as ‘not just a charming delusion, but a threat to human rights, and a particularly insidious threat because it plays upon our fondest hopes and best desires, and diverts attention from more productive ways of linking human rights and development’. Donnelly (n 62) 508. As above. Heyns argues that ‘the struggle approach emphasises the importance of asking, as the first threshold standard, whether the interest involved is the kind of interest that has inspired those struggles throughout history that have laid the foundation for the current body of human rights law. Are they “fighting causes”? To what extent is there a “fit” between the norm in question and the established core of human rights norms? Coherence with such instances of struggle must form an important part of any enquiry into the legitimacy of new struggles for the acceptance of rights that have not been recognised in the past.’ C Heyns ‘A “struggle approach” to human rights’ in C Heyns & K Stefiszyn Human rights, peace and justice in Africa: A reader (2006) 15 31. D Aguirre The human right to development in a globalised world (2008) 79-80.

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45

Way forward: Extraterritoriality in practice under article 22

In the 1960s when African states began discussing a Development Bank for Africa, the rhetoric was euphonious: Africa must take ownership of its economic future and stimulate development through regional solidarity. Given that the memories of colonial rule at the time were current, membership of the Bank was to be strictly regional. However, bold steps were soon to be distant in practice. When by the end of 1969 the Bank had ‘disbursed less than $1 million’ (whereas the total paid-in capital had been set at $125 million), it became clear that emotive decisions on financial sources had to be reconsidered. In 1971 non-African members were allowed entry ‘in principle’.69 However, the effectiveness of the Bank in stimulating African development has been a subject of much critical reflection. There are obvious reasons why this exists, not least the reality of regional financing.70 If the right to development is to become a reality, regional financing of development must be prioritised. In 2016, the AU developed a new regional funding model leveraging on a 0,2 per cent levy on imports to African countries as a means of financing the activities of the AU Commission and, as such, seeking to generate $1,2 billion annually.71 This financing may be employed in funding development.72 Taking a cue from the regional strategy to fund peace and security, the AU may decide to establish a Development Fund endowed from the 0,2 per cent levy. However, while financing is essential, it is imperative for states to collectively develop strategies to effectively counter corruption. Nearly $150 billion is lost to corruption in Africa.73 Solely from illicit financial flows, more than $50 billion is lost, 65 per cent of which relates to commercial activities by corporations.74 Three key manifestations of these flows in commercial activities are tax avoidance and evasion; the concealment of fortune; and the sidestepping of local levies and customs

69 70 71 72

73 74

EP English & HM Mule The African Development Bank (1996) 22. K Ojah ‘African Development Bank must gear up for a more proactive role’ The Conversation 18 June 2015. Decision on the Outcome of the Retreat of the Assembly of the African Union, AU Doc Assembly/AU/Dec.605 (XXVII) para 5(a)(i). In relation to peace and security, eg the AU decided to establish a Peace Fund ‘endowed from the 0.2 percent levy … with an amount of United States Dollars Three Hundred Twenty Five (USD 325) million in 2017, rising to Four Hundred (400) million in 2020’. In its decision, the AU Assembly expressed that ‘[t]his total amount shall be raised from equal contributions from each of the five (5) AU Regions, as defined in the relevant instruments’. KB Tang & D Bundhoo ‘Foreign aid and economic growth in developing countries: Evidence from sub-Saharan Africa’ (2017) 7 Theoretical Economic Letters 1473 1487. Illicit Financial Flows: Report of the High Level Panel on Illicit Financial Flows from Africa, commissioned by the AU/ECA Conference of Ministers of Finance, Planning and Economic Development (2015).

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duties.75 Realising the right to development will require states to set in place effective financial monitoring systems. Further, states need to recognise the legitimisation of good governance and democracy as springboards for realising development.76 Sen’s seminal work on development as freedom highlights the imperative of removing ‘unfreedoms’ to development in realising development.77 The removal of ‘unfreedoms’, however, must necessarily begin with the realisation that development cannot function in a state of systematic social deprivation, corruption and the repression of peoples. Development assistance must be mandatorily linked to good governance in practice. States must also ensure that resources are earmarked to protect vulnerable groups, including indigenous populations.

5

Conclusion

The extraterritorial reach of article 22(2) of the African Charter implies a duty on state parties to the Charter to assist in the realisation of the right to development beyond their national territories. This, indeed, will require financial resources. In reaching extraterritoriality, I have argued in this chapter that the new regional financing strategy adopted by the AU should be geared towards realising development which is an imperative goal for which the AU was formed. While this task essentially is a function of political will, it is imperative that guidance is set on funding development assistance within the context of article 22(2) of the African Charter. This task falls within the imperative of the African Commission as the principal human rights monitoring institution. However, it is equally important for the African Commission to meaningfully engage with states during state reporting processes on measures taken to engage in the collective realisation of the right to development. At present, the reporting guidelines of the African Commission do not demand this information and, as such, a revision of the guidelines is important. However, it will be crucial for both the African Commission and the African Court to definitely pronounce on the extraterritorial reach of article 22(2) of the African Charter as involving the duty on state parties to the treaty to assist in the realisation of the right to development.

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As above. For this, normative standards that have been developed within the regional human rights system are essential, including the African Charter on Democracy, Elections and Governance. African Charter on Democracy, Elections and Governance, adopted by the Assembly of Heads of State and Government of the African Union at the 8th ordinary session held in Addis Ababa, Ethiopia, 30 January 2007. A Sen Development as freedom (1999) 3.

CHAPTER

4

ACCESS TO JUSTICE AS A MECHANISM FOR THE ENFORCEMENT OF THE RIGHT TO DEVELOPMENT IN AFRICA

Ebenezer Durojaye,* Oluwafunmilola Adeniyi** and Carol C Ngang***

1

Introduction

In this chapter, we examine how access to justice in terms of a procedural requirement envisaged by law can ensure the enforcement of the right to development, particularly in respect of the vulnerable and marginalised groups in Africa. Africa grapples with various forms of socio-economic challenges, including endemic conflicts that over the decades have retarded progress on the continent. It is instructive to note that the African Charter on Human and Peoples’ Rights (African Charter) envisages that all peoples across Africa are legitimately entitled to the constant improvement of their well-being. This is formulated in terms of anticipating the full realisation of universally-recognised human rights and the simultaneous pursuit of substantive development. The legal recognition and protection of the right to development contained in the African Charter, among other instruments, imply that this right can lawfully be claimed through the courts or any other relevant mechanisms in accordance with the requirements and the criteria necessary for making such a claim.1 It also means that victims of a violation of the right should be able to have access and to navigate the complex legal processes to ensure that justice and equity are achieved.

* ** *** 1

Senior Researcher, Dullah Omar Institute, University of the Western Cape, South Africa; [email protected] Doctoral Researcher, Dullah Omar Institute, University of the Western Cape, South Africa; [email protected] Researcher, Centre for Human Rights, University of Pretoria, South Africa; [email protected] or [email protected] A Sengupta ‘The human right to development’ (2004) 32 Oxford Development Studies 186. 47

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However, the right to have access to justice as provided for by law often is hampered by a combination of factors, including conflicts that have become a recurrent feature in Africa. In virtually every part of the continent, countries are engulfed in one form of conflict or another. This ranges from the conflicts in the Democratic Republic of the Congo (DRC), the Central African Republic, Uganda, Sudan, Somalia and Nigeria, among others. Many of these conflicts are fanned by embers of religious, racial, ethnic and political sentiments. Whatever their form and however they manifest, conflicts threaten human security and also undermine social, political, economic and cultural development.2 The manner in which conflicts are resolved is of utmost importance. Therefore, conflict resolution is essential for realising not only a just and safe society but fundamentally also for advancing socio-economic and cultural development. This invariably serves as a catalyst for improving human well-being. In this regard, the African Charter guarantees to all the peoples of Africa ‘the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’.3 Flowing from this, it is imperative to address frictions in society, especially with regard to vulnerable and marginalised groups. In this regard, and in the context of this chapter, access to justice would imply not only the act of asserting claims through litigation but also having assurance of equal access to the opportunities that entitle all peoples to essential needs for survival and the conversion of such needs into legitimate demands, which ought to be enjoyed collectively as a human right.4 Given that culture is central to the well-being of the peoples of Africa and constitutes an integral component of the right to development, it is worth highlighting the crucial role that traditional dispute resolution mechanisms play not only in guaranteeing access to justice, but also in healing the wounds of the past and facilitating reconciliation.5 These are essential prerequisites to enable development to be achieved and enjoyed as a right, which is achievable only to the extent that all peoples in Africa are guaranteed sufficient access to justice. Unfortunately, besides the fact that the playing field is constrained by conflict, conflict resolution mechanisms often are placed out of the reach of vulnerable and marginalised groups. In the developmental context in Africa, the emphasis on access to justice need not be seen only in terms of complying with due process of the

2 3 4 5

See A Abass Protecting human security in Africa (2010) 7. African Charter on Human and Peoples’ Rights, adopted in Nairobi, Kenya, on 27 June 1981, art 22(1). See U Baxi ‘The new international, economic order, basic needs and rights: Notes towards development of the right to development’ (1983) 23 Indian Journal of International Law 231. K Muigua & K Francis ‘Alternative dispute resolution: Access to justice and development in Kenya’ (2015) 1 Strathmore Law Journal 1.

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law and legal procedural requirements but, more importantly, in advancing the right to development. This embodies the notion of equity and fairness as well as participatory and redistributive justice. The inability to resolve conflicts and address human rights violations is a precursor to social unrest and instability, which may undermine socioeconomic and cultural development. Moreover, the failure to provide effective conflict resolution mechanisms and to redress human rights violations may breed more conflict and, therefore, may threaten the requisite enabling environment for the realisation of the right to development. For millions of Africans, access to justice remains a great challenge. The inherited formal justice systems bestowed on most African countries by colonial masters generally have not met the needs and the aspirations of the people, probably as they are expensive, cumbersome, time-consuming and sometimes detached from the realities of vulnerable and marginalised groups. The traditional or informal justice system, which still brings succour to millions of people in the region, is not without its own challenges. Access to justice goes beyond physical admittance into the formal or informal justice systems and legal processes. It includes legal empowerment, counselling and representation. Realising access to justice for vulnerable and marginalised groups is crucial in addressing societal inequalities, poverty and social injustices, which in turn serves as a catalyst for socio-economic and cultural development. Relevant in this regard is goal 16 of the Sustainable Development Goals (SDGs), which is devoted to the realisation of access to justice as an essential ingredient of social development. Against this backdrop, this chapter explores the meaning and relevance of placing the emphasis on access to justice as well as what this entails in facilitating the realisation of the right to development. We examine the challenges surrounding the formal justice system in conflict resolution and discuss the relevance of the traditional justice system in achieving conflict resolution in Africa. We then proceed to analyse the right to development in relation to how its realisation could be achieved by emphasising access to justice as an important mechanism for creating the enabling environment for development to take place. More importantly, using the Gacaça court system in Rwanda as a case study, we discuss the potential of the traditional conflict resolution mechanisms in not only ensuring access to justice for disadvantaged groups but also in enhancing socio-economic and cultural development. We conclude by noting that despite their shortcomings, traditional conflict resolution mechanisms play a vital role in ensuring a just society, addressing poverty and achieving human development.

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Access to justice as a human rights challenge in Africa

Access to justice is a jurisprudential principle with divergent interpretations. To some it is the impartiality with which litigants are regarded; to others the legitimacy of outcomes delivered through the justice process; and yet to others it is the equity with which persons from different backgrounds can benefit from the justice system.6 Okogbule notes that ‘access to justice simply refers to the substantive and procedural mechanisms existing in any particular society designed to ensure that citizens have the opportunity of seeking redress’.7 For the purposes of this chapter, it suffices to state that access to justice is a principle requiring that every individual and all peoples should have the opportunity to seek justice regardless of their social status or grouping in society. In other words, race, age, creed, colour, class, gender or sexual orientation should not be the determining factor in ensuring that justice is guaranteed to all. As a fundamental and democratic right guaranteed to all individuals in society, access to justice is regarded as one of the core pillars of freedom and equality. Buscaglia notes that the promotion and protection of human rights, including civil and political and socioeconomic and cultural rights, and ensuring access to justice for the poor are ‘the sources of human security needed for social development, in general, and economic development understood as a means of enhancing the quality of life of all segments of the population’.8 Gwangudi explains that the essential elements that define access to justice are not limited to the procedural mechanisms for the resolution of disputes, but includes other important considerations such as the physical conditions of the premises where justice is dispensed and the quality of the human and material resources available there.9 These elements also include the quality of justice delivered; the time it takes for the delivery of justice; the moral quality of the dispenser of justice; the observance of the general principles of the rule of law; the affordability of the cost of seeking justice in terms of time and money; the quality of the legal advisers that assist litigants; and the incorruptibility and impartiality of operators of the system.10

6 7 8 9 10

R Bowd ‘Access to justice in Africa: Comparisons between Sierra Leone, Tanzania and Zambia’ (2009) 13 Institute for Security Studies–Policy Brief 4. N Okogbule ‘Access to justice and human rights protection in Nigeria: Problems and prospects (2003) 3 SUR-International Journal on Human Rights 94. E Buscaglia ‘Law and economics of the human rights to access to justice’ (2015) 1 Latin America and Iberian Journal of Law and Economics 34. MI Gwangudi ‘Problems militating against women’s access to justice in Nigeria’ (2002) 5 University of Maiduguri Law Journal 13. Gwangudi (n 9) 14.

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Ensuring access to justice for all is conceived and explicitly recognised inhuman rights instruments as a mechanism for the realisation of human rights. The first human rights instrument adopted by the United Nations (UN), the Universal Declaration of Human Rights (Universal Declaration) in article 10 recognises the right of everyone in full equality to a fair and public hearing by an independent and impartial tribunal.11 Furthermore, article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right of an individual to be assigned legal assistance without payment if he or she is unable to pay where the interests of justice so demand.12 Also, article 37(d) of the Convention on the Rights of the Child (CRC) provides that states should provide legal assistance to a child deprived of his or her liberty.13 In addition to the above treaty provisions, the UN has developed a number of norms and standards relating to access to justice for vulnerable and marginalised groups.14 More importantly, in December 2012 the UN General Assembly unanimously adopted the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,15 which constitutes the first international instrument on the right to legal aid. This document establishes minimum standards for the right to legal aid in criminal justice systems and provides practical guidance on how to ensure access to effective criminal legal aid services. It contains a number of very useful provisions relating to access to justice. At the regional level, three human rights instruments in Africa, which include the African Charter on Human and Peoples’ Rights (African Charter), the African Charter on the Rights and Welfare of the Child (African Children’s Charter) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol), all contain important provisions on access to justice. For instance, article 7 of the African Charter guarantees the rights to a fair hearing, which includes the right to legal representation for an accused

11 12 13 14

15

Universal Declaration of Human Rights, adopted by the General Assembly, Resolution 217 A(III) of 10 December 1948. International Covenant on Civil and Political Rights, adopted by UN General Assembly, Resolution 2200A (XXI) of 16 December 1966; entered into force on 23 March 1976. Convention on the Rights of the Child, adopted in 1989, UN Doc A/44/49 entered into force on 2 September 1990. Some of these include the UN Standard Minimum Rules for the Administration of Juvenile Justice; the Beijing Rules adopted by the General Assembly, Resolution 40/33 of 29; UN Standard Minimum Rules for Non-Custodian Measures (Tokyo Rules) adopted by the General Assembly, Resolution 451110 of 14 December 1990; UN Minimum Rules for Treatment of Prisoners adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955 and approved by the Economic and Social Council by its Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977; and the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the General Assembly, Resolution 40/34 of 29 November 1985. UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems 67/ 187.

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person. Also, article 8 of the African Women’s Protocol specifically provides for the right of access to justice for women. It enjoins African governments to realise access ‘to judicial and legal services, including “legal aid” and “support” to local, national, regional and continental initiatives directed at providing women access to legal services, including legal aid’. It should be noted that over the years the African Commission on Human and Peoples’ Rights (African Commission) has developed important norms and standards on access to justice in the region. These norms and standards include the Resolution on the Right to Recourse and Fair Trial in Africa;16 the Resolution on the Right to Fair Trial and Legal Assistance in Africa (Dakar Declaration and Recommendations);17 and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.18 Most of these norms affirm the right to a fair trial and respect for the rights of individuals in criminal matters. In addition to the above Resolutions of the African Commission, other consensus statements or declarations by African governments affirm the importance of realising access to justice as a fundamental right. For example, the Kampala Declaration on Prison Conditions in Africa and Plan of Action19 emphasises the need to respect the rights of all prisoners including providing them with social support. In Gunme & Others v Cameroon,20 the African Commission held that an essential ingredient of fair trial and access to justice is to ensure that an accused person receives the assistance of an interpreter if he or she is being tried in a language he or she does not understand. The Commission expressed the view that the state has the responsibility to provide an interpreter to the accused in accordance with the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa. Also, in Civil Liberties Organisation v Nigeria,21 the Commission noted that the denial of access to a legal practitioner was inconsistent with the notion of access to justice and the principle of fair trial as guaranteed in the African Charter. While most of the resolutions and declarations discussed above refer to access to justice in the context of the criminal justice system, efforts have

16 17 18 19 20 21

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted by the African Commission on Human and Peoples’ Rights at the 11th ordinary session in Tunis Tunisia, from 2-9 March 1992. Resolution on the Right to a Fair Trial and Legal Assistance in Africa, adopted by the African Commission on Human and Peoples’ Rights at its 26th ordinary session held in Kigali, Rwanda, from 1-15 November 1999. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, www.achpr.org/instruments/principles-guidelines-right-fair-trial (accessed 4 August 2017). The participants at the International Seminar on Prison Conditions in Africa held in Kampala from 19-21 September 1996. (2009) AHRLR 9 (ACHPR 2009). (2000) AHRLR 243 (ACHPR 1999).

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in recent times been made to broadly expand the scope of access to justice to civil matters. Of essence in this regard is not the act of seeking justice but ultimately in achieving freedom, which Sen lucidly describes as a catalyst for development.22 The vast majority of Africans encounter challenges in accessing the justice system as regards civil matters such as property rights, family matters and succession issues. This, in turns, limits their freedom and liberty of action in exercising the right to development, understood in generic terms as the right to the constant enjoyment of human well-being. An attempt by African governments to address these challenges has led to the adoption of consensus statements, such as the Kampala Declaration on Community Paralegals.23 Despite the elaborate provisions to realise access to justice at the international, regional and national levels, many Africans still encounter difficulties in accessing the formal justice system. Buscaglia has noted that ‘[m]any judiciaries suffer from a chronic lack of quality in its court rulings, lack of transparency, and endemic corruption’.24 This in turn hinders disadvantaged groups from exploring the conflict resolution mechanisms under the law. Access to justice remains a great challenge for a majority of people in Africa due to a number of reasons. These include poverty and illiteracy of a greater number of the African population; a lack of knowledge; the cumbersome nature of the legal system; and delays in the administration of justice.25

2.1

Poverty and illiteracy

A greater number of the African population lives below the poverty belt,26 and this has a direct impact on ensuring access to justice for them. The cost of securing legal representation and the filing of court papers can be prohibitive for many Africans, particularly disadvantaged groups. As a result, many people on the continent are unable or reluctant to seek justice to remedy wrongs. In many African countries, the justice system is inadvertently designed to create barriers to disadvantaged groups or persons seeking justice for breached rights. Given the pervasive level of poverty on the continent, the high costs of securing legal representation may discourage many people from using the formal justice system. The situation can be very problematic for vulnerable and marginalised groups, particularly people living in rural areas. Most formal courts are located in urban areas, further posing the challenge of distance and added transportation costs to impoverished people.

22 23 24 25 26

See generally A Sen Development as freedom (1999). Kampala Declaration on Community Paralegals adopted in Kampala, Uganda on 26 July 2012. Buscaglia (n 8). Bowd (n 6). See The World Bank ‘Poverty and inequality statistics’ http://povertydata. worldbank.org/poverty/region/SSA (accessed 9 June 2017).

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Closely related to poverty is illiteracy stemming from a gross lack of education and ignorance in general. The dismal level of civic education on the African continent has proved to be a barrier in seeking justice through the courts. Furthermore, the language of most formal courts is not indigenous to the majority of the populations and is only learnt in the formal educational system. This situation is further aggravated in the case of marginalised and vulnerable groups. Female illiteracy in Africa is at the highest level, and the same applies to the rural population. The United Nations Educational, Scientific and Cultural Organisation (UNESCO) states that 38 per cent of African adults are illiterate and two-thirds of these are women.27 The 2015 Education for All Global Monitoring Report data gathered by UNESCO shows that in sub-Saharan Africa, the poorest girls are likely to never attend primary school. As far as the situation in Guinea and Niger in 2012 is concerned, the UNESCO report states that about 70 per cent of the poorest girls never attended primary school.28

2.2

Lack of knowledge

One reason why the majority of people are unable to access the justice systems in Africa is ignorance or a lack of knowledge about their rights and the justice system. It is trite that where people are not aware of their rights, they are unlikely to identify human rights violations and thus unable to seek redress for the violations. In many communities in Africa, knowledge about human and constitutional rights generally is low. Thus, it is often difficult for people in these communities to ascertain whether their rights have been violated and what possible steps to take to seek redress. Odinkalu points out that ignorance on the part of people about their rights often contributes to human rights violations in Africa.29

2.3

Cumbersome nature of the legal system

In many African countries the legal systems are inherited from colonial systems and thus antiquated. Cumbersome parliamentary processes have led to the slow pace of reform of these systems. Citizens are thus trapped in a web of systems that are sometimes too formalistic or difficult to understand. The process of initiating or defending a case can be cumbersome and unappealing to marginalised groups. Procedures in courts sometimes are intimidating and may discourage vulnerable and

27 28 29

See statistics on UNESCO ‘Literacy and non-formal education’ http://www. unesco.org/new/en/dakar/education/literacy/ (accessed 9 June 2017). UNESCO (2015) ‘EFA Global Monitoring Report 2000-2015’ 153 http://unesdoc. unesco.org/images/0023/002322/232205e.pdf (accessed 13 February 2017). C Odinkalu ‘The impact of economic and social rights in Nigeria: An assessment of the legal framework for implementing education and health as human rights’ in V Gauri & D Brinks (eds) Courting social justice: Judicial enforcement of social and economic rights in the developing world (2008) 183.

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marginalised groups from seeking justice.30 Again in this instance, the disparity between the African indigenous languages of rural and marginalised groups and the formal languages of the courts interplays to constitute further barriers to accessing justice.31 In some situations, court procedures are conducted in a language that litigants may not understand, thereby making it inaccessible to a significant number of people, particularly those with low levels of education and those from rural areas. Excessive bureaucracy resulting from the dependence of the judiciary on the executive arm of government has been known to be a constraining factor in access to and the administration of justice in most African countries. With regard to complaints relating to violations or threats of violation a of the rights enshrined in the African Charter, access to the African Commission is predetermined by a number of admissibility criteria, one of which is the requirement of exhausting local remedies.32 In spite of this provision, the Bakweri Lands Claim case33 which, as Okafor notes, was the first right to development claim to be brought before the African Commission in which the applicants alleged the expropriation of their ancestral lands in violation of article 22 of the African Charter,34 failed the admissibility test. Due to the bureaucracies involved in seeking redress through domestic courts, the applicants had hoped to obtain an effective remedy through the African Commission but were constrained by the same cumbersome procedural requirements. Moreover, the adversarial nature of the formal justice system often tends to undermine the need for dialogue and reconciliation, which are essential elements of the informal justice system.35

2.4

Delays in the administration of justice

Another hindrance to access to justice for many Africans relates to the delays in the administration of justice. Due to antiquated processes used in many African states, cases take an unduly long time before they are resolved. Other factors such as poor infrastructure, congestion, a lack of preparedness on the part of lawyers, shortages of judicial officials, poor remuneration and endemic corruption combine to create further delays. Sometimes cases intended to seek redress for human rights violations may carry on for ten or more years and when finally resolved the outcome becomes almost meaningless to victims. 30 31 32 33 34 35

J Stevens (ed) Access to justice in sub-Saharan Africa: The role of traditional and informal justice systems (2000) 6. M Kane et al ‘Reassessing customary law systems as a vehicle for providing equitable access to justice for the poor’ paper presented at Arusha Conference on New Frontiers on Social Policy, 12 December 2005 12. Art 56(5) African Charter. Bakweri Land Claims Committee v Cameroon (2004) AHRLR 43 (ACHPR 2004). O Okafor A regional perspective: Article 22 of the African Charter on Human and Peoples’ Rights’ in UN Human Rights Realising the right to development (2013) 376. Kane et al (n 31) 11.

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The deficiencies in the formal justice system may undermine the legitimacy of the government and further impose a burden on the vulnerable and marginalised groups in society. This can lead to a loss of confidence in the formal system and a resort to self-help or alternative forms of conflict resolution. Over the years, many Africans have increasingly been embracing the traditional justice system as a means of conflict resolution.

3

Traditional justice system

The term ‘traditional dispute resolution mechanism’ does not admit of a single definition but is subject to different interpretations. Broadly speaking, traditional dispute resolution mechanisms refer to all those conflict management mechanisms that African communities have employed from time immemorial and passed from one generation to another.36 Different nomenclatures have been used to describe these mechanisms, including African, community, traditional, non-formal, informal, customary, indigenous and non-state justice systems. These terms are often used interchangeably to describe localised and culturespecific dispute resolution mechanisms.37 Traditional justice systems are firmly entrenched in the culture and customs of many African communities.38 It is believed that the traditional justice systems largely seek to promote restorative justice as opposed to retributive justice.39 Furthermore, they tend to focus on achieving reconciliation by restoring parties’ relationships and peace building, and focusing on parties’ interests rather than allocating rights between disputants.40 Despite constant opposition and prolonged non-recognition, traditional justice systems remain resilient. Generally, the legal system in Africa is bifurcated – combining the formal and the informal justice systems.41 The informal system in most African states serves to create a platform for indigent and rural communities to resolve conflicts and ensure access to justice, and consists mainly of traditional or religious courts adjudicating on the basis of the community’s customary laws.42 Informal systems of adjudication become relevant in the African context as they account for the dominant percentage of regulation and conflict resolution mechanisms which many

36 37 38 39 40 41 42

Muigua & Francis (n 5). As above. Stevens (n 30). F Kariuki ‘Applicability of traditional dispute resolution mechanisms in criminal cases in Kenya: Case study of Republic v Mohamed Abdow Mohamed’ (2014) 2 Alternative Dispute Resolution Journal 202. Muigua & Francis (n 5). As above As above.

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Africans have embraced. For instance, by constitutional definition43 approximately 85 per cent of the population in Sierra Leone falls under customary law jurisdictions.44 Furthermore, it has been estimated that approximately 75 per cent of land tenure systems in most African countries are governed by customary laws.45 A number of African states, such as Nigeria and Ethiopia, have given legal recognition to the informal justice system which permits the adjudication of personal and family matters through the application of customary or religious (Shari’a) laws. South Africa also constitutionally recognises customary law.46 However, in countries where there is legal recognition of the informal justice systems, the two systems continue to operate mostly independently of each other, often not without underlying tensions.47 It is important to note that the traditional justice system has certain salient features, which makes it an appealing alternative to the formal justice system, especially for rural and marginalised groups in Africa. Some of the most prominent features in this regard are the reconciliatory nature of the customary system, which takes into account social cohesion; being an inclusive and public participatory process; a sense of ownership of the process as it is largely community-based; the voluntary and procedurally-flexible nature of the process; cost-effectiveness; and being a case-by-case approach.48 Others have argued that the traditional justice system is based on cooperation; communitarism; strong group coherence; social obligations; consensus-based decision making; social conformity; and strong social sanctions.49 Also, it has been noted that the traditional justice system is closer to marginalised groups in rural areas and, thus, helps to facilitate access to justice of these communities.50

43 44 45 46 47 48

49

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See Constitution of Sierra Leone 1991 Ch XII art 170(3), which states ‘the rules of law which, by custom, are applicable to particular communities in Sierra Leone’. L Chirayath et al ‘Customary law and policy reform: Engaging with the plurality of justice systems’ (2006) Background paper for the World Development Report 2006: Equity and Development. As above. See Constitution of the Republic of South Africa, 1996 sec 31, read together with sec 34. Chirayath et al (n 44). See Kariuki (n 39) 202-228; J Onyango & T Cole ‘Reassessing customary law systems as a vehicle for providing equitable access to justice for the poor’ Arusha Conference on New Frontiers of Social Policy 12 December 2005; Penal Reform International (n 30) 21-35. E Sherry & H Myers ‘Traditional environmental knowledge in practice’ (2002) 15 Society and Natural Resources 345; see M Johnston ‘Giriama reconciliation’ (1978) 16 African Legal Studies 92. Johnston notes that the possibility of reconciliation is dependent on the disputants’ broader social relationship, of which the dispute is but a partial reflection. See also K Stich ‘Customary justice systems and rule of law’ (2014) 221 Military Law Review 215. See Report of the UN Special Rapporteur on Extreme Poverty and Human Rights on Access to Justice for Persons Living in Poverty (2012) http://www.ohchr.org/EN/ Issues/Poverty/Pages/Accesstojustice.aspx (accessed 18 January 2018).

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Surveys conducted in approximately 20 countries across the world reveal that most people in rural households attested to a lack of access to public services, in general, and a lack of court services, in particular.51 The surveys further revealed that more than two-thirds of low-income rural households stated that when faced with property-related conflicts linked to debts or inheritance, they seek informal dispute resolution through communal bodies or even public officials, such as mayors or governors, outside the court system. This would seem to attest to the importance of the informal justice system in resolving conflicts and enhancing social cohesion. Some have cited the use of traditional justice systems as a respite and possibly a replacement for the barriers in the formal justice system to accessing justice. While taking cognisance of the benefits of adopting the traditional justice system as a possible alternative, this is not without its challenges. One drawback is that traditional/customary systems of adjudication for the peoples of Africa often do not recognise international conventions and instruments in their administration of justice and, therefore, may not adequately guarantee the protection of human rights in dispensing justice. Others include the poorly-defined sets of rules and standards, the lack of capacity and poor record keeping.52 Also, traditional justice administration – albeit contentiously – has been found to mostly prefer group rights over individual rights. Although this is considered as giving rise to a system of human rights abuse,53 it is relevant for advancing the right to development, which is conceptualised in the African Charter as a group right. Notwithstanding these challenges, the traditional justice system has over the years served as a vibrant adjunct to the formal court systems, dispensing justice to many marginalised groups who would otherwise have been unable to seek redress. Given its importance to serving the needs of vulnerable and marginalised groups, there is a need to create a synergy between the formal justice system and the traditional justice system with a view to broadening access to justice for Africans.

4

Access to justice as a catalyst for development

Okogbule explains that ‘access to justice is undeniably an important barometer for assessing not only the rule of law in any society but also the quality of governance in that society’.54 Thus, access to justice bolstered by transparency, accountability and good governance can serve as a fulcrum

51 52 53 54

E Buscaglia ‘Law and economics of the human rights to access justice’ (2015) 1(1) The Latin American and Iberian Journal of Law and Economics 40. Onyango & Cole (n 48). See generally UNHRC Human rights and traditional justice systems in Africa (2016) 42. Okogbule (n 7).

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for socio-economic development.55 It has been argued that the traditional justice system can strengthen the rule of law and contribute to development.56 Where people are denied access to justice, this may lead to a deprivation of their means of livelihood, aggravate poverty and undermine their dignity as human beings. On the contrary, when access to justice is guaranteed to the people, this can promote the rule of law and, consequently, human security, socio-economic and cultural development. Clearly, realising access to justice for the poor is intrinsically linked to human development. Therefore, it is not surprising that consensus documents and declarations at the international and regional levels have recognised the importance of access to justice as a means of achieving socio-economic and cultural development. For instance, in September 2015 the international community adopted the Sustainable Development Goals (SDGs)57 with a view to addressing various social and economic challenges facing the world. One of the agreed goals is to ensure that access to justice is achieved for all by 2030, especially for vulnerable and marginalised groups. Indicator 16(3) aims at promoting the rule of law at the national and international levels and ensuring equal access to justice for all. This is a commitment on the part of the international community to eliminate barriers to access to justice for vulnerable and marginalised groups. At the regional level, the AU is at the forefront of ensuring access to justice for vulnerable and marginalised groups. Through its different initiatives and organs, the AU has developed important norms and standards to facilitate access to justice for disadvantaged groups. According to article 3(h) of the Constitutive Act of the AU, one of its objectives is the promotion and protection of human rights in accordance with the African Charter and other relevant international human rights instruments.58 In 2015 the AU adopted Agenda 2063 with the slogan ‘The Africa we want’.59 This is a 50-year continental agenda aimed to propel Africa to be one of the most economically and politically viable regions in the world. It paints the picture of where Africa could be in 50 years’ time. It contains seven broad aspirations, one of which envisions an Africa where good governance, respect for human rights, justice and the rule of law are the norms. Under this aspiration, it is envisaged that Africa will become a continent where its people will have access to ‘independent

55 56 57 58 59

Muigua & Francis (n 5). J Michel ‘Alternative dispute resolution and the rule of law in international development cooperation’ (2011) Justice AND Development Working Paper Series 2. Sustainable Development Goals adopted by the UN General Assembly on 25 September 2015. Constitutive Act of the African Union, adopted in 2000 at the Lomé Summit (Togo) entered into force in 2001. African Union ‘Agenda 2063 Vision and Priorities’ http://agenda2063.au.int/en/ vision (accessed 18 January 2018).

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courts and a judiciary that dispense and deliver justice with neither fear nor favour’. It implies that access to justice constitutes an integral part of the African agenda that envisages sustainable development for the African peoples. Important structures exist in the AU to ensure respect for good governance, human rights and the rule of law. One of these structures is the African Governance Architecture (AGA) established by the AU Commission pursuant to the decision of the Assembly of African Union Heads of State and Government during its 15th ordinary session held in July 2010.60 The AGA was established to serve as a ‘platform for dialogue between the various stakeholders who are mandated to promote and strengthen democratic governance in Africa’.61 One of its objectives is to ‘[e]nhance popular participation and citizen engagement in attainment of democracy, governance and respect for human and peoples’ rights’.62 Moreover, respect for democratic principles, human rights and the rule of law form one of the AGA’s guiding principles. Two of its important clusters – human rights and transitional justice as well as constitutionalism and the rule of law – serve as a useful vehicles for accessing justice in Africa. The specific reference to traditional justice in the AU architecture is an affirmation of the indispensability of the traditional justice system in seeking access to justice for Africans as an important factor in the realisation of the right to development.

4.1

Understanding the right to development

Under international law, the conceptualisation of the right to development remains contentious. With the exception of the African Charter, no other international treaty explicitly recognises the right to development. Rather, attempts at the conceptualisation of this right generally are contained only in non-binding instruments. The most concrete attempt to recognise the right to development at the international level was in 1986 when the UN adopted the Declaration on the Right to Development. The Declaration states:63 The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

60 61 62 63

African Governance Architecture established by the AU Commission pursuant to the decision of the Assembly of AU Heads of State and Government AU/Dec.304 (XV). As above. As above. Declaration on the Right to Development Resolution 41/128 adopted by the UN General Assembly on 4 December 1986, art 1(1).

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Arising from this definition, Sengupta, former UN Independent Expert on the Right to Development, has noted the following:64 (i) There is an inalienable right that is called the right to development. (ii) There is a particular process of economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised. (iii) The right to development is a human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy that particular process of development.

Sengupta’s account of the right to development accurately fits into the notion of access to justice, especially in a conflict or post-conflict situation, necessitating the active and meaningful participation of the peoples concerned in contributing constructively to the process of socio-economic and cultural development, who in turn are expected to reap equitable benefits from the process. Access to justice is seen in this light because as a procedural right guaranteed by most human rights instruments and domestic constitutions, it forms an integral part of the right to development, which envisages the full realisation of all human rights. At the World Conference on Human Rights in 1993, which culminated in the adoption of the Vienna Programme of Action, the international community affirmed that the right to development was an inalienable, universally-recognised fundamental human right. However, the strongest articulation of the right to development is contained in the African Charter, which provides:65 All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

The African Commission has had the opportunity to consider the relevance of this right in the Endorois case.66 This case involved the Kenyan government which had evicted the Endorois people – a traditional pastoralist community – from their ancestral land around Lake Bogoria in central Kenya in the 1970s, to make way for a national reserve and tourist facilities. In the landmark ruling issued in 2009, the African Commission found a violation of the right to development by establishing that by wrongfully evicting the Endorois people from their lands without 64 65 66

Arjun Sengupta was the UN Independent Expert on the Right to Development from 1999 to 2004 during which time he produced six reports on the contents and scope of the right to development. Art 22 African Charter. Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) paras 269-298.

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compensation, the Kenyan government violated their rights to property, health care, culture, religion and natural resources. The Commission ordered Kenya to restore the Endorois to their historic land and to compensate them. This decision is significant in the sense that it is the first to affirm the right to development fora people as a group. The African Court on Human and Peoples’ Rights (African Court) recently handed down a binding judgment in the Ogiek Community case in 2017 which, like the Endorois case, affirmed the fact that the right to development indeed could be claimed through the courts.67 Besides acknowledging the Endorois decision and the Ogiek judgment as watersheds in the formulation and advancement of the right to development,68 both cases are of relevance to the discussion in this chapter on account of the fact that they highlight the essence of guaranteeing access to justice as a crucial aspect for the realisation of the right to development, particularly for marginalised groups such as the Endorois and the Ogiek communities in Kenya. Without the opportunity to seek justice through the African Commission and the African Court, it might have been difficult for the Endorois and the Ogiek peoples to resolve the conflict with the Kenyan government resulting from their eviction. Perhaps their claims would have been suppressed and they would probably have been left perpetually dispossessed of their land and deprived of their right to development. However, the outcome of both cases shows that seeking justice through the African Commission and the African Court indeed helped to advance the right to development for the Endorois and the Ogiek peoples. It is worth noting that the Endorois decision particularly influenced the 2010 constitutional reforms in Kenya, with significant recognition of the rights of vulnerable and marginalised groups. As a prerequisite to ensure the exercise of the right to development, the Declaration on the Right to Development stipulates that states must eliminate every obstacle, including conflicts that may hold back development.69 Thus, besides highlighting the gains that may accrue to marginalised groups as shown in the context of the Endorois and the Ogiek communities, we submit that where conflict exists, it is important to activate the mechanism of access to justice in creating an enabling environment for advancing the right to development. We illustrate this point with the following discussion that focuses on post-conflict Rwanda where a traditional justice system was established to ensure social cohesion and national reconstruction. This in effect allowed the Rwandan people

67 68 69

African Commission on Human and Peoples’ Rights (Ogiek Community) v Republic of Kenya (2017) Appl 006/2017 paras 202-217. See S Kamga ‘The right to development under the African human rights system: The Endorois case’ (2011) 2 De Jure 281. Declaration on the Right to Development (n 63) arts 3(3) & 5.

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the full realisation of their right to self-determination, which includes the exercise of their inalienable right to full sovereignty.70

4.2

The Rwandan experience

In making this analysis, it is important to first and foremost highlight the fact that Rwanda is a state party to the African Charter, which it ratified on 15 July 1983. Therefore, Rwanda is bound by the obligation to ensure that the Rwandan people exercise their right to socio-economic and cultural development. The exercise and enjoyment of this right, however, was truncated in 1994 when the country was plunged into one of the most horrific genocides that the world has witnessed in recent times. Close to one million Rwandans were killed in the ethnic-generated conflict involving the majority Hutus against the minority Tutsis. The genocide brought Rwanda to its knees and portrayed the once beautiful and serene country as a ‘slaughter ground’ for the Tutsis. Never had the world witnessed so much acerbity and resentment between two ethnic groups in the same country.71 After the genocide, attempts were made at the international and national levels to address some of the human rights abuses and crimes against humanity perpetrated during the genocide. Consequently, in 1994 the UN Security Council passed a resolution creating the International Criminal Tribunal for Rwanda (ICTR). The mandate of the ICTR, among others, was to try the perpetrators deemed to have been directly or indirectly responsible for the genocide. The ICTR held its first trial in Arusha, Tanzania, in 1997 and handed down the first conviction by an international court for the crime of genocide one year later. As at 2014 the Tribunal had finalised 75 cases.72 However, while the efforts by the UN to hold accountable those responsible for the genocide is commendable, it should be noted that the ICTR could only handle a fraction of the cases arising from the genocide. It has been observed that the ICTR ‘lacked both the mandate and the capacity to try even a fraction of those who participated in the genocide’.73 Thus, in order to heal the wounds of the past and to ensure accountability for crimes perpetrated during the genocide, the Rwandan government opted for a truth commission.74 Nevertheless, the government was left with little choice as the prisons were already over-congested with suspects and the judicial system was unable to cope with the deluge of cases to be 70 71 72 73 74

Art 1(2) Declaration on the Right to Development. For a detailed account of events leading to the genocide, see G Stanton ‘The Rwandan genocide: Why early warning failed’ (2009) 1 Journal of African Conflicts and Peace Studies 6. International Criminal Tribunal for Rwanda ‘Status of cases’ (2013) www.unictr.org/ Cases/StatusofCases/tabid/204/Default.aspx (accessed 4 February 2018). HN Brehm et al ‘Genocide, justice and Rwanda Gacaça courts (2014) 30 Journal of Contemporary Criminal Justice 335. P Clark The Gacaça courts, post-genocide justice and reconciliation in Rwanda: Justice without lawyers (2010).

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handled. A report notes an estimated 120 000 people were brought to facilities that were built to hold 45 000 people. The 19 prisons in Rwanda thus were operating at over 200 per cent capacity, with the vast majority of the incarcerated awaiting genocide trials.75 Another report notes that as at November 1994, there were only 12 prosecutors and 244 judges in Rwanda, compared to 70 prosecutors and 758 judges before 1994.76 Even at full capacity, the existing Rwandan justice infrastructure would have struggled to cope with the claims against over one eighth of the nation’s population.77 The African Charter provides that the state has a duty to promote and protect the moral and traditional values recognised by the communities.78 In this regard, the Rwanda Constitution guarantees that in order to build the nation, the state shall have recourse to diverse home-grown mechanisms, including the promotion of national cultural values and the virtues of dignity as a home-grown solution in dealing with matters that impact on the well-being of the Rwandan people.79 To address the challenges resulting from the genocide in order to ensure retributive and restorative justice, the Rwandan government in 2001 established the Gacaça courts, a traditional conflict resolution mechanism. The Gacaça, an age-old traditional justice mechanism in Rwanda, literally means ‘grass’ and, as the name implies, some of the hearings for the cases handled by the courts were held in open spaces, including schools, markets and other public places. Traditionally and prior to the genocide, the Gacaça operated in such a way that some of the defendants would confess their crimes, express remorse, ask for forgiveness, provide restitution, and then offer food and drink to all parties as a symbol of reconciliation.80 This is consistent with the traditional dispute resolution mechanism. However, after the genocide, the government decided to apply this system in a modified form, more or less as a combination of the formal and traditional justice systems. Understandably, the revival of the Gacaça courts elicited criticism from some commentators and proponents of conventional systems of justice. This modified version, known as inkiko gacaca, was organised at local levels throughout the country with a dual aim, namely, both punitive (addressing impunity) and restorative (contributing to national

75 76 77 78 79 80

International Centre for Prison Studies ‘World prison statistics archive’ (2013) http:// www.prisonstudies.org/country/rwanda (accessed 19 January 2018). Gacaça Report Summary ‘Summary of the report presented at the closing of Gacaça court activities’ National Service of Gacaça Jurisdictions, Kigali, Rwanda 2012. As above. Art 17(3) African Charter. Rwandan Constitution of 2003 with Amendments through 2015, art 11. S Vandeginste ‘Justice, genocide and reparation after genocide and crimes against humanity: The proposed establishment of population Gacaça tribunals in Rwanda’ paper presented at the All-Africa Conference on African Principles of Conflict Resolution and Reconciliation, UN Conference Centre, Addis Ababa, Ethiopia, 8-12 November 1999.

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reconciliation). The courts were attributed jurisdiction over genocide and crimes against humanity committed between 1 October 1990 and 31 December 1994. According to Jean Damascene Gasanabo, a senior official of the National Commission for the Fight Against Genocide (CNLG), the ‘Gacaças were there for people to tell the truth, but also to give people the time and a forum in which to talk to each other, You can’t just tell your neighbour it’s time to reconcile; we had to initiate this process’.81 At the end of the sittings, the Gacaça courts are said to have handled approximately 2 million cases of various categories and degrees, the majority of which dealt with crimes against humanity. Brehm et al noted that ‘[t]hirty-three percent of the cases involved crimes against people, with 3% of all cases falling in category 1, the category reserved for the cases deemed most serious’.82 An important component deriving from article 22(2) of the African Charter is the obligation imposed on state parties to create an enabling environment to ‘ensure the exercise of the right to development’. After the genocide, the healing process was necessary in order for the rest of the country to move forward. Thus, it is observed that the Gacaça courts used a combination of the traditional conflict resolution methods and the formal justice system to administer punishment where necessary and at the same time enhance reconciliation. The sheer volume of the cases handled and the timeliness and user-friendly approach of the courts ensured that justice was achieved in post-conflict Rwanda. The elements of the courts’ processes are testimony to the efficacy of the traditional justice system in conflict resolution, without which the enabling environment might not have been established for the country to move on. Significant in this regard is the fact that rather than pursuing conventional Western-dominated systems of justice; Rwanda chose to have recourse to a home-grown traditional mechanism of conflict resolution and, by so doing, promoted the cultural aspect embodied in the right to development. The processes of the Gacaça courts proved that even when punitive measures are applied there is room for reconciliation and reconstruction in the spirit of African collectivism and communal well-being. The fact that the courts aimed not only to punish offenders but also to reconcile the conflicting parties has paid off in the sense that more than 20years after the genocide, Rwanda has experienced steady growth and development. Unlike the case in many African countries, such as the DRC and South Sudan, where endemic conflicts have left the populations perpetually impoverished and deprived of fundamental human rights and the opportunity for development, Rwanda has rapidly recovered from the genocide and currently is ranked as one of the rapidly-growing economies

81 82

DW ‘Rwanda life after genocide’ http://www.dw.com/en/rwanda-life-after-thegenocide/a-17544965 (accessed 17 January 2018). As above.

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with an increasing improvement in standards of living.83 This could not have occurred if the conflict resolution process had not been diligently handled. Despite criticisms of the Gacaça courts,84 the Rwandan experience remains a text book case study of how a home-grown mechanism of access to justice system is capable of creating the requisite enabling environment for the realisation of socio-economic and cultural development. Even though the Rwandan Constitution does not make provision for development as a human right, the efficacy of the traditional justice system paved the way for the right to development guaranteed to the people of Rwanda under the African Charter to be taken seriously.

5

Conclusion

The discussion in this chapter has aimed to illustrate that access to justice, particularly through traditional justice mechanisms in the African context, characterised by communalism and reconciliation for the attainment of collective well-being, constitutes an important factor in guaranteeing the realisation of the right to development. It is clear that efforts aimed at eliminating inequities and poverty must recognise the need to ensure access to justice, essentially because it has the propensity to empower vulnerable and marginalised groups to improve their living conditions. Guaranteeing access to justice, especially when it is designed to ensure the active and meaningful participation of the parties involved and the customary systems that they master, indeed can promote the rule of law and ultimately ensure that the right to socio-economic and cultural development is achieved. This is consistent with the Preamble to the African Charter and should be taken seriously. This requires having recourse not only to the formal justice system which, as pointed out, generally is too cumbersome and often inaccessible to the poor, but also to traditional justice mechanisms as we have endeavoured to illustrate. Despite the imperfections of and criticisms against the traditional justice system, it remains a beacon of hope for many Africans, particularly given the shortcomings of conventional justice mechanisms in guaranteeing the opportunity for the poor to seek justice. As noted in this chapter, the formal justice system is costly, timeconsuming, ‘unfriendly’ to the poor and riddled with inefficiency and corruption. The inability to ensure access to justice to vulnerable and marginalised groups through an efficient conflict resolution mechanism further deepens inequality and exacerbates poverty, which in effect also undermines the realisation of the right to development. On the contrary,

83 84

International Monetary Fund (IMF) Rwanda: Eighth Review under the Policy Support Instrument and Request for Extension, and Third Review under the Standby Credit Facility (2018). For a detailed assessment of the courts’ activities, see T Longman ‘An assessment of Rwandan Gacaça courts’ (2009) 21 Peace Review 304-312.

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an efficient conflict resolution mechanism rooted in restorative justice serves as a panacea to insecurity, injustice and disintegration. As the Rwandan example illustrates, when properly implemented, home-grown traditional conflict resolution mechanisms constitute an effective tool for creating the kind of enabling environment to enable the poor and the disadvantaged to exercise their right to socio-economic and cultural development guaranteed by the African Charter and other instruments. Seeking justice through traditional conflict resolution mechanisms promotes reconciliation, reconstruction and social cohesion, which are important building blocks in facilitating socio-economic and cultural development for the ultimate improvement of the well-being of the peoples of Africa. Indeed, the UN 2030 sustainable development agenda as well as the AU 2063 agenda for development affirm the fact that socioeconomic development cannot be achieved unless respect for the rule of law and access to justice are guaranteed to all, especially to the most vulnerable and marginalised groups across Africa.

PART II: THEMATIC PERSPECTIVES

CHAPTER

5

THE IMPACT OF CORRUPTION ON THE RIGHT TO DEVELOPMENT IN AFRICA

Anzanilifuno Munyai* and Avitus A Agbor**

1

Introduction

The right to development was first granted international recognition in the African Charter on Human and Peoples’ Rights (African Charter)1 and subsequently re-echoed in the United Nations (UN) Declaration on the Right to Development (UN Declaration).2 Article 22 of the African Charter provides for the right to development as follows: (1) All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. (2) States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

Unfortunately, nothing further is supplemented by this instrument to lay down the substantive content, norms and principles that should guide the interpretation and understanding of this right given the fact that no previous international human rights instrument had granted such a right recognition. Approximately five years later the UN General Assembly adopted the UN Declaration, which not only echoed the substantive content of article 22 of the African Charter but further laid down specific principles relating to the right to development,3 making it a universal right

* ** 1 2 3

Lecturer, Faculty of Law, University of Johannesburg, South Africa; [email protected] Research Associate Professor of Law, School of Postgraduate Studies and Research, Faculty of Law, North-West University, South Africa; [email protected] African Charter on Human and Peoples’ Rights, adopted in Nairobi on 27 June 1981, OAU Doc CAB/LEG/67/3 rev. 5; 1520 UNTS 217, art 22. United Nations Declaration on the Right to Development General Assembly Resolution 41/128, UNGA 3rd session, UN Doc A/RES/41/128 (1986) of 4 December 1986. Arts 2-10 UN Declaration (n 2). 70

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to which every human being is entitled, and highlighting its interdependence and indivisibility with other human rights.4 In articles 1 and 2 the UN Declaration sets out the fundamental premise on which the right to development is based. It stipulates as follows: Article 1 (1) The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. (2) The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources. Article 2 (1) The human person is the central subject of development and should be the active participant and beneficiary of the right to development. (2) All human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community, which alone can ensure the free and complete fulfilment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development. (3) States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the wellbeing of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.

According to article 2(1) of the UN Declaration, the ‘human person is the central subject of development and should be the active participant and beneficiary of the right to development’. Additionally, all human beings have a responsibility for development, both individually and collectively.5 Even though these two instruments recognise the right to development in international law, the UN Declaration is only a declaration and, therefore, resides in international legal discourse as soft law.6 On the other hand, the right to development under the African Charter carries the status and weight of every other right contained therein, which makes it justiciable.

4 5 6

Art 9(1) UN Declaration. Art 2(2) UN Declaration. OO Oduwole ‘Africa’s contribution to the advancement of the right to development in international law’ in CC Jalloh & O Elias (eds) Shielding humanity: Essays in international law in honour of Judge Abdul G Koroma (2015) 566.

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For the right to development to be realised, it is argued that the process should be guided by human rights principles and the outcome dictated by human rights standards.7 Requiring the realisation of the right to development to be guided by human rights principles (inclusivity, universality, accountability, openness, transparency and equality, to name a few) and the outcome to be dictated by human rights standards constitutes some of the reasons that explain the impact of corruption on the realisation of the right to development in African states. Corruption is a barrier to socio-economic, political and cultural development as it leads to the diversion and siphoning of public funds at the expense of the implementation of development programmes and the realisation of developmental projects. In addition, corruption has a devastating impact on the poor as it deprives them of facilities they need in order to realise their socio-economic rights. For example, the misappropriation of funds dedicated to the construction of medical institutions will mean that people’s rights to healthcare are compromised. In addition, funds meant for the construction of schools will also mean that people’s rights to education will not be fully realised. Corruption also widens the gap between the rich and the poor. Unfortunately this leads to an inability to meet the basic needs of people and, most importantly, an impairment of the economy, the security of a state and underdevelopment. To hasten development in Africa, African states need to develop ways of combating corruption. This could be done through the enactment of anticorruption laws; the establishment of anti-corruption institutions; and the conclusion of bilateral and multilateral agreements aimed at engaging other states in the fight against corruption. More importantly, these efforts must be complemented by the requisite political will aimed at fighting corruption, for without it all efforts will take on the semblance of ‘window dressing’.

2

Impact of corruption on the right to development in Africa

Many African states are endowed with invaluable natural resources and human potential. Unfortunately these only swing between least developed and developing states. One of the reasons that accounts for this state of underdevelopment and underutilisation of the vast human potential is the endemic corruption that has crept into the fabric of economic, social, cultural and political life. Corruption resides in Africa as the invisible enemy among the people and takes a heavy toll on human capital, infrastructural development, democracy, human rights, the rule of law and good governance. Corruption in part explains why most African states

7

A Sengupta ‘The human right to development’ (2004) 32 Oxford Development Studies183.

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suffer from underdevelopment, a concept which may be defined as an economy that is characterised by the co-existence ‘in greater or less degree of unutilised or underutilised manpower on the one hand, and of unexplained natural resources on the other’.8 For a state to be considered as developing, five key factors must be identifiable. First, a multidimensional process that involves changes in social, political and economic structures must exist. Second, there should be some signs of attitudinal change from the social and institutional point of view. Third, there must be an increase in economic growth. Fourth, a positive trend on how to reduce inequality in income distribution must be evident. Lastly, positive strategies towards the eradication of absolute poverty should be in existence.9 Based on the aforementioned parameters, many African states do not qualify as developing, but are rather tagged least developed because of the state of underdevelopment in which they are entrenched. The UN Committee for Development Policy defined least-developed countries as ‘low income countries confronting severe structural impediments to sustainable development. They are highly vulnerable to economic and environmental shocks and have low levels of human assets.’10 From the 47 listed states, Somalia as well as other worst corrupt states in Africa as declared by Transparency International’s 2016 Corruption Perception Index, made the UN Committee for Development Policy list of least developed countries (LDCs). Evidently, this shows an undeniable link between corruption and a state’s development. Generally, the most corrupt states in Africa find a place in the lowest rung of economic development in the region as well as the world at large. Corruption has tremendous effects on development and the right to development. For the right to development to be accorded full realisation, corruption in all forms must be combated. The impact of corruption on the right to development varies from state to state. The likelihood of largescale corruption in societies may exist in a state where democratic values and systems of checks and balances are not adhered to, and where elected or appointed officials are not accountable or transparent. This adversely affects the right to development and the development process in the sense that the magnitude of corruption usually results in a widening of the poverty gap; a violation of democratic principles, values and norms; a weakening of political institutions and, ultimately, a retardation of the socio-economic development in the country.

8 9 10

G Ji, S Bakhri & A Bhakri Indian economy: Performance and policies (for University of Delhi) (2015) 12. SM Muriithi African development dilemma: The big debate (1997) 33. UN Development Policy and Analysis Division ‘Least developed countries (LDCs)’ https://www.un.org/development/desa/dpad/least-developed-country-category.html (accessed 10 August 2017).

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Corruption can either be petty or grand. Petty corruption often is perpetrated on a small scale by junior state administrators.11 Grand corruption commonly is perpetrated by political elites who are part of the state administrative machinery and responsible for ensuring that state resources are diligently allocated to members of the public.12 Unlike petty corruption, grand corruption is perpetrated on a large scale. When political elites misappropriate, steal or embezzle state resources, it has an adverse impact on development due to the fact that the resources in question are intended for the advancement of the entire country.13 Grand corruption in Africa often is triggered by various factors, including frail anti-corruption laws and institutions, and a lack of good governance, transparency and accountability. Research has shown that no state is immune to corruption. Established as well as emerging democracies, monarchies and autocracies all display corruption in some or other form. The key difference here is not only in the scale of corruption but, importantly, also in the measures and mechanisms put in place to fight corruption. As such, many democracies, in Africa as well as beyond, have been able to bring corruption to acceptable and tolerable levels by empowering civil society organisations to engage in whistle-blowing when corruption is suspected to have been committed or is likely to be committed. Due to the absence of political will to fight corruption, anti-corruption mechanisms in most African states are very weak: laws that are saturated with technicalities; anti-corruption institutions that are saturated with political appointees with no independence to act; the politicisation of prosecutors and the victimisation of individuals and civil society entities that give publicity to corrupt acts involving senior state officials. Africa loses large amounts of money through corruption, money that could have been used to improve the well-being of the people, the economy and governance. For example, between 1960 and 2007, Nigeria is said to have lost at least US$300 to 400 billion through corruption by public officials.14 In 2014, a report revealed that in only six months Malawi lost US$300 million because of corruption and related practices.15 In 2016 Transparency International Zimbabwe reported that Zimbabwe looses at least US$1 billion annually due to corruption.16 In the same year Ghana

11 12 13 14 15 16

JR Petrucelli & JR Peters Preventing fraud and mismanagement in government: Systems and structures (2016) 337. Petrucelli & Peters (n 11) 336. L Harees The mirage of dignity on the highways on human ‘progress’: The bystander perspective (2012) 487. TM Zhou ‘Poverty, natural resources “curse” and underdevelopment in Africa’ in M Munyaradzi (ed) Underdevelopment, development and the future of Africa (2017) 295. ‘Malawi loses $30m through corruption’ ENCA News 25 February 2014 http:// www.enca.com/africa/malawi-loses-30m-corruption (accessed 22 August 2017). S Mugova ‘The impact of corruption and lost $15 billion on Zimbabwe’s economy’ 21 March http://www.news24.com/MyNews24/the-impact-of-corruption-and-lost15-billion-on-zimbabwes-economy-20170321 (accessed 21 August 2017).

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reportedly lost US$2,3 billion worth of gold to illicit mining.17 These are only figures of officially documented transactions of some states. If these monies were injected into the national economy of the victim states, some level of development, at least in terms of infrastructure and human development would have been achieved. Corruption has plagued the African continent as it deprives its people of the resources they need for the realisation of the right to development and development itself. Corruption in various ways strains a state’s economic growth and development. In this context, development must not be construed as or confined to meaning the establishment of state infrastructures. Rather, it is used to mean a pyramid made up of various components for the well-being of the people and the realisation of their rights. Residing as an ‘invisible enemy amongst a people’, corruption adversely affects the components of the development pyramid, which cuts across a political culture such as democracy, the separation of powers such as having a corrupt and venal judiciary, and, lastly, a service delivery sector that operates solely on whoever is willing to pay a bribe.

2.1

Corruption and democracy

Corruption negatively affects democracy. Democracy is participatory politics where individuals in a given society are permitted to choose amongst themselves those to be vested with the power to carry on a developmental agenda for the benefit of the people. The selection of individuals to lead may take different forms and usually is conducted at regular intervals. The right to participate in the political affairs or governance of a state has been given recognition in international human rights instruments.18 The substantive content of this right means that any individual in a political constituency is entitled to freely participate in the management of that state. This means that such an individual should participate in the selection of the leaders. It also means that such an individual should not only select others, but can and should also be selected if found eligible. Lastly, participation in government may also mean that individuals can voice their opinions, publicly and privately, about the management of the state, without fear of victimisation – an angle of the right to freedom of expression. These rights are expressed in numerous international human rights instruments. For political development to take place in a democracy entails fairness, transparency

17

18

D Frimpong ‘Here’s a breakdown of how much Ghana lost to illegal gold mining in 2016’ 28 March 2016 http://www.pulse.com.gh/bi/finance/2-3-billion-heres-abreakdown-of-how-much-ghana-lost-to-illegal-gold-mining-in-2016-id6439940.html (accessed 22 August 2017). See eg, International Covenant on Civil and Political Rights (ICCPR) 16 December 1966, 999 UNT 171 arts 25(a)-(c); arts 13(1)-(3) African Charter; Universal Declaration of Human Rights (Universal Declaration) UN Doc A/RES/3/217A/ (1948) of 10 December 1948, arts 21(1)-(2).

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and openness to guide the conduct of the selection processes. If any form of corruption is perpetrated, such as the rigging of the ballot or voter fraud, it compromises the rights of the individuals to participate in the governance of their society. Many post-independence African leaders are not supporters of multiparty democracy. Instead, they promote the so-called ‘one-party state’, claiming that it is ‘compatible with African political values’ and, hence, forms part of African tradition.19 One of the issues arising from a ‘one-party’ state is corruption. As Lord Acton once observed, ‘power tends to corrupt, and absolute power corrupts absolutely’.20 One may argue that this notion is a reflection of African-styled ‘democracy’ as many of these ‘democracies’ lack transparency and accountability; have ineffective legislation aimed at detecting illegal activities; have judiciaries that are not independent and often under the direction of the executive; curtail freedom of expression,21 and where people’s freedom of choice in many instances is unreasonably restricted.22 Democracy is rule for the people by the people.23 If corruption affects democratic principles, which are centred on participation, how can development be achieved if the people are restricted from participation? Obviously, the right to development itself is stagnated and compromised in instances where people are not allowed to exercise their right to participate in the governance of their society.

2.2

Corruption and the judiciary

Contemporary political arrangements require a government to be structured into three key organs, each performing a distinct function occupied by different individuals. Often referred to as the ‘separation of powers’ in political and legal discourse, this also means that no organ is more powerful, and each serves as a check on the other organ in order to curb administrative excesses and guard against arbitrariness. These organs are the legislature whose duty it is to enact laws; the executive with the mandate to enforce the law; and the judiciary, whose core function is to apply the law in adjudicating and resolving disputes. The judiciary interprets the law and resolves legal disputes that may arise, including the constitutionality of an (administrative) act. The powers to review and annul the actions of the other organs make the judiciary a key actor in the protection of human rights as well as their enforcement in a legal system.24 19 20 21 22 23 24

DE Uwizeyimana ‘Democracy and pretend democracies in Africa: Myths of African democracies’ (2012) 16 Law, Democracy and Development 140. LS Lewis When power corrupts: Academic governing boards in the shadow of the Adelphi case (2000). Uwizeyimana (n 19) 143. See U Robert ‘Impact of corruption on democratic governance in Africa: The case of Central Africa’ paper presented at the International Conference on Democratic Governance: Challenges in Africa and Asia, Philadelphia, USA, 7-9 August 2012. J Mummery Radicalizing democracy for the twenty-first century (2016) 1. A Premchand Contemporary India: Society and its governance (2011) 59.

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For the judiciary to properly function, it must be independent and comprise individuals with a high degree of integrity and intellectual prowess. These individuals must be drawn from society, and should be guided only by the law and their conscience. They must be steered away from any kind of influence; and are expected to act independently without any fear or favour. They must not be wielded by political influence, or be subjected to the political machinations that may turn a court of law/justice into a court of injustice and unlawfulness. Across the African continent, most judiciaries are not adequately independent because of the fact that they are creations of the executive with overarching tendencies that severely compromise their independence. Judicial officials often are political appointees who soon become legal lackeys as they serve the interests of their appointers rather than fulfil their constitutional mandate. Low levels of income and random demotions leading to a change in status often drive judicial officers to engage in corrupt practices. When the judiciary is filled by such persons, justice is ‘put on sale’; the courts become partial and dependent; and, more importantly, the rights and freedoms of the people are jeopardised. The courts no longer are fora for redress. African judges have been involved in scandalous acts of corruption, some resulting in dismissal. In Kenya a Supreme Court judge, Philip Tunoi, was suspended following an investigation after allegations had surfaced that he had received a bribe worth US$2 million.25 In Ghana several High Court judges were suspended in 2015 when evidence gathered by a Ghanaian journalist, Anas Aremeyaw, revealed that these judges had accepted bribes and demanded sexual favours in return for dismissing cases.26 The major effect of receiving or requesting bribes in the judiciary is that it influences the outcome of a case. Moreover, justice for the underprivileged may not be served simply because they are unable to pay bribes, judicial officers become biased when adjudicating a case, and the people tend to lose trust in the judicial system.27 As previously mentioned, development entails a wide range of components, some of which are interconnected. The functioning of the judiciary has an impact on economic growth, which also has an enormous

25 26

27

P Leftie ‘Kenya’s $2m “bribe” judge suspended’ 23 February 2016 http:// www.africareview.com/news/Kenya-judge-suspended-over-bribe-claims/979180-3089 720-hpedni/index.html (accessed 22 August 2017). A Laing ‘Ghana suspends seven High Court judges over bribe-taking film’ 17 August http://www.telegraph.co.uk/news/worldnews/africaandindianocean/ghana/119157 63/Ghana-suspends-seven-high-court-judges-over-bribe-taking-film.html (accessed 21 August 2017). S Gloppen ‘Courts, corruption and judicial independence’ in T Søreide &A Williams (eds) Corruption, grabbing and development: Real world challenges (2013) 71.

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impact on development. A stronger and more independent judiciary leads to a rapid growth of firms in the economy,28 which in turn positively influences the development of a state. Investors are always eager to know whether a society has as legal system that will protect their investments, and perceptions of the judiciary play a priceless role in such assessments.

2.3

Corruption and service delivery

Corruption affects public administration by undermining the legitimacy of governance.29 When corruption takes place, proper service delivery, to which people are legitimately entitled, may not be achieved. For example, in South Africa in 2012, secondary schools in the Limpopo province did not receive textbooks from the Department of Education. The textbook saga revealed corruption in the education system, the procurement processes and other problems related to outsourcing government services.30 These incidents violate the constitutional right to education, which is directly linked to the right to development.

3

Need for a human rights-based approach to development

Even though there is no universal definition of the meaning of the word ‘development’, there at least is some consensus on the fact that development is perceived as an undeterminable process that happens over time, covering economic, social, cultural and political spheres aiming at the constant improvement of the well-being of the human person.31 For such a process to be achieved, it must be participatory in nature, be fair and ensure that there is equitable distribution of benefits.32 Additionally, the process must draw special attention to democratic participation.33 This meaning of development is inspired by the definition set out in the Preamble to the UN Declaration where it is defined as [a] comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful

28 29 30 31 32 33

Y Abdulkarim ‘Socio-economic effects of judicial corruption in Nigeria’ (2012) 1 International Journal of Humanities and Social Science Invention 32. M Sabharwal & EM Berman ‘Public administration in South Asia’ in M Sabharwal & EM Berman (eds) Public administration in South Asia: India, Bangladesh and Pakistan (2016) 25. S Naidu ‘South Africa’ in A Mehler, H Melber & K Walraven (eds) Africa yearbook volume 9: Politics, economy and society south of the Sahara in 2012 (2013) 519. Sengupta (n 7) 180. As above. PJIM de Waart ‘Implementing the right to development: The perfection of democracy’ in SR Chowdhury, EMG Denters & PJIM de Waart (eds) The right to development in international law (1992) 191.

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participation in development and in the fair distribution of benefits resulting therefrom.34

Development can be sustainable, social or participatory. Sustainable development is development centred on the need to avoid environmental harm. It is development that meets the needs of the present generations without compromising the future generations’ ability to meet their own needs.35 Social development, on the one hand, is development centred on benefiting the vulnerable or marginalised groups in society. Participatory development, on the other, is the involvement of affected people in the design, evaluation and implementation of development strategies.36 Irrespective of whether development is sustainable, social or participatory, it cannot be limited to economic growth. Instead, as pointed out by some scholars, development must be understood in terms of human development, a ‘process of expanding the real freedoms that people enjoy’.37 The process of development may take on one of two dimensions: an internal and external or an international dimension. The internal dimension as expressed in articles 2 and 8 of the UN Declaration focuses on the human person as the centre of development, requiring development strategies to focus on participation.38 The international dimension, on the other hand, focuses on the importance of establishing an international economic social order that supports domestic development efforts.39 In view of the above, it is apt to define the right to development and what it entails. According to Sengupta, the right to development may be understood as a development process carried out in a rights-based manner in accordance with international human rights standards that lead to the fulfilment of human rights. It must be a ‘participatory, non-discriminatory, accountable and transparent process with equity in decision making and sharing of the fruits of the process’.40 Similarly, article 1(1) of the UN Declaration defines the right to development by stating the core components contained therein. These core components include the fact that the right to development is an inalienable human right; that it belongs to everyone; that it could be exercised individually or collectively; and that human beings, whether individually or collectively, are entitled ‘to participate in, contribute to, as well as enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised’.41 34 35 36 37 38 39 40 41

Preamble UN Declaration. KW Peacock Natural resources and sustainable development (2008) v. S Marks & A Clapham International human rights lexicon (2005) 95. Marks & Clapham (n 36) 96. O de Schutter International human rights law (2014) 211. As above. A Sengupta ‘The right to development’ in RP Claude & BH Weston (eds) Human rights in the world community: Issues and actions (2006) 250. Art 1(1) UN Declaration.

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As a third generation right, the state as well as the individuals concerned, private and public firms, together with the international community, must make an effort to realise the right to development.42 As previously mentioned, the process of development must provide for participation and the equitable distribution of benefits. When a development process possesses these two components, the process is referred to as rights-based because of its consistency with human rights standards.43 For the rights-based approach to development to have effect, development strategies and programmes should align with human rights standards. In the context of the right to development, this means that the development process must embody all human rights.44 This is supported by the UN Declaration, which provides that the development process must ensure the full realisation of all human rights (civil and political as well as social, economic and cultural rights).45 When a development process is in motion, it is not uncommon for peoples’ rights to be violated. To avoid this from occurring, a human rights-based approach to development must be observed to ensure that safeguards are in place to address unintentional harm caused by development projects. This approach requires the incorporation of protection measures in development projects, plans and policies.46 Additionally, the approach emphasises the importance of participation, accountability, non-discrimination and empowerment.47 Participation means that the beneficiaries of development must be directly involved in the development process. Accountability in the context of development primarily focuses on identifying duties and duty bearers and how they can and will fulfil their obligations. Non-discrimination focuses on how the uneven distribution of power and resources can be avoided and how previously-disadvantaged groups can be considered in development plans. Empowerment focuses on how development activities should facilitate and assist communities to improve their living conditions.48 Human rights have been defined as those things that an individual is legally entitled to by virtue of the fact that such an individual is a human being. These legal entitlements are provided for and secured by legal instruments at national, regional and international levels.49 These rights vary in nature, ranging from core civil, political, economic, social and

42

43 44 45 46 47 48 49

Although not expressed as such, the purport of arts 4 and 10 of the UN Declaration addresses the issue and relevance of international cooperation in the realisation of the right to development. See also MA Tadeg ‘Reflections on the right to development: Challenges and prospects’ (2010) 10 African Human Rights Law Journal 325. Sengupta (n 7) 180. Marks & Clapham (n 36) 91. See art 6 UN Declaration. See also Tadeg (n 42) 330; De Schutter (n 38) 211. Marks & Clapham (n 36) 98. As above. As above. See generally ICCPR; African Charter; Universal Declaration. See also B Moriarty & E Massa (eds) Human rights law (2012) 2.

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cultural rights to the right to development. Among these rights are the right to freely participate in the governance of a state; the right to education; the right to food; the right to adequate housing; the right to healthcare; and the right to social security. State parties to international human rights instruments are obliged to take steps to ensure that these rights are protected, promoted and respected. Promotion would entail legislative reforms, infrastructural development, and the need to provide the human capital to ensure that the objectives of these instruments are met. The progressive realisation of these rights requires state parties to allocate the necessary resources aimed at providing the platform. In other words, a state’s commitment to give effect to human rights requires putting in place not only laws and policies but also the material resources needed for the actualisation of such rights. In effect, progressive action becomes a sine qua non for the realisation of civil and political as well as economic, social and cultural rights. If the substantive content of human rights as stipulated in international human rights instruments is used as the instrumentum laboris (working instrument), then development ought to factor these and be guided by them. The UN Declaration places an emphasis on the role of human rights in the realisation of the right to development.50 With the recognition of the right to development as a human right according to the African Charter, this means that there are duty holders and duty bearers. In other words, development should express the claims or entitlements of rights holders, which the duty bearers have an obligation to promote and protect.51 The human rights-based approach focuses on the protection of rights holders and duty bearers, and the cooperation between the two.52 The African Charter legitimises peoples (not individuals) as holders of the right to development. According to Viljoen, ‘peoples’ ‘may be a community … population of a country as a whole; or they may be everyone living on the continent’.53 For an individual to qualify as the holder of a right, such an individual must be a candidate of the right in question. The individual must be someone ‘whose interest would be recognised as vital or substantially important in the society to bind other agents to do what is necessary to improve’ the well-being or interests of the individual in question.54 A collective that acts like an individual may qualify as the holder of a right if they are able to ‘identify clearly a state of affairs to be better, or improved in terms of its well-being or interests’.55

50 51 52 53 54 55

Art 1 UN Declaration. See also A Hildering International law, sustainable development and water management (2004) 146. Sengupta (n 40) 250. HO Sano ‘The drivers of human rights change in development’ in P Gready & W Vandenhole (eds) Human rights and development in the new millennium: Towards a theory of change (2013) 35. F Viljoen International human rights law in Africa (2012) 226. Sengupta (n 7) 190. As above.

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For a group right to be plausible, it must be enjoyed individually by members of a specific group but must be exercised collectively. Alternatively, the group must have an identity, which is either defined by history, law or territory. The identity must be independent of and above that of individual members of the group, with a clear procedure for ascertaining the realisation of the right.56 Those who have obligations under international human rights instruments are known as duty bearers, and states are considered the main duty bearers of the right to development. Duty bearers or states have the obligation to respect, protect and fulfil the rights of the people on their own or through delegation to others.57 A state has three kinds of duties in respect of any right through laws and other remedies: the duties to respect, to protect and to fulfil (including to facilitate and to provide).58 The obligations imposed on duty bearers by the African Charter harmonises the right to development59 and, thus, requires both individual and collective state obligations in ensuring its realisation.60 The UN Declaration equally has provisions outlining the duties of states in the realisation of the right to development.61 As discussed and delineated above, corruption adversely impacts on the right to development. Not only does corruption negatively affect the right to development, but it immensely impedes development as a process in any and every society. If the right to development is to be given meaningful protection, it is vital for every state to combat corruption and bring it to a tolerable and manageable level. Meaningful and sustainable development cannot take place if corruption, especially large-scale corruption, is prevalent in a state. A state’s willingness to combat corruption may be construed as a positive indication of its commitment to embark on sustainable development that yields fruits for the present as well as future generations. In order to combat corruption, numerous steps can be taken by African states, some of which are outlined below.

4

Requisite national anti-corruption measures

Corruption is a dynamic phenomenon that evolves overtime. For this reason, it is safe to say that no perfect law or legislative framework exists which is developed to combat corruption. Instead, states should constantly improve or amend their anti-corruption laws and strategies to conform to

56 57 58 59 60 61

As above. K O’Neill (ed) Getting it right for children: A practitioners’ guide to child rights programming (2007) 10. SR Osmani ‘An essay on the human rights approach to development’ in A Sengupta, A Negi & M Basu (eds) Reflections on the right to development (2005) 117. Art 22 African Charter; see also Viljoen (n 53) 226. Art 4(1) UN Declaration. See also Viljoen (n 53) 226. See arts 2(3), 3(1), 3(3), 4(1) &10UNDeclaration.

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evolving corrupt practices. Most importantly, only properly-enacted anticorruption laws, implemented simultaneously, can eradicate corruption. To supplement existing anti-corruption laws, states must consider certain issues as worthy of being part of their anti-corruption legislative frameworks.

4.1

Domestic measures on the declaration of assets, incomes and liabilities

In order to combat corruption, it may be necessary for a state to enact a national instrument on the declaration of assets, incomes and liabilities. Such a law may serve as a mechanism to deter public officials from using their office for their private gains.62 Additionally, a declaration of assets is important as it increases transparency and the trust of citizens in public administration;63 aids public institutions to detect and prevent conflicts of interest among their employees; promotes integrity within public institutions;64 and monitors variations in wealth of politicians and civil servants.65 African states should emphasise the importance of declaring one’s assets by making such a declaration an obligation which public officials (and their spouses) need to fulfil.66 Declaring one’s assets, income and liability eliminates any opportunities which a public official may use to gain and hide their illicit wealth.67

4.2

Recovery of assets

For corruption to be at a minimum and for development to advance, African states must enact laws on the recovery of stolen assets. The enactment of such laws is important, particularly since political elites siphon large amounts of money and transfer these funds to foreign reserves, resulting in, amongst other things, snail-pace development of the state and an infringement of the right to development. Such a law will enable African ‘victim states’ to seek foreign assistance but, most importantly, to have the assets, funds and/or proceeds thereof returned and used judiciously to improve service delivery for the people.

62 63 64 65 66 67

The World Bank Public office, private interests: Accountability through income and asset disclosure (2012) 7. OECD ‘Asset declaration for public officials: A tool to prevent corruption’ http:// www.oecd.org/corruption/anti-bribery/47489446.pdf (accessed 15 August 2017). As above. As above. Examples of African states with national legislative instruments on declaration of assets include the Mauritian Declaration of Assets 1991 (Mauritius) and the Cameroonian Declaration of Assets and Property 2006 (Cameroon). See OECD (n 63).

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Mechanisms to detect surreptitious transactions

It is not unusual for state officials to misuse public offices to divert state resources for their private gains. Such conduct often has significant adverse effects on the delivery of services in the sense that the siphoned resources were intended to serve the people. To detect and prevent this, African states need to have a strong public financial system. This could be achieved by enacting laws aimed at managing public finances and regulating the processes that must be followed when public finances are to be used. Such a law must include, among other things, the need for a government department to publish monthly, quarterly and annual financial and progress reports. A provision of this nature may be used to trace surreptitious transactions made by public officials as monetary inconsistency is sure to be evident in the report(s). An independent institution or agency must be established to monitor and evaluate state departments and their financial records.

4.4

Whistle-blowing against corrupt incidents

States should make available assurances and security for whistle-blowers who disclose surreptitious corrupt transactions, particularly involving senior state officials. High-level corruption usually occurs in secret, and very often involves a multiplicity of persons. Those who witness corruption usually are instructed to seal their lips, resulting in an unwillingness to report the corrupt practice for fear of possible repercussions. Whistle-blower or witness protection encourages whistle-blowers or witnesses of corruption to willingly report corrupt incidents, particularly if the protection guarantees confidentiality. Therefore, it is imperative for African states to develop effective witness protection and whistle-blowing programmes in order to secure information from whistle-blowers or witnesses to corruption. African states that have enacted laws on witness or whistle-blower protection include South Africa, with the South African Protected Disclosure Act 26 of 2000; Ghana, with the Ghanaian Whistleblower Act 720 of 2006; and Zambia, with the Zambian Public Interest Disclosure (Protection of Whistle-blowers) Act 4 of 2010.

4.5

Raising awareness on corruption among civil society organisations

One of many preventive measures which African states should be urged to consider is raising awareness on corruption. Anti-corruption awareness may include educative programmes where civil society organisations and public and private sector actors are educated on corruption, how it is perpetrated and how it can be detected and prevented, together with its

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effects. Ideally, if legislative provisions urge all state departments to develop ways intended to raise anti-corruption awareness, it may contribute in the eradication of corruption. Despite controversy, faithbased organisations may also contribute to the fight against corruption.68 These organisations promote truthfulness, transparency, humility and welfare.69 If these values can be embedded in an individual’s way of life, respect for one another’s needs would prevail rather than the advancement of one’s private interests.

4.6

Bilateral agreements

Bilateral agreements may be used as anti-corruption mechanisms as they foster cooperation and enable states to exchange resources for investigative and asset recovery processes. African states need to enter into such agreements, to detect and prevent political elites and their acquaintances together with other persons from transferring ill-gotten wealth to Western territories. In 2016 and in an effort to fight corruption in Nigeria and recover state funds siphoned to foreign territories, Nigeria signed bilateral agreements with the United Arab Emirates. The agreement serves as a tool to combat corruption in the two states and, most importantly, to strengthen the relations between these states.70 In the same year, Nigeria and the United Kingdom signed an agreement on the recovery and return of assets. Robert Goodwill, Immigration Minister, and Abubakar Malami, Nigerian AttorneyGeneral, signed a memorandum of understanding (MoU) reinforcing their commitment to carry on with cooperation and mutual support in the return of apprehended proceeds of bribery. The two states have a mutual understanding that the money which is to be returned should not return to the hands of the criminals. This led Nigeria to affirm that money returned will be used to improve the livelihood of the poorest members of civil society and to improve access to justice for all Nigerians.71 In April 2017, the Kenyan and Swiss governments signed a MoU on mutual legal assistance. The MoU centred on collaboration and mutual assistance in the confiscation of illegally-acquired assets and the recovery

68 69 70 71

See SB Agang When evil strikes: Faith and the politics of human hostility (2016) 185. N Eva ‘Importance of religion in today’s world’ https://www.academia.edu/ 3838157/Importance_of_religion_in_todays_world (accessed 16 August 2017). L Nwabughiogu ‘Corruption: Nigeria signs bilateral agreement with UAE on recovery of stolen funds’ 19 January 2016 http://www.vanguardngr.com/2016/01/602410/ (accessed 14 August 2017). GOV.UK ‘Immigration Minister signs agreement with Nigeria on returning stolen criminal assets’ 2 September 2016 https://www.gov.uk/government/news/immi gration-minister-signs-agreement-with-nigeria-on-returning-stolen-criminal-assets (accessed 15 August 2017).

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of assets in foreign territories around the world, repatriating criminals and their proceeds,72 and on fighting crime in both states. The MoU reaffirmed the Kenyan and Swiss governments’ commitment to combat corruption, and to emphasise the importance of state cooperation in the strengthening of legal and judicial systems in the fight against transnational crimes. In view of the foregoing steps that need to be taken to combat corruption in Africa in order to realise the right to development, it must be underscored that these efforts may be nothing more than window-dressing if they are not complemented by the requisite political will. It is argued below that political will is an indispensable criterion for any effective and successful fight against corruption as it sets the national tone that engages the broader citizenry, gives meaningful effect to the laws and institutions in place and, more importantly, involves the different organs of government in the fight against the invisible enemy that does not only reside among the people but also has an adverse effect on the right to development and development itself.

5

Need for political will in the fight against corruption in Africa

Amongst scholars and practitioners from diverse backgrounds, there is broad consensus on the negative impact of corruption, especially on socioeconomic and political development. Corruption, as discussed earlier, compromises the rule of law in democratic societies, assaults democratic institutions and norms, and erodes public confidence in state-run institutions. Corruption starves affected societies of the resources they need to embark on social and economic development and, ultimately, widens the gap between the poor and the rich. As such, efforts to combat corruption are vital as corruption is prevalent as an invisible enemy in almost every society. Such efforts include the enactment of national legislation in the territory of a state, complemented by institutional mechanisms mandated to combat corruption. As discussed earlier, numerous African states have legislative instruments and institutional mechanisms in place with a mandate to combat corruption in the state. The question arises as to why, despite legislative instruments and institutional mechanisms, corruption remains alarmingly high in African states. The classification by the global anti-corruption watch, Transparency International, places numerous African states on a very high corruption

72

‘Kenya, Swiss government sign MOU to help recovery illegal acquired assets’ The Informer 28 April 2017 http://theinformer.co.ke/4136/kenya-swiss-government-signmou-to-help-recovery-illegally-acquired-assets/ (accessed 15 August 2017).

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index. This is not only disturbing but also disappointing, given that most African states have put in place anti-corruption laws, institutions and policies. As argued, these efforts in themselves are insufficient and ineffective in the fight against corruption and, therefore, must be accompanied by the requisite political will. It is argued here that irrespective of the countless instruments and institutions, whether national or international, the key to a successful fight against corruption is the presence of political will to do so. In other words, despite the countless existing anti-corruption laws, policies and institutions, their effectiveness or ineffectiveness entirely depends on the leadership of a state, accompanied by its commitment and willingness to combat corruption. Political will plays a crucial role in the fight against corruption since it is the driving force in the enforcement of laws and in the functioning of state institutions. The presence of political will is evident when efforts to combat corruption go beyond political rhetoric echoed on public platforms. It manifests when a state initiates development and the enactment of legislation, establishes mechanisms with a mandate to combat corruption, and allows these laws and institutions to operate without being influenced by any political or state actor. For a state to effectively combat corruption, an intertwined relationship between corruption and willingness to combat corruption must be established. The facets of this relationship depend on the level or type of political will of a state. In other words, if a state has an active political will, then the existence of the counterpart of this relationship, which is corruption, may be eradicated or reduced. On the other hand, should a state have no political will, corruption will prevail and flourish at the expense of society. It is argued that political will is needed in order to complement every other effort taken by a state in order to fight corruption. Three basic but relevant questions warrant answers. The first question relates to determining what political will entails; second, whether political will can be measured and, if so, how; third, what role political will plays in the fight against corruption. For a comprehensive understanding of the concept of political will and the role it plays in the fight against corruption, its definition must fully capture the three different dimensions of anticorruption efforts, namely, promotion, prevention and protection. As one constructs the idea of political will in relation to these three dimensions, two issues emerge: First, it will be evident that the state and its populace must possess the willingness to combat corruption, that is to say, the state must exude political willingness to combat corruption through, for example, the development and implementation of preventative measures, while, on the other hand, society must also possess the willingness to eradicate corruption through adherence to these measures. Second, although the political willingness of a state to combat corruption cannot be

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measured, a state can confirm the existence of political will through various indicators. A strong political will is a conditio sine qua non for the successful and effective fight against corruption in every African state as it strengthens existing anti-corruption strategies and sets the national tone and mood for this fight.73

5.1

Definition of political will

Political will may be defined as ‘the demonstrated credible intent of political actors (elected or appointed leaders, civil society and watchdog organisations and stakeholder groups, among others) to attack perceived causes or effects of corruption at a systematic level’.74 A core element that gives life to this definition is the element of ‘intent’. Politicians or political elites may demonstrate intent in various ways, such as the establishment and implementation of anti-corruption laws. Unless those demonstrations are accompanied by the intent to combat corruption, they reside in the annals of history as nothing but mere rhetoric, as is the case in many African states that have anti-corruption laws and institutions but fail to practically implement these. A major step in the fight against corruption in Africa necessitates the enactment of national legislative instruments, which should be followed by the establishment of institutional mechanisms. Beyond enactment, the enforcement of these laws and functioning of these institutions depend on the presence of political will which must be exuded by the key political leaders of the particular state. Given the above definition, one may argue that political will is not limited to politicians but extends beyond them to include members of society and the private sector.75 The existence of political will is important in the functioning of both government and society. The willingness of politicians and the general public can neither be measured using any mathematical formulae nor can political will be compared by some conventional yardstick. Rather, in a society committed to combating corruption both the state and its people must work harmoniously to ensure that they fit within all three dimensions in the fight against corruption. In other words, both the state and the people must complement each other’s efforts in preventing and combating corruption.

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JST Quah Curbing corruption in Asian countries: An impossible dream (2011) 454. A Abdulai ‘Political will in combating corruption in developing and transition economies: A comparative study of Singapore, Hong Kong and Ghana’ (2009) 16 Journal of Financial Crime 390. Political will may also be understood as ‘the commitment of political leaders and bureaucrats to undertake actions to achieve a set of objectives and to sustain the cost of those actions over time’; see C Malena ‘Building political will for participatory governance: An introduction’ in C Malena (ed) From political won’t to political will: Building support for participatory governance (2009) 18. As above.

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Corruption usually spreads from senior officials and cascades down the ranks by actions or, in some cases, inactivity. Therefore, senior politicians must demonstrate acceptable conduct for subordinates to follow.76 The chain of corruption can be broken if senior officials take the initiative of reprimanding other senior officials and junior officials who are expected to refrain from corrupt practices. Corruption is perpetrated by both senior and junior officials. The difference between these two classes of public officials lies in the extent to which corruption is perpetrated. Grand corruption is often perpetrated by fewer individuals in senior government positions. Although perpetrated by the minority, the damage to the state is significant due to the nature of the office positions, which affords them access to public funds or assets, thereby granting them an opportunity to satisfy their private gains. For example, the Democratic Republic of the Congo (DRC) is one of the poorest states in Africa, despite being rich in natural resources.77 For 32 years this state was under the leadership of Mobutu Sese Seko, who during his presidential term allegedly embezzled at least US$4 to 15 billion,78 resulting in, amongst other things, daunting challenges to the infrastructure.79 One may argue that the estimated amount Mobutu embezzled could have been used to improve living standards in Zaire (DRC). This could have led to job creation, which in turn would have lowered the state’s poverty rate. Together with profits from natural resources, this certainly would have elevated the country’s economy. In contrast, petty corruption is perpetrated by a majority of individuals who often hold junior government positions, such as policemen, nurses, administrators and clerks. Even though its effects are not as drastic or devastating as those of grand corruption, petty corruption also adversely impacts on society in the sense that it compromises service delivery. For example, an underprivileged person may be treated poorly by nurses in hospitals if they are unable to pay bribes. However, if one is able to give a nurse a bribe, they may receive proper treatment such as painful injections administered carefully, cleaner hospital clothes, and they may not even have to wait in queues.80

76 77 78 79

80

As above. G Roland Development economics (2016) 4. Association for Diplomatic Studies and Training ‘Kleptocracy and anti-communism: When Mobutu ruled Zaire’ http://adst.org/2016/09/kleptocracy-and-anti-com munism-when-mobutu-ruled-zaire/ (accessed 30 June 2017). J Cochran ‘Democratic Republic of Congo logistics infrastructure’ http:// dlca.logcluster.org/display/public/DLCA/2+Democratic+Republic+of+Congo+Lo gistics+Infrastructure;jsessionid=C32CE53257392CEBC575D7762E6EAA4C (accessed 30 June 2017). J Werve & Global Integrity The corruption notebooks 2006 (2007) 267.

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Unfortunately, where there is unchecked power, corruption usually follows.81 Across the African continent, countless individuals initially unknown to the general public, together with known senior government officials, are now notorious because of disgraceful and scandalous corrupt practices. In 2011 the Ugandan Local Government Ministry contracted Amman Industrial Tools and Equipment, a locally-registered Ugandan company, to supply 70 000 bicycles to the local council. An advance payment of US$1,7 million was made to the company but no bicycles were delivered.82 In July 2014 the Anti-Corruption Court sentenced the former Permanent Secretary in the Ministry of Local Government, John Mahanguzi Kashaka, to ten years’ imprisonment for his role in orchestrating the financial loss of Shs4,2 billion (US$1 166 676) in respect of the bicycle procurement.83 Besides Kushaka’s conviction, the Ugandan Anti-Corruption Court also sentenced David Chandi Jamwa, former Managing Director of National Social Security Fund (NSSF), to 12 years’ imprisonment for causing a financial loss to the fund in 2011.84 The prosecution told the court that Jamwa in his official capacity sold off several government bonds, which the NSSF held before they matured to Crane Bank at low prices, knowingly or while he had reason to know that this would cause financial loss to the Fund.85 In another case, a Ugandan cleaner at Moroto Referral Hospital allegedly stole 10 million worth of drugs while on duty. Angella Abidia denied any knowledge of how the drugs ended up in her house. She was arrested following a tip-off when she planned to sell the drugs. In Kenya, an Act of Parliament was passed in 1964 to create a National Youth Service (NYS) to train youths on national matters, including service in the armed force, disaster response and to encourage them to take part in national reconstruction programmes.86 In 2015 the NYS scandal came to light with reports that Sh791 million (US$7 627 771.20) had been stolen. In 2016, the Ethics and AntiCorruption Commission (EACC) released a statement after investigations,

81 82 83

84 85 86

RT Long ‘Hellenistic philosophers of law’ in FD Miller Jr & C Biondi (eds) A treatise of legal philosophers and general jurisprudence: Volume 6: A history of the philosophers of law from the ancient Greeks to the scholastics (2015) 121. Vision Group ‘Voters speak out: We want action on corruption’ http:// www.elections.co.ug/new-vision/election/1407477/voters-speak-action-corruption (accessed 1 July 2017). A Wesaka ‘Kashaka to spend 10 years in prison over bicycle scam’ Daily Monitor 18 July 2014 http://www.monitor.co.ug/News/National/Kashaka-to-spend-10-yearsin-prison-over-bicycle-scam/688334-2388264-kilndhz/index.html (accessed 1 July 2017). E Kasozi & L Mukisa ‘Former NSSF boss Jamwa sentenced to 12 years’ Daily Monitor 9 March 2011 http://www.monitor.co.ug/News/National/688334-1121614-ap5jtsz/ index.html (accessed 1 July 2017). As above. NYS ‘The history of NYS’ http://nys.go.ke/public/index.php/content/item/47/ Brief-History (accessed 30 June 2017).

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revealing that at least Sh1,8 billion (US$17 357 760) had been stolen from the NYS.87 The investigation into the scam is ongoing, with supposedly leading suspects in the NYS, including the following. A Nairobi businesswoman, Josephine Kabura, of Kiangiti village of Kiharu in Marang County was charged with money laundering and in August 2016 appeared before the magistrate’s court and denied the counts of money laundering.88 Anne Waiguru is the former Devolution and Planning Cabinet Secretary who, despite consistently denying any involvement in the NYS scandal, was indicted for looting millions.89 In November 2016, Kennedy Nyamao and Salim Ali Molla were charged with conspiracy to commit an economic crime over an irregular payment of Sh47,6 million (US$459 016.32) allegedly made to a company, Blues Star Enterprises, in connection with the NYS scandal.90 In Sierra Leone, the Anti-Corruption Commission convicted employees of a humanitarian aid organisation known as World Vision.91 Leslie Lahai Monson and Kerfala Janneh were convicted under section 37(1) of the Anti-Corruption Act 2008 for misappropriating donor funds, and under section 128(1) of the same Act for conspiracy to commit a corruption offence. In another case, the Commission convicted a high school principal, Joko CR Venn, for abuse of office contrary to section 42(1) of the Anti-Corruption Act.92 In 2017 the Anti-Corruption Commission indicted three senior officials of a non-governmental organisation, The Needy Today (TNT), for misappropriating donor funds contrary to section 37(1) and giving advantage contrary to section 28(1) of the Anti-Corruption Act. Dauda Koroma, Jessy Braima Kpagoi and Alfred Bangura allegedly ‘dishonestly appropriated donor funds meant for Protection of Vulnerable Groups during the Ebola Outbreaks Response project amounting to Le 346 450 000’ (US$46 663.35).93

87 88 89 90 91 92 93

J Njagi ‘Sh1.8bn lost in NYS scam, lawmakers told’ Daily Nation 30 September 2016 http://www.nation.co.ke/news/money-lost-in-NYS-scam/1056-3399716-cbfkmcz/ index.html (accessed 30 June 2017). C Maine & Z Weru ‘11 NYS scandal suspects charged with money laundering’ The Star 22 August 2016 http://www.the-star.co.ke/news/2016/08/22/11-nys-scandalsuspects-charged-with-money-laundering_c1407511 (accessed 30 June 2017). J Too ‘MPs to vote on report implicating Anne Waiguru in NYS scandal’ Kenyans 22 May 2017 https://www.kenyans.co.ke/news/19273-mps-vote-report-implicatinganne -waiguru-nys-scandal (accessed 30 June 2017). R Munguti ‘Two more NYS scandal suspects charged’ Daily Nation 30 November 2016 http://www.nation.co.ke/news/Two-more-NYS-scandal-suspects-charged/1056-347 0334-45437mz/index.html (accessed 30 June 2017). Anti-Corruption Campaign ‘ACC secures conviction against two staff of World Vision’ http://www.anticorruption.gov.sl/show_news.php?id=761 (accessed 1 July 2017). Anti-Corruption Campaign ‘ACC secures conviction against JOKO CR VENN’ http:/ /www.anticorruption.gov.sl/show_news.php?id=683 (accessed 1 July 2017). Anti-Corruption Campaign ‘ACC indicts top officials of The Needy Today (TNT) for misappropriation of Ebola funds and five others for various corruption offences’ http:/ /www.anticorruption.gov.sl/show_news.php?id=697 (accessed 1 July 2017).

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There are two noticeable key observations to be made about individuals who occupy public offices. The first observation is individuals who are heads of states. In many instances, when their official term draws to an end, they do not wish to vacate office voluntarily but instead would alter legislative provisions to extend their mandate. This has been observed in the case of many African leaders who have dedicated themselves to retaining political leadership at all costs,94 even if it required them engaging in corrupt political practices such as fraudulent voter registration, election rigging and ghost voting centres.95 When power is concentrated in a single authority and his or her family members, corruption is bound to exist.96 As from 1968 the presidential office of Equatorial Guinea has been a family affair. The first President was Francisco Macías Nguema, uncle of the current President, Teodoro Obiang Nguema Mbasogo, whose son, Teodoro Nguema Obiang Mangue, is the current Vice-President. For years has been under investigation for corruption. In 2011 a civil forfeiture was filed by the United States government against Mangue’s real and personal property amounting to approximately US$70,8 million.97 Moreover, the US government alleged that the properties were obtained from the proceeds of foreign corruption offences and thus were laundered into the USA.98 The complaint alleges that Mangue used his official position as influence to acquire criminal proceeds through corrupt practices and money laundering. Regarding this matter, Former Assistant General Lanny A Breuer stated:99 While Nguema’s people struggled, he lived the high life-purchasing a Gulfstream jet, a Malibu mansion and nearly $2 million in Michael Jackson memorabilia. Alleging that these extravagant items are the proceeds of foreign official corruption, the Department of Justice is seeking to seize them through coordinated forfeiture actions. Throughout Kleptocracy Initiative, we are sending the message loud and clear: the United States will not be a hiding place for the ill-gotten riches of the world’s corrupt leaders. 94

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96 97 98 99

Eg, African leaders who have served more than 30 years and are still in office are Teodoro Obiang Nguema Mbasogo who has been President of Equatorial Guinea since 1979 together with José Eduardo do dos Santos (President of Angola, who recently stepped down in 2017); Paul Biya who has been President of Cameroon since November 1982 and President of Uganda, Yoweri Museveni whose tenure began in 1986. Robert Gabriel Mugabe was President of Zimbabwe for 30 years from 1987 until he was forcefully removed from power in 2017. An example would be Zimbabwe. For years when Zimbabwean President Robert Mugabe held office, Zimbabwean elections were neither free nor fair. Eg, opposition parties were often intimidated by the ruling party, and in some cases they were harassed and subjected to violent acts. In an effort to buy votes from the people, government food was offered to the people, and in an effort to control the people, media coverage favoured the ruling party. See P Mario Zimbabwe cry for hope (2009) 46. M Han & S Hua Cries for democracy: Writings and Speeches from the 1989 Chinese Democracy Movement (1990) 160. FM De Sanctis International money laundering through real estate and agribusiness: A criminal justice perspective from the Panama Papers (2017) 1. As above. As above.

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Other examples of dictatorial leaders who used their presidential office for private gains include the former President of Zaire (now DRC), Mobutu Sese Sekou, who during his presidential term embezzled US$5 billion, and former Nigerian dictator Sani Abacha who is said to have embezzled US$2 to $5 billion during his presidential terms100 and, by 2008, US$1,2 billion was recovered from various foreign bank accounts.101 When leaders seek to retain political power, two things are likely to happen: Corruption becomes rife and human rights are violated. The seriousness of these issues was emphasised by Human Rights Watch, referring to Zimbabwe. In 2017 Human Rights Watch compiled and published a report on Zimbabwe based on 2016 events. The report reveals instances of Zimbabwean officials engaging in human rights violations. Moreover, it was discovered that the Zimbabwean President, Robert Mugabe, intensified political repression against thousands of Zimbabweans who were protesting peacefully against human rights violations and a deteriorating economy. Although the Zimbabwean Constitution guarantees freedom of expression and the media, in 2016 many journalists who reported on protests were subjected to arrest, harassment and intimidation by the police.102 The establishment of dictatorships in some African states itself is evidence of political corruption. When political corruption exists, it dilutes any anti-corruption efforts mainly because those who are loyal to the dictators tend to commit various acts of corruption without reproach or being reprimanded by their leaders. As Chaucer once asked, if gold can rust, what should iron do?103 Therefore, if the boss is corrupt, what then about the subordinates? The second observation is that it is not entirely impossible for newlyemployed individuals to public office to genuinely intend to make a difference in government by performing their duties effectively and efficiently, being honest, transparent and accountable. However, with the passage of time, it is common for these individuals to be tempted by power (and the desire to gain more money), eventually leading them to seek opportunities for private gains. This is common in police departments in various African states, such as Kenya, Zimbabwe and Nigeria, where police officers often seek bribes before providing assistance.104 This is also evident in the improper awarding of contracts, oil business transactions,

100 C Fletcher & D Herrmann The internationalisation of corruption: Scale, impact and counter measures (2016) 105. 101 Fletcher & Herrmann (n 100) 105 173. 102 Human Rights Watch ‘Zimbabwe: Events of 2016’ https://www.hrw.org/worldreport/2017/country-chapters/zimbabwe (accessed 27 May 2017). 103 M Hallissy A companion to Chaucer’s Canterbury tales (1995) 45. 104 CP Misheck & M Munyaradzi Negotiating law, policing and morality in Africa: A handbook for policing in Zimbabwe (2015) 75. See also AD Dada To the rescue: Say no to corruption (2014) 168.

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ministries of finance and home affairs departments. For example, in Kenya Sylvester Mwaliko, former Home Affairs Permanent Secretary, was found guilty of abuse of office for arbitrarily awarding an Anglo leasing contract, involving the diversion of funds to non-existing entities.105 An investigation conducted by the former anti-corruption crusader, John Githongo, revealed that a non-existent company called Anglo Leasing and Finance had received a contract by the Immigration Department in the Ministry of Home Affairs. In addition to this, a 3 per cent down payment, roughly around Ksh.90 million (US$865 801.80) had been paid from Ksh.7 billion (US$67 340.14) intended to be used to produce tamper-proof passports on behalf of the immigration department.106 Mwaliko was sentenced to three years’ imprisonment and ordered to pay a Sh3 million fine.107 In many African states it has been shown that political corruption may take different forms, especially when public power is misused for private gains.108 Both senior politicians and public officials who are engaged in different forms of corruption do so partly as a result of the power or authority vested in them. The authority allows them to not only misuse power but also to control and manipulate the vulnerable in society to promote their private interests.109 In Zambia, former Lands Minister, Gladys Nyirongo, was found guilty of misusing her powers (intended to serve the people) for her personal gain. The former Lands Minister was charged with two counts of abuse of office contrary to section 99(1) of the Zambian Penal Code. She was convicted and sentenced to four years’ imprisonment for corruption and abuse of office. On the first count it was proved that between January 2006 and February 2007, she directed Daisy Mulenga, a Ministry of Lands officer, to generate offer letters to 10 people. As a result of her conduct, the Court held that she had contravened land alienation procedures. On the second count it was proven that Niyirongo had given a direction to Christopher Chewe, a junior technician in the Ministry of Agriculture, to subdivide a former Zambia Consolidated Copper Mines (ZCCM) farm and create property number 1/19634/m for herself in contravention of the land alienation procedure. For her conduct,

105 R Jillo ‘Kenya: Former official fined over Sh7 billion passport deal’ Capital FM 5 September 2012 http://allafrica.com/stories/201209051173.html (accessed 27 July 2017). 106 D Wachira & S Arlikatti ‘Challenges of effective e-governance: Problems of transparency, infrastructure, and connectivity in Kenya’ in CG Reddick (ed) Comparative e-government (2010) 263. 107 Jillo (n 105). 108 SH Kim ‘What governmental insider trading teaches us about corporate insider trading’ in SM Bainbridge (ed) Research handbook on insider trading (2013) 174. 109 J Warburton ‘Corruption as a social process’ in N Wolanin & P Lamour (eds) Corruption and anti-corruption (2013) 224.

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the Court held that the accused had abused the powers of her office when she gave these directions.110 Many individuals who assume government positions perceive the latter as an opportunity to enrich themselves. The mentality of many public officials is that ‘if my predecessors succeeded in enriching themselves, surely I can do the same’. This skewed mentality may lead one to argue that corruption indeed is in our DNA.111 Unfortunately, this state of reasoning is most likely to lead to ineffective anti-corruption strategies. Furthermore, it will be difficult to develop and subsequently implement these strategies. As expressed by the historian John Emerich Edward Dalberg-Acton in a letter to the Church of England, Bishop Mandell Creighton stated that ‘power tends to corrupt, and absolute power corrupts absolutely’.112 Power vested in a public official can either serve society accordingly or serve as an instrument to satisfy one’s private gains. It is unfortunate that the latter often prevails. In Sierra Leone, former Minister of Agriculture, Dr Harry Will, was convicted of the embezzlement of US$1,5 million from the World Bank Development funds, which were intended to buy rice seeds from Ghana for the livelihood of struggling farmers in Sierra Leone. For his conduct he was fined Le 500 000 (US$66.67).113 On 9 March 2001 Soluku Bockarie, former Permanent Secretary at the Ministry of Education, was convicted for misappropriating about US$1 billion. The misappropriated funds were meant to pay the salaries of 26 000 Sierra Leonean teachers.114 The above examples reflect the way in which senior public officials use their office for private gain. From the discussed examples, at least US$12 million public funds have been misappropriated, which could have been used to improve infrastructure, expand medical services and improve living standards. As reiterated earlier, political will is the sine qua non for successful anti-corruption mechanisms. It is imperative for these mechanisms to be aligned with the three dimensions of anti-corruption efforts, namely, prevention, promotion and protection. The commitment

110 Lusakatimes.com ‘Gladys Nyirongo sent to jail for corruption’ Lusaka Times 14 February 2009https://www.lusakatimes.com/2009/02/14/gladys-nyirongo-sentto-jail-for-corruption/ (accessed 8 June 2017); ‘Former Lands Minister, Reverend Gladys Nyirongo sentenced to 4 years imprisonment’ The Zambian Chroniclehttps:// brainsplus.wordpress.com/2009/02/15/former-lands-minister-reverend-gladys-nyiron go-sentenced-to-4-years-imprisonment/ (accessed 8 June 2017). 111 L Blasko Opening the borders: Solving the Mexico/US immigration problem for our sake and Mexico’s (2007) 79. 112 JH Lyke What would our founding fathers say? How today’s leaders have lost their way (2012) 130. 113 SC Igwe How Africa underdeveloped Africa (2012) 52. 114 D Tam-Baryoh ‘Who will guard the guards’ (2002) http://www.worldpress.org/ Africa/352.cfm (accessed 8 June 2017).

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of political actors to combat corruption must be reflected in these three dimensions of anti-corruption efforts.

6

Conclusion

Corruption has existed over time and, as the world evolves, so does corruption. Over the years political elites in Africa have wrongfully appropriated large sums of state funds and siphoned these off to foreign destinations. These surreptitious transactions deprive the people from whom the money was stolen from economic, social and cultural development, which is guaranteed under the African Charter and the UN Declaration to be enjoyed as a human right. If development is guaranteed as a human right, particularly in Africa where it is legally recognised and protected by the African Charter, it means that the peoples of Africa are entitled to advance a legitimate claim to development as a right. This entitlement grants them the right to meaningfully participate in the development process and to enjoy a fair distribution of the development gains. Thus, with regard to corrupt practices that often compromise the exercise and enjoyment of the right to development in Africa, aggrieved peoples are entitled to seek a remedy for violations under article 22 of the African Charter.

CHAPTER

6

THE RIGHT TO DEVELOPMENT: AN AFRICAN FEMINIST VIEW

Rhoda Asikia Ige* and Carol C Ngang**

1

Introduction

It is a common observation that human beings everywhere demand and depend on the realisation of certain values to ensure their individual and collective well-being. Because of the intrinsic nature of these values to the dignity of every person, they have come to be recognised as human rights. Unfortunately, the demand for the recognition of these human rights values often have been painfully frustrated as a result of social as well as natural forces resulting in exploitation, oppression, persecution and other forms of deprivation.1 It is important to clarify that although human rights are inherent to every person by virtue of the fact that they are human, in order to be guaranteed sufficient protection and recognition, rights become the creation of law and the legal system. It is thus the law that invests any person or group with a right and, at the same time, imposes a correlative duty or obligation on other persons in respect of this right.2 The term ‘right’ has various meanings, but two are of special importance. On the one hand, ‘right’ refers to something that is morally correct or demands the fact of something being right, which entails conformity with moral standards, righteousness, moral rectitude, and, on the other, ‘right’ refers to the entitlement of a person, the special title to a good or an opportunity.3

* ** 1 2 3

Feminist Legal Academic, University of Lagos Nigeria; [email protected]/asikia or [email protected] Researcher, Centre for Human Rights, University of Pretoria, South Africa; [email protected] or [email protected] OHCHR Human rights: A compilation of international instruments (1978). C Oputa ‘Equal rights under the law: A myth or reality’ in ES Olarinde et al Contemporary issues in Nigeria’s legal system: Essays in honour of late Bar Owolabi Afuye (1987) 13. J Donnelly & RE Howard (eds) International handbook of human rights (1987) 1. 97

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In this chapter we adopt the definition of ‘right’ which refers to the entitlement of a person. Attributing this definition to the concept of the right to development (understood in the context of a right as the creation of law) means that development is an entitlement to which the human person can legitimately lay claim. Of interest in this regard is the meaning of development. Development historically has been associated with wealth, measured in terms of a country’s gross domestic product (GDP) or gross national income (GNI). For instance, the richest countries in the world generally are viewed to be more developed than poor countries. The wealth barometer for gauging development indicates the total amount of resources of a country, and allows one to compare the size of a country’s economy.4 However, the concept of development from the GDP/GNI point of view (an economic concept) no longer is acceptable as a yardstick for measuring development because in many cases the economic growth perspective does not reflect what development involves. The United Nations Development Programme (UNDP), in accordance with its Human Development Index (HDI) measurement, has shifted the perception by embracing development more or less from a social and human development perspective to a purely economic growth point of view. The conception of development of the UNDP is based on three elements, namely, longevity, measured by life expectancy at birth; knowledge, measured by the weighted average of adult literacy and years of schooling; as well as standard of living, measured by per capita income.5 In essence development is fundamental to the well-being of every human being, not excluding women. It is a human experience synonymous with the fulfilment of individual mental, emotional and physical well-being.6 According to Sen, ‘development should be focused on promoting individual freedom, in the sense of enhancing the ability of individuals to choose lives that they have reason to value’.7 Adedeji also regards development as ‘a collective responsibility in which all have a share in its labour as well as its fruits’.8 Following the expanded definition of the concept of development which, in accordance with international development strategy, aims ‘to bring about sustained improvement in the well-being of the individual and to bestow benefits to all’,9 development is understood to be gender-neutral. In this regard, it is acknowledged that women constitute the cornerstone of 4 5 6 7 8 9

MJ Trebilcock & MM Prado Advanced introduction to law and development (2014) 3. UNDP ‘The human development index (HDI) in human development reports’ https:/ /hdr.undp.org/en/statistics/indices/hdi (accessed 27 July 2017). S Asante ‘Adebayo Adedeji’s ideas and approaches to African development’ in B Onimode & S Richard (eds) Issues in African development: Essays in honour of Adebayo Adedeji at 65 (1995) 5. A Sen Development as freedom (1999). A Adedeji ‘Presidential address at the 1972 annual conference of the Nigerian Economic Society’ University of Ibadan, Nigeria. International Development Strategy for the Second United Nations Development Decade Resolution A/RES/2626/XXV adopted by the General Assembly 1969.

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development in Africa10 which, in effect, entails gender-responsive action to ensure improvement in their well-being. However, it has been noted that particularly in Africa women often have borne the brunt of development injustices because of their subjugated roles in a largely male-dominated society.11 Accordingly, with regard to the increasing need to situate women adequately within the development space, it is necessary to determine how the concept of the right to development applies, especially to women in Africa. In making this determination, our analysis emanates from the fact that women comprise more than half of the world’s population and are central to the socio-economic advancement of society, meaning that, as Snyder and Tadesse point out, development goals cannot be fully achieved without the participation of women.12 This entails that women have both the legal right and access to the existing means and resources for the improvement of the self and of society,13 which translates into what could be considered women’s rights to development. With regard to the nebulous concept of development, which generally has been understood principally from the economic growth point of view, the intriguing question that has characterised the debated on the subject is whether there is a right to development. For the purpose of this chapter, we examine the question of whether a right to development exists for women in Africa. For a more accurate assessment of the right to development for women in Africa, it is necessary to adopt the ideological perspective of African feminism which, according to Steady, combines racial, sexual, class and cultural dimensions of oppression to produce a more inclusive feminism through which women are viewed first and foremost as human beings rather than as sexual objects.14 With the increasing focus on human rights and development, the African feminist perspective in examining the right to development is essential for the reason that [i]ts world view is presented as a positive expression of a creative energy whose reality is sustained and balanced with its existence and a peaceful coexistence of all its parts. African feminists see society as an organic reality, inclusive rather than exclusive, xenophilic rather than xenophobic; communal rather than and individuality.15

10 11

12 13 14 15

OECD ‘Women in Africa’ http://www.oecd.org/dev/poverty/womeninafrica.htm (accessed 30 September 2017). R Meena R ‘Women and sustainable development’ http://www.un-ngls.org/orf/ documents/publications.en/voices.africa/number5/vfa5.07.htm (accessed 16 September 2017); AG Assefa ‘The impact of the African Charter on Human and Peoples’ Rights and the Protocol on the Rights of Women on the South African judiciary’ LLM dissertation, University of Western Cape, 2011 16-17. M Snyder & M Tadesse African women and development: A history (1995) 16. As above. OHCHR (n 1). S Oluwole ‘Africa’ in J Alison & IM Young (eds) Blackwell companion to feminist philosophy (2005) 106.

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Drawing from the perception of women and development as mutually complementing, interrogating the right to development from an African feminist view in this chapter is intended to unveil the aspects of development that remain an optical illusion to African woman which, we submit, ought to be addressed from the point of view of the right to development. The question that we explore in this chapter is how and to what extent African feminism could be employed as an interpretative guide in understanding the right to development guaranteed to African women by the African Charter on Human and Peoples’ Rights (African Charter) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol).16 The rest of the chapter is configured into three main parts. To begin with, we take a cursory look at the brunt of development challenges African women are confronted with despite the guarantees of protection in international law. We proceed to explore the ideological framing of African feminism in relation to which we explain how the right to development applies to women of Africa as a legitimate entitlement. On the basis of this analysis, we proceed to interrogate a number of developmental concerns relating to the well-being of African women. This is done to determine whether and to what extent African women’s entitlement to sustainable development is guaranteed to become a reality.

2

African women and development challenges

While it is evident that African women generally are victimised as a result of development injustices, it is even more important to weigh in on the fact that the task of ‘fighting for women’s rights is deeply political’.17 In a similar manner, creating development also is decisively political, shaped by the capability to command leverage over the resources and the processes that should eventually result in improved well-being and sustainable livelihood. Gauging development in these terms is the function of the interplay in power relations in every society in relation to which patriarchal perceptions about women are formed.

2.1

Perceptions about African women

African women have been the subject of extensive doctrinal and empirical research, much of which tends to portray the woman in a very negative light. While African men, for example, are seen as the builders of societies, which by design are male-dominated and anti-woman-oriented, African

16 17

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa adopted in Maputo, Mozambique on 11 July 2003. See J Ahikire ‘African feminism in context: Reflections on the legitimation battles, victories and reversals’ (1997) Feminist Africa 7.

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women are construed as oppressed, wretched and in need of liberation. In creating this homogenous downtrodden mass, differences in age, class, rank, kinship affiliation, marital status and seniority are ignored.18 Mainstream (Western) feminist writings tend to portray African women as confused, powerless and unable to determine for themselves both the changes needed in their lives and the means to construct these. In terms of intellectual capacity, African women often are reduced to the level of children or incipient human beings in need of tutoring.19 In making out a case for African women, Banda argues that in the same way that Western feminists have questioned the invisibility of women in national and international law, African feminists also query the prevalence of the Western formulation of human rights to the rejection of non-Western models.20 While African women often may not meet Western standards according to which achievement is measured, they indeed have made significant contributions to development and international law in the fields of politics, conflict resolution and in the development of institutional mechanisms for advancing the status of women.21 These contributions notwithstanding, African women often are portrayed as being on the receiving end and as a burden or one of the development challenges that need to be redressed.

2.2

Underdevelopment and the impact on African women

For centuries Africa has been described in Western mythology as a ‘dark continent’ and as an antithetical land of fables and fantasies imbued with sexuality, taboos and violence.22 The Western world has often viewed Africa as backward and underdeveloped, which could be explained by the fact that the African lifestyle and outlook on life differs significantly from Western perceptions. Bradshaw and Wallace describe the underdevelopment of Africa as follows:23 The world’s second largest continent is a land of incredible – almost incomprehensible – contradictions and contrasts. Africa is a land of famines, civil wars, coup d’états (government overthrows), an AIDS epidemic, orphans and ethnic divisions. It is a land of growing indebtedness and financial ineptitude that plagues its capacity to do business in a global marketplace. It is

18 19 20 21 22 23

O Oyewumi ‘The white woman’s burden: African women in Western feminist discourse’ in O Oyewumi (ed) African women and feminism: Reflecting the politics of sisterhood (2004) 38. M Okome ‘Misunderstanding and misinterpreting Africa: Reformist, Western evangelism and Africa’ in G Emeagwali (ed) Africa and the academy: Challenging hegemonic discourses on Africa (2006) 152. F Banda Women, law and human rights: An African perspective (2005) 44. RA Ige ‘Speaking for ourselves: African feminism and the development of international human rights law’ (2014) 6 Knust Law Journal 105. A Mama ‘Critical connections: Feminist studies in African contexts’ in A Cornwall et al Feminisms in development (2007) 153. Y Bradshaw & M Wallace Global inequalities (1996) 61.

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also a land that has pathetic infrastructure: dilapidated schools, health clinics, roads and communications facilities.

While the above quote was written in 1996, not much has changed in Africa. In Africanist discourse, according to Davidson, Africa is presented as some kind of human preserve where the nature and conditions of ancient man could be studied in its simplicity and savage innocence; a reserve, in which ‘Negroes’ occupy the lowest place in the hierarchy of achievement.24 Unfortunately this narrative has translated into how African women are seen as predominantly vulnerable with little to account for in terms of achievement. Of all the regions across the world, sub-Saharan Africa has the worst indicators of women’s health, particularly reproductive health. Of the 23 million adults living with HIV/AIDS in sub-Saharan Africa, approximately 57 per cent are women, including young women between the ages of 15 and 24, who are three times more likely to be infected, resulting in the highest number of maternal and HIV-related deaths worldwide.25 The entire region of sub-Saharan Africa has either experienced or remains embroiled in wars and diverse forms of internal or external conflict, including countries such as Burundi, Sierra Leone, Liberia, Rwanda, Angola, the Democratic Republic of the Congo (DRC), Somalia, Ethiopia, Eritrea, Uganda and recently Mali, the Central African Republic, Nigeria and Cameroon, to name but a few. The scourge of these wars and conflicts over the decades has left a negative imprint on the African continent, both in terms of the erosion of human capital and development gains. Of the two million victims of conflict documented in the 1990s, over 60 per cent were women and children, whereas approximately 50 per cent of Africa’s six million refugees and 17 million internally-displaced persons are women.26 The challenges that African women are confronted with not only impact adversely on their well-being, but also robs them of the potential for advancement in society. It is important to note that the now defunct Millennium Development Goals (MDGs) not only set out a global agenda for development, but specifically also aimed at addressing issues directly pertaining to the advancement of women in society. Goal one aimed at eradicating extreme poverty and hunger; goal two sought to achieve universal primary education; goal three envisaged the promotion of gender equality and the empowerment of women; goal four envisioned a reduction in infant mortality; goal five focused on improving maternal health; while goal six was designated to combating HIV, malaria and other

24 25 26

B Davidson The African past: Chronicles from antiquity to modern times (1964) 2. I Houghton ‘Reviewing the Protocol of Women in Africa’ https://newsfromafrica (accessed 5 August 2017). Briefing of Centre for Reproductive Rights, New York 2005.

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diseases. Despite efforts invested in this regard, it is noted that the achievement of these time-bound goals in Africa was erratic.27 In spite of some recorded gains, Africa as a continent as well as its member states generally fell short of meeting the MDG targets stated above by the 2015 cut-off date. Of the estimated 1,3 million poor people in the world, approximately 70 per cent are reported to be African women and children.28 The aspiration to achieve universal primary education is not challenged by substandard quality, but also by the fact that girls are more likely to drop out of school than their male counterparts.29 Structural as well as gender inequalities still exist, while prospects to reduce infant mortality, improve maternal health and curb the prevalence of HIV and other diseases are compromised by increasingly fragile and weak healthcare systems.30 The switch to the Sustainable Development Goals (SDGs) inspires hope in view of the global agenda which, we argue, can only be achieved in Africa once women become active partners and recipients of the benefits of development in accordance with the recognition and protection of women’s rights under international, regional and domestic laws.

2.3

Legal protection of the rights of women

The gender-biased nature by which the international bill of human rights is formulated31 occasioned the adoption of separate treaty instruments, with an emphasis of specific significance to women, based on the acknowledgment that women’s rights are also human rights. At the international level, these rights are enshrined in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which is seen as the international bill of rights for women, aimed at eliminating all forms of discrimination against women. Discrimination against women is defined as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality 27 28 29 30 31

See generally UN Economic Commission for Africa ‘Assessing progress in Africa toward the Millennium Development Goals’ (2013) MDG Report 2013. Briefing of Centre for Reproductive Rights (n 25). UN Economic Commission for Africa (n 26) 23-29. UN Economic Commission for Africa 31-77. The Universal Declaration, eg, stipulates in art 10 that ‘[e]veryone is entitled in full equality to a fair and public hearing ... in the determination of his rights and obligations and of any criminal charge against him’. The entitlement granted to everyone in full equality literally implies everyone, including women. However, the provision goes further to refer to his and him, meaning that only men are entitled to exercise and enjoy that right. Similarly, the ICCPR stipulates in art 9(1) that ‘[e]veryone has the right to liberty ... and goes on to state that ‘[n]o one may be deprived of his liberty ...’ while the ICESCR also states in art 6(1) that state parties shall ‘recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts ...’

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of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.32

Besides its elaborate recognition and protection of human rights that are particularly relevant to women, the CEDAW treaty also specifies what constitutes discrimination against women and reiterates the obligations on state parties to achieve gender equality.33 Of relevance in this regard is the obligation imposed on state parties to ensure that the provisions of the treaty are implemented at the domestic level. At the African regional level, women’s rights are recognised and protected under the African Charter and the African Women’s Protocol. The Women’s Protocol was adopted in accordance with article 66 of the African Charter, which provides that special protocols or agreements may, if necessary, supplement the provisions of the African Charter.34 As a safeguard measure, the African Commission on Human and Peoples’ Rights (African Commission) was created in accordance with article 30 of the African Charter with the mandate to promote and protect human and peoples’ rights in Africa. Additionally, the African Commission’s mandate entails ensuring states’ compliance with the obligations imposed by the African Women’s Protocol to respect, protect, promote and fulfil women’s rights. At its 44th ordinary session held in Abuja, Nigeria, in 2008, the Commission drew attention to the fact that women’s rights and the principle of non-discrimination are universal,35 necessitating state parties to prioritise the advancement of women’s rights. Consequently, the African Union (AU) set aside a ten-year period, from 2010 to 2020, as the decade of African women’s rights. Gender equality, which envisages equitable access to opportunities for both men and women, is particularly emphasised in the instruments guaranteeing protection to women, essentially as it portrays men’s dominance over women as a social construct that can and should be changed.36 In this regard, the Solemn Declaration on Gender Equality in Africa was adopted in 2004 to reaffirm, among others, member states’ commitment to the principle of gender equality enshrined in article 4(1) of the Constitutive Act of the AU and other relevant instruments.37 Importantly, the Solemn Declaration envisages the ‘active promotion and

32 33 34 35 36 37

A Nkolika ‘The CEDAW and the status of implementation on the right to health in Nigeria’ (2006) World Health Organization 1. As above. African Charter on Human and Peoples’ Rights adopted in Nairobi on 27 June 1981, entered into force on 21 October 1986. African Commission Resolution on maternal mortality in Africa African Commission on Human and Peoples’ Rights (2008). A Janneh ‘The sixth African development forum on gender equality, women’s empowerment and ending violence against women in Africa’ (2008) United Nations Conference Centre. Solemn Declaration on Gender Equality in Africa adopted by the AU Assembly of Heads of State and Government in Addis Ababa, Ethiopia, July 2004.

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protection of all human rights for women and girls including the right to development by raising awareness or by legislation where necessary’.38 The undertakings contained in the Solemn Declaration, noting that ‘our decision on gender parity is a historic achievement that does not yet exist in any other continent or regional organisation’, provide the basis for our analysis of African feminism in the next section.

3

African feminism

3.1

Elements of African feminism

Ahikire defines feminism broadly as a ‘myriad of various theoretical perspectives emanating from the complexities and specifics of the different material conditions and identities of women’, which is informed by the diverse and creative ways in which women contest power relations in their private and public spheres of influence.39 According to Steady, African feminism combines racial, sexual, class and cultural dimensions of oppression to produce an inclusive brand of feminism that portrays women as human beings rather than as sexual objects.40 According to Kitossa, African feminism represents a critical interpretative frame by which to reconstruct the presence of African women in history and, as such, offers a conceptual framework by which to challenge white hegemonic feminism.41 While Steady’s definition depicts the holistic approach of African feminism to women’s issues, Kitossa’s definition sums up the ideological construct in which African feminists engage with not only the male perspective of society but also with Western liberal feminists’ views on women, development and international law. Briefly stated, African feminism is presented as depicting the type of feminism that specifically addresses the needs and conditions of African women living on the continent. For the purpose of this chapter, it is important to differentiate between African feminism and black feminism to provide a clearer understanding of the right to sustainable development granted by law to the women of Africa. According to Tierney, ‘[b]lack feminism is an active commitment to struggle against multiple and simultaneous oppressions black women face and is articulated through the perspectives of AfricanAmerican women’s cultural heritage’.42 Black feminism applies to African-American women in the United States of America and Canada,

38 39 40 41 42

Solemn Declaration (n 36) para 6. Ahikire (n 16) 8. FC Steady ‘African feminism: A worldwide perspective’ in R Terborg-Penn & A Benton-Rushing (eds) Women in Africa and the Africa diaspora: A reader (1996) 4. T Kitossa ‘Criticism, reconstruction and African-centred historiography’ in WN Nathani et al Back to the drawing board: African-Canadian feminism (2002) 90. H Tierney (ed) Women’s studies encyclopaedia (1991) 139.

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while African feminism relates to the women of Africa and the issues that impact on their livelihood. Acknowledging the complexities in formulating a straightforward and homogenising definition of African feminism due to the defiant countercurrents that characterise the male-dominated African societies, Ahikire posits that African feminism represents ‘an ideological force that poses fundamental challenges to patriarchal orthodoxies’, drawing from the starting point that ‘the feminist struggle on the African continent represents a critical stance against the mainstream of patriarchal power’.43 Differing slightly from broad feminist ideologies, African feminism looks at the plight of the African woman and is ‘primarily aimed at changing social and humanitarian conditions’.44 In effect, African feminism assumes more a transformative orientation in terms of challenging patriarchy, with the understanding that established gender biases are surmountable, as explained by Aidoo:45 I should go on to insist that every man and every woman should be a feminist – especially if they believe that Africans should take charge of African land, African wealth, African lives and the burden of African development. It is not possible to advocate independence of African development without also believing that African women must have the best that the environment can offer. For some of us this is the crucial element of feminism.

Drawing from the above understanding, the concept of African feminism is summarised by the following generic features: first, that African feminism is located in the historical and contemporary realities of marginalisation, oppression and domination;46 second, that African feminism is born out of an inherent need to resist patriarchy;47 third, that a significant feature of African women is the need for self-reliance and economic independence;48 and, lastly, that African feminism emerged in relation to the experiences of African women, their environment and the state. With these features of African feminism, it is important to note, as Tripp et al point out, that women’s experiences in liberation struggles provide the entry point into politics and social activism in terms of which critical lessons regarding their democratic rights are drawn.49 Crenshaw’s theory of intersectionality recognises that the challenges African women face are multi-dimensional, emanating from a variety of

43 44 45 46 47 48 49

Ahikire (n 16) 9. RoSa Factsheets ‘African feminism’ The RoSa Factsheets No 34 (2004) 2. AA Aidoo ‘African women today’ in O Nnaemeka (ed) Sisterhood feminisms and power: From Africa to the diaspora (1998). OHCHR (n 1) 4. B Adeleye-Fayemi ‘Creating and sustaining feminist space in Africa: Local and global challenges in the 21st century’ Fourth Annual Dame Nita Barrow Lecture, November 2000 15. FC Steady The black woman cross-culturally (1981). A Tripp et al African women’s movements: Changing political landscapes (2009) 140-141.

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interconnected sources. Because African feminism ‘is distinctively ... concerned with many “bread, butter, culture and power” issues’,50 which to our understanding relates to matters of livelihood security, we propose that it provides the theory base for a comprehensive interpretation of the right to development guaranteed to African women. Our focus on the theoretical underpinnings of African feminism is relevant for two reasons: first, to build on Mama’s conception of feminist scholarly on Africa and from Africa,51 to advance an understanding of the right to sustainable development, which is conceived in Africa for African women. The second reason emanates from the view of African feminists that African women are yet to fully reap substantial benefits from the development process as envisaged by the right to development, constituting Africa’s major contribution to the global discourse on human rights and development.

3.2

African feminist view of the right to development

As long as the development challenges confronting Africa continue to exist, it is crucial to constantly reiterate the purpose for which the right to development was formulated to enable the peoples of Africa to assert the right to socio-economic and cultural self-determination.52 Several accounts illustrate that the idea of conceiving development as a human right was brought to the fore of academic discourse on human rights and development by the Senegalese jurist, Kéba M’baye, in 1972. His seminal treaties advanced the argument that the right to development indeed is a human right according to which every single person and all peoples are legitimately entitled, in solidarity with other members of the community, to enjoy in just measure the goods and services produced.53 Prior to M’baye, other proclamations by activists dating back to the late 1960s advocated countries of the Third World to assert and uphold the right to development.54 The post-colonial reading of the call to embrace the right to development, especially as it was championed by developing countries, implied a bid to overcome colonial domination and to achieve a fundamental restructuring of the international economic order.55 The campaign for a new international economic order failed to materialise.

50 51 52 53

54 55

G Mikell ‘Introduction’ in G Mikell (ed) African feminism: The politics of survival in subSaharan Africa (1997) 4; see also Ahikire (n 16) 8. A Mama ‘Gender studies for Africa’s transformation’ in T Mkandawire (ed) African intellectuals: Rethinking politics, language, gender and development (2005) 94. See CC Ngang ‘Towards a right to development governance in Africa’ (2018) 17(1) Journal of Human Rights 108-112. K M’baye ‘Le droit au developpement comme un droit de l’homme’ (1972) Revue des Droits de l’Homme 503; see also R Ozoemena & M Hansungule ‘Development as a right in Africa: Changing attitude for the realisation of women’s substantive citizenship’ (2014) 18 Law, Democracy and Development 224. Ngang (n 51) 111-112. Ozoemena & Hansungule (n 52) 226.

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However, the right to development evolved in its innate nature as a conceptual tool for asserting fairness in the distribution of resources and also as a legal entitlement for claiming equality of opportunity for development. It is in this form that the right to development gained the status of positive law in the African Charter. The Charter guarantees that ‘[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’.56 From an African feminist point of view, the formulation of the right to development in the African Charter for several reasons is particularly important. To recognise the right of all peoples to socio-economic development, particularly including women who traditionally have been excluded from the development process in the largely-patriarchal African society, is a ground-breaking achievement in advancing the status of African women. The African Charter underscores the fact that entitlement to socio-economic and cultural development is to be achieved with due regard to the freedom and identity (of women) and that they are entitled (like their male counterparts) to equal opportunities for development and in the equitable enjoyment (sharing) of the common heritage (material possessions) that are necessary to ensure well-being and an improved standard of living. The African Charter emphasises the fact that as a guarantee to achieving the right to development, socio-economic and cultural rights must be given greater priority as a guarantee for the realisation of civil and political rights, and that both categories of rights cannot be dissociated in their conception and in their universality.57 Understandably, development entails the realisation of socio-economic and cultural rights, which relate more to livelihood security and the well-being of the human person than civil and political rights, which are more associated with status and power dynamics. In relation to the African feminist view on power relations discussed above, this preambular clause ascertains that African women should first and foremost seek to achieve socio-economic and cultural emancipation as a prerequisite to acquiring the political leverage to shape society. Besides the right to development guaranteed by the African Charter, the African Women’s Protocol makes provision for the right to sustainable development of all African women. The Women’s Protocol is relevant not only because it is ancillary to the African Charter but, importantly, as it is the most comprehensive human rights convention for women in Africa.58 The Women’s Protocol incorporates the right to self-protection and

56 57 58

Art 22(1) African Charter (our emphasis). Preamble African Charter. M Adams ‘Regional women’s activism: African women’s network and the African Union’ in M Ferre & A Tripp (eds) Global feminism: Transnational women’s activism, organising and human rights (2005) 200.

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affirmative action to promote the equal participation of women in decision making and in development processes.59 Article 19 of the African Women’s Protocol provides as follows: Women shall have the right to fully enjoy their right to sustainable development. In this connection, the state parties shall take all appropriate measures to: (a) introduce the gender perspective in the national development planning procedures; (b) ensure participation of women at all levels in the conceptualisation, decision-making, implementation and evaluation of development policies and programmes; (c) promote women’s access to and control over productive resources such as land and guarantee their right to property; (d) promote women’s access to credit, training, skills development and extension services at the rural and urban level’s in order to provide women with a higher quality of life and reduce the level of poverty among women; (e) take into account indicators of human development specifically relating to women in the elaboration of development policies and programmes; and (f) ensure that the negative effects of globalisation and any adverse effects of the implementation of trade and economic policies and programmes are reduced to the minimum for women.

Just as the African Women’s Protocol is intended to complement the African Charter, it purposefully does not recapture the wording of article 22 of the African Charter but provides a more elaborate description of what the right to sustainable development entails for African women. In line with the definition of the right to development, which alludes to the constant improvement in human well-being,60 the right to sustainable development entails the entitlement to a measurable and enjoyable standard of living free from socio-economic and cultural constraints. Sustainable development connotes the fact that present generations of African women are entitled to enjoy their rights without compromising the chances and ability of future generations to also enjoy their own rights. The Women’s Protocol highlights practical measures that need to be taken to ensure not only the improvement of living standards for women but, importantly, also to ensure that there is no regression in the enjoyment of their existing rights.

59 60

Briefing of Centre for Reproductive Rights (n 26). A Sengupta ‘The human right to development’ (2004) 32(2) Oxford Development Studies 180; AO Dąbrowska ‘Legal status of the right to development’ (2010) Haskoli Island University 6; Declaration on the Right to Development Resolution 41/128 adopted by the UN General Assembly on 4 December 1986, art 2(3); Working Group of Experts and the High-Level Task Force A/HRC 15/WG.2/TF/2, 24 February 2010.

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The role of the state, as highlighted in the African Charter and the Declaration on the Right to Development, is pivotal in ensuring that women’s rights to sustainable development are achieved. In addition to the measures that states parties are obligated to take in respect of their commitments under the African Women’s Protocol, the African Charter enjoins state parties to individually or collectively create the conditions to enable the right to development to be realised.61 The Declaration on the Right to Development requires states to take ‘[e]ffective measures … to ensure that women have an active role in the development process’, which includes ‘equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income’.62

4

Right to development concerns regarding African women

The right to development is conceived as an embodiment of all human and peoples’ rights, which means that its realisation entails the full realisation of the continuum of universally-recognised human rights. While a full assessment of the right to sustainable development necessitates a point-bypoint analysis of all the constituent entitlements, we highlight only a few in this section, which in our estimation retard progress for African women. The Declaration on the Right to Development makes it clear that for the right to development to be achieved, obstacles to development need to be eradicated. This requires concurrent pragmatic action in reshaping established power relations and in advancing women’s productive capabilities. It puts to test the actual dimensions of African feminism, whether it is just ideological or can practically drive the processes to ensure the effective realisation of the right to sustainable development for the present and future generations of African women.

4.1

Peace and security

The African Women’s Protocol provides that ‘[w]omen have the right to peaceful existence and the right to participate in the promotion and maintenance of peace’, which includes requiring ‘[s]tate parties [to] take the necessary measures to reduce military expenditure significantly in favour of spending on social development in general, and the promotion of women in particular’.63 As a prerequisite for the realisation of this right, the Declaration on the Right to Development stipulates that

61 62 63

Art 22(2) African Charter. Art 8 Declaration on the Right to Development (n 60). Arts 10(1) & (3)African Women’s Protocol (n 59).

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[a]ll states should promote the establishment, maintenance and strengthening of international peace and security’ and similar to the Protocol, that complete disarmament initiatives should be taken to ensure that the resources released by effective disarmament measures are used for inclusive development, particularly for developing countries.64

To this end, the African Charter enjoins state parties to individually and collectively create the conditions necessary for the right to development to be achieved, which includes ensuring peace and security on the continent. Feminists’ intervention in matters relating to peace and security brings a new consideration that draws attention to areas often neglected by male knowledge, in examining the impact of war or conflict on women.65 It should be noted that peace and security are of interest because for women, conflicts threaten and/or exacerbate their livelihood security. It should also be noted that ‘conflict is a core component of everyday human life and every society has its own way of dealing with conflicts in order to ensure peaceful co-existence’.66 When peace initiatives fail and conflict sets in, women bear the brunt and in multiple ways often become the victims of the resulting insecurity. It is estimated that apart from the number of people that are internally displaced by conflicts, about nine million people, mostly women, have lost their lives.67 The impact of conflicts and war on women is multi-dimensional, including emotional trauma, rape, slavery, forced marriage and, in extreme cases, death. In a Concluding Comment on the Democratic Republic of the Congo, the CEDAW Committee drew attention to the negative impact of the protracted civil war in that country on maternal mortality rates and education, particularly on those living in rural areas.68 In a ruling delivered in the Jean Paul Akayesu case, the International Criminal Tribunal for Rwanda (ICTR) established a principle of law that shows the impact of gender-based violence (rape) as a result of war to be inimical to women and society at large.69 The Court construed rape as a form of genocide, which in many ways negates human rights. In the same vein, Bunch reiterates:70

64 65 66 67 68 69 70

Art 7 Declaration on the Right to Development (n 60). S Whitworth ‘Gender and the inter-paradigm debate’ (1989) 18(2) Millennium Journal of International Studies 265. O Elechi ‘Human rights and African indigenous system’ paper presented at the 18th International Conference of International Society for the Reform of Criminal Law, Montreal, Canada, 8-12 August 2004 18. H Campbell ‘The new Africa initiative: Peace, justice and reparation or the kindling of the human spirit’ paper presented at the Africa Forum for Envisioning Africa Nairobi, Kenya, 26-29 April 2002 16. CEDAW Committee ‘Concluding comments of the Committee on the Elimination of Discrimination against Women: DRC’ (2006) UN CEDAW 2. The Prosecutor v Jean Paul AkayesuICTR-96-4-T 2 September 1998. C Bunch ‘Feminism, peace, human rights and human security’ (2003) 22(2) Canadian Woman Studies 9.

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One of the areas in which there is the greatest agreement among feminists is about the gendered nature of war, militarism and armed conflict and the harm it causes women. Even when there is a considerable diversity in the construction of sex roles, what is remarkable is the way war still operates in a specific gendered ways, and military forces use and rely on women at critical parts of war process even as they privilege masculinity.

The gendered nature of war and conflicts as a display of male chauvinism (as stated by Bunch) in many ways adversely affects women and in effect also registers as a regression of women’s rights to sustainable development in terms of inequitable budgetary allocations. It is because of this consideration that the Declaration on the Right to Development and the African Women’s Protocol, as pointed out above, emphasise the need for equitable redistribution of the resources meant for war to also prioritise the development of women. It is thus relevant (more so because of entrenched power relations in African societies, which does not function in favour of women) that, instead of narrowing down African feminism to an ideological struggle for identity, as Goredema observes,71 African feminists have a more urgent task to invest more energy in holding the state to account on their obligations under the law to disinvest on military spending and to allocate more resources in advancing the women of Africa.

4.2

Education

Education remains one of the key priority aspects for ensuring the realisation of the right to sustainable development for women in Africa. In addition to the provisions of the international bill of human rights and the African Charter on the right to education, the African Women’s Protocol enshrines a more elaborate account of African women’s entitlement to education and training.72 The Women’s Protocol enjoins state parties ‘to eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training’, ‘promote literacy among women’ and, most importantly, ‘promote the enrolment and retention of girls in schools and other training institutions’.73 During the past two decades a positive gain in this regard is the increased enrolment of women and girls in educational institutions. However, there are significant challenges resulting from established power relations, as highlighted earlier, which women and girls are yet to overcome to ensure the effective realisation of the right to education, for

71 72 73

R Goredema ‘African feminism: The African woman’s struggle for identity’ (2010) 1(1) African Yearbook of Rhetoric 33-41. Art 12 African Women’s Protocol. Arts 12(1)(a) & (2)(a)&(c) African Women’s Protocol.

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example, the imposition of fees where, for political reasons, government budgets for education in many African countries have been slashed.74 Education data obtained from the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Institute for Statistics Data Centre reports that the sub-Saharan Africa regional gross intake rate into primary year one increased from 90 per cent in 1999 to 111 per cent in 2006. However, the 2006 primary net enrolment ratio stood at 70 per cent, meaning that the high gross intake rate is more a result of over-age intake (and under-age intake leading to later higher repetition) than universal access for that age group. The increase in primary gross enrolment ratio from 78 to 95 per cent is remarkable, corresponding to a net enrolment ratio increase from 56 to 70 per cent. However, while many countries have made large gains, other countries have made little progress or even experienced a decrease in enrolment rates. Approximately 30 per cent of pupils enrolling in year one fail to complete primary education; some 35 million children did not attend school in 2006, while 38 per cent of those completing primary education did not proceed to acquire secondary education, although there has been a significant increase in the junior secondary and tertiary enrolment ratios.75 While gender equity has improved at primary level, it remains poor at junior secondary level. This is the key level for many of the positive externalities of girls’ education, notably improved family planning (later marriage) and family health. However, those girls that complete junior secondary education are less likely than boys to drop out from higher levels of education.76 It is acknowledged that education for women and girls, especially in the sciences and professions, is critical to the future of the technological development of the African continent.77 This has often been hampered by poverty which in many ways retards progress in Africa. However, it has been established as a principle of international human rights law that ‘the lack of development may not be invoked to justify the abridgement of internationally recognized human rights’.78 In spite of extreme levels of poverty, the need for African states to take more radical measures, including the elimination of school fees, remains imperative if the right to sustainable development guaranteed to women is to be achieved.

74 75 76 77 78

Snyder & Tadesse (n 12) 182. EU-Africa Millennium Development Goal (MDG) Partnership Priority Action Plan 4: Education 2. EU-Africa Millennium Development Goal (n 75) 3. Abuja Declaration on Participatory Development: The Role of Women in the 1990s. Vienna Declaration and Programme of Action adopted by the UN World Conference on Human Rights UN Doc. A/CONF.157/24, 25 June 1993 para I(10).

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Chapter 6

Maternal health and reproductive rights

Due to the ‘unacceptably high global rate of maternal mortality’, which addresses the number of women who die during pregnancy or in childbirth, matters relating to maternal and reproductive health have increasingly gained recognition not only as a serious public health concern posing a threat to the lives of women, but also as a human rights problem. This also is a development challenge mirroring the imbalances in living conditions among women across the world.79 It is noted that despite some recorded progress, in 2010 Africa registered the largest burden of maternal deaths, estimated at 56 per cent of the global burden. These statistics are corroborated by the fact that the 10 countries with the highest maternal mortality ratios in the world are in Africa.80 Of all other regions in the world, sub-Saharan Africa is reported to have the worst indicators of women’s reproductive health.81 According to Fried et al, the challenge posed by prevailing levels of maternal mortality requires a renewed political commitment to the human rights obligations to eliminate preventable maternal mortality at local, national, regional and international levels.82 Accordingly, existing global human rights standards recognise women’s rights to ‘the highest attainable standard of health’ and to equitable and non-discriminatory access to adequate maternal health care.83 CEDAW guarantees women’s rights to ‘appropriate services in connection with pregnancy, and to decide freely and responsibly on the number and spacing of their children’.84 In this regard, the CEDAW Committee stipulates in General Recommendation 28 that ‘[t]he policies of the state party must be action-and result-oriented as well as adequately funded’, and in General Recommendation 24 that maximum available resources must be mobilised to ensure women’s rights to safe motherhood.

79

80 81 82 83 84

Human Rights Council ‘Preventable maternal mortality and morbidity and human rights’ Eleventh Session Resolution 11/828 2000; UNICEF Progress on drinking water and sanitation (2012) World Health Organization 4; P Hunt & JB de Mesquita ‘Reducing maternal mortality’ (2007) Human Rights Centre and UNFPA 3. UN Economic Commission for Africa ‘MDG Report 2013: Assessing progress in Africa toward the Millennium Development Goals’ (2013) 57. Centre for Reproductive Rights ‘The Protocol on the Rights of Women in Africa: An instrument for advancing reproductive and sexual rights’ Centre for Reproductive Rights (2006) 1. S Fried et al ‘Integrating interventions on maternal mortality and morbidity and HIV: A human rights-based framework approach’ (2012) 14 Health and Human Rights Journal 21. J Bueno de Mesquita ‘Maternal mortality and human rights: Landmark decision by UN human rights body’ http://www.who.int/bulletin/volumes/90/2/11-101410/en/ index.html (accessed 5 October 2017). Bueno de Mesquita (n 83) 6; see Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 December 1979, GA Res 34/180 UN GAOR 34th session, Supp 46 193 art 12 UN Doc A/34/46 (1979) entered into force 3 September 1981.

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The African Women’s Protocol further provides that state parties are obligated to ensure that women’s rights to health, which includes the right to sexual and reproductive health, are sufficiently protected.85 Understood as a state of physical, mental and social well-being and not merely the absence of disease or infirmity, women’s rights to reproductive health are presented as a key determinant for the realisation of the right to sustainable development. This right incorporates the right to meaningful participation in the ‘conceptualisation, decision making, implementation and evaluation of development policies and programmes’,86 relating to quality reproductive health care for women. Even though the African Women’s Protocol is novel in its added value to the corpus of human rights treaties in highlighting the right to reproductive health among other entitlements, in many parts of Africa women continue to die of preventable diseases.

4.4

Eradicating harmful cultural practices

It is globally recognised that women’s rights indeed are human rights. This is contained in provisions of international human rights instruments that entrench and guarantee the equality of sexes, equal and full dignity of the person, non-discrimination on the basis of sex; and freedom from cruel, inhuman and degrading treatment.87 In Africa, a majority of women cannot be said to enjoy basic human rights and are thereby deprived of the right to sustainable development. Culture has always been cited as a key obstacle to the enjoyment of women’s human rights and the major reason underlying resistance by communities.88 Harmful cultural practices impact on women’s rights to sustainable development in the sense that if not eradicated, these practices deprive present and future generations of African women of the fundamental entitlement to improved well-being. The right to development embodies the aspect of culture which, according to the Charter for African Cultural Renaissance, must be upheld and promoted as an important assurance in preserving the values and virtues that underlie the African conception of human rights.89 The African Charter states that every individual ‘may freely take part in the cultural life of his community’, necessitating the ‘promotion and protection of morals and traditional values recognised by the community’.90 This means that such morals and traditional values should not negate human rights in any form but, controversially, the very formulation of article 17(2) contains one such gender bias highlighted by 85 86 87 88 89 90

Art 14(1) African Women’s Protocol. Art 19(b) African Women’s Protocol. E Kisaakye ‘Women, culture and human rights: Female genital mutilation, polygamy and bride price’ in W Benedek et al Human rights of women: International instruments and African experiences (2002) 268. Kisaakye (n 87) 269. Charter for African Cultural Renaissance adopted in Khartoum, Sudan on 24 January 2006. Arts 17(2) & (3) African Charter.

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the qualification his, which basically only recognises the role of men in African societies. Accordingly, the law has advanced to focus on certain cultural practices, especially those that devalue African women which, judging by human rights standards, ought to be eradicated. The African Women’s Protocol identifies female genital mutilation as one of the harmful practices that violates women’s rights to dignity and bodily integrity, which involves the practice of the cutting of female genitals,91 with the aim (1) to initiate the woman into womanhood of the tribe; (2) to reduce the woman’s sexual urge; (3) to protect the baby and to prevent maternal and infant mortality; (4) to prevent the death of the woman, by removing the clitoris, which is believed in some communities to be poisonous; (5) to preserve virginity; (6) to prevent promiscuity, sexual deviance and excessive arousal.92

The debate with regard to the practice of female genital mutilation (FGM) remains controversial, with those who oppose the practice advocating its eradication, whereas it is noted that there is a strong resistance even from women in communities practising FGM, which the human rights framework seeks to protect.93 Constitutional measures have been instituted in Ethiopia, Ghana and Uganda as well as legislative interventions in Burkina Faso, Togo, Côte d’Ivoire and Nigeria to curb the practice of FGM. However, it must be stressed that these doctrinal interventions often are not sufficient. The African Women’s Protocol imposes a legal obligation on state parties to proscribe all forms of harmful practices, including behaviour, attitudes and traditions that negatively affect the fundamental rights of women and girls, such as the rights to life, health, dignity, education and physical integrity.94 The African Women’s Protocol prescribes that state parties may not only take legislative measures, as is the case in the countries mentioned above, but also other measures to eliminate harmful practices against women. Other measures include exercising the political will to act in compliance with the law by taking more concrete practical action to protect the range of human rights guaranteed to African women, which is fundamental to realising their rights to sustainable development. In this regard, the Women’s Protocol further outlines the commitment by state parties to modify the socio-cultural patterns in power relations that are informed by gender stereotypes and the inferiority or superiority 91 92 93 94

N Toubia Female genital mutilation: A call for global action (1995) 9. As above; see also Kisaakye (n 87) 272. Kisaakye 275. Arts 5 & 1(g) African Women’s Protocol.

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complexes that compromise women’s chances for advancement.95 In our understanding, harmful cultural practices are established and sustained by gender stereotypes and inferiority/superiority complexes according to which women are erroneously perceived as a vulnerable category without leverage to determine the functioning of society. African women in essence are entitled to a culturally-conducive environment that allows them full participation at all levels in the determination of cultural policies.96 With this understanding, it is relevant to ask not only what states are obligated do but, most importantly, the value addition that African feminism can contribute to advancing the productive capabilities of African women in driving the processes to eradicate harmful cultural practices as a way forward towards the effective realisation of the right to sustainable development.

4.5

Economic empowerment

Power relations between men and women in African societies often manifest conspicuously in economic status. The economic status of African women generally is limited to one of a dependence on men, making them less economically powerful to meaningfully participate in shaping development processes, including those specifically affecting women. To this end, African feminism in a distinctive manner has increasingly weighed in on economic independence for African women. According to Nzegwu, ‘women’s economic independence remains a much cherished and crucial component of female heritage, contributing to, and participating in the day-to-day management of family and community’.97 Further, Tripp notes that the economic status of women is important for breaking the barriers in power relations and societal imbalances, especially within the public and the private spheres.98 According to Kuenyehia:99 There must be a need for a re-characterisation of human rights to respond to and be responsive to women’s needs. The whole discourse of international human rights becomes irrelevant to African women unless it addresses socioeconomic conditions of African countries which invariably affect women and children.

African human rights law indeed is conceptualised to respond to all the peoples of Africa, particularly including African women. With regard to the right to development, the African Charter makes it clear that all the peoples of Africa are equitably entitled to the ‘enjoyment of the common 95 96 97 98 99

Art 2(2) African Women’s Protocol. Art 17(1) African Women’s Protocol. F Nzegwu Love, motherhood and the African heritage (2001). Tripp (n 48) 54. A Kuenyehia ‘The impact of structural adjustment programmes on women’s international human rights: The example of Ghana’ in R Cook (ed) Human rights of women: National and international perspectives (1994) 430 422.

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heritage’ that makes up the African patrimony. This means that African women are equally guaranteed the right to the same economic opportunities for development and, thus, any policy that excludes women must be seen as amounting to a regression of their rights to development. Relating to the fact that access to and ownership of natural wealth and resources constitute an essential component for the realisation of the right to development,100 African women by law are granted ‘access to and control over productive resources such as land and guarantee their right to property’ as well as ‘access to credit, training, skills development and extensive services’ as assurance for the realisation of the right to sustainable development.101 While these legal guarantees envisage that socio-economic and cultural development policies are designed to advance African women in a sustainable manner, a fundamental problem exists which necessitates, on the one hand, concrete state action in translating the abstract human rights guarantees into substantive entitlements and, on the other, improved productive capacity among African women in influencing policy formulation with regard to effectively exercising the right to sustainable development.

5

Conclusion

As pointed out earlier, the points highlighted in the foregoing section are not exhaustive of the challenges that African women are confronted with. By focusing on these, we aim to draw attention to the specific issues that are sustained by societal imbalances and the unequal power relations, necessitating radical activism, especially from African feminists to constrain relevant duty bearers into taking practical action to ensure that the right to sustainable development guaranteed to African women is achieved. Boutros Boutros Ghali, former UN Secretary-General, remarked over a decade ago that the struggle for women’s inequality is part of the struggle for a better world for all humanity and that, without progress in the human rights campaign to improve the livelihood of women who make up more than half of humanity, there can be no true social development.102 African women are systematically excluded from many of the human rights guarantees to which they are legitimately entitled under international law and, most importantly, under the African Women’s Protocol, not because the entitlements enshrined therein are unachievable but because of a traditional lack of political will by the majority of African

100 Art 1(2) Declaration on the Right to Development (n 60). 101 Art 19(c)(d) African Women’s Protocol. 102 UN Pamphlet ‘The United Nations and the status of women: Setting the global agenda DPI/1672/Woman May 1995.

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states to genuinely commit to their human rights obligations. It should be emphasised that human rights generally are not given but claimed by rights holders. By this we mean that African states are unlikely to forthrightly offer the right to development to African women on the basis that they are obligated by law to do so. In many instances, African states have only been urged to comply with their human rights obligations through radical civil society activism. If the right to sustainable development for African women is to become reality, African feminism needs to become more radical in holding states to account on their legal commitments under the African Charter and the African Women’s Protocol. The legal status of the right to sustainable development guaranteed to the women of Africa means that it can legitimately be claimed in a court of law. However, in spite of violations of component entitlements, including the fact that African women continue to die of preventable diseases, as yet there has been no reported case before the African Commission or the African Court on Human and Peoples’ Rights against a state party for defaulting in their human rights obligations to respect, protect and fulfil women’s rights to maternal and reproductive health. Meanwhile, the Alyne da Silva Pimentel case,103 involving a Brazilian woman of African origin who died of pregnancy-related causes, illustrates that legal action indeed can be taken in this regard. The CEDAW Committee found Brazil in violation of article 12(2) of CEDAW for not taking sufficient measures to ensure the right to reproductive health. The African Commission and the African Court have established a rich jurisprudence on the right to development,104 which provides the precedence for African women to follow in asserting their entitlement to sustainable development as a right.

103 Alyne da Sylva Pimentel v Brazil (2008) UN Doc CEDAW/C/49/D/17/2008. 104 See eg, Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009), paras 269-298; Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2004), para 95; Sudan Human Rights Organisation & Another v Sudan (2009) AHRLR 153 (ACHPR 2009), para 224. African Commission on Human and Peoples’ Rights (Ogiek Community) v Republic of Kenya (2017) Appl 006/2017, paras 201-217.

CHAPTER

7

THE RIGHT TO SUSTAINABLE A

DEVELOPMENT FOR WOMEN IN AFRICA: COROLLARY OF THE RIGHT TO PEACE

Paidamwoyo Mukumbiri*

1

Introduction

The right to peace and the right to development are intricately and inseparably linked, necessitating their realisation to be pursued simultaneously, particularly in the African context where continuous conflicts have caused economic stagnation in the majority of African countries. The impasse in Africa’s development indeed can be attributed to internal political turmoil since the Cold War.1 The realisation of the right to peace is a conditio sine qua non for the right to development to be achieved. The two rights are designed to achieve the same objectives, which entail improving human well-being. Given that Africa is considered a ‘cauldron of instability and economic deprivation’, prioritising the right to peace is key to achieving development.2 Wars, poverty, economic meltdown, inflation, corruption and embezzlement of funds by the African leaders are common features in African countries. Consequently, very few African countries have progressed economically since attaining independence from colonial rule. Most African countries in fact have actually remained stagnant while some countries have totally retrogressed.3 Prospects for development on the continent, as compared to all other continents, are marred by internal

* 1

2 3

Doctoral candidate, Centre for Human Rights, University of Pretoria, South Africa; [email protected] J Nkurayija ‘The requirements for the African continent’s development: Linking peace, governance, economic growth and global interdependence’ Berlin 3, 17 July 2011 http://www.culturaldiplomacy.org/academy/content/pdf/participant-papers/ africa/Jean-De-La-Croix-Nkurayija-The-Requirements-For-The-African-Continent% 27s-Development-Linking-Economic-Growth.pdf (accessed 20 September 2017). As above. Zimbabwe is one example of a country that has seriously retrogressed since attaining independence from British colonial rule. 120

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conflicts.4 In the midst of these conflicts and widespread underdevelopment, African leaders insist on African solutions to African problems. In this regard, the African Union (AU) created the Peace and Security Architecture (APSA), which is a product of the philosophical concept of African solution to African problems.5 The APSA acknowledges the relationship between peace and development. This realisation emanates from the fact that conflict in Africa is conceived as resulting from poor governance, inequality and the unequal distribution of resources, which for the most part impact adversely on women and, therefore, compromise the right to sustainable development to which women are entitled. In this regard, I make the argument that because of the interrelatedness of the right to peace and the right to development, the realisation of the right to sustainable development for women in Africa is unavoidably dependent on the protection and implementation of their right to peace. This chapter specifically focuses on these two third generation (collective or solidarity) rights as they relate to women as provided for under the African Charter on Human and Peoples’ Rights (African Charter)6 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol).7 The chapter is structured in three main parts besides this introductory section and the conclusion. In part two that follows, I briefly discuss the meaning of peace and development from a social and legal perspective as provided for in human rights instruments. The third part highlights the normative framework that establishes the link between peace and development. In part four, I discuss the problems associated with the implementation of women’s rights to sustainable development, with recommendations in the concluding section on the way forward for African women.

2

What is in the name ‘peace and development’?

A common definition of the concepts of peace and development may never be attained. First, the two concepts differ with the context and their 4

5

6 7

Institute for Economics and Peace ‘Global Peace Index 2017’ http://visionof humanity.org/app/uploads/2017/06/GPI17-Report.pdf (accessed 5 January 2018). According to the Global Peace Index 2017, sub-Saharan Africa, North Africa and the Middle East are major contributors to the decrease in world peace in the last decade. The report outlines that four out of the five countries of which the peace index has fallen are in Africa. These are Ethiopia, Mali, Burundi and Lesotho. The African Union Peace and Security Architecture was established by the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, adopted in Durban, South Africa on 10 July 2002 (PSC Protocol). It entered into force on 26 December 2003. African Charter on Human and Peoples’ Rights adopted in Nairobi, Kenya on 27 June 1981. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted in Maputo, Mozambique on 11 July 2003.

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application in time. Peace and development are evolving concepts that are in constant flux.8 They are affected by economic, social, political and cultural factors so that their definition depends on the existing circumstances at any particular time. As a result, what might be called peace or development today may not be the same in coming centuries. Hansen argues that ‘the perspective which a group brings to the peace problematic depends on its history and material conditions as well as the position of the group within the power structure of the national or international system’.9 Therefore, the definition of the two concepts needs to be context-specific. This is why participation has been viewed as an integral component of ensuring the realisation of the right to peace and the right to development by the African Women’s Protocol.10

2.1

Notion of peace viewed from a social perspective

Consensus on the definition of peace might not be reached but the common denominator agreed to among peace scholars is that peace is the absence of violence. What differs is the definition of violence. What we call violence depends on one’s standing in society. Violence has to be understood not only in terms of the absence of physical force but also structural and economic violence. The unequal distribution of resources is a form of violence. The definition of violence needs to be expanded so that peace is understood both in its negative and positive form.11 The absence of conflict on its own does not amount to peace. Discrimination and social inequalities create a violent set-up, which violates the right to peace. From a philosophical point of view, Galtung advances a peace theory that is fourfold.12 According to Galtung:13 8

9 10 11

12

J Galtung ‘Violence, peace, and peace research’ (1969) 6(3) Journal of Peace Research. Galtung argues that the definition of peace should be fluid in order to ‘immediately steer one’s attention towards problems that are on the political, intellectual, and scientific agenda of today, and tomorrow’. E Hansen ‘Africa: Perspectives on peace and development’ in E McCandless & T Karbo (eds) Peace, conflict, and development in Africa: A reader (2011) 3. Arts 10 & 19 African Women’s Protocol. These provisions place the emphasis on participation as a core element of the right to peace and the right to development. The negative form of peace is when peace is defined as the absence of physical conflict. Positive peace entails more than the elimination of physical violence. It includes the elimination of structural inequalities at the social, economic and political levels. Positive peace results in individuals enjoying an adequate standard of living. J Galtung ‘Buddhism and the world peace’ in W Dietrich (ed) The Palgrave international handbook of peace studies: A cultural perspective (2011) 278-293. The position by Galtung represents how peace is viewed from an Asian philosophical basis, particularly from the Buddhist perspective. The Buddhist perspective, however, shares many commonalities with other peace perspectives from the region. F Munoz & B Molina ‘Pax: A Mediterranean perspective’ in Dietrich (above) 51. Munoz & Malina argue that in all these cultures, despite the difference in semantics, the word ‘peace’ could be used in different terms, but the common element is that peace relates to the management of conflict from whatever source, tranquillity and harmonious relationships among community members. From a Middle-Eastern perspective, it is argued that peace has the following components: inner peace and harmony in the life of every individual; social cohesion in the community; and the treatment of tensions and conflicts. See also A Haneef ‘Salaam: A Muslim perspective’ in Dietrich (n 10) 121.

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Peace has to be understood not only as peace among nations, but also as peace within societies, among and within human beings and certainly also with nature. It has to be understood in nature space, human space, social space and world space.

There are two major elements that necessitate peace in all the space elements defined by Galtung. These are diversity and symbiosis.14 For Galtung, these two elements lead to co-existence in the different spaces mentioned above. The different spaces of peace as highlighted bring out the comprehensive nature of the concept of peace. The theory enunciates that peace not only is confined to state relations but is broad enough to include social relations and friendly environments. When a country is not at war, its citizens may still lack peace if their social and economic conditions are not healthy. The African culture views peace as strongly linked to societal relationships. This is the basis on which communal living and communal relations in Africa are valued at the expense of individual relations. As a result, the disruption of communal relations is perceived as a violation of the right to peace. This is explained by the reasoning that peace in African societies is not based on established theories ‘but is borne out of the experiences and reflections on life in all its multifarious dimensions, as well as in the daily lives of the people’.15 Opoku argues that West Africans’ view of peace is that it is achieved when life is ‘without any hindrance, constraints, impediments and threats, and when all that is required to make life happy, prosperous and meaningful is attained’.16 This definition of peace leads to the conclusion that any hindrance to a happy living not only is a violation of the right to peace but also a violation of the right to development. The failure to meet basic needs because of exclusion from development programmes is a violation of the right to peace. The West African perspective of peace emphasises the element of participation. Opoku argues that African proverbs reveal the inclusive and cooperative nature of peace.17 For instance, a Swahili proverb says ‘it is better to build bridges than walls’. A Malagasy proverb also states that ‘if one does not like heat and others do not like cold; make it tepid and still remain friends’. In Southern Africa, peace is defined as an environment that ensures harmonious relationships and coexistence among individuals and members of the community.18 In addition to these cultural perspectives of peace discussed above, the general understanding of peace also points to the fact that peace is much more than the absence of physical violence. Haneef argues that ‘true peace

13 14 15 16 17 18

Galtung (n 12) 279. As above. As above. KA Opoku ‘Asomdwoe: A West African perspective’ in Dietrich (n 12) 417. As above. The Southern African view of peace presented is from the Zimbabwean perspective and may not represent the cultural views of all the countries in Southern Africa.

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is not merely an absence of war; it is the elimination of the grounds for strife or conflict, and the resulting waste and corruption they create’.19 Galtung further defines peace as a state of affairs where human beings are able to achieve their full potential.20 If people are not able to achieve their full potential due to avoidable circumstances, then violence exists and the environment is no longer peaceful.21 Furthermore, for peace to be sustainable it has ‘to be grounded in the immediacy of fulfilling ordinary daily needs’.22 Shtromas and Anderson have broadened the definition of peace not only to include the absence of war or conflict, but also to include economic exploitation as a violation of peace.23 They argue that if there is free trade and private ownership of the means of production, it follows that any motivation to justify war would have been excluded, hence preserving the peace. According to McCandless, peace should result in just structures and the reduction of physical and structural violence.24 McCandless further argues that peace is connected to social and economic development.25

2.2

Legal perspectives on peace

The right to peace is a guaranteed right in the African human rights system. Article 23 of the African Charter provides that ‘[a]ll peoples shall have the right to national and international peace and security’. The entitlements to the right to peace in terms of article 23 are yet to be elaborated on and interpreted. The African Commission on Human and Peoples’ Rights (African Commission) has ruled on the violation of the right to peace but has gone no further to define states’ obligations and the entitlements of rights holders. The Commission found a violation of the right to peace in the cases of Malawi African Association & Others v Mauritania26 and Democratic Republic of the Congo v Burundi, Rwanda and Uganda (DRC case).27 In the case of Malawi African Association the Commission found that the unprovoked attacks on villagers constituted a denial of the right to live in peace.28 In the DRC case, the African Commission dismissed the claims by Burundi, Rwanda and Uganda that the three countries had invaded the DRC to protect their national interests. The Commission ruled that in spite of states’ obligations to maintain friendly relations, by invading the territory of the DRC, Burundi, Rwanda and Uganda violated

19 20 21 22 23 24 25 26 27 28

Haneef (n 12). Galtung (n 12) 168. As above. E Porter ‘Women, peace and securing human rights’ in B Goh et al (eds) Activating human rights and peace, theories, practices and contexts (2012) 205. A Shtromas & GL Anderson ‘What is peace and how could it be achieved?’ (1995) 12(1) International Journal on World Peace 15. E McCandless ‘Synopses of major concepts’ in McCandless & Karbo (n 9) 39. As above. (2000) AHRLR 149 (ACHPR 2000). (2004) AHRLR 19 (ACHPR 2003). Democratic Republic of the Congo v Burundi, Rwanda and Uganda (n 27), para 140.

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the right to peace. The Commission ruled that by invading the territory of the DRC, Burundi, Rwanda and Uganda violated the right to peace. It can be observed from the Commission’s decision that the notion of peace is narrowly interpreted in light of maintaining state relations and the absence of physical violence at the expense of the positive aspects of peace. The Commission, however, cannot be faulted for adopting such a narrow interpretation as the facts of the cases were also limiting and did not provide the adequate opportunities for expansive interpretation of the right. Besides the African Charter, the right to peace is also guaranteed under the African Women’s Protocol, which provides in article 10 that:29 (1) Women have the right to a peaceful existence and the right to participate in the promotion and maintenance of peace. (2) State parties shall take all appropriate measures to ensure the increased participation of women: (a) in programmes of education for peace and a culture of peace; (b) in the structures and processes for conflict prevention, management and resolution at local, national, regional, continental and international level; (c) in the local, national, regional, continental and international decision making structures to ensure physical, psychological, social and legal protection of asylum seekers, refugees, returnees and displaced persons, in particular women; (d) in all levels of the structures established for the management of camps and settlements for asylum seekers, refugees, returnees and displaced persons in particular women; (e) in all aspects of planning, formulation and implementation of postconflict reconstruction and rehabilitation.

Article 10 differs from article 23 of the African Charter in the sense that it focuses on women as individuals and as a group. Article 23 of the African Charter places the emphasis on states, whereas article 10 of the African Women’s Protocol is centred on the participation rights of women in programmes of peace at different institutional levels. Additionally, the Women’s Protocol makes provision not only for the right to peace but, importantly, also for peaceful existence. It is not clear if the drafters of the African Women’s Protocol wished to differentiate between the right to peace and the right to a peaceful existence. However, what can be ascertained from article 10 of the Women’s Protocol is that it is expansive in its outline of state obligations. Article 10 not only focuses on state relations but touches on the four spaces of peace as highlighted by Galtung. The African Commission is yet to find a violation of article 10 of the Women’s Protocol since no case has been brought before it in relation to this provision.

29

Art 10 African Women’s Protocol.

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2.3

Chapter 7

Development

The United Nations Declaration on the Right to Development (UN Declaration) defines development as a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from.30

Development, as it is conceived in the UN Declaration, is supposed to be comprehensive, touching on all elements of human societal needs and relationships. It borders on creating a condition that enables the capacity to fulfil human needs and aspirations based on the principle of participation. The Declaration places the emphasis on human development and, therefore, moves from the limited definition of associating development with a country’s gross domestic product (GDP). Accordingly, Sen argues that development is a process of expanding human freedoms.31 These freedoms includes elementary capabilities like being able to avoid such deprivations as starvation, undernourishment, escape morbidity and premature mortality as well as freedoms that are associated with being literate and numerate, enjoying political participation and uncensored speech and so on.32

The concept of development advanced by Sen literally entails the creation of a peaceful existence.

2.4

The right to development

Just as the right to peace, the right to development is guaranteed only in a binding human rights instrument under the African human rights system. The recognition and protection of the right to development as an enforceable right in the African Charter and the African Women’s Protocol among other African human rights instruments, such as the African Youth Charter, is the result of ‘African intellectualism’. At the global level, the UN Declaration was adopted in 1986 resulting in the recognition of the right to development as a fundamental principle of human rights. The right to development was further reaffirmed as a universal inalienable human right in the 1993 Vienna Declaration and Programme of Action.33 30 31 32 33

Declaration on the Right to Development Resolution 41/128 adopted by the UN General Assembly on 4 December 1986, Preamble. A Sen Development as freedom (1999) 3. H Steiner, P Alston & R Goodman International human rights in context: Law, politics, morals text and materials (2008) 1435. Vienna Declaration and Programme of Action adopted by the UN World Conference on Human Rights UN Doc A/CONF.157/24, 25 June 1993.

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Apart from these international instruments, which only provide for the right to development in the form of soft law, the African Charter and the African Women’s Protocol actually grant legal status to the right to development as an enforceable entitlement.34 Conceived in this manner, Sengupta sees the right to development as a major contribution to the human rights framework as it ‘integrates and asserts the indivisibility of socio-economic rights on the one hand and civil and political rights on the other’.35 As a human right that complies with universal human rights standards, the right to development generally is understood to have the state as the duty bearer as well as individuals and peoples as the beneficiaries. On the contrary, article 22 of the African Charter spells out the normative basis of the right to development as a collective rather that an individual entitlement. It guarantees that ‘[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’. Article 22 highlights the multi-dimensional nature of development, which should not be confined solely to matters of economic growth but of necessity should inclusively focus on the social, economic and cultural development of all the peoples of Africa which, read together with the African Women’s Protocol, does not exclude women. In terms of cultural development, the African Women’s Protocol advocates for the positive development of culture. Article 2(2) of the Women’s Protocol provides that state parties shall commit themselves to modify the social and cultural patterns of conduct of women and men through public education and information dissemination with a view to eliminate discriminatory practices against women. This article implies that development does not mean a total erosion of the African culture but its gradual modification, discarding the negative elements while promoting the positive ones. The obligation of state parties under article 22 entails both individual and collective commitment requiring states, where they cannot individually ensure the realisation of the right to development, to seek cooperation from other countries. It gives states the leverage to seek assistance from development partners for the purpose of improving women’s lives. The African Women’s Protocol expands the scope of the right to development for women. It provides not only for a right to development but for development that is sustainable and is able to respond to the current and future needs of women. In article 19 the Women’s Protocol provides a framework upon which women’s rights to sustainable development can be implemented. It provides that states have an obligation to ‘ensure 34 35

Art 22 African Charter; art 19 African Women’s Protocol. A Sengupta ‘Conceptualising the right to development for the twenty-first century’ in OHCHR Human rights: Realising the right to development (2013) 73.

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participation of women at all levels in the conceptualisation, decision making, implementation and evaluation of development policies and programmes’.36 In this regard, women are able to meaningfully contribute towards the initial processes of development and the sustainability of development is guaranteed. It also guarantees that development responds to the challenges women face and, therefore, becomes sustainable. The Women’s Protocol also places an obligation on states to introduce a gender perspective in the national development programming.37 However, this provision only becomes effective if a common understanding of gender is shared across all sectors and levels. The biggest challenge of introducing the gender perspective is the misinterpretation of the meaning of gender, which sometimes is misinterpreted as meaning the inclusion of women only. Gender is also misunderstood as a concept that excludes men. Therefore, it is important that gender training is conducted on duty bearers and women so that they share the same understanding on what the concept of gender entails. The African Women’s Protocol incorporates practical actions that should ensure the implementation of the right to sustainable development. It obligates states to promote access to and control of land and resources and that women’s rights to property are guaranteed. It also responds to the realities of African women, particularly those in rural areas who are more often than not deprived of the rights to land and access to productive resources. Issues relating to land and property ownership usually are managed only by men while, owing to cultural beliefs, women are excluded from eligibility to land title or property ownership.38 As the African Women’s Protocol guarantees, it is imperative that women’s access and control of land and sources of production is increased for development to be realised. If women control the means of production, the feminisation of poverty will be considerably reduced. Research has shown that there is a connection between gender inequality and poverty.39 Reducing the feminisation of poverty, as envisaged by the law, is a mandate of states to ensure that all impediments that leave women vulnerable to poverty are eliminated. One such impediment is the inadequate knowledge of the management of businesses and limited access to credit facilities. The African Women’s Protocol, therefore, imposes an obligation on states to promote access to credit and capacity building to

36 37 38 39

Art 19(b) African Women’s Protocol. Art 19(a) African Women’s Protocol. One such belief is that communal land is allocated to the male head of the family since it cannot be individually owned. The male head holds the land on behalf of the whole family. M Nussbaum ‘Women and human development: The capabilities approach’ in M Molyneaux & S Razavi (eds) Gender, justice, development and rights (2003) 45.

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equip women with the necessities that facilitate socio-economic development.40 The right to development not only is guaranteed recognition and protection in treaty instruments under the African human rights system, but indeed has been affirmed to be justiciable and enforceable through judicial processes. In adjudicating the Endorois case, the African Commission found a violation of the right to development against the Kenyan government where it held that the creation of a game park without the involvement of the Endorois indigenous people violated their right to development.41 The Commission highlighted the fact that the right to development served both as ‘a means and an end’.42 The Commission stated that the right to development must be equitable, non-discriminatory, participatory, accountable and transparent, with equity and choice as important, overarching themes for its realisation.43 The Commission emphasised the fact that development processes should be alive to the cultural beliefs of the intended beneficiaries. On this note, I move on to examine the right to sustainable development as a corollary of the right to peace.

3

Right to sustainable development: A corollary of the right to peace

The relationship between peace and development has been emphasised in numerous human rights instrument. These include the African Charter; the African Women’s Protocol; the Protocol Relating to the Establishment of the Peace and Security Council of the African Union (PSC Protocol);44 the Universal Declaration of Human Rights (Universal Declaration);45 and the UN Declaration on the Right to Development.46 While it has been acknowledged that all human rights are indivisible and interrelated, the right to peace and the right to development are greatly interconnected as two sides of the same coin where both sides are necessary for the coin to have its shape. An expansive interpretation of the right to peace to include the egalitarian distribution of resources leads to an improvement in the welfare of women. The conclusion may be reached that the right to peace and the

40 41 42 43 44 45 46

Art 19(d) African Women’s Protocol. Centre for Minority Rights Development & Others v Kenya (Endorois case) (2009) AHRLR 75 (ACHPR 2009). MA Tadeg ‘Reflections on the right to development: Challenges and prospects’ (2010) 10 African Human Rights Journal 325. As above. PSC Protocol (n 5). Universal Declaration of Human Rights adopted by UN General Assembly, Resolution 217 A(III) of 10 December 1948. UN Declaration (n 30).

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right to development share common objectives where, when the sum total of their contents are considered, the end product is a decent and sustainable livelihood for all, free from all forms of violence and of want, where the essentials of life, such as food, shelter, healthcare and education can be met, resulting in the simultaneous fulfilment of the right to peace and the right to development.

3.1

African Charter on Human and Peoples’ Rights

The indivisibility of human rights is a unique and outstanding feature of the African Charter. The Charter provides for first, second and third generation rights in one binding instrument. The Charter places equal value on all rights and, therefore, establishes a strong interdependence of rights. It provides for the right to self-determination as a developmental issue, stating:47 All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

Article 20 emphasises peoples’ rights to determine their social and economic development in accordance with the policies that they have freely chosen. The African Charter further establishes the interdependence of peace and development in article 22 where it provides that all peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity. Freedom in this sense adopts a broad meaning, which involves meaningful participation and the elimination of all restrictions to development. It also includes issues of equality and justice which are determinants of the right to peace.

3.2

African Women’s Protocol

The African Women’s Protocol places an obligation on states to implement the right to peace by reducing military spending and dedicating part of the budget on promoting the social development of women.48 According to Nkurayija, the relationship between military operations, peace and development should be symbiotic. The author argues:49 Because peace does not imply the termination of the military, the operations of defence need to take into account their impact on sustainable development. Thus development becomes a function of peace and security, and peace and security need to operate within framework of development itself.

47 48 49

Art 20 African Charter. Art 10(3) African Women’s Protocol. Nkurayija (n 1) 4.

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Reducing military expenditure and allocating the funds to other social needs may significantly contribute to the realisation of women’s rights to sustainable development. Reducing military expenditure is expected to make room for states to address other developmental issues such as health and education services. The implementation of this provision, however, presents a challenge to states that have always prioritised military operations and physical security by adequately funding military activities at the expense of human security. Women’s ministries in most cases are underfunded and unsupported, which in effect reduces their full effectiveness. The Kenyan government already has entered a reservation to the fact that it does not consider the provision of article 10(3) to reduce military expenditure in favour of social spending binding on the country. South Africa’s report to the African Commission under the African Women’s Protocol highlights the challenge that states have in balancing state security and development issues.50 South Africa admits that despite recognising that military expenditure needs to be reduced, it has been a challenge to balance the ‘interests between reducing defence expenditure in favour of social spending and the need to maintain a military force capable of fulfilling its primary functions’.51 South Africa, however, reported that in order to circumvent such challenges, it has minimised unnecessary duplication by establishing a ‘small regular force and a sufficiently large part-time force as a primary means of ensuring cost-effective defence capability’.52 The other challenge in implementing article 10(3) of the African Women’s Protocol is the fact that military budgets sometimes are not subject to public scrutiny due to the need to preserve state security. Demanding accountability by civil society might sometimes be impossible. As a result, military expenditure may never be reduced in favour of social spending.

3.3

Constitutive Act of the African Union

The Constitutive Act created the AU which replaced the Organisation of the African Unity (OAU).53 The Act is alive to the fact that conflicts in Africa are a stumbling block to development. The Act further provides that there is a need to promote peace, security and stability as prerequisites for development to be achieved.54 The principle upon which the AU operates

50 51 52 53 54

Republic of South Africa’s combined second periodic report under the African Charter on Human and Peoples’ Rights and initial report under the Protocol to the African Charter on the Rights of Women in Africa, para 292. As above. As above. Constitutive Act of the African Union adopted by the African Union Assembly in Lomé, Togo on 11 July 2000, entered into force on 26 May 2001. Preamble AU Constitutive Act (n 55).

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establishes the importance of a peaceful environment to facilitate the implementation of development strategies. Some of the principles that highlight this interdependence are the promotion of social justice to ensure balanced economic development and the participation of Africans in AU activities. The AU’s objectives also establish the interdependence of peace and development. One of the objectives of the AU is to promote sustainable development at the economic, social and cultural levels as well as the integration of African economies.55 The Act also stipulates that the AU shall establish the necessary conditions to enable the continent to play its rightful role in the global economy and in international negotiations.56

3.4

Protocol Relating to the Establishment of the Peace and Security Council of the African Union

The Protocol Relating to the Establishment of the Peace and Security Council (PSC Protocol) establishes the African Union Peace and Security Architecture, which is responsible for conflict management on the continent.57 The African Union Peace and Security Architecture replaced the OAU Mechanism for Conflict Prevention and Management. In terms of the PSC Protocol, the African Peace and Security Architecture is made of up of five structures. These are the Peace and Security Council (PSC); the Continental Early Warning System (CEWS); the African Standby Force (ASF); the Peace Fund (PF); and the Panel of the Wise (POW).58 The institutions of the peace and security architecture reflect the synergies between peace and development. These institutions have a prevention and protection mandate. The prevention mandate involves early warning and preventive diplomacy through engaging in dialogues on issues that are likely to cause conflicts. The security architecture also focuses on postconflict rehabilitation, which ensures that the country develops after a conflict. Eligibility for membership in the POW requires a person to have made an outstanding contribution to both peace and development issues. One of the objectives of the PSC reflects an acknowledgment that peace is a necessary condition for development to take place. Article 3 of the PSC Protocol provides that the objective of the PSC is to ‘promote peace, security and stability in Africa, in order to guarantee the protection and preservation of life and property, the well-being of the African people and their environment, as well as the creation of conditions conducive to sustainable development’.

55 56 57 58

Art 3(i) AU Constitutive Act. As above. PSC Protocol (n 5). A Jegede ‘The African Union peace and security architecture: Can the Panel of the Wise make a difference?’ (2009) 9 African Human Rights Law Journal 410.

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The PSC is also guided by the principle that realises the interdependence between socio-economic development and the security of peoples and states.59 This principle is reflected in the prevention mandate through the work of the POW and the CEWS, which focus on the root causes of conflicts in a bid to prevent a disruption of the peace. The security architecture has its own share of criticism, such as inadequate funding and the inability to prevent conflicts. According to Murithi, the biggest problem in the implementation of the peace and security architecture is the lack of integrity by African leaders who subscribe to norms and principles which they do not adhere to.60 The architecture has also been criticised for its inadequate attention to social and economic problems since these are the causes of conflicts in the majority of African countries.61

3.5

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (Universal Declaration) establishes a link between peace and development. Article 28 of the Universal Declaration provides that everyone is entitled to a social and international order in which human rights and freedoms can be fully realised. The obligation under article 28 requires all states to contribute towards creating an order that enables peaceful existence and development. This provision creates positive and negative obligations. The negative obligations entail that states should refrain from creating conditions that make it impossible for other states to develop. For instance, it requires trade rules at international level to be fair and not to result in the impoverishment of other countries. The positive duty entails going a step further by assisting other countries to develop so that there is a social and international economic order in which rights are realised. The Universal Declaration further highlights the relationship between peace and development in relation to education. It provides:62 Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

The Universal Declaration provides that education should be comprehensive and all-encompassing and should focus on development and the maintenance of peace. The term ‘social and international order’ is 59 60 61

62

Art 4(d) PSC Protocol (n 5). T Murithi ‘The African Union and the African peace and security architecture: Africa past, present and future (2012) 42(3) Africa Insight 42. Murithi (n 60) 74; J Busumtwi-Sam ‘Architects of peace: The African Union and NEPAD’ (2006) 7 Georgetown Journal of International Affairs 71. Busumtwi-Sam argues that even in diversity forms, conflicts in Africa are mainly triggered by ‘domestic governance and socioeconomic decline’. Art 26(2) Universal Declaration.

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broad and is designed to improve the welfare of human beings, which entails the concurrent realisation of the right to peace as well as the right to development.

3.6

United Nations Declaration on the Right to Development

The Preamble to the UN Declaration on the Right to Development (UN Declaration) acknowledges the negative effects of colonialism, apartheid, foreign domination and racism on development, which are considered impediments to human development. Further, article 3(2) provides that ‘the realisation of the right to development requires full respect for the principles of international law concerning friendly relations and cooperation among states in accordance with the Charter of the United Nations’. Article 3 of the UN Declaration advances the right to peace amongst states through the promotion of friendly relations. Friendly relations create conditions that are conducive to partnership, free trade and cooperation for development. The UN Declaration enunciates the components of development, which are significantly linked to peace.

4

Challenges faced by women in claiming the right to development

The challenges that African women face relating to the realisation of the right to development cannot be homogenised and, thus, broad explanations relating to why development is elusive to them need to be avoided. The theory of intersectionality should guide the interrogation of the challenges women face in claiming the right to development. There are several factors that affect women’s rights to development in Africa.63 These factors include culture; race; religion; class; and ethnicity. These factors form a web that entangle women and restrict their participation in development processes. Global sisterhood on challenges that women face therefore cannot be claimed. Gender inequality often is one of the reasons suggested for the feminisation of poverty and underdevelopment affecting women. While this is true, there is a need to look at other factors such as race that trap women into the cycle of poverty. For instance, globalisation affects African women differently from European women. For African women, the violation of the right to development might not be rooted in the patriarchal institution only, but race might be one of the crucial factors that limit their right to development. Banda argues that 63

See K Crenshaw ‘Demarginalising the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics’ (1989) 140 University of Chicago Legal Forum 139. The theory of intersectionality was propounded by Crenshaw who argued that women’s lives are affected by different kinds of oppression which are structural, political and representative. A woman, therefore, needs to navigate her way around these factors throughout her life.

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the neo-liberal model of development that imposed structural adjustment programmes greatly affected African women more than it did men.64 The structural adjustment programmes required a reduction of subsidies on basic goods and services, which left women most vulnerable.65 The unequal bargaining power in trade relations affects African women more than those from other parts of the world, probably because global markets are dominated by developed countries. Banda argues that the ‘engine of change is not located in the south but in the north, which determines both the nature and pace of development in the south’.66 As far as development is concerned, African women start off from a position of disadvantage. The need for fair trade rules at global markets would be the first hurdle that African women will have to overcome by holding hands with their fellow countrymen and fighting against domination by northern countries. Article 19(f) of the African Women’s Protocol places as obligation on states to ensure ‘that the negative effects of globalisation and any adverse effects of the implementation of trade and economic policies and programmes are reduced to the minimum for women’. In addition to race, African women also suffer class differentiations that further impact on the enjoyment of their rights to development. Women from rural communities, more than women in urban areas, are at a greater risk of being marginalised as far as development is concerned. The level of education also affects the way in which women access credit schemes and development projects. The activities that are designed to improve women’s lives should take these intersecting factors into account. Women’s lives sometimes revolve around their relationships. These relationships determine how they develop socially and economically. Some women hold positions in society because of their lineage and association with male counterparts. If they are born in the ruling class or elite families, development comes to them naturally by association. They are able to access basic services and even to go outside of Africa for education and health services. The same women may fail to understand the pain of their fellow women who have always been marginalised. Such women may even bring to the fore issues from their class interests at the expense of general women. In addition to class, a lack of power to influence decision making is a major hurdle to women’s rights to sustainable development. Numbers do not necessarily amount to power and ability to bargain. Therefore, the focus should not be overemphasised on the quantitative participation of women but should centre on the qualitative nature of such participation. Women may be incorporated in development programmes simply to conform to development partners’ dictates for inclusivity. There is a need 64 65 66

F Banda Women, law and human rights: An African perspective (2005) 263. As above. Banda (n 64) 266.

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to analyse the environment in which women are expected to participate. This environment should be conducive enough to allow meaningful participation. While under-representation is a cause for concern and should be eliminated, the thrust should not be on under-representation only but should focus on an analysis of what adequate representation entails. An analysis of such representation should also focus on the capacity of women to participate meaningfully. Other challenges that African women face are caused by the institutionalisation of violence. Electoral violence is characteristic of most African elections in such a way that women often are deterred from participating in politics. Political decisions made in cabinet and in parliament generally shape the development agenda of every country. The absence of women in these positions means that women’s issues are not prioritised. For instance, those in power may prefer the construction of a soccer stadium, which is likely to fetch more money for the state, than building a maternity hospital that would need to be subsidised by the government.

5

Conclusion

This chapter has aimed to illustrate that the right to peace and the right to development are intricately linked, requiring their simultaneous realisation to be able to ensure improved human well-being. Wars in Africa have been the cause of underdevelopment. The right to peace in its narrow perspective of elimination of conflicts creates stability and an enabling environment for development to take place. While negative peace is the starting point in the realisation of the right to development, positive peace leads to sustainable development. Positive peace is a situation where justice, equality and equal distribution of resources exist. Positive peace results in the elimination of all forms of violence. The results of positive peace automatically culminate in sustainable development, especially for women who are largely marginalised. The UN Declaration on the Right to Development, The African Charter and the African Women’s Protocol provide for development as a comprehensive concept, which is allencompassing of social, economic and cultural factors. The participation of women based on equality and non-discrimination is an essential element towards the realisation of the right to peace and the right to development. It is recommended that in order for the right to development to be meaningful to women, there is a need for local ownership of the development process. Development should be a process that beneficiaries identify with. As provided for in article 19 of the African Women’s Protocol, women are empowered with the right to actively participate in the conceptualisation of development. This will ensure that the development process is alive to their needs and responds to the

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intersectionality of issues that affect women. As such, all factors that hinder development need to be carefully analysed in order to avoid ‘onesize-fits-all’ remedies. Development needs to be conceived as a contextspecific concept on account of the fact that it is not static. More so, there is a need for civic education on the entitlements accompanying the rights to sustainable development that women are entitled to. Women need to be aware of their rights in order to claim them. Finally, there is a need for civil society organisations and national human rights institutions, in their watchdog role, to hold governments to account in demanding the implementation of the right to peace and the right to development for women. The two rights need to be understood in their expanded form so as to improve the general welfare of women in Africa.

CHAPTER

8

REFLECTIONS ON THE RIGHT TO DEVELOPMENT FOR INDIGENOUS PEOPLES IN CAMEROON

Esther E Njieassam* and MLM Mbao**

1

Introduction

The concept of the right to development has been a contentious subject among academics and architects of social policy.1 Although the concept has increasingly gained international recognition, much controversy still surrounds its content, nature, meaning, interpretation and application.2 In Cameroon, for instance, indigenous peoples are secluded from development processes, including the right to political participation, decision making and cultural development.3 In fact, infrastructural developments, such as the construction of bridges, roads, schools, health facilities and the training of efficient medical personnel, are kept at a minimum in their communities.4 Thus, their right to development is neither encouraged nor promoted in the country.5 The complex nature of the term has generated different meanings to different people. Kéba M’baye, a Senegalese jurist credited for initiating the concept of the ‘right to development’ as a human right in 1972, stated that all people have a right to live and to live better.6 His interpretation of

* ** 1 2 3 4 5 6

Doctoral Researcher, Faculty of Law, North West University, Mafikeng, South Africa; [email protected] Professor of Public International Law and Legal Philosophy, Faculty of Law, North West University, Mafikeng, South Africa; [email protected] MA Tadeg ‘Reflections on the right to development: Challenges and prospects’ (2010) 10 African Human Rights Law Journal 325. P Uvin ‘From the right to development to the right-based approach: How “human rights” entered development’ (2007) 17 Development in Practice 598. CED RACOPY and FPP The situation of indigenous peoples in Cameroon: A supplementary report submitted in connection with Cameroon’s 15th-19th periodic report (2010) 10-11. As above. As above. K M’baye ‘Le droit au développement comme un droit de l’homme’ (1972) 5 Revue des Droits de l’Homme 503 515, as cited by ID Bunn ‘The right to development: Implications for international economic law’ (2000) 15 American University International Law Review 1433. 138

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the right to development connotes a better standard of living. Sen equates development to freedom that must be enjoyed by all.7 Mazur, on the other hand, views development as a framework for developing the capabilities and freedoms of people to enable them improve their living standards, to realise their potentials and determine their own development priorities.8 To this end, states and international organisations have embarked on employing human rights strategies in planning, implementing and evaluating development programmes in society.9 In addition, article 22 of the African Charter on Human and Peoples’ Rights (African Charter) provides for everyone to freely decide their own development priorities by imposing legally-binding obligations on state parties to ensure its realisation. The vexing issue is why the application and implementation of this right has received scant attention as far as the indigenous peoples of Cameroon are concerned. It is common knowledge that the indigenous peoples of Cameroon continue to suffer from pervasive forms of marginalisation and unequal access to the proceeds of development in their territories. Without imputing bad faith to political systems, the socio-political landscape has been shaped by the perception that these groups of people are too remote to be involved, too primitive to be accepted and too traditional to be engaged in development processes in the country.10 Rather, they are discriminated against because of their social status; ostracised by political systems; deprived of many civil and political as well as economic, social and cultural rights; secluded from decision-making processes and the benefits emanating from the exploration and exploitation of their resources, especially the developmental projects that have an impact on the quality of their lives.11 At the core of this chapter is the implication of the right to development in the context of indigenous peoples’ rights to a sustainable environment essential for their existence. We argue that there is a need to rethink the concept of development from the perspective of indigenous peoples. We begin the analysis in this chapter by examining in section 2 the meaning of indigenous peoples with an emphasis on the fact that, on the basis of equality and universality, they are entitled to enjoy all human rights, including the right to development. We proceed in section 3 to look

7 8 9 10 11

A Sen Development as freedom (1999) 35. RE Mazur ‘Realisation or deprivation of the right to development under globalisation? Debt, structural adjustment, and poverty reduction programmes’ (2004) 60 Geo Journal 61. H Quane ‘The rights of indigenous peoples and the development process’ (2005) 27 Human Rights Quarterly 652-653. RS Aiken & CH Leigh ‘Dams and indigenous peoples in Malaysia: Development, displacement and resettlement (2015) 1 Geografiska Annaler: Series B, Human Geography 69. FM Ndahinda ‘Marginalisation, disempowerment and contested discourses on indigenousness in Africa’ (2011) 18 International Journal on Minority and Group Rights 480.

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at the right to development, with a specific focus on its historical origins as well as from a human rights point of view, to ascertain the fact that indigenous peoples legitimately are entitled to the right to development. In section 4 we explore the link between poverty and the right to development to the effect that the right to development can only be realised if poverty and inequalities are alleviated and under-privileged communities empowered to independently manage their own affairs. Basing our argument on a rights-based approach to development, we demonstrate that the right to development can only fully be achieved if indigenous peoples are allowed to meaningfully and actively participate in public life, especially on matters that concern their well-being.

2

Meaning of indigenous peoples

The term ‘indigenous peoples’ is one of the most controversial concepts that continues to trigger international debates amongst academics, scholars and activists in international law. The definition and scope of the concept are more problematic on the African continent, and Cameroon is no exception.12 In several instances, the controversy is instigated by the absence of a universally-accepted definition, as most African states argue that the term indigenous peoples does not apply to all states.13 For instance, most African countries deny the existence of indigenous peoples on their continent, maintaining that all Africans are indigenous and they all deserve the same special rights and protection.14 To some extent this attitude shaped the approach towards indigenous peoples, thereby leaving them in a dreadful and underdeveloped state in the country. Thus, given the divergent opinions from anthropologists, Kuper argues that granting indigenous peoples special rights might result in apartheid in disguise, which might lead to racial conflicts in society.15 On the other hand, Kenrich and Lewis argue that indigenous peoples’ collective rights must be protected and their rights as an indigenous minority group require particular recognition.16 Other scholars have argued that the term ‘indigenous peoples’, as documented in international

12 13 14 15 16

J Gilbert ‘Litigating indigenous peoples’ rights in Africa: Potentials, challenges and limitations’ (2017) 66 International and Comparative Law Quarterly 658. J Gilbert ‘Indigenous peoples’ rights in Africa: The pragmatic revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative Law Quarterly 245-247. M Pelican & J Maruyama ‘The indigenous rights movement in Africa: Perspectives from Botswana and Cameroon’ (2015) 36 African Study Monographs 49. A Kuper ‘The return of the native’ (2003) 44 Current Anthropology 395. J Kenrich & J Lewis ‘Indigenous peoples’ rights and the politics of the term indigenous (2005) 20 Anthropology Today 5.

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instruments, has a different connotation to ‘natives’, ‘first inhabitants’ or ‘aboriginals’ referred to by the colonial masters of African states.17 Even though Cameroon in 2007 voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the government remains reluctant to acknowledge the existence of indigenous peoples in the country and argues that all the peoples of Cameroon are indigenous.18 Lueong observes that the government of Cameroon only refers to indigenous peoples when the World Bank intends to fund programmes concerning them.19 In other circumstances, the government would refer to indigenous peoples as ‘marginal populations’ or ‘minority groups’.20 As Pelican puts it, the government of Cameroon is intentionally playing with the terms ‘indigenous’ and ‘marginal’ to appease donors and at the same time evade international responsibility towards ‘indigenous peoples’.21 Given the diversity of the 370 million people in some 90 countries worldwide, it is submitted that a general definition is neither necessary nor desirable. Rather, it would be preferable to set aside certain criteria that would help identify groups that qualify as indigenous people focusing on their self-identification in various countries.22 Based on this understanding, the International Labour Organisation Convention 169 (ILO Convention 169) laid down a set of subjective and objective criteria that might be used to identify these groups of people. These criteria include • self-identification; • a special attachment to and use of their traditional land whereby their ancestral land and territory have a fundamental importance for their collective physical and cultural survival as peoples; • a state of subjugation, marginalisation, dispossession, exclusion, or discrimination as a result of their unique and distinct cultures traditional lifestyle; the long history of occupation and use of a specific territory.23

17

18 19 20 21 22 23

SJ Anaya ‘The evolution of the concept of indigenous peoples and its contemporary dimension’ in SA Dersso (ed) Perspectives on the rights of minorities and indigenous peoples in Africa (2010) 27; J Gilbert & V Couillard ‘International law and land rights in Africa: The shift from states’ territorial possessions to indigenous peoples’ ownership rights’ in R Holmes (ed) Essays in African land law (2011) 62. AK Barume ‘Cadre juridique et coutumier pour le protection des droits des peuples indigènes et tribaux au Cameroun: Point d’entrée’ (2006) 6 International Labour Organisation Geneva 1. M Lueong The forest people without a forest: Development paradoxes, belonging and participation of the Baka in East Cameroon (2017) 11-12. M Pelican ‘Insights from Cameroon: Five years after the Declaration on the Rights of Indigenous Peoples’ (2013) 29 Anthropology Today 13. Pelican (n 20) 14. B Feiring ‘Indigenous peoples’ rights to lands, territories and resources’ (2013) International Land Coalition 14. K Wessendorff The indigenous world (2001/2002) 4.

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These criteria were reiterated by the African Commission on Human and Peoples’ Rights (African Commission) in deciding the groundbreaking Endorois case24 where the Commission held that the Kenyan government must recognise the Endorois community as an indigenous group and enforce their right to development and property ownership. In light of the above, there is a global need for the protection of the rights and fundamental freedoms of indigenous peoples through the application of democratic principles that enhance good governance, development and environmental protection.25 Unfortunately, the indigenous peoples in Cameroon still encounter a myriad of challenges, which have had a negative effect on their quality of life, including their right to development. It is these challenges that the United Nations Declaration on the Right to Development (UN Declaration) and other international frameworks that promote the rights of indigenous peoples aim at addressing. Even though indigenous peoples have been granted constitutional recognition as enshrined in paragraph 5(2) of the Preamble to the Constitution of Cameroon, they are in actual fact still not accorded the special protection they deserve.26

3

The right to development

3.1

Historical origins

The origin of the right to development has its roots in discussions at an international conference on human rights in 1972 when Kéba M’baye highlighted the need for a right to development.27 The conception of the right to development was informed by several decades of colonisation proceeded by the campaign driven by the Non-Aligned Movement (NAM) aiming at the restructuring of the global economy through the establishment of a New International Economic Order (NIEO).28 The campaign for the restructuring of the global economy was also motivated by the fact that several former colonies had emerged as independent states on the international scene as member states of the UN.29

24 25 26

27 28 29

Centre for Minority Rights Development& Others v Kenya (2009) AHRLR 75 (ACHPR 2009). Feiring (n 22) 15. Constitution of the Republic of Cameroon 1996 of Law 96-06 of 18 January 1996 as amended. The provision of the above paragraph reads as follows: ‘The state shall ensure the protection of minorities and shall preserve the rights of indigenous populations in accordance with the law.’ J Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15 California Western International Law Journal 473-474. S Marks ‘The human right to development: Between rhetoric and reality’ (2004) 17 Harvard Human Rights Journal 139. K Iqbal ‘The Declaration on the Right to Development and implementation’ (2007) Political Perspectives 4.

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Although conflicting debates still surround the nature and scope of the right to development, its evolution may be traced to other international human rights instruments. The roots of the right to development can be traced to Eleanor Roosevelt’s statement prior to the drafting of the Universal Declaration of Human Rights (Universal Declaration) where she stated that ‘[w]e will have to bear in mind that we are writing a bill of rights for the world and that one of the most important rights is the opportunity for development’.30 The relevance of this right also stems from article 22 of the Universal Declaration which states:31 Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-operation and in accordance with the organisation and resources of each state, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Based on this promise, the International Covenant on Civil and Political Rights (ICCPR)32 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),33 to which Cameroon is a state party, serve as predecessors to the formulation of the right to development. Even though these instruments do not directly address the right to development, several provisions therein can be interpreted to give preference to the right.34 In 1978, the Declaration on the Preparation of Societies for Life in Peace guaranteed everyone the right to define their own development priorities.35 In similar vein, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) adopted the Declaration on Race and Racial Prejudice, promising all peoples and groups, the right to full development.36 It is against this background that the right to development was granted official recognition in the then Organisation of the African Unity (OAU) and later incorporated into the African Charter in 1981.37

30 31 32 33 34 35 36 37

A Sengupta ‘Realising the right to development’ (2000) 31 Development and Change 554-555. Art22 of the Universal Declaration of Human Rights GA Res 217A (III), UN Doc A/ 810 71 (1948). International Covenant on Civil and Political Rights GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) 52, UN Doc A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967). International Covenant on Economic, Social and Cultural Rights GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 49, UN Doc A/6316 (1966); 993 UNTS 3; ILM 368 (1967). Sengupta (n 30) 555. See art 5 of the Declaration on the Preparation of Societies for Life in Peace A/RES/ 33/73 (1978). Final Report of UNESCO Expert Meeting on Human Rights, Human Needs and the Establishment of a New International Economic Order, UNESCO Doc SS 78/ Conf 630/12 (1978) 90-93. UN Human Rights Committee 2004 General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant.

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The concept was authoritatively affirmed in the UN Declaration in 1986.38 It was later re-affirmed and reiterated in the Vienna Declaration at the World Conference on Human Rights in 1993 as a human rights concept, thereby emphasising the fact that the right to development can be made effective and implemented with the same force as other human rights.39 Coined as a ‘third generation right’ or ‘solidarity right’, the right to development generally is viewed as an individual and a collective right, with specific obligations on states to ensure its realisation to the benefit of entire populations.40 Even though the UN Declaration lacks binding status, it is considered ‘soft law’ or elevated to customary international law or jus cogens.41 Based on the above, it is evident that the indigenous peoples of Cameroon also are entitled to enjoy the right to development, necessitating its prioritisation in the formulation and implementation of development programmes affecting them.42

3.2

Right to development from a human rights perspective

For many decades some academics have been sceptical about the human rights approach to development, especially as the concept was never included for debate in any UN agenda.43 This is because most development experts felt that human rights had no place in the development agenda and, thus, the two concepts functioned independently, resulting to different opinions about the subject matter among academics.44 Subsequently, the effects of the Cold War and the failure of the structural adjustments programmes, instigated by the absence of government accountability, prompted the need for democracy and good governance, coupled with the willingness by development proponents to adopt a definition of development that includes human rights concepts.45 It is against this background that it was established during the World Conference on Human Rights in 1993 that ‘democracy, development and

38 39 40 41 42 43 44 45

The Declaration on the Right to Development was adopted by the United Nations General Assembly, Resolution 4/128 on 4 December 1986. A Mmari ‘The challenges surrounding the implementation of the right to development in the African Charter on Human and Peoples’ Rights in light of the Endorois case’ LLM dissertation, University of Pretoria, 2012 15. O Sheehy ‘The right to development and the proliferation of rights in international law’ (2002) 5 Trinity Law Review 251-252. MG Johnson ‘The contributions of Eleanor and Franklin Roosevelt to the development of the international protection for human rights’ (1987) 9 Human Rights Quarterly 32-35. Quane (n 9) 653. Donnelly (n 27) 474. P Uvin ‘On high moral ground: The incorporation of human rights by the development enterprise’ (2002) 17 The Fletcher Journal of Development Studies 2; Mazur (n 8) 62. Uvin (n 2) 597.

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respect for human rights and fundamental freedoms are interdependent and mutually reinforcing’.46 Given that human rights are indivisible and interdependent in nature, development strategies should focus on realising the human rights of the entire population,47 as a failure to realise the rights enshrined in the ICESCR, ICCPR and the African Charter would amount to a violation of the right to development.48 The right to development thus includes the process of development and, ultimately, the outcome of development.49 In view of the fact that the right to development is an inalienable human right, states, stakeholders, civil society and individuals have the responsibility to implement as well as ensure that this right is fully realised and enjoyed by everyone.50 Member states, therefore, have an obligation to provide a national and global environment favourable for the enjoyment of all human rights, including the right to development through the formulation of national policies.51 This obligation is captured in the African Charter where it provides that everyone has the right to freely decide their political status and to pursue their economic and social development according to their culture and identity.52 A close reading of this provision implies that even the indigenous peoples of Cameroon are entitled to the full enjoyment of the right to development. However, Vandenbogaerde argues that the implementation of the right to development has been very slow due to its increased politicised nature.53 For Obiora, the right to development is bad law, which is not only vague but contradicts other existing rights, especially as it fails to identify parties bearing clear obligations.54 This explains why indigenous peoples’ rights to development remain a myth than a reality in Cameroon, as these people often are excluded from development projects taking place in their communities. Thus, tensions often arise between indigenous peoples and the different stakeholders embarking on development projects on their land. Because of the fact that development involves the realisation of the political, economic, social and cultural advancement of all populations, the vexing question is whether the indigenous peoples in Cameroon have

46 47 48 49 50 51 52 53 54

United Nations, Vienna Declaration and Programme of Action, A/CONF.157/23 1993. A Sengupta ‘On the theory and practice of the right to development’ (2002) 24 Human Rights Quarterly 841. M Gibbs ‘The right to development and indigenous peoples: Lessons from New Zealand’ (2005) 33 World Development 1366. Sen (n 7) 124. A Sengupta ‘Realising the right to development’ (2000) 31 Development and Change 557. A Vandenbogaerde ‘The right to development in international human rights law: A call for its dissolution’ (2013) 31 Netherlands Quarterly of Human Right 193. Arts 20 & 22 African Charter. Vandenbogaerde (n 51) 189. LA Obira ‘Beyond the rhetoric of a right to development’ (1996) 18 Law and Policy 386.

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the opportunity to exercise and enjoy the right to development. Finding answers to these questions and others is of immense importance given the fact that the indigenous peoples of Cameroon are entitled to the general and specific protection as articulated in the UN Declaration and other international instruments. Although the UN Declaration has a nonbinding status, member states have a moral obligation to respect, implement and ensure that all populations exercise and enjoy the right to development. Thus, it is important that indigenous peoples’ rights to development are considered in development processes, especially if these programmes are meant to benefit them and their communities. Most often, and particularly in Cameroon, the government defines development in terms of integrating indigenous peoples into the mainstream of society as well as incorporating their lands and resources into a resourceful market economy.55 It is our contention that the type of development indigenous peoples in Cameroon are requesting is not integrating them into the broader society, but development that protects their integrity, cultures, environment and well-being. This development should retain their position as the real custodians of ancestral lands, natural resources and active agents of their own development processes. It is commonly believed that indigenous peoples’ cultural beliefs and traditional practices impede development programmes in their communities. As such, the majority of these people have resisted this transformation and have elected to be loyal to their cultures and identities.56 The question that arises is whether the indigenous peoples of Cameroon in fact are an obstacle to development. In our opinion, development is best realised when the local population is allowed to define the concept on their own terms. Development cannot be achieved by forcibly appropriating lands and resources, displacing and destroying the environment and livelihood of the local populations under the pretext of ‘civilisation’ and introducing the market economy to these communities.57 Development programmes should be formulated in such a way as to address the perceptions and understandings of ethnic minorities, particularly indigenous communities in Cameroon.58 This implies that barriers to realising development must be eradicated.59 Unfortunately, this has not occurred in the case of indigenous communities in Cameroon, as government policies tend to undermine their basic human rights, including the right to development.

55 56 57 58 59

SR Aiken & CH Leigh ‘In the way of development: Indigenous land-rights issues in Malaysia’ (2011) 101 The Geographical Review 472. Gibbs (n 48) 1367. Aiken & Leigh (n 55) 472-473. M Darrow & A Tomas ‘Power, capture, and conflict: A call for human rights accountability in development cooperation’ (2005) 27 Human Rights Quarterly 477. Sen (n 7) 129.

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Gibbs concurs that for several decades few efforts have been made in relation to the rights to development of indigenous peoples, especially in developed countries where the majority of these people suffer recurrent forms of discrimination and unequal access to the benefits of development as a vestige of colonisation.60 Related studies reveal that much of the debate on the right to development is geared towards enriching individuals and peoples of developing countries as well as accumulating resources from developed to developing countries to make way for rights-based development policies, thereby neglecting the most vulnerable and marginalised groups in society.61 As a result, most of the laws and policies enacted tend to favour the powerful groups to the detriment of minority groups, with the result that the latter remain constantly marginalised; suffer from abject poverty and underdevelopment.62

4

Poverty and the right to development

In defining poverty, Lammam and McIntyre differentiate between absolute poverty and relative poverty.63 Absolute poverty means the lack of basic social services necessary to achieve a minimal and sustainable standard of physical well-being, whereas relative poverty is a condition where a person is comparatively worse off than other members of society.64 Poverty often subjects people to horrific physical and mental living conditions, especially if they are unable to access basic social services such as food, healthcare, shelter, clothing, education, electricity, good employment, potable water and sanitation essential to live a life of moderate comfort and dignity.65 People living in poverty often are exposed to higher risk factors, including physical and mental health challenges; social exclusion; marginalisation; discrimination; and abuse.66 Indigenous peoples in Cameroon are no exception. Over the years a drastic decline in the economy has taken a significant toll on the country’s poverty situation. Even though poverty is associated with rural communities, studies indicate that all regions of the country are severely affected.67 For instance, studies indicate that poverty affects over

60 61 62 63 64 65 66 67

Gibbs (n 48) 1365. See generally ID Bunn ‘The right to development: Implications for international economic law’ (2000) 15 American University International Law Review 1431. P Alston Report of the Special Rapporteur on Extreme Poverty and Human Rights, United Nations General Assembly Res A/HRC/29/31, UN Doc GAOR, 39th session UN Doc A/HRC/29/31 92015) 8. C Lammam & H MacIntyre An introduction to the state of poverty in Canada (2016) 1. Lammam & MacIntyre (n 63) 1. SB Oumar & MC Sama ‘The implication of poverty on the Cameroon economic emergency vision 2035’ (2017) 4 Applied Economic and Finance 111. As above. TMS Tchombe et al ‘Psychological undertones of family poverty in rural communities in Cameroon: Resilience and coping strategies’ (2012) 42 South African Journal of Psychology 234.

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33,30 per cent of the country’s population.68 Those who are severely affected are the marginalised and indigenous communities that have limited access to land, are unemployed, less educated, and lack other basic social services, depriving them of the full enjoyment of other human rights, including the right to development.69 Thus, it is suggested that job creation, improved communication and means of transportation, better access to infrastructure and information, stable prices for staple food, improved health facilities, water and credit might produce better living conditions for the rural poor and enhance development.70 Considering that the main goal for realising economic development is the drastic reduction of poverty rates in the state, the Cameroonian government embarked on implementing new policy reforms aimed at eradicating poverty in the country.71 Some of these reforms include adding approximately 20,6 million FCFA to the funds required for the provision of social services in 1996. An additional amount of 111,8 million FCFA was provided in 2001 to help eliminate poverty in rural communities.72 Efforts were also made to launch the Structural Adjustment and Economic Stabilisation Programme (SAESP) in 1987, to slacken the exchange rate, prices and trade with a view to controlling the crisis and resuscitating the economy without requesting assistance from foreign bodies.73 Unfortunately, all these strategies failed to materialise and poverty remained a major hindrance to the realisation of economic development in the country, particularly amongst the rural and indigenous communities.74 This situation led the World Bank and International Monetary Fund (IMF) to rate Cameroon as a Highly Indebted Poor Country (HIPC), which made it difficult to meet the Millennium Development Goal (MDG) aimed at halving extreme poverty levels by December 2015.75 It is submitted that the economic strategies directed towards eradicating poverty in the country were unsuccessful due to inadequate implementation measures, coupled with the fact that the poverty alleviation policies implemented in the country were directed at the wrong population group.76 Accordingly, most governments and international organisations are of the opinion that development programmes cannot be

68 69 70 71 72 73 74 75 76

National Institute of Statistics (NIS) Cameroon statistical yearbook 2006 (2006). Lueong (n 19) 25. Tchombe et al (n 67) 234. Oumar & Sama (n 65) 112. As above. As above. As above. As above. As above.

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sustainable if the needs of the poor and marginalised groups are not given priority.77 Poverty, therefore, violates not only other human rights but also deters the realisation of the right to development.78 Given that the indigenous peoples of Cameroon are rated the poorest of the poor in society, with little or no access to basic facilities, realising the right to development in these communities remains a pipedream. The effective realisation of the right to development requires beneficiaries to be active participants and not passive recipients of change in development processes. Given the pressing need for equality and social justice in society, the right to development can be achieved only if poverty and inequalities are eradicated and underprivileged communities empowered to fully participate in and control their own affairs.79 For this reason, a human rights-based approach to development was adopted and incorporated in the Millennium Declaration to facilitate the achievement of the MDGs, with the aim of integrating development programmes into human rights systems, focusing on vulnerable groups, empowering and safeguarding their participation in governance and ensuring that duty bearers are held accountable in case of violations.80 The failure of several countries in sub-Saharan Africa, including Cameroon, to meet their targets of reducing extreme poverty and hunger, human rights values, the right to development and equality has resulted in underdevelopment.81

4.1

Rights-based approach to development

The absence of an official definition of the term ‘rights-based approach to development’ has instigated scholars to attach different meanings to the concept.82 Sengupta defines a rights-based approach as a process of development involving the realisation of all human rights that conform to international standards.83 Boesen and Martin view a rights-based approach to development as a framework that develops and incorporates norms and goals of international human rights systems into development

77

78 79 80 81 82 83

F M’baye ‘Growth, redistribution and poverty changes in Cameroon: A shapely decomposition analysis forum chapter 13-15 October (2004) 2-5 http://citeseerx. ist.psu.edu/viewdoc/download?doi=10.1.1.560.7192&rep=rep1&type=pdf (accessed 21 November 2017). FD Costa ‘Poverty and human rights: From rhetoric to legal obligations a critical account of conceptual frameworks’ (2008) 5 International Journal on Human Rights 91. A Sengupta ‘On the theory and practice of the right to development’ (2002) 24 Human Rights Quarterly 845-846. United Nations 2008 http://wwwohchrorg/Documents/Publications/Caliming_ MDGs_enpdf (accessed 20 August 2017). As above. JK Boesen & T Martin ‘Applying a rights-based approach: An inspirational guide for civil society’ (2007) The Danish Institute for Human Rights 9. Sengupta (n 79) 846.

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processes.84 It is based on the premise that the realisation of human rights is the objective of any process geared towards enhancing the human conditions of the entire population.85 This includes various aspects of human rights, known as the scaffolding of development policy, which instigates the international apparatus of human rights in support of development processes.86 The rights-based approach to development portrays poverty as injustice, affirming that in most societies; marginalisation, discrimination and exploitation are the backbone of poverty and underdevelopment.87 In relation, rights-based approaches to development guarantee a more effective, sustainable, rational and genuine development process through active and meaningful participation that places beneficiaries in control of development processes.88 As a normative framework, a rights-based approach to development guarantees non-discrimination, empowerment, participation, transparency, equality and accountability.89 This approach also emphasises promoting accountability in the development process by distinguishing between rights holders and their entitlement and duty bearers and their obligations.90 This entails a focus on the positive – protect, promote and provide – and negative – to refrain from violations – obligations imposed on the state as duty holders. The rights-based approach to development aims at situating the root cause of poverty as well as empowering rights holders to make claims, while duty bearers honour their duties and hold states and non-state actors accountable for any violations.91 Therefore, it focuses on the enactment of suitable laws, policies, institutions, administrative procedures and practices and the mechanisms of redress that can deliver on entitlements, respond to instances of denial and violations and ensure accountability.92 The principle of accountability is fundamental to realising the human rights of marginalised and vulnerable groups in society.93 Given that economic growth fails to realise social development and improve the living conditions of the marginalised, the rights-based approach focuses on equating issues of power imbalances, such as discrimination, insecurity and vulnerability, to ensure that marginalised peoples are strengthened to enable them to develop themselves and their societies.94 This is crucial to

84 85 86 87 88 89 90 91 92 93 94

Boesen & Martin (n 82) 9. United Nations Economic and Social Council ‘Economic, Social and Cultural Rights’ (2010) 3 E/CN.4/Sub.2/2004/19. United Nations (n 85) 3. Boesen & Martin (n 82) 9. United Nations (n 85) 7. Sengupta (n 79) 846. United Nations (n 85) 3. Boesen & Martin (n 82) 9-10. United Nations (n 85) 3. A-L Sarelin ‘Human rights-based approaches to development cooperation, HIV/ AIDS, and food security’ (2007) 29 Human Rights Quarterly 477-478. Boesen & Martin (n 82) 11.

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indigenous peoples everywhere who face extreme forms of marginalisation and exclusion from the benefits of development. Although equality and non-discrimination are fundamental principles of the realisation of the right to development, the indigenous peoples of Cameroon still encounter severe inequalities in all spheres of life emanating from both government and private individuals. This situation has resulted in grinding poverty and deprivation, with devastating effects on their well-being and communities.95 Despite their close affiliation to their traditional homelands and the resources therein, indigenous peoples are not given the opportunity to determine the kind of development they prefer in their communities. Their livelihood is adversely affected by government policies in the name of development, especially extractive industries, such as logging activities, tourism, cattle ranching and agriculture encroaching into the forests which constitute their habitat.

4.2

Indigenous peoples’ rights to participate as a means to realise the right to development

The right to participation has gained international traction.96 Even though it is common practice to exclude indigenous peoples from public life, international instruments have emphasised that development programmes and policies, especially those that directly affect them, concluded without the full participation and informed consent of indigenous peoples are considered illegal and invalid.97 Participation, therefore, seeks to address policies that respect civil, political, economic, social and cultural rights. This participation most often occurs through ad hoc public hearings or formal consultations.98 It is common cause that the indigenous peoples of Cameroon often do not actively participate in decisions regarding development activities in their territories. The general perception is that they are ‘primitive’, ‘uncivilised’, ‘backward’, uneducated and more concerned with their cattle herding and hunting activities than with government policies.99 As such, even if they are invited to participate in public debates, their contributions are not always considered or might not add any value to the affairs of the state.

95 96 97 98 99

Uvin (n 44) 597. KN Bojosi ‘Towards an effective rights of indigenous minorities to political participation’ in S Dersso (ed) Perspectives on the rights of minorities and indigenous peoples in Africa (2010) 283-285. B Clavero ‘The indigenous rights of participation and international development policies’ (2005) 22 Arizona Journal of International and Comparative Law 97. Office of the United Nations High Commission for Human Rights ‘Good Governance practices for the protection of human rights’ (2007) 5. Aiken & Leigh (n 10) 72.

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The right to participate in decisions regarding development processes is a direct and indirect means of protecting and preserving the moral, cultural and traditional values of indigenous peoples.100 In most communities where indigenous peoples are found, the general perception is that they lack the capacity to manage their own affairs, thus they are always excluded from development activities that impinge on their lands.101 In fact, these people are politically marginalised and the effects are felt in the quality of their lives, which has caused them to be quantified as the poorest of the poor in society.102 As a result, tensions often arise between indigenous peoples, the government and different stakeholders, especially those embarking on development projects. The case of Social and Economic Rights Action Centre (SERAC) & Another v Nigeria103 dealt with an alleged violation of the right to public participation and human and environmental rights to development of the Ogoni people resulting from the abusive oil production in the Niger Delta region by the Nigerian National Petroleum Company (NNPC) in collusion with Shell Petroleum. The African Commission found the Nigerian government guilty of failing to involve the local communities in decisions concerning their land and, thus, ordered immediate steps be taken to remedy the environmental and socio-economic rights violations committed in the area. The Commission laid down high standards for participatory governance as a vital tool to enhance indigenous peoples’ rights to development. In effect, for indigenous peoples to participate in governance, they must be actively involved in the processes where critical decisions affecting their livelihood are made. Thus ‘imaginative measures of affirmative action’, requiring granting preferential treatment to indigenous peoples in all spheres of life, is essential.104 This will enable them to showcase their collective autonomy in governance and in the socio-economic and cultural development debates directly affecting them.105 Although international human rights have developed frameworks for effective participation in government and impose on member states the obligation to consult and seek the inputs of indigenous peoples before

100 JCN Ashukem ‘Included or excluded: An analysis of the application of the free, prior and informed consent in land grapping cases in Cameroon’ (2016) 19 Potchefstroom Electronic Law Journal 11. 101 Bojosi (n 96) 283. 102 K Swing et al ‘Oil development on traditional lands of indigenous peoples: Coinciding perceptions on two continents (2012) 28 Journal of Developing Societies 262-263. 103 (2001) AHRLR 60 (ACHPR 2001). 104 S Wiessner ‘The cultural rights of indigenous peoples: Achievements and continuing challenges’ (2011) 22 European Journal of International Law 121. 105 KA Carpenter & AR Riley ‘Indigenous peoples and the jurisgenerative moment in human rights’ (2014) 102 California Law Review 180.

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making decisions on their behalf, studies indicate that little success has been documented in this domain in Cameroon.106 The active participation of indigenous peoples in all aspects of life is linked to their rights to selfdetermination.107 It is a commonly accepted premise that the right to selfdetermination potentially provides a framework for the protection of indigenous peoples’ full and effective participation in decision making to enable them to exercise their rights to development.108 Several international and regional human rights instruments enhance indigenous peoples’ rights to public participation in their respective countries and require state parties to effectively enforce these rights through the enactment of appropriate legislative measures. For instance, article 25 of the ICCPR guarantees everyone the right to participate in genuine periodic elections through their chosen representatives. While this provision seems promising to indigenous communities, Quane finds it problematic as there is no guarantee that their representatives would be voted in and elected in political positions, thereby reducing their ability to independently make decisions regarding the development of their communities.109 Ghai corroborates this view by stating that article 25 has failed to fully ensure that the interests of indigenous peoples are protected during the formulation of development strategies in their territories.110 This is particularly true as states (such as Cameroon) tend to determine their own electoral processes and political structures instead of honouring the obligations prescribed in article 25 of the ICCPR. In addition, the ILO Convention 169 has provisions that focus extensively on indigenous peoples’ rights to take part in development processes.111 These provisions impose obligations on governments to ensure the participation of indigenous peoples with regard to programmes that directly affect their national and regional development, including consultation in administrative and legislative decision-making processes.112 The ILO Convention 169 interprets the principle of participation in article 6(1)(b) by obliging states to develop mechanisms through which indigenous peoples can freely participate at the same level with the mainstream society in elective and administrative institutions as well as other bodies responsible for policies and programmes concerning them. Thus, states are expected to take immediate measures to reach

106 R Goodland ‘Free, prior and informed consent and the World Bank Group’ (2004) 4 Sustainable Development Law and Policy 68. 107 Clavero (n 97) 43. 108 W Wicomb & H Smith ‘Customary communities as a “peoples” and their customary tenure as “culture”: What we can do with the Endorois decision’ (2011) 11 African Human Rights Law Journal 422-423. 109 Quane (n 9) 667. 110 Y Ghai ‘Public participation and minorities’ (2001) Minority Rights Group International 9-12. 111 These rights have been clearly elaborated in arts 2, 6, 7, 15, 16 & 17 of the ILO Convention 169. 112 As above.

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agreements with indigenous peoples prior to the start of a project and to invite them to forums where legislative measures and other policies concerning their development are negotiated. This is important as indigenous peoples would be able to object to certain provisions that might impinge on their lands, culture and way of life. However, this does not usually occur in Cameroon, as development decisions often are negotiated without involving indigenous peoples. Public participation is encouraged in Cameroon, as section 9 of Law 96/12 obliges everyone to safeguard the environment and contribute to its protection.113 It also requires government to consult with indigenous peoples before decisions regarding the development of their territories are made. This implies that prior consultation is vital to enable indigenous peoples to become actively involved in decision making and the planning and programming of activities regarding development activities taking place on their land.114 The government of Cameroon has consistently displaced indigenous peoples from traditionally-owned lands without prior consultation and without involving them in debates that could affect them. The Mbororo communities, for example, have accused the agroindustrial and foreign-owned companies of forcefully appropriating their ancestral lands in the areas of Kadey, Lom and Djerem divisions in a bid to establish sugar plantations and agro-businesses.115 Following these projects, some regions in the Adamawa province have been transformed into ranching operations, while others have been converted into national parks (Ntakamanda National Park in the south-west) without the consent of the Mbororo communities who reside in those areas.116 Given the magnitude of these projects, indigenous communities are left to confront deleterious effects to their health and the destruction of livestock and homes.117 It is noted that government’s development policies do not always take into consideration international standards and have no regard for the protection of the human rights and fundamental freedoms of the indigenous communities. Intense pressure from civil society, national and international non-governmental organisations (NGOs), including other institutions promoting the rights of indigenous peoples’ to public participation, is recommended, as this will force government to ensure that participative governance is effectively implemented in the country. Despite this international recognition, controversy still exists as to the nature of and extent to which the right to development applies to indigenous peoples and whether their involvement in decision-making 113 Sec 9 of the Law on Environmental Management Law 96/12 of 1996. 114 ‘Prior consultation: A fundamental right for indigenous peoples’ IP Special Report (2011). 115 R Izsák Report of the Independent Expert on Minority Issues: Mission to Cameroon (2013) 13. 116 Izsák (n 115) 13. 117 As above.

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processes regarding issues negatively affecting them supersedes government actions.118 This question has been answered by Hanna and Vanclay, who argue that since major development projects are likely to affect indigenous communities more than other groups in society, it is essential for them to be actively involved in all discussions prior to the approval and execution of these projects.119 This is important as it enables them to determine the impact of these projects on their livelihoods, to mitigate the effects on the environment and to oblige government to consult with them at every stage to obtain their informed consent.120 In addition, other scholars have validated this argument by adding that indigenous peoples depend on the content of these lands for survival and have an age-old history in these territories. Therefore, it is only fair that they should have a say in decisions regarding the use, management, control and development of these territories.121 This is so because they are in a good position to ensure that the relevant development project takes into consideration their cultural aspirations, traditional beliefs and lifestyle. In addition, they will be able to determine the kind of development appropriate to them and their communities and, thus, prior consultation in good faith with indigenous peoples is crucial. For instance, the Chad Cameroon Pipeline project which required the drilling of oil wells in Chad and transporting them through pipelines that cut across the coastal port of Kribi in East Cameroon has resulted in a substantial violation of the fundamental human rights to participation and decision making of the Baka and Bagyéli communities.122 Reports indicate that no formal negotiations and prior consultations to obtain the informed consent of the affected communities were carried out prior to the establishment of the pipeline project.123 It is submitted that indigenous peoples’ rights to participation and decision making in matters concerning them not only were infringed, but the consultation process was not properly carried out in good faith.124 From the above discussion, it is evident that international human rights standards (ILO Convention 169, UNDRIP and the African Charter), which the Cameroonian government has committed itself to respect, are not adhered to. The actual 118 SJ Anaya ‘Indigenous peoples’ participatory rights in relation to decisions about natural resource extraction: The more fundamental issue of what rights indigenous peoples have in lands and resources’ (2005) 22 Arizona Journal of International and Comparative Law 7. 119 P Hanna & F Vanclay ‘Human rights, indigenous peoples and the concept of free, prior and informed consent’ (2013) 31 Impact Assessment and Project Appraisal 152. 120 Hanna & Vanclay (n 119) 152-153. 121 S Vermulen & L Cotula ‘Over the heads of local people: Consultation, consent, and recompense in large-scale land deals for biofuels projects in Africa’ (2010) 37 The Journal of Peasant Studies 907 910; CC Ngang ‘Indigenous peoples’ right to sustainable development and the green economy agenda’ (2015) 44 Africa Insight 33-44. 122 CED, RACOPY & FPP Indigenous peoples rights in Cameroon: Supplementary report submitted in connection with Cameroon’s second periodic report (2010) 17-18. 123 As above. 124 As above.

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implementation process remains a pipedream when it comes to issues relating to indigenous peoples. The activities of the Chad-Cameroon Pipeline project have had devastating effects on the property, cultures, customs, traditions, environment, local development and way of life of the indigenous communities, which reflects their existence as a people. Today these people linger along the roadsides and can no longer practise and retain their distinct cultures which, according to them, are meant to be passed on to unborn generations.125 To enhance the right to development for indigenous peoples of Cameroon, it is essential that all actors, including government officials, stakeholders and relevant institutions, recognise that participation in government and decision-making processes is vital for development processes. Indigenous peoples should have the rights to the lands they have occupied from time immemorial and should be able to take part in decisions concerning the future development of these lands. Unfortunately, they are not always invited or consulted when decisions concerning them and the territories they inhabit are made.126 For instance, following a general concern for the official recognition of indigenous peoples in national legislation, it is surprising that the indigenous peoples of Cameroon not only were excluded, but equally were not consulted and their prior consent was undermined during the actual drafting of the 1996 Constitution and its subsequent amendments.127 The above could be an explanation for why the Preamble to the Constitution is passively limited in provisions that protect and preserve the rights of indigenous peoples. If, for instance, indigenous peoples were part of the negotiation process, they could have challenged the idea and insisted that their rights be clearly spelled out and outlined in the Constitution, which certainly would have averted the ongoing controversy surrounding the validity and nature of the limited rights guaranteed to them in the Preamble. The government, thus, grossly hindered the indigenous peoples’ rights to participate in public life and, most importantly, in decision making processes on legislative and administrative measures related to their welfare as stated in several international human rights instruments. The Forestry and Wildlife Law128 and its Decree of Implementation,129 which have as main goal to redress past injustices introduced by colonial policies, aim at initiating a participative system of management and protection of land and natural resources in indigenous

125 Lueong (n 19) 11-15. 126 Being able to make decisions on the use, access and management of their lands and territories guarantees their rights to self-determination as articulated in the UNDRIP. 127 M Pelican ‘Insights from Cameroon five years after the Declaration on the Rights of Indigenous Peoples’ (2013) 29 Anthropology Today 15. 128 Law to lay down Forestry, Wildlife and Fisheries Regulation, Law 94/01 of 1994. 129 Decree 95-531-PM of 23 August 1995 (setting the Modalities for the Implementation of Forestry Regulations).

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communities.130 However, these people were neither consulted nor were they part of the negotiation and drafting process.131 Instead, they were represented by Bantu chiefs following a Committee on the Valorisation of Wildlife Resources (COVAREF), regarding the management of community-managed hunting zones.132 This implies that the government of Cameroon does not respect indigenous peoples’ systems of customary landholding, thus prohibiting the official recognition and security of their lands.133 It indicates that the government and its policies are not only operating contrary to international and regional standards but also are in violation of domestic norms enacted with the purpose of ameliorating the political and socio-economic conditions of indigenous peoples. The land legislation equally has hindered social and economic development in local communities in the country.134 Another instance where the rights of indigenous peoples to public participation and decision making have been dishonoured is in government’s efforts to promote the Reducing Emissions from Deforestation and Forest Degradation (REDD+) programme in Cameroon. REDD+ is a framework developed under the United Nations Framework Convention on Climate Change (UNFCCC) to guard against the excessive exploitation of natural resources and its adverse effects on indigenous and local communities, including the loss of ancestral lands and the denial of access to use, ownership and management of the said lands.135 Efforts to achieve these goals require governments, other stakeholders and multi-national corporations to ensure the effective participation of indigenous peoples and to seek their prior consent at every stage of implementation of development activities.136 It is argued that the Forest Carbon Partnership Facility (FCPF), including other national REDD readiness planning activities in the country, do not have effective measures to guarantee the participation of indigenous peoples and local communities in these processes, thereby infringing the effective realisation of indigenous peoples’ rights to development. In addition, the non-binding status of the principle of free

130 SE Egbe ‘The law, communities and wildlife management in Cameroon’ in D Brown & K Schreckenberg (eds) Rural development forestry network (2001) 2-4. 131 D Alemagi ‘A comparative assessment of community forest models in Cameroon and British Columbia, Canada’ (2010) 27 Land Use Policy 932-933. 132 NGO (date unknown) http://livingearthorguk/wp-content/uploads 2013/07/SITUA TIONAL-ANALYSIS-OF-MECHANISMS-FOR-VULNERABLE-PROCESSES-INCAMEROONpdf (accessed 28 August 2017). 133 R Djeukam et al ‘Land and forest tenure reforms in Central and West Africa: Preliminary assessment of progress made since Yaoundé 2009’ (2013) Rights and Resources Institute 8. 134 Alemagi (n 131)933. 135 A Savaresi ‘REDD+ and human rights: Addressing synergies between international regimes’ (2013) 18 Ecology and Society 1; Ngang (n 121) 41-43. 136 S Carodenuto & K Fobissie ‘Operationalising free, prior and informed consent (FPIC) for REDD+: Insights from the National FPIC Guidelines of Cameroon’ (2015) 9 Carbon and Climate Law Review 163.

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prior informed consent, coupled with the fact that no specifications are made in relation to specific stakeholders and the absence of an official definition of the concept, has contributed to persistent violations of this principle.137 Indigenous peoples’ rights to participation was also undermined in the case between the Archbishop Cornelius Fontem Esua of the Catholic University of Cameroon (CATUC) and the Mbororo cattle herders of the Mamada Hills, Ndzah village in Bamenda III, a sub-division of the northwest region of Cameroon. It is noted that the earliest Mbororo peoples had settled in this region around 1904 and since then have been recognised by the post-colonial government of Cameroon following the British Colonial Administration’s official recognition of their land in 1933.138 In 2009 Archbishop Cornelius of the Catholic Church began negotiating with the Fon (chief) of Ndzah village, the Divisional Officer (DO) of Bamenda III and the Senior Divisional Officer (SDO) of Mezam having jurisdiction over the piece of land, to obtain the land for the construction of a Catholic university. The Archbishop was given the impression that the piece of land was vacant land owned by the government and, as such, it was not necessary to consult with local authorities, particularly as the land was said to be meant for public purposes. In 2011 the Archbishop secured a temporary grant from the Minister of Lands giving him ownership under the pretext that it was a category 2 land, vacant and good for business.139 Shortly after these negotiations, conflicts erupted between the Mbororo community of the Mamada Hills and the Archbishop of the Catholic Church when the chief of the Mamada Hills, Ardo Adamu, attempted to prepare his portion of the land for the new farming season. This escalated in the arrest and torture of Ardo Adamu and his assistants, and the destruction of their homes, cattle, farm crops and other valuable properties. This led to the arrest and immediate eviction from the land of Ardo Adamu following a lawsuit filed by the Archbishop for trespassing.140 The court of first instance revisited the definition and classification of category 1 and 2 lands as provided for in the Land Ordinance. In line with the above, category 1 land in Cameroon refers to occupied and developed land, while category 2 land is empty and undeveloped land. In deciding the matter, the court of first instance held that considering the above definition, the piece of land in question actually constituted category 1 land, as the Mbororo people had for several years lived on it and used it for grazing.

137 Carodenuto & Fobissie (n 136) 157. 138 See Ref 49 of 1933, as settled by DCE Tovey Esq, Disional Officer of Bamenda Division; Database of MBOYASCM retrieved on 10 January 2016, Bamenda, Cameroon. 139 Izsák (n 115) 13. 140 CFIBA/798C/12.

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However, after inspection, it was held that the Bamenda court of first instance had no jurisdiction to preside over the matter. Following this verdict, Ardo Adamu brought a suit in the Administrative Court with jurisdiction to preside over the matter. It is interesting to note that to date the matter is still pending due to the absence of a college of judges, after two of the judges in the Administrative Court of Bamenda recently were appointed to serve in other departments in the country. It is important to note that, even though the Mbororo community of Mamada Hills and their Ardo (chief) Adamu were never involved in the decision-making process nor consulted by government and the Archbishop regarding the acquisition of their traditionally-owned lands, they have also been denied justice. This illustrates the level of marginalisation indigenous peoples experience daily and how government’s practice and conduct ignores and undermines their rights to make decisions regarding their own affairs and cultural development. Efforts to guarantee indigenous peoples’ rights to development should aim at ensuring that policies and actions both at national and regional levels respect and recognise their customary rights to land ownership and management as prescribed by international instruments.

5

Conclusions and recommendations

The aim of this article has been to assess whether the indigenous peoples of Cameroon in reality enjoy the right to development. In analysing the nature of the right to development, especially with regard to its scope and content with special reference to the indigenous peoples of Cameroon, we argue that there are uncertainties as to whether indigenous peoples enjoy the right to development, to which they are by law legitimately entitled. Even though the UN Declaration on the Right to Development and the African Charter stress that the full realisation of the right to development entails the eradication of discrimination, inequality, meaningful participation, transparency and accountability, it is worth noting that increased human activities triggered by the global demand for natural resources for economic growth has remained the root cause of excessive resource exploitation resulting in environmental degradation, thereby hindering the realisation of indigenous peoples’ guaranteed rights to development in the country. It is suggested that changes in domestic legislation be implemented to be in line with regional and international standards. African states are required to adopt an ‘all-inclusive model of governance’ to include marginalised groups in public affairs of their countries to prevent the clamour for autonomy and possible secession. We argue that this will promote dialogue, social justice, good governance and economic development in indigenous communities. There is a need for a drastic change in state practices, including economic development and public

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participation, to enable indigenous peoples to become actively involved in policymaking and representation in decision-making processes. It is recommended that for the principle of public participation to be effectively implemented in Cameroon, government should employ strategies that grant a binding status to the principle of free prior and informed consent in holding stakeholders accountable in cases of gross human rights violations against indigenous communities. Furthermore, both international and national bodies should jointly come up with an agreed and official definition of the concept of free prior and informed consent to avoid future uncertainties. Immediate steps should also be taken to ensure an all-inclusive participative system of governance in the country. It is also suggested that Cameroon should sign all relevant conventions regarding the right to development and ensure their effective implementation at the domestic level, as this will impose an obligation on government administrators and other stakeholders to ensure that this right is duly realised to the benefit of indigenous peoples.

CHAPTER

9

LAND AND THE RIGHT TO DEVELOPMENT IN AFRICA

Robert K Home*

1

Introduction: The ‘land question’

The word ‘land’ does not appear in the United Nations Declaration on the Right to Development (UN Declaration), whether in the Preamble or its ten articles, nor does it appear in the Preamble or 66 articles of the African Charter on Human and Peoples’ Rights (African Charter).1 Yet, in the years since the African Charter was adopted in 1981 and the Declaration in 1986, land has assumed greater importance in international soft law and development policy. The UN Sustainable Development Goals (SDGs) give more emphasis to land issues than the Millennium Development Goals (MDGs), which they replaced in 2015. UN-Habitat has been promoting a Global Campaign for Secure Tenure and the Global Land Tools Network, seeking to encourage access to land for the poor and for women, and the progressive regularisation of informal settlements. The latest addition to the policy mix is the New Urban Agenda, passed by Habitat III in Quito in 2016. The African Union (AU) adopted a Declaration on Land Issues in 2009 and is developing its own land policy,2 while the right to development in Africa is increasingly being linked to what is loosely called the ‘land question’. This ‘land question’ usually refers to the colonial exclusion of the majority of the African population from access to land, whether by a white settler minority, post-colonial elites or foreign investors.3 The complexity of the issue is suggested in Kenya’s recent national land policy, which states:4 * 1 2 3 4

Professor in Land Management, Anglia Ruskin University, United Kingdom; [email protected] See Declaration on the Right to Development, adopted by the General Assembly Resolution 41/128 4 December 1986; African Charter on Human and Peoples’ Rights, adopted in Nairobi, Kenya, 27 June1981 OAU Doc AB/LEG/67/3 (1981). Assembly/AU/Decl.I(XIII) Rev1 (2009). L Ntsebeza & R Hall (eds) The land question in South Africa (2007). Kenya Land Policy (2010). 161

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The land question has manifested itself in many ways such as fragmentation, breakdown in land administration, disparities in land ownership and poverty. This has resulted in environmental, social, economic and political problems including deterioration in land quality, squatting and landlessness, disinheritance of some groups and individuals, urban squalor, underutilization and abandonment of agricultural land, tenure insecurity and conflict.

Underlying such complexity is a distinctive African culture of land, which is seen as belonging not to individuals but to the community, family or lineage.5 In the often-quoted words of a Nigerian chief in 1917: ‘I conceive that land belongs to a vast family of which many are dead, few are living and countless are yet unborn.’6 Land thus was not only a means of production or something to possess, but to be cherished, preserved, and responsibly enjoyed by present and future generations as an intrinsic part of Africans’ social, economic, political and spiritual being. This has provoked extensive debate over the balance between collective/communal and individual property rights, as will be discussed below. The African culture of land derives from the continent’s particular geography and history. Africa’s human population density is low compared to other continents, even though its peoples have increased some ten-fold in two centuries – from an estimated 100 million in 1800 to approximately one billion currently. Its peoples speak an estimated 1 000 distinct languages, and some of its countries contain 20 or more different ethnic groups. The European partitioning of Africa after the Berlin Treaty of 1885 created deep political and social divisions, and the 55 countries of the African Union (AU) kept their colonial boundaries after independence under the uti possidetis principle, now constituting the most countries in relation to land area of any continent. Furthermore, its large land mass and geographical isolation surrounded by wide seas create a ‘tyranny of distance’.7 All these factors combine to pose major development challenges for the continent. Development is defined in the Preamble to the United Nations (UN) Declaration on the Right to Development (UN Declaration) as a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom.8

5 6 7 8

R Home ‘Culturally unsuited to property rights?’ (2011) 40(3) Journal of Law and Society 403. This quotation prefaced CK Meek Land law and custom in the colonies (1949), the classic study of British colonial land law. The chief was the Elesi of Odogbolu, giving testimony to the British colonial West African Land Committee. World Development Report (2009) 121; G Blainey The tyranny of distance (1966). Preamble UN Declaration (n 1).

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The UN Declaration further states:9 (1) The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised. (2) The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both international covenants on human rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

The importance of land as a basic natural resource is implicit but not explicit in the UN Declaration:10 States should undertake, at the national level, all necessary measures for the realisation of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income.

A right to adequate housing was affirmed by the UN Committee on Economic, Social and Cultural Rights (ESCR Committee) in 1992.11 Land is the basic resource upon which any physical act of development, such as housing, takes place. Indeed, British law on land use planning (transferred to many of its African colonies, and still applying in modified forms) defines the term ‘development’ quite differently from the right to development, as ‘building, engineering and other operations in, on, over or under land, or the making of any material change in the use of any building or other land’.12 Land and development prospects in Africa depend upon how its states can accommodate rapid population growth, which has come about as a result of decreasing mortality and rising birth rates, medical advances and improved food production. Conflicts over land and natural resources manifest themselves in social unrest and wars, linked to the so-called ‘youth bulge’, poverty, corruption, and mass unemployment.13 Forced

9 10 11 12 13

Art 1 UN Declaration. Art 8(1) UN Declaration. UN-HABITAT Rights to adequate housing (2009). Sec 55Town and Country Planning Act 1947. See also R Home ‘The Trinidad Town Planning Ordinance 1938 and its influence upon British colonial town planning’ (1993) 15(4) Third World Planning Review 397. R Cincotta The security demographic (2003); UN-Habitat Scoping and status study on land and conflict (2016); B Derman (ed) Conflicts over land and water in Africa (2007); J Unruh & RC Williams (eds) Land and post-conflict peace building (2013); P McAuslan ‘Postconflict land in Africa: The liberal peace agenda and the transformative alternative’ in R Home Case studies in African land law (2010) 1.

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evictions of people from land are a growing phenomenon in Africa and globally, defined as the coerced and involuntary removal of individuals, groups and communities from their homes and/or lands and common property resources they occupy or are dependent upon, thus eliminating or limiting the ability of an individual, group or community residing or working in a particular dwelling, residence or place.14

The Pinheiro Principles approved by the Human Rights Council (UNCHR) address such displacements by wars, political upheaval and natural disasters, and assert a right to housing and property restitution, compensated where it is ‘factually impossible to restore, as determined by an independent, impartial tribunal’. Refugees and displaced persons are also free to pursue durable solutions to displacement other than return, without prejudicing their right to the restitution of their housing, land and property.15 These various declarations, charters and principles are all soft law documents but lack binding force. The African Charter was the first international human rights instrument to recognise the right to development as a discrete right, and committed all member states to take ‘joint and separate action in co-operation’.16 The right to development has been described as a composite or collective right, but more a moral principle similar to the right to self-determination, and issues still debated over its legitimacy, justiciability and coherence.17 The UN Declaration placed the obligation upon the nation state as ‘duty bearer’. It states:18 (1) States should undertake, at the national level, all necessary measures for the realisation of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income ... (2) States should encourage popular participation in all spheres as an important factor in development and in the full realisation of all human rights.

Development is gradually seen as a human right, attracting a broader constituency than the traditional human rights movement. The African Union (AU), constituted in 2000, carried forward the African Charter commitment to human rights, although its member states may lack the

14 15 16 17 18

UN-Habitat Forced evictions: Towards solutions? (2007). PS Pinheiro Housing and property restitution for refugees and displaced persons (2007). OAU Doc AB/LEG/67/3 (1981); art 22(2) African Charter. S Marks ‘The human right to development: Between rhetoric and reality’ (2004) 17 Harvard Human Rights Journal 137-139. Art 8 UN Declaration.

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resources or political will to implement human rights standards in their domestic law.19 The African Commission on Human and Peoples’ Rights (African Commission), constituted in 1987 under article 30 of the African Charter, however, has been evolving new jurisprudence, particularly relating to indigenous land rights, with at least the potential for legally-binding effects. The African Charter sets out the African Commission’s ‘Applicable Principles’ as follows:20 The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.

This chapter explores further – primarily for the former British colonies of sub-Saharan Africa – land and the right to development in Africa, investigating the colonial legacy and post-colonial approaches to the basic three land tenure types, namely, state/public, private and communal. Key issues are ‘land grabbing’; the customary land rights of African peoples; and reform of land law and land administration systems. Finally it assesses future prospects for the ‘land question’ in relation to the right to development through African solutions for African problems.

2

Post-colonial state ‘an enemy of the people’?

‘An enemy of the people’ is the title of an 1882 play by the Norwegian Henrik Ibsen. It deals with the efforts of an idealistic public official to improve water quality in his town, only for him to be defeated by community opposition to his attacks on corruption and lack of education. Its themes – the professional responsibilities of experts, environmental protection versus business interests, and the moral dilemmas of whistleblowing – are relevant to Africa today, where post-colonial states often act against the development needs of their people while justifying their actions in the name of modernisation and a neo-liberal agenda. Ibsen’s play came out at a time when most of Africa was being colonised by Europe, imposing legal regimes that empowered the colonial enterprise and disempowered Africans. The colonial state claimed all

19 20

A Bösl & J Diescho (eds) Human rights in Africa (2009); C Jochnick ‘The human rights challenge to global poverty’ in W van Genugten & C Perez-Bustillo (eds) The poverty of rights (2001) 159. Art 60 African Charter.

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apparently vacant land for itself, which it could then transfer through grant, sale or lease to white settlers and private or public bodies (such as mines and railways), with its and their interests overriding those of Africans.

2.1

Dual mandate and legal pluralism

In colonial Africa, land laws and regulations defined the respective realms of colonisers and the colonised. The British dual mandate policy associated with Lord Lugard required a strategy of separate development, most famously articulated in apartheid South Africa.21 Towns were seen as European creations, where land was owned by the state and subdivided for leasing out – but not to Africans.22 Outside the towns and white settler lands ‘native reserves’ or ‘tribal trust lands’ were demarcated, where customary communal land tenure was maintained under the indirect rule or dual mandate system, but was vulnerable to misinterpretation and manipulation by colonial administrators and judges. Africans occupying their ancestral lands could be designated as squatters, and evicted in favour of incoming white settlers. Colonial land ordinances allowed tribal land to be taken (or ‘set aside’) without compensation when the state wanted it for some public purpose such as mining or township creation. In South Africa, the 1913 Natives Land Act not only prohibited Africans from buying land, but also initiated a systematic reserves policy, which rapidly spread into Eastern and Central Africa, and more widely across the British Empire.23 The states comprising the AU mostly retain legal cultures that reflect their colonial backgrounds, complicated by the continuing existence of indigenous or customary legal orders. The concept of legal centralism might assert that there should be only one legal order – the law of the state, uniform for all persons, exclusive of all other laws, and administered by a single set of state institutions – but the African reality is legal pluralism: ‘a fixture of the colonial experience … characterising at the present day the larger part of all of the world’s national legal systems’.24 The concept of legal pluralism recognises that alongside and within a hegemonic national legal order other systems of law may exist, variously called tribal, customary, indigenous, aboriginal, native or chthonic. These typically serve a homogeneous social group, are based upon oral traditions and supported by communal sanctions, and concentrate on protecting shared values and communal harmony rather than individual rights.

21 22 23 24

S Dubow Racial segregation and the origins of apartheid in South Africa 1919 (1989) 36; O Taiwo How colonialism pre-empted modernity in Africa (2010). R Home ‘Colonial township laws and urban governance in Kenya’ (2012) 56(2) Journal of African Law 175. L Hailey African survey (1956) 759 contains an account of reserves in Africa. J Griffiths ‘What is legal pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law 6.

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British colonial officials in Africa under the dual mandate policy had their own perception of communal or customary land tenure:25 (1945) The Bantu had no idea of a right to the land itself in re, land was just there for cultivation and was in no sense a chattel... A man had security of tenure as long as he behaved himself and obeyed the chief, and, if the land was agricultural, kept it in cultivation ... The land was there for the community and no-one could use it to the detriment of the community ... The Land Officer and myself are of the opinion that it would be a disaster to allow the African to slide into possession of what would, to all intents and purposes, be an absolute freehold over land which the African occupies under native law and custom. (1951) Land to the African is not what it is to the European: a possession, a source of wealth, an economic asset or an object of investment ... [It] is the very source and basis of the life and existence of his family or tribe, and is something more personal and fundamental to him, and of almost literally mystical significance.

Land administration capacity in post-colonial Africa often is inadequate to the tasks, increasing rather than reducing tenure insecurity and conflicts over land, and seeming remote and irrelevant to the everyday lives of the poor. The state prefers formal instruments of land ownership, particularly a government-issued land certificate registered centrally. Colonial land regimes, however, had limited penetration: most African countries have less than 15 per cent of their land titled, leaving most households without any form of land documentation.26 The actions of the post-colonial state in relation to land have often followed those of its colonial predecessors, intolerant of customary land tenure when in opposition to its interests. The continuing struggle over legitimacy and control of land resources between the state and society means that post-colonial states pay only lip service to a more equitable ‘pro-poor’ distribution of land ownership, while guarantees of private property rights that benefit white settlers and African elites were written into the constitutions of the newly independent states.27 Thus, the question may be posed whether the state could actually become the enemy of the people.

2.2

Post-colonial land reform

Many African countries since independence have attempted reform of their complex inherited land laws, with neo-liberal foreign assistance

25 26 27

Quoted in R Home ‘Are Africans culturally unsuited to property rights?’ (2013) 40(3) Journal of Law and Society 403. A Durand-Lasserve & L Royston (eds) Holding their ground (2002); G Payne (ed) Land, rights and innovation (2002); C Toulmin & J Quan (eds) Evolving land rights, policy and tenure in Africa (2000). L Ntsebeza & R Hall (eds) The land question in South Africa (2007) 107; T Allen The right to property in Commonwealth jurisdictions (2000) 147.

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influencing the process and outcome.28 Examples of such law reforms include the military government of Nigeria nationalising land in its 1977 Land Use Decree, with powers of allocation reserved to state governors; Uganda reforming its feudal mailo land tenure with its 1998 Land Act; Botswana passing a Tribal Land Act in 1968; and Tanzania’s new land laws in 1990-1993. Perhaps the most comprehensive approach was in South Africa where, after majority rule was achieved in 1994, various new land laws dismantled apartheid and attempted a transformative approach, embedded in its new Constitution. The South African government adopted a target in 1994 of transferring 30 per cent of commercial farming land to 600 000 smallholders, but after one decade only 3 per cent of land had been transferred, reflecting institutional weaknesses but more the reluctance of owners to offer their property for sale. The Namibian government bought out white-owned ranches (120 by 2004, totalling 700 000 hectares), converting freeholds into 99-year leases, but was handicapped by the gap between a high open market price and the low government grant available. Such reforms, holding out the prospect of better access to land for the poor, require new legal thinking. Post-apartheid South Africa promised an approach to transformation through law-grounded processes, yet this has not necessarily resulted in pro-poor judgments in its Constitutional Court.29 Zambia’s 1994 land law reforms, while ostensibly designed to create more secure forms of land tenure, actually resulted in unprecedented forms of dispossession, and worsened economic inequalities by concentrating land titles in a few hands (local elites and foreigners), categorising many existing occupiers as squatters subject to eviction. In 2010 the AU issued its Guidelines on Land Policy in partnership with the UN Economic Commission for Africa and the African Development Bank, and supported by the World Bank and other international agencies. Since the AU’s Constitutive Act stressed the sovereignty and sovereign equality of its member states, the Guidelines were careful to state that they were not a normative framework intended to be binding upon member states, nor a draft land policy for their adoption, nor instruction for specific country situations: All member states had the right to decide their own land laws and policies.30 Recommendations by the African Commission on cases brought before it for some time remained deferential to state sovereignty, even while the Guidelines use highlyprescriptive language such as ‘[t]he overwhelming presence of the state in land matters must change’ (section 2.1).

28 29 30

A Manji ‘Land reform in the shadow of the state’ (2001) 22 Third World Quarterly 327. T Roux ‘Pro-poor court, anti-poor outcomes’ (2004) 20 South African Journal on Human Rights 511; AJ van der Walt Property in the margins (2009). AU Land policy in Africa (2010).

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Reluctance by post-colonial states to accept African Commission recommendations has occurred in cases involving issues of indigenous land rights. When the Ogoni people of Nigeria asserted their environmental and socio-economic rights against the destructive effects of oil extraction activities, the Nigerian military regime’s response was to execute their community leaders, including the charismatic environmental activist, Ken Saro-Wiwa, in 1995, an act that led to Nigeria’s suspension from the Commonwealth for several years.31 In another high-profile West African case, the Cameroonian government ignored the Bakweri tribe’s claim to their ancestral lands on Mount Cameroon, which since the colonial period had been successively occupied by German planters and the Cameroon Development Corporation (CDC), subsequently privatised. The African Commission recognised the Bakweri claim in its recommendations, but the lack of any enforcement mechanism meant that the Cameroonian government continued unresponsive, leading to the justified accusation that the African Commission was merely a ‘toothless barking dog’.32 The Endorois and Ogiek cases before the African Commission and the African Court, respectively, however, have produced more promising jurisprudence on indigenous land rights, as discussed below.

2.3

Land grabbing or ‘the new scramble for Africa’

Post-colonial states have also in recent years overridden communal or customary land rights by what has been called ‘land grabbing’ and the second ‘scramble for Africa’ (the first being in the late nineteenth century after the 1885 Treaty of Berlin). A more neutral term is large-scale land based investments (LSLBI) involving land holdings over 200 hectares in extent.33 The sharp increase in international food prices during 2007 to 2008 triggered a spate of cross-border land acquisitions for bio-fuel, agriculture and forestry by sovereign wealth funds, private equity funds and other key players in agri-business. Some 1,5 billion hectares globally were already under cultivation, and a further estimated 445 million hectares were identified as uncultivated and available for farming, of which about 200 million were in sub-Saharan Africa, usually held under vulnerable customary tenure.34 Many post-colonial African states have facilitated LSLBI, usually exercising a colonial legacy right to ‘set aside’ customary land according to the state’s interpretation of the ‘public 31

32 33 34

F Coomans ‘The Ogoni case before the African Commission on Human and Peoples’ Rights’ (2003) 52 International Comparative Law Quarterly 749; Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001); R Doron & T Falola Ken Saro-Wiwa (2016). A Njoh ‘Indigenous peoples and ancestral lands: Implications of the Bakweri case in Cameroon’ in Home (n 13) 69. S Moyo & P Yeros ‘Imperialism and primitive accumulation’ (2012) 1 Agrarian South 181. R Arezki, K Deininger & H Selod ‘Global land rush’ (2012) 49(1) Finance and Development.

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interest’ (that is, the interests of elites benefiting from the deals), and an estimated six million hectares were so transferred between 2000 and 2012, representing some 45 per cent of the global total of LSLBI at the time. This expropriation was justified by the ‘grabbers’ as being in the interests of open markets and international capital, but conflicted with the needs for land and livelihoods of Africa’s own peoples.35 Such LBLSI usually meant the alienation of land with little or no compensation, and favoured large-scale foreign owners over small-scale local farmers. Land administration systems failed to document or protect the land rights of communities, and there was little transparency and accountability in the contract negotiations, which often did not consult or over-ruled customary occupiers’ protests, even proceeding with forced evictions by the military. Perhaps fortunately for local communities, many of these land deals failed to become operational (only 42 per cent of 474 deals reviewed by the AU did so), as foreign investors were deterred by difficulties in doing business, volatile institutional arrangements and high transaction costs.36 Better governance arrangements for LSLBI have been recommended by international bodies such as the Organisation for Economic Cooperation and Development (OECD), the UNCHR and the AU (although these are often ‘closing the stable door after the horse has bolted’).37 They include such principles as national strategies for agricultural development that protect small agricultural producers, independent assessment of LSLBI economic, financial, social and environmental costs and benefits, respect for the human rights of communities, and fair and timely compensation for land takings. The concept of free, prior and informed consent for communities affected, with transparent and inclusive contracts, represents a shift towards modern international human rights conceptions, in accordance with the public participation aspirations of the African Charter and the UN Declaration.

3

Private property and customary rights

The concept of property rights guaranteed by representative selfgovernment has been claimed – in Ferguson’s controversial interpretation of world history – as one of the so-called ‘killer apps’ that gave the

35 36

37

LS Cotula The great African land grab? (2013). P Hufe & DF Heuermann ‘The local impacts of large-scale land acquisitions: A review of case study evidence from sub-Saharan Africa’ (2017) 35(2) Journal of Contemporary African Studies; A de Grassi & JS Ovadia ‘Trajectories of large-scale land acquisition dynamics in Angola’ (2017) 67 Land Use Policy 115; K Deininger & F Xia ‘Quantifying spillover effects from large land-based investment’ (2016) World Development 87. OECD Declaration on International Investment and Multinational Enterprises (2011); UNCHR Guiding Principles on Business and Human Rights (2012); AU Guiding Principles on Large-Scale Land Based Investments in Africa (2014).

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competitive advantage in separating ‘the West from the rest’.38 The colonial legal order was imbued with the concept of exclusive and mostly absolute private property rights, drawing upon the philosophy of possessive individualism dating from John Locke in the seventeenth century.39 The enclosure of land and the legal protection of private ownership empowered owners to invest and improve (improve the magic of property turns sand into gold),40 but also created a form of monopoly over this basic and finite resource.

3.1

Secure property rights for the poor?

The African Charter and the new constitutions of post-independence African states all guaranteed private property rights. That such rights could be ‘encroached upon in the interest of the public need or in the general interest of the community and in accordance with the provisions of appropriate laws’ (article 14 of the African Charter) potentially conflicts with article 21: ‘All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.’ Under the neo-liberal free-market approach, the state protects the security of private property title as a basis for finance and capital raising, supported by professional surveyors and valuers who delimit the land and appraise its value for mortgage or hypothecation purposes. In the twenty-first century the Peruvian economist, Hernando de Soto, has become internationally recognised for promoting private property rights as the potential solution to global poverty, claiming a framework of secure, transparent and enforceable property rights as a critical precondition for investment and economic growth.41 The International Commission for the Legal Empowerment of the Poor (CLEP) made ‘secure and accessible property rights’ one of its four so-called ‘pillars’ for the legal empowerment of the poor, who would thereby achieve a sense of identity, dignity, and belonging.42 The World Bank has long supported large-scale land titling programmes to give greater certainty to property owners and developers, albeit with mixed results in parts of Africa.43 Clear and secure land rights may indeed help economic growth and reduce poverty, but they also reinforce or increase inequalities. De Soto is

38 39 40 41 42 43

N Ferguson Civilization: The West and the rest (2011). CB Macpherson The theory of possessive individualism (1962). A Young Travels in France (1792/1917) 229. This quotation was cited to support freehold tenure in Africa by CK Meek and by L Hailey African survey (1956) 803. H de Soto The mystery of capital (2000). For a critique, see R Home & H Lim Demystifying the mystery of capital (2004). CLEP Making the law work for everyone (2008); D Banik Rights and legal empowerment in eradicating poverty (2008). G Payne ‘Land issues in Rwanda’s post-conflict law reform’ in R Home Local case studies in African land law (2011) 21.

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promoting formal property systems at a time when the dominance of individualised land tenure is increasingly seen as having negative consequences for the poor, while the process of integration and codification has its practical difficulties and costs. Integrating plural and informal property rights into one unified system under state control – converting oral into written, informal into formal, local into national – is not a process that is uniformly benign, neutral, or free from exploitation.

3.2

Revival of customary land tenure

Africa more than other continents shows the persistence and continuing importance of customary, tribal or communal land tenure. An estimated two-thirds of its usable land area is communal, reflecting the African culture of land discussed in the introduction, and this is both a strength and a weakness as far as development is concerned. By contrast, registered or formally-tenured land still covers only an estimated tenth of its total land area, together with state land used for forestry, game parks, urban areas and other uses. The so-called ‘colonial masters’ asserted an evolutionary theory of land rights, under which customary tenure was a vestige of the past, bound for extinction by the inevitable historical process ‘towards a greater concentration of rights in the individual and a corresponding loss of control by the community as a whole’.44 Yet, customary land in recent years has come to be recognised not as bound for extinction, but as an important common property resource, and indeed a defence against the penetrative forces of globalisation and capitalism. Such ‘informal’ systems of law may preserve local community values and fulfil an important welfare function, serving as a reservoir of cheap, un-serviced land in periurban areas. The deliberate withholding of land from state land-titling processes may help preserve family and community cohesion and continuity, and land can be a vital component for retaining cultural identity. As individualised land tenure is increasingly questioned for its negative impact upon the excluded poor, the legal protection of communal land tenure is being reinforced. The AU Guidelines advocate according equal legal status to both customary and ‘modern’ property rights, though they may be competing over the same piece of land. Colonial land taking denied indigenous peoples their use rights: Hunting and gathering, even unfenced farming, were not considered to change the character of the land sufficiently to establish a claim to ownership. Indigenous groups in many countries were emboldened by the Australian Mabo case from the 1990s to pursue legal challenges and human rights arguments in reasserting their claims to ancestral lands. Most cases 44

JP Platteau ‘The evolutionary theory of land rights as applied to sub-Saharan Africa’ (1996) 27 Development and Change 29.

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reported in the Commonwealth Law Bulletin in the last 20 years relate to such claims.45 The 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) asserts that indigenous peoples have a human right to freely pursue their economic, social and cultural development.46 The post-Mabo recognition that pre-existing indigenous land rights were not extinguishable and could be revived has led Zimbabwean academics, for instance, to justify land redistribution from foreign settlers by proposing an African term – humwe – as a doctrine of consent that can sanction the ‘rejection of private property rights that were forcibly or immorally instituted under the shield of colonialism’.47 The African Commission in response to the UNDRIP recognised the lack of an universally-agreed definition of indigenous peoples, but identified three common characteristics for them: self-identification; special attachment to ancestral land and territory ‘of fundamental importance for their collective physical and cultural survival as peoples’; and – crucially but controversially – ‘a state of subjugation, marginalisation, dispossession, exclusion, or discrimination because these peoples have different cultures, ways of life or mode of production than the national hegemonic and dominant model’.48 Post-colonial states largely ignored early African Commission recommendations on indigenous land rights, and paid only lip service to the protection and promotion of such rights.49 A change began with the Richtersfeld case in South Africa,50 and a more significant development occurred with the Endorois case in Kenya (2009), where a tribal community alleged that the government of Kenya had infringed their rights to development. The Kenyan government responded that ‘the task of communities within a participatory democracy is to contribute to the wellbeing of society at large and not only to care selfishly for one’s own community at the risk of others’ (although such a criticism could also apply to land taking by the extended families of governing elites in Kenya and other countries). The African Commission recommended that the Kenyan government should return to the Endorois people their ancestral lands, and vindicated their rights to development and their UNDRIP rights to land and natural resources. The Commission found that the government had denied the Endorois both procedural and substantive elements of the right to development by forcibly relocating them away from their ancestral lands 45 46 47 48 49 50

S Motha & C Perrin ‘Deposing sovereignty after Mabo’ (2002) 13 Law and Critique; PH Russell Recognizing aboriginal title (2005). J Gilbert & V Couillard ‘International law and land rights in Africa’ in Home (n 13) 47. B Chigara Land reform policy (2004). African Commission ‘Advisory Opinion on the UN Declaration on the Rights of Indigenous Peoples’ (2007). RN Kiwanuka ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’ (1988) 82 African Journal of International Law 80. TM Chan ‘The Richtersveld challenge’ in R Hitchcock & D Vinding (eds) Indigenous people’s rights in Southern Africa (2004) 114.

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and lake, where they had enjoyed water and grazing, a cultural and religious connection, and access to medicinal herbs and salt licks for their cattle, to a distant place of infertile semi-arid land. In 2010 the AU made the recommendation legally binding upon the government of Kenya, breaking new ground for the African Commission, and Kenya’s new Constitution of 2010 in part responded to the judgment by offering better protection of basic human rights and specifically communal land rights. The case reaffirms that collective or composite rights can be justiciable, and contributes to the debate on land tenure security for traditional or indigenous groups. It has thus helped in the evolution of international human rights jurisprudence and given hope for future African solutions to issue of the right to development.51 With the tide moving in favour both of indigenous communities reclaiming their land and the right to development, another case soon followed Endorois, in which the new African Court on Human and Peoples’ Rights (African Court) (which heard its first case in 2009) adjudicated in favour of the Ogiek people, one of the last forest-dwelling hunter-gatherer communities in Kenya. This landmark judgment in 2017 found that the Kenyan government had violated seven separate articles of the African Charter, amounting to a persistent denial of Ogiek land rights and their religious and cultural and hunter-gatherer practices.52 Land reforms in Namibia, Malawi and Zambia have facilitated indigenous land registration under various forms of group or community ownership. South Africa’s Communal Land Tenure Act of 2004 allowed community ownership (community being defined as a single juristic person, often a tribal authority) in a move intended to address chaotic land administration in the former homelands or bantustans. While communal land tenure is gaining greater legal protection, it is still exposed to exploitation, as land-grabbing investors in collusion with the state actively seek out areas with poor land rights recognition, where communities may be unaware of their rights and lack the ability to interact with investors or establish written agreements. Customary land tenure, while being encouraged, has also been guilty of discriminating against women and children by entrenching patriarchal privilege, notwithstanding paper guarantees of women’s property rights in African constitutions. For many African countries the proportion of female-headed households is growing, because of such factors as male migration, male deaths in conflicts, un-partnered adolescent fertility and

51 52

Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) (Endorois case); R Browning ‘The right to development in Africa: An emerging jurisprudence?’ (2011). African Commission on Human and Peoples’ Rights v Republic of Kenya Communication 006/2012; judgment passed on 26 May 2017.

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violent family disruption. Property settlements under customary tenure systems often disinherit and impoverish women, for example after divorce or the death of a spouse, considering them as only secondary holders of property rights. Sub-Saharan Africa’s estimated 11 million orphans (resulting from AIDS and other causes) are also vulnerable, holding fewer assets and less access to resources. International development agencies are now pursuing gender equality in land governance, and developing the capacity of women’s groups to negotiate benefits, compensation and agreements that respect their land rights under different tenure regimes, and the wealth-creation opportunities that may ensue.53

4

Land governance: Actors and agendas

Land governance is a convenient overarching term for the complex legal and bureaucratic systems regulating social relationships in land, and involves a potentially wide and costly array of agencies, professions and bureaucracies. Their tasks include the following: confirming the rights to ownership and use; surveying and subdividing land; processing legal documents and plans; valuing and managing property; handling appeals and disputes; and reviewing laws and regulations. State or public lands need management, such as railway lands (often extending far beyond the operational railway), national and wildlife parks, heritage sites, and defence estates. Valuers (public and private) appraise property for taxation, securitisation and development purposes. Environmental agencies are expected to protect and manage the natural environment and resources, including wildlife habitats, which can generate important revenues from tourism. There is no shortage of land governance policy guidelines and programmes from international agencies, alongside assistance to strengthen the rule of law through national constitutions, justice and human rights.54 The AU and regional bodies, such as the Southern African Development Community (SADC), have increasingly recognised the importance of land policy and its legal regulatory framework, supported by international agencies such as the World Bank, the UN Economic Commission for Africa and the African Development Bank.55 Unfortunately, the implementation capacity for land governance in Africa often is inadequate to the tasks: adding to tenure insecurity and conflicts over land; reaching only a small section of the population; and seeming remote from the everyday lives of the poor. Government officials

53 54 55

LM Munyoni (ed) Women and land in Africa (2003); R Home (ed) Essays in African land law (2011) 135 155. United Nations UN approach to rule of law assistance (2008). SADC Establishing the SADC land reform support facility and inception activities (2007); AU Framework and guidelines on land policy in Africa (2010).

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have great interpretive agency, allowing them to corruptly acquire land and advantage themselves, for instance by allocating formal housing plots that are surveyed, titled and serviced. Powerful networks of beneficiaries create a system of control and exclusion, and produce a path dependency that is antagonistic to reform: Elites may prefer an environment of insecure land rights, allowing them to control and increase land prices.56 In Kenya, an estimated 200 000 illegal titles were created between 1962 and 2002, mostly after 1986, allowing the extended families of the past three presidents to allegedly acquire a tenth of the productive farmlands.57 For most of the people, the state is either irrelevant or an interference in their daily lives. The state can declare their occupation of land illegal, and only refrains from harassing them because of its own inertia and inefficiency. The temporary structures of informal settlements reflect not only their occupiers’ poverty and limited access to building materials, but also the ever-present threat of demolition and eviction. Official disapproval and harassment of the poor, who are often problematised as squatters and slum-dwellers requiring removal, have deep roots in the colonial experience, and has only moderated in recent years as slum-dwellers exert pressure on their elected politicians. Land-titling programmes may have the potential to reduce poverty by incremental upgrading, property titling, and an improvement in services and infrastructure, but progress is slow.

4.1

Dispute resolution

Weak state institutions and pressures for states to shrink have created a realm of unoccupied political space, and expanded the role for civil society.58 Community-based organisations (CBOs), empowered by links with international coalitions, are developing new styles of land rights advocacy and dispute resolution. The so-called ‘cadastral politics’ has emerged through practices of ‘counter-mapping’, which seek to record uses of land by groups that are not recognised by state institutions. The poor could be better protected from arbitrary eviction through closer adherence to due process and appropriate compensation, and by progressive legalisation. Disputes over land and property are notorious for creating complex and interminable legal proceedings. A state commitment to the rule of law and due process requires mechanisms for land dispute resolution, through

56

57 58

AK Onoma The politics of property rights institutions in Africa (2010); JM Klopp & O Lumumba ‘Reform and counter-reform in Kenya’s land governance’ (2017) Review of African Political Economy; SN Rogers ‘Rethinking expert sense in international development: The case of Sierra Leone’s housing policy’ (2016) 43 Review of African Political Economy 150. Ndungu Commission (2002); A Southall ‘The Ndungu Report’ (2005) 103 Review of African Political Economy 142. M Mamdani Citizen and subject (1996); B Rajagopal International law from below (2003).

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courts or tribunals, community land registers and land readjustment. Tribunals constitute hybrid forms of judicial administration alongside the main court system, or ‘transplanted forms of bureaucracy’, usually held near the location where the dispute arises, which may be quicker and cheaper than that of the courts, addressing largely factual rather than legal issues. Land and property tribunals come in many forms, dealing with matters such as compensation claims following compulsory purchase, planning and enforcement appeals, boundary disputes, leasehold valuation, and a range of landlord/tenant issues. In Kenya, for example, a land arbitration tribunal settles rent disputes on government land leases under the 1988 Government Land Act. Other land tribunals deal with boundaries and customary rights in customary land situations where official land certificates or leases may be lacking. Cameroon has had a Land Consultative Board since 1976 to resolve land and boundary disputes in the absence of a land certificate; with over 80 per cent of lands not registered. The Board is the main determiner of land cases, with appeals heard by the Ministry of Land. In Uganda, the 1998 Land Act created a new institutional framework of district land boards under a Land Tribunal while in Tanzania, the 1999 Land Act created village land registers. Namibia, under the Communal Land Reform Act 2002, addresses internal boundary disputes between tribal areas, while in Botswana lands tribunals deal with disputes over tribal land allocation. The aim of land redistribution in post-apartheid South Africa’s Land Policy (1997) was defined as ‘to provide the poor with land for residential and productive purposes in order to improve their livelihoods’. Land redistribution was intended to help those prejudiced by the old regime – the urban and rural poor, farm workers, labour tenants and emergent farmers – but dependent upon willing sellers of land with state assistance. New land registration procedures in South Africa also allowed the upgrading of rights from the concept of ‘initial ownership’ under the 1995 Development Facilitation Act. South Africa created new land claims courts to redistribute and restitute lands taken after the racially-discriminatory 1913 Lands Act, but these have suffered from resourcing problems, poor coordination between national, provincial and local authorities, weak organisation of rural people, and inadequate market-based compensation.59

4.2

Habitat’s new urban agenda and the right to the city

Land policy internationally and at the AU level has long been mainly concerned with agricultural development and rural areas. The 2011 AU Guidelines saw agriculture, livestock and exploitation of natural resources 59

DL Carey Miller & A Pope Land title in South Africa (2000) 398.

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as ‘central in the social and economic development of the continent’, but urban populations – both globally and in Africa – are now in the majority, and generate more economic activity than rural areas. Africa is the continent experiencing the most rapid urbanisation (defined as more than 4 per cent urban population growth per annum), which adds new urgency to land governance initiatives. UN Habitat has increasingly led internationally in addressing land and urban governance issues. Its Global Campaign for Secure Tenure encouraged the progressive regularisation of unauthorised and informal settlements through changes in legal frameworks, policies and standards. Launched at the 2006 World Urban Forum, it formulates and promotes legal instruments for land tenure that can be innovative, pro-poor, affordable and scalable. Its Global Land Indicators Initiative is developing an index of tenure insecurity through the Property Rights Index, and preliminary findings suggest that globally about one-fifth of those surveyed (and a much higher proportion of tenants compared to owners) feared losing their homes in the next five years.60 The New Urban Agenda, unanimously agreed at the Habitat III Conference in Quito in 2016, has raised the importance of reform of urban laws and regulations. The 2030 Agenda for Sustainable Development sets ambitious targets for improving city planning and management if the Sustainable Development Goals are to be reached, especially in Africa. All African countries have committed to promoting ‘institutional, legal and financial mechanisms in cities and human settlements to broaden inclusive platforms, in line with national policies that allow meaningful participation in decision-making, planning and follow-up processes for all’ (paragraph 41). Countries’ law-making systems, however, are too diverse, their urban challenges particular and their political contexts too varied to allow for a strictly procedural manual, and in any case urban legal change is a slow, complicated process. The state has a particular role in managing the conversion of land to urban use (especially housing), and yet exclusionary zoning and lack of capacity mean that most new developments in Africa are unauthorised. The statutory system of land use planning can assist not only with urban development and economic productivity, but also with food strategies and environmental sustainability. Good quality urban law gives confidence to investment, economic performance and wealth creation, providing for predictability and orderly urban development. A focus on basic and enforceable statutory and derived legislation will provide the most effective support for sustainable urban development. The elements include establishing regulations that protect public spaces; development rights; building codes on building quality and standards; and street and plot

60

Land Alliance Building a secure future: Perceptions of property rights in India (2016).

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layouts. Examples of innovative urban planning laws are land readjustment (a method of pooling ownerships for planned development) and the social domain tenure model.61 Another concept gaining traction is the ‘right to the city’, first proposed by Henri Lefebvre in 1968 as a demand for a transformed and renewed access to urban life. In the words of the radical social geographer, David Harvey:62 The right to the city is far more than the individual liberty to access urban resources: It is a right to change ourselves by changing the city. It is, moreover, a common rather than an individual right since this transformation inevitably depends upon the exercise of a collective power to reshape the processes of urbanization. The freedom to make and remake our cities and ourselves is, I want to argue, one of the most precious yet most neglected of our human rights.

This is close to the approach in the UN Declaration of a few years later, which various popular movements have incorporated into their struggles and demands. In 2001 Brazil added the right to the city model to its federal law. A diverse group of ‘city makers’ has been identified that includes landscape designers, housing advocates, hackers, architects, ecologists, community organisers, activists, artists and others.63 The right to the city has even been expanded to an ‘informational right to the city’ through the urbanisation of information and better access to mobile technology, thus adding yet another ‘right’ to the growing catalogue of collective and composite human rights.

5

Conclusions: African solutions to African problems?

As human rights law continues to develop from individual to collective or composite formulations, more rights come forward for inclusion. The right to development is joined by the rights of indigenous peoples, the right to housing, the right to the city, even an informational right to the city. These exist as soft law in various declarations, but they proceed slowly to application through the rule of law under national constitutions, justiciable and enforceable through court processes. The right to development provides the means by which to hold states accountable and therefore, depends much on how land is secured, used and managed, requiring

61 62 63

C Fourie ‘Land readjustment for peri-urban customary tenure’ in Home & Lim (n 41) 31; RK Home ‘Land readjustment as a method of development land assembly’ (2007) 78 Town Planning Review 459; C Lemmen The social tenure domain model (2010). D Harvey ‘The right to the city’ (2008) 2(53) New Left Review 23. See also AJ Njoh ‘The right-to-the-city question and indigenous urban populations in capital cities’ (2017) 52(2) Journal of Asian and African Studies 188. C Shepard City makers: The culture and craft of practical urbanism (2017).

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appropriate land laws and policies that brings tangible benefits to the peoples. The AU Declaration on land issues, land policy initiatives and position on land grabbing has brought land more to the forefront of development debates and agendas, to be advanced through legislative, judicial and executive action. The diversity and colonial past of the many countries of Africa create particular difficulties. The AU land policy guidance has stated that ‘the overwhelming presence of the state in land matters is a serious impediment to efficient and sustainable use’, and has urged it ‘to concentrate on policy formulation, policy setting, monitoring and auditing of broad land sector operations’.64 Yet, post-colonial elites and governments are reluctant to reduce their activities, as the cases of indigenous people’s rights have shown. The idea of a ‘pro-poor’ land law and governance, while surely central to the state’s role as duty bearer for the right to development, remains highly political, complex and difficult.65 Land will somehow have to be redistributed, which means from the ‘haves’ (the state, private individuals and legal entities) to the ‘have-nots’. Africa’s traditional culture of land is giving rise to greater protection of community land rights through decentralised land management. This requires community participation and such concepts as free, prior and informed consent, which were largely lacking in colonial and, indeed, post-colonial times. Community-based organisations may keep their own registers of rights, applying hybrid laws through some form of local court or tribunal, and keeping control of land use and allocation outside the integrated property system offered by the state. Land for housing may be provided through community self-help movements that buy and resell land to their members, using collective funds raised through subscription. The prospect of Africa finding its own solutions to its problems remains elusive, but some recent developments are encouraging. There is no quick route to land law reform, whether in rural or urban situations. As African states have set about reforming their land laws, new issues have emerged, particularly pressures of population, urban growth and environmental sustainability. Such law reforms require professional and principled legal expertise, and in this regard the right to development may be an important route for progress. Also needed is education of the public and community groups in asserting their land rights, an area where international cooperation has great potential through networking and the exchange of knowledge.

64 65

AU Land policy in Africa (2011) 22. B Davy ‘The poor and the land’ (2009) 80 Town Planning Review 227.

PART III: COUNTRY PERSPECTIVES

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10

‘O CAMEROON, THOU CRADLE OF OUR FATHERS … : LAND OF PROMISE’ AND THE RIGHT TO DEVELOPMENT

Carol C Ngang* and Serges Djoyou Kamga**

1

Introduction

In this chapter we examine the right to development in Cameroon both as a constitutional entitlement and a treaty obligation necessitating domestic implementation. Against the backdrop of the prevailing crisis affecting the Anglophone section of the country, the analysis is broadly situated in the context of the right to development in Africa for the reason that the African Charter on Human and Peoples’ Rights (African Charter) obligates state parties to adopt legislative or other measures to ensure its realisation at domestic level1 and also on account of the fact that respect for human rights is instrumental to conceptualising development.2 In the Gunme case the African Commission on Human and Peoples’ Rights (African Commission) recommended to the Cameroon government to engage in ‘constructive dialogue’ with the Anglophone population on constitutional issues and other grievances that may threaten national unity.3 Failing to comply with the African Commission’s recommendation, the aggrieved Anglophone section of the country since

*

**

1 2

3

Researcher, Centre for Human Rights, University of Pretoria, South Africa; [email protected] or [email protected]. The wording of the title of this chapter is taken from the Cameroon national anthem, which contains a very ambitious promise of a better life for the people. Associate Professor of Law, Thabo Mbeki African Leadership Institute (TMALI), University of South Africa;[email protected]. This chapter is based on the research supported in part by the National Research Foundation of South Africa. (Grant Number 109395). African Charter on Human and Peoples’ Rights, adopted in Nairobi, Kenya, on 27 June 1981, art 1. C Gunduz ‘Human rights and development: The World Bank’s need for a consistent approach’ (2004) Development Studies Institute–Working Paper Series 04-49 ISSN No 1470-23103; K Tomasevski ‘Monitoring human rights aspects of sustainable development’ (1992) 8 American University Journal of International Law and Politics 78. Gunme & Others v Cameroon (2009) AHRLR 9 (ACHPR 2009) para 215(vi). 182

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October 2016 has resorted to radical activism, claiming the right to selfdetermination to exist as a separate state, resulting from historical disadvantage and discriminatory practices, which are not unrelated to a denial of the right to development. Originating from Africa as an expression of self-determination, the right to development has increasingly gained recognition not only as a claimable legal entitlement but essentially as a rights-based paradigm for development.4 Given that the right to development ultimately aims at the constant improvement in human well-being,5 its implementation would imply a steady amelioration of human conditions across Africa. However, as Vandenbogaerde has noted, it seems that states often are not comfortable with framing their domestic policies in light of the right to development.6 Such disregard is evident from the consistent ranking of African countries in the lowest categories on the human development index.7 Our purpose is to determine why, in spite of the relevance of the right to development as a paradigm suited for transforming African societies, the implementation of the right remains elusive. The focus on Cameroon is based on two principal reasons: first, because the country’s 1972 Constitution was the pioneer instrument to give legal recognition to the right to development; and, second, because Cameroon is legally and morally bound by several other instruments to ensure the domestic implementation of the right to development. Yet, as Rousselot rightly observes, Cameroon is on record as having committed serious human rights abuses (including the right to development) and the deprivation of freedom, which undermines development in the country.8 In the following section we examine Cameroon’s commitments regarding the right to development. We proceed from there to situate these

4

5 6

7 8

CC Ngang ‘Towards a right to development governance in Africa’ (2018) 17(1) Journal of Human Rights 114-122; WP Nagan ‘The right to development: Importance of human and social capital as human rights issues’ (2013) 1Cadmus 30; UN Human Rights Realising the right to development (2013) 495; B Ibhawoh ‘The right to development: The politics and polemics of power and resistance’ (2011)1Human Rights Quarterly 103; NJ Udombana ‘The third world and the right to development: Agenda for the next millennium’ (2000) 22 Human Rights Quarterly 762. Declaration on the Right to Development, adopted by GA Res 41/128 4 December 1986, art 2(3). A Vandenbogaerde ‘The right to development in international human rights law: A call for its dissolution’ (2013) 31 Netherland Quarterly of Human Rights 202; see also Fukuda-Parr ‘Human rights and national poverty reduction strategies: Conceptual framework for human rights analysis of poverty reduction strategies and reviews of Guatemala, Liberia and Nepal’ (2007) University of Connecticut Human Rights Institute – Working Paper 2 6. UNDP ‘Human Development Report 2015: Work for human development’ (2015) 48-50; UNDP Human Development Reports: International Human Development Indicators http://hdr.undp.org/en/countries (accessed 6 October 2017.) J Rousselot ‘The impact of French influence on democracy and human rights in Cameroon’ (2010) 4 Cameroon Journal on Democracy and Human Rights 61-62.

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commitments in the context of the right to development in Africa. During this analysis we proceed to explore the factors restraining the realisation of the right to development in Cameroon. Based on the conviction that the right to development has the potential to engineer transformation in the country, we conclude with the suggestion that the right to development needs to be incorporated into the governance mechanism of the country as a development model lest the peoples of Cameroon be forced to resort to confrontational strategies owing to the betrayal of the constitutional promise of a better life.

2

Constitutional and treaty commitments on the right to development

Following proclamations on the right to development in the late 1960s, the 1972 Constitution of Cameroon became the first official instrument to enshrine this aspiration in the Preamble which remained in force even with the most recent amendment of the Constitution in 2008. Although preambles generally are considered as not having normative force, they highlight the commitments of government and, therefore, contain reliable evidence of what the state has promised to achieve and provide for its peoples.9 The Preamble to the Cameroonian Constitution establishes as a motivation for proclaiming the right to development a determination to devote all efforts in harnessing the country’s resources to ensure the wellbeing of every citizen.10 Read together with article 65 which stipulates that the Preamble forms an integral part of the Constitution, the right to development is understood as representing a legally-binding constitutional entitlement guaranteed to the peoples of Cameroon.11 However, it departs from the orthodox understanding of human rights as primarily individualistic in nature. A closer reading portrays the right to development in Cameroon as more than merely a claimable legal entitlement. In essence, it represents a postindependence model underscored by the principles of sovereignty, selfdetermination and, as Kamga reiterates, self-reliance on the country’s natural resources as a prerequisite for development that the government envisaged pursuing to raise the living standards of the people of Cameroon.12

9 10 11 12

T Chiviru ‘Socio-economic rights in Zimbabwe’s new Constitution’ (2014) 36 Strategic Review for Southern Africa 112. Preamble para 3 Constitution of the Republic of Cameroon 1972. S Kamga ‘Human rights in Africa: Prospects for the realisation of the right to development under the New Partnership for Africa’s Development’ LLD thesis, University of Pretoria, 2011204. As above.

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Such a revolutionary provision in the Constitution shortly after independence embodied an innate political goodwill to proceed with sweeping reforms to transform the country from the injustices of colonialism. However, the turning point has remained indistinct. Alluding to South Africa’s post-apartheid model of transformative constitutionalism,13 governance and development policy making in Cameroon ought to be regulated by the right to development enshrined in the Constitution. It requires radical policy reforms to translate this constitutional guarantee into concrete action, in the absence of which the level of human rights abuses and a low human development ranking provide reasons to question Cameroon’s commitments regarding the right to development.14 As envisaged by the Constitution, we estimate that the living standards of the peoples of Cameroon would have been much improved with the implementation of the right to development as a model for development. Unfortunately, such a model is yet to find practical expression in national development planning and policy making probably because of a lack of sufficient clarity on its transformative potential. To make this clarification, it is important to first look at the right to development broadly within the context of Africa.

3

Nature of the right to development in Africa

3.1

Major characteristics

The nature of the right to development in Africa is established by the African Charter,15 which Gawana intimates deserves particular

13

14

15

See K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 150; M Pieterse ‘What do we mean when we talk about transformative constitutionalism?’ (2005) 20 South African Public Law 155; P Langa ‘Transformative constitutionalism’ (2009) Prestige Lecture Stellenbosch University 2; K van Marle ‘Transformative constitutionalism as/and critique’ (2009) 20 Stellenbosch Law Review 286; K van Marle ‘The spectacle of post-apartheid constitutionalism’ (2007) 16 Griffith Law Review 411; T Roux ‘Transformative constitutionalism and the best interpretation of the South African Constitution: Distinction without difference’ (2009) 20 Stellenbosch Law Review 258; S Sibanda ‘Not purpose-made! Transformative constitutionalism, post-independence constitutionalism and the struggle to eradicate poverty’ (2011) 3 Stellenbosch Law Review 482; S Rosa ‘Transformative constitutionalism in a democratic developmental state’ (2011) 17 Stellenbosch Law Review 452. C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2013) 503-509. Cameroon has ratified the following instruments: the African Charter in 1989; the Constitutive Act of the African Union in 2001; the African Youth Charter in 2011; the African Charter on Democracy, Elections and Good Governance in 2011; and the Protocol on the Rights of Women in Africa in 2012. Cameroon is also morally bound by a range of soft law instruments to make the right to development a reality. Art 22 African Charter.

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attention,16 particularly as it represents the mechanism by which redistributive justice may be established. Literally, the right to development represents an integrated process for equalising opportunities for the advancement of all people to participate in and enjoy the benefits flowing from socio-economic and cultural development.17 It embodies a claim to self-determination with due regard to the liberty to make development choices that allow for equity and justice to prevail. Taking development in its broadest context as ultimately aiming at achieving well-being,18 it is important to clarify the fact that the right to development does not mean the right to economic growth19 and also does not exclude economic growth,20 which constitutes an important component in the holistic concept consisting of elements of economic, social and cultural development.21 The right to development in Africa guarantees substantive entitlements in terms of the achievement of wellbeing and legal entitlements in the sense that it can be claimed through legal processes, as we proceed to explain.

3.2

Substantive entitlements

Substantive entitlements entail the material or abstract things that people can anticipate to achieve to ensure well-being at the economic, social and cultural levels as a result of asserting the right to development, thus guaranteeing the opportunity for the advancement of human capabilities. The African Charter is not precise about what socio-economic and cultural development entails. However, a scrutiny of other provisions of the Charter indicates that the rights to property ownership, employment and income security would contribute to economic development.22 The rights to health care and education would contribute to social development,23 while the rights to the protection of traditional values, belief systems and customary practices would lead to cultural development.24

16 17 18 19 20 21 22 23 24

B Gawanas ‘The African Union: Concepts and implementation mechanisms relating to human rights’ in A Bösl & J Diescho (eds) Human rights in Africa: Legal perspectives on their protection and promotion (2009) 136. H Armiwulan ‘Development and human rights’ (2008) China Human Rights 32. AO Dąbrowska ‘Legal status of the right to development’ (2010) Haskoli Island University 3. A Sengupta ‘On the theory and practice of the right to development’ (2002) 24 Human Rights Quarterly 853. S Kamga & S Heleba ‘Can economic growth translate into access to rights? Challenges faced by institutions in South Africa in ensuring that growth leads to better living standards’ (2012) 9Sur-International Journal of Human Rights 82. A Sengupta et al ‘The right to development and human rights in development: A background paper’ (2004) Norwegian Centre for Human Rights–Research Notes 07/2004 6-8. Arts 14 & 15 African Charter. Arts 16 & 17(1) African Charter. Arts 17(2)-(3) & 18 African Charter.

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By stating that the right to development is to be achieved with due regard to people’s ‘freedom and identity’,25 the African Charter establishes that the guaranteed substantive entitlements can only be determined by the peoples concerned. Thus, only a collective, in accordance with their communal identity as a people, has the capacity to determine what constitutes socio-economic and cultural development. For instance, indigenous people are identified as manifesting distinct cultural, spiritual and lifestyle characteristics that distinguish them from other communities.26 Their conception of development is unlikely to respond to the same standards applicable to communities living a more urbanised and modern lifestyle. Contrary to the view that the right to development does not create entitlement to any substantive right,27 we contend that it actually does guarantee entitlement to improved well-being achievable through selfdetermination. This argument resonates with the fact that the right to development contains a specific entitlement ‘to participate in, contribute to, and enjoy economic, social, cultural and political development’.28 The aspect of political development is deliberately omitted in the African conception of the right to development on the basis that ‘the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights’.29 Political development is not inherent to human well-being and, thus, its absence does not devalue the right to development.

3.3

Legal entitlements

Informed by the injustices that motivated the formulation of development as a human right, the right to development forbids the further subjugation of the African peoples.30 It also guarantees protection against inappropriate actions that may jeopardise, cause a regression to or contravene the right to development.31 Its legal recognition in Africa, as Sengupta remarks, guarantees that it can legitimately be invoked before a court of law in accordance with the criteria necessary for making such a claim.32 Accordingly, it imposes obligations which sum up into the positive duty to take concrete action for the realisation of the substantive entitlements and the negative duty to ensure respect for the rights of African peoples to make their own development choices.

25 26 27 28 29 30 31 32

Art 22(1) African Charter. Art 1 ILO Convention on Indigenous and Tribal Peoples 1986 (No 196). Dąbrowska (n 18) 5. UN Human Rights (n 4) 4. Preamble African Charter. See art 5 UN Declaration; art 19 African Charter. Preamble para 8 African Charter. A Sengupta ‘The human right to development’ (2004) 32 Oxford Development Studies 186.

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When development is acknowledged to constitute an entrenched human right, it empowers rights holders with the legitimacy to demand accountability by requiring the state as the duty bearer to honour their treaty obligations.33 Thus, as a human right, the right to development accords to African peoples a justifiable basis for claiming that their governments have certain development obligations to fulfil.34 It guarantees that peoples can assert a claim on the grounds that their rights to development have been violated, and the state, as the duty bearer, is obligated to be accountable for such action.35 Looking at the human rights situation in Africa, and particularly that of Cameroon, if the right to development is to be achieved the following standards must be adhered to.

4

Standards for realisation

The standards set by the right to development in Africa should be understood to mean the highest attainable benchmarks for determining its realisation. These standards are identified as the normative standards for realisation as a human right concept and the pragmatic standards for achievement as a paradigm for development, which practically combine into what we describe as a right to development model.

4.1

Normative standards

4.1.1

Inalienability of the right to development

The Vienna Declaration and Programme of Action (Vienna Declaration) underscores the fact that human rights and basic freedoms are the birthrights.36 In this regard, the right to development is recognised universally as an inalienable human right, meaning that it cannot be taken away, bargained for less than its inherent value or set aside for any reason including the lack of development.37 Sengupta explains this to mean that the right to development is absolute and cannot be negotiated.38 According to Haocai, the right to development is of primary importance to the millions of peoples in developing countries that are yet to align with globalisation which, as he argues, can only be attained through claiming that right.39

33 34 35 36 37 38

Sengupta (n 32) 181. Sengupta 187. S Jahan ‘Human rights-based approach to poverty reduction: Analytical linkages, practical work and UNDP’ (2004) UNHCHR High-Level Seminar on Global Partnership for Development on RTD 2. Vienna Declaration and Programme of Action UN Doc A/CONF.157/24 25 1993, para I(1); A Sengupta ‘Realising the right to development’ (2000) Development and Change 558. Kamga (n 11) 121. Sengupta (n 36) 563.

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189

Collective focus on peoples

According to the orthodox understanding of human rights, acknowledging that development is a human right gives the impression that it is vested in the individual.40 On the contrary, the fact that the right is an entitlement that can only be claimed by peoples as a collective and not necessarily by individuals is fundamental to a realistic understanding of the right to development in Africa.41 This is embedded in the African construction of collectivism which situates individual functioning only in the framework of the broader community.42 Thus, an individual cannot possibly succeed with a personal claim on the right to development, but can equally exercise and enjoy that right as part of a collective. It is important to note that although improved well-being is guaranteed to every citizen of Cameroon as an individual constitutional entitlement, the right to development enshrined in the Constitution basically is collective in nature. It places an uncompromised emphasis on the fact that national development must aim at ameliorating human well-being. As Kunanayakam puts it, the right to development demands that peoples should be seen as subjects rather than as objects of development.43 To put people at the centre of the development process means to invest in the advancement of their capabilities.44 However, as Gaeta and Vasilara assert, this aspiration remains far-fetched to the poor who continue to ‘struggle in grinding poverty’.45 In Cameroon it yet remains to be seen that government policy really is people-centred to ensure the realisation of the constitutional promise of improved living standards. The collectivism ascribed to the right to development constitutes the mechanism through which combined claims could be made by peoples who otherwise would not have the capacity to advance individual claims. The right to development thus makes provision for the inclusiveness of all peoples in the development process and in the enjoyment of the benefits deriving thereof. As Haocai argues, there are no collective rights to speak

39 40

41 42 43 44 45

L Haocai ‘Remarks at the opening ceremony of the Beijing forum on human rights’ (2008) China Human Rights 1. L Sohn ‘The new international law: Protection of the rights of individuals rather than states’ (1982) 32 American University Law Review 48; R Kiwanuka ‘The meaning of “people” in the African Charter on Human and Peoples’ Rights’ (1988) American Journal of International Law 85. Sengupta et al (n 21) 15. LR Carson ‘“I am because we are”: Collectivism as a foundational characteristic of African American college student identity and academic achievement’ (2009) 12 Social Psychology and Education 327. T Kunanayakam ‘Report of the Working Group on the Right to Development on its fourteenth session’ (2013) Human Rights Council A/HRC/24/37 4-5. Gawanas (n 16) 145. A Gaeta & M Vasilara ‘Development and human rights: The role of the World Bank’ (1998) The International Bank for Reconstruction and Development/The World Bank 5.

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of if individual rights are not protected. Likewise, collective rights provide the framework for the realisation of individual rights.46 4.1.3

Rights-based approach to development

The right to development does not only represent a claimable entitlement. It involves the process by which economic, social and cultural development can be achieved, which in effect entails the realisation of basic human rights and freedoms.47 It envisages an alternative development model that is human rights-based and anchored in the concept of equity and justice.48 The rights-based formulation looks at development holistically both in terms of process and goal in the sense that the development process must be designed to comply with human rights standards and that fairness is guaranteed to ensure the equitable sharing of development gains.49 It thus may be argued that a violation of the right to development would be established if the rights-based approach is not respected, as is the case in Cameroon where human rights abuses are endemic.

4.2

Pragmatic standards

Despite scepticism about the right to development,50 the manner in which the right is conceived in Africa illustrates that it not only is a human right in the ordinary sense but in effect an emerging development paradigm.51 Fundamentally, the right to development was conceived to institute transformational justice against the negative impact of global incompatibilities that have increasingly affected development in Africa.52 It proposes an alternative model that looks at development from a rightsbased point of view with the assurance that human well-being can be attained through the concurrent achievement of economic growth and the realisation of human rights.53 In spite of the role that economic growth may play in the realisation of the right to development, McKay and Vizard point out that a focus on economic growth alone raises concerns about the impact that accelerated 46 47 48 49 50 51 52 53

Haocai (n 39) 4. Sengupta (n 32) 180. Sengupta (n 19) 847. Sengupta 846; Sengupta (n 32) 180. K de Feyter ‘Right to development: A treaty and its discontents’ (2016) © 2016 Prof de Feyter Law and Development Research Group University of Antwerp 1-27; Vandenbogaerde (n 6) 197-209. Ibhawoh (n 4) 103; UN Human Rights (n 4) 495; Udombana (n 4) 762; Nagan (n 4) 30. CR Garavito, J Kweitel & LT Waisbich ‘Development and human rights: Some ideas on how to restart the debate’ (2012) SUR-International Journal of Human Rights 6. MK Williams ‘Bringing human rights to bear on strategies to achieve the Millennium Development Goals’ (2005) Keynote address Irish Department of Foreign Affairs 7th Annual NGO Forum on Human Rights 2.

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growth may have on human rights.54 It also does not negate the extent to which respect for human rights may leverage economic growth.55 According to Kamga, the right to development suggests a radical shift from the economic growth theory of ‘developmentalism’,56 to looking at development in human right terms.57 4.2.1

Resource ownership

The peoples of Cameroon are constitutionally entitled to the sovereign ownership of the country’s natural resources, which the state is obligated to utilise for the well-being of the entire population.58 The African Charter affirms the right to freely dispose of a country’s wealth and natural resources, which must be exercised in the exclusive interest of the people who must in no circumstances be deprived of it.59 The African Charter further establishes that the right to development can be achieved only with due regard to the ‘freedom and identity’ of the African peoples,60 which allow for sovereignty in development policy making.61 Freedom and identity represent a range of liberties, including the liberty of ownership of the African patrimony, which is portrayed as a ‘common heritage’ from which benefits can be derived by exercising the right to development.62 Owing to the endemic developmental injustices in Africa, perpetuated through the deprivation of rights and dispossession of wealth and resources, the right to development guarantees the freedom to make informed development choices and the liberty of action to translate such choices into concrete entitlements.63 Because resources constitute an essential component of the realisation of the right to development, granting the right of sovereignty ownership of the continent’s resources is an affirmation of self-determination, which the African Charter recognises as an ‘unquestionable and inalienable right’ granted to the peoples of Africa to pursue their socio-economic and cultural development as they deem appropriate.64 It qualifies the right to development as a shared

54 55 56 57 58 59 60 61 62 63

64

A McKay & P Vizard ‘Rights and economic growth: Inevitable conflict or “common ground”?’ (2005) Overseas Development Institute 4. McKay & Vizard (n 54) 2. Kamga (n 11) 121. Gaeta & Vasilara (n 45) vii. Preamble Constitution of Cameroon (n 10). Art 21 African Charter. Art 22(1) African Charter. Art 1(2) UN Declaration. Art 22(1) African Charter. K Sing’ Oei ‘Engaging the leviathan: National development, corporate globalisation and the Endorois quest to recover their herding grounds’ in K Henrard (ed) The interrelation between the right to identity of minorities and their socio-economic participation (2013) 395; Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) (Endorois case), para 283. Art 20 African Charter.

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entitlement to self-determine development priorities without being subjected to coercion and exploitative practices.65 4.2.2

Broad-based participation

Unlike in neo-liberal understanding where development is characterised by individualism and the accumulation of wealth,66 the right to development allows for the inclusive participation of all peoples in the development process.67 Inclusive participation entails a deep-rooted involvement that has an important effect in advancing people’s capabilities in the course of creating development. This is relevant in the developmental context in Africa where, in accordance with the principles of the right to development, all peoples are assured of an indispensable role as a matter of right to meaningfully shape the development process. In this regard, greater social justice could be attained by extending benefits to a wider number of persons. In line with Perry’s estimation that participatory processes are critical to promoting genuinely sustainable forms of development,68 states are required to encourage popular participation as an important factor for the realisation of the right to development.69 As a minimum standard for inclusive participation, as Kamga points out, peoples’ prior informed consent must be obtained.70 The African Commission established in the Endorois litigation that as participation aligns with the right to development, the process must be carried out in good faith to ensure that disadvantaged communities are actively involved.71 4.2.3

Access to equal opportunity

The right to development in Africa provides the opportunity for the enjoyment of well-being which, according to Marks, creates equality of welfare.72 It grants a right of access to the opportunities that entitle all peoples to basic needs and the associated notion of conversion of such

65 66 67 68 69 70 71 72

NS van der Have The right to development and state responsibility: Towards idealism without a sense of realism? LLM dissertation, University of Amsterdam, 2011 4. OW Femi ‘Adam Smith’s view in wealth of nations and how it has led to the growth and consolidation of capitalism’ (2015) Academia.edu 2-3. Art 1(2) UN Declaration. R Perry ‘Preserving discursive spaces to promote human rights: Poverty reduction strategy, human rights and development discourse’ (2011) 7(1) Journal on Sustainable Development Law and Policy 76. Art 8(2) UN Declaration. SD Kamga ‘The right to development in the African human rights system: The Endorois case’ (2011) 2 De Jure 390; Endorois case (n 63) paras 290-291. Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001), para 54; Endorois case (n 63) paras 281 & 289. S Marks ‘Obligations to implement the right to development: Political, legal, and philosophical rationales’ in BA Andreassen & SP Marks (eds) Development as a human right: Legal, political and economic dimensions (2006) 59.

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needs into rights.73 The exercise of this right engenders another right to choose between alternatives, embodying the freedom to determine which options to trade off and which development path to pursue. Sengupta explains this by illustrating that the state, for instance, cannot arbitrarily decide where people must live just because it provides housing but, preferably, people must be granted the freedom to choose their own place of residence.74 Understanding development to mean a commitment towards improved human well-being and social equity, otherwise referred to as sustainable development, equality of opportunity entitles present generations to meet their needs without compromising the rights of future generations to also meet their own needs.75 This is summarised by the fact that all peoples are granted the right to equal enjoyment of the benefits of development.76 The two cases that have emerged from Cameroon alleging marginalised treatment as a violation of the right to development77 suggest that the government does not sufficiently guarantee equality of opportunity to all its peoples in their access to or benefit from the country’s resources. Equality of opportunity in Cameroon is guaranteed only in principle by the political promise contained in the Preamble to the Constitution to ensure improved well-being for every one of its citizens without discrimination. To translate this abstract preambular promise into substantive equality demands effective policy reforms that allows for fairness in the development process. Unfortunately, this has not been the case in Cameroon where, due to continuous subjugation, large segments of the population remain deprived of the right to development and, thus, are exposed to extreme levels of poverty.

4.3

Right to development model for eradicating poverty

Poverty which in itself, as Doz Costa explains, is a violation of human rights, constitutes one major obstacle to development in Africa.78 Poverty is defined as ‘a human condition characterised by sustained or chronic

73 74 75 76 77 78

U Baxi ‘The new international, economic order, basic needs and rights: Notes towards development of the right to development’ (1983) 23 Indian Journal of International Law 231. Sengupta (n 36) 8; Endorois case (n 63) para 278. GH Brundtland ‘Report of the World Commission on Environment and Development: Our common future’ (1987) Brundtland Commission 27. Arts 1(1) & 6(2) UN Declaration; para I(10)Vienna Declaration (n 36). Paras 1-18 Gunme (n 3); Bakweri Land Claims Committee v Cameroon (2004) AHRLR 43(ACHPR 2004), para 6. F Doz Costa ‘Poverty and human rights from rhetoric to legal obligations: A critical account of conceptual frameworks’ (2008) SUR-International Journal of Human Rights 86-88.

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deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living’.79 In practical terms, poverty is injustice resulting from the policy choices that create and sustain social inequalities.80 The peoples of Africa are not poor because they are incapable but because they are rendered poor by political design. This relates to Sen’s description of poverty as a deprivation of the freedom to advance the human potential.81 Following these definitions, poverty in Africa can rightly be said to derive from developmental injustices. As a remedy, the right to development provides the framework for eradicating poverty, which for the most part entails absolute freedom for the peoples of Africa. In this light Gauri and Gloppen explain that development has increasingly been framed in the language of human rights, setting apart poverty eradication as a legal imperative.82 In the same line of thinking, Perry makes it clear that the right to development constitutes a novelty in the human rights and development discourse in the sense that it combines the complex relationship between development, poverty eradication and the realisation of human rights.83 As Sengupta further explains, it implies that by asserting the right to development, substantive development can be achieved with equity and justice.84

5

Restraining factors to the right to development in Cameroon

5.1

Politics of subjugation and deprivation of human rights

As highlighted earlier, the 1972 Constitution became the pioneer instrument to afford statutory recognition of the right to development as a guarantee to improve living standards in the country. In view of achieving this objective, the government initiated a progressive policy of ‘balanced development, and planned liberalism’, which unfortunately was soon replaced by an institutionalised flagrant violation of human rights,85 which has meant that the constitutional right to development is unattainable. Except for the right to primary education guaranteed to children, the

79

80 81 82 83 84 85

ESCR Committee ‘Substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’ Statement adopted by the ESCR Committee on 4 May 2001 para 8. D Brand et al ‘Poverty as injustice’ (2013) 17 Law, Democracy and Development 273-275. A Sen Development as freedom (1999) 87-95. V Gauri & S Gloppen ‘Human rights based approaches to development: Concepts, evidence, and policy’(2012) World Bank Development Research Group 2. Perry (n 68) 78. Sengupta (n 19) 850. WJ Awung & M Atanga ‘Economic crisis and multi-party politics in Cameroon’ (2011) 5 Cameroon Journal on Democracy and Human Rights 102.

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Constitution does not enshrine socio-economic and cultural rights, which rights are inherently related to the right to development. Although President Biya made a political statement at the United Nations (UN) in 2001 claiming that the government takes the right to development seriously,86 the situation in the country does not give the impression that it actually does. A report by the Ministry of Justice on the human rights situation in the country87 makes no mention of the right to development. The report further provides a summary analysis of the African Commission’s decision in the Gunme case, but omits the finding relating to the right to development.88 The conspicuous silence about the right to development in Cameroon may be explained by the colonial bond that continues to bind the country to its former colonial master.

5.2

Colonial allegiance to France

The end of colonial rule saw most colonial powers taking a complete hands-off approach to their territorial possessions. However, for Cameroon, like most of Francophone Africa; decolonisation rather marked a re-invention of imperial relations through a range of exceptionally secretive ‘cooperation accords’,89 which Moncrieff states defy standard interpretations of cooperation.90 Contrary to the constitutional promise regarding the right to development in Cameroon, the fulfilment of the right remains stifled by the nature of FrancoCameroon relations which, as Rousselot highlights, allows France greater benefit at the expense of the well-being of the Cameroonian people.91 She also notes that the colonial bond remains unbroken because of ‘the economic benefits that Cameroon represents for France’.92 In spite of the law allowing states the right to formulate domestic policies and to exercise sovereignty over their natural wealth and resources,93 Cameroon has since independence succumbed to unfettered French control over the country’s resources and has shaped domestic policies to ensure that they are not contrary to French interests.94

86 87 88 89

90 91 92 93 94

See Kamga (n 11) 204. MinJustice ‘Report by the Ministry of Justice on the Human Rights in Cameroon in 2009’ (2010). MinJustice (n 87) 34-35. MR Koutonin ‘14 African countries forced by France to pay colonial tax for the benefits of slavery and colonisation’ (2014) Silicon Africa http://www.silicon africa.com/france-colonial-tax/ (accessed 30 October 2017); G Feuer ‘La révision des accords de Coopération Franco-Africains et Franco-Malgaches’ (1973) Annuaire Français De Droit International 720. R Moncrieff ‘French relations with sub-Saharan Africa under President Sarkozy’ (2012) South African Institute of International Affairs 6-7. Rousselot (n 8) 60. Rousselot 64. Art 21 African Charter; arts 1 & 2 UN Declaration. Rousselot (n 8) 64.

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Cameroon is constrained by the terms of the cooperation accords to prioritise French interests with scant regard to whether such interests are compatible with those of the Cameroonian people.95 The extent of France’s intervention in the domestic politics in Cameroon is instructive to explain the level of its reaction when its interests in the country are at stake. The wave of democratisation in Cameroon in the 1990s96 saw the birth of a radical opposition movement that orchestrated a nation-wide civil disobedience characterised by a ‘ghost city’ campaign; the boycott of French goods and services; the grounding of business activities; and a refusal to pay taxes and utility bills, which almost brought the country to a standstill.97 In the heat of the political turmoil that spread across Africa, French President Mitterrand issued a policy statement at the La Baule Françafrique summit pledging unflinching support for democratisation in Africa.98 However, the political instability in Cameroon posed a real threat to French economic interests and, therefore, caused the Mitterrand government to compromise on its policy. Owing to fears of losing control of the country to the radical opposition, it is reported that between 1990 and 1992 France increased development assistance to Cameroon to the tune of FF335 million (approximately US $55,7 million), in addition to granting the country debt relief.99 Unlike other African governments that were swept off the political scene by the wave of democratisation, the Biya regime, backed by French support, used militarised operational commands in a prolonged state of emergency to thwart popular demands for change.100 The turn of events which saw the suppression of the anti-French opposition leads to the conclusion that French assistance to Cameroon actually was not intended to support the democratic process but to retain the Biya regime in power in return for protecting French interests.101 Another popular uprising in 2008 triggered by increasing prices in food and other basic commodities was also ruthlessly suppressed by the government, with the support of the resident French military in the country.102

95

K Amuwo ‘France and the economic integration project in Francophone Africa’ (1999) 4 African Journal of Political Science 4. 96 Awung & Atanga (n 85)95. 97 Awung & Atanga 116. 98 AK Ngwa ‘The baobab tree lives on: Paul Biya and the logic of political survival’ (2009) African Studies Department Johns Hopkins SAIS 6; Rousselot (n 8) 68; Moncrieff (n 90) 8. 99 Rousselot (n 8) 68. 100 Rousselot 68-69; Ngwa (n 98) 8-10. 101 Rousselot (n 8) 69. 102 Rousselot 70.

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There is no denying that France remains the highest provider of development assistance to Cameroon.103 The Organisation for Economic Cooperation and Development indeed identifies that in 2011 France was Cameroon’s leading donor, providing a net official development assistance of US$202 million.104 It could be imagined that such assistance would translate directly into improved well-being for the Cameroonian people. Paradoxically, the living standard in Cameroon remains unacceptably low, ranking in the lowest category at the 152nd position out of 186 on the human development index.105 It is not surprising that France’s support to Cameroon is more self-seeking and, therefore, hinders rather than promotes development in the country. As Sengupta rightly underscores, the right to development entails equity and justice both in the development process and in the distribution of development gains.106 In this instance, equity and justice necessitates a balance in power relations between Cameroon and France if the right to development guaranteed to the peoples of Cameroon is to be achieved. Although Cameroon has adopted a promising vision 2035 development plan in which it envisages to reconsider its development processes,107 it is not certain whether the agenda will be achieved under the prevailing cooperation arrangement with France. Dependency theorists posit that developing countries can only advance by severing their links with developed countries.108 Following this logic, if Cameroon is to achieve the 2035 development plan, the colonial bond with France needs to be broken. This will require France to give up most of the privileges that it currently enjoys to ensure a shift in power relations in favour of greater autonomy for Cameroon in matters of domestic policy formulation. Of course, as Amuwo rightly observes, ‘France is hard put to close shop in Africa’, a sentiment that has been reiterated by French heads of states ruling out the possibility of abandoning their colonial possessions in Africa.109 Similar sentiments have been expressed by Francophone African leaders who see cooperation with France as indispensable for the survival of their countries.110 Consequently, prospects for development in Cameroon have been held at bay through the nature of Franco-Cameroon 103 C Mbangsi ‘Cameroon/France: Does Cameroon benefit from special relationship?’ (2013) Iroko Africa http://irokoheritage.com/2013/08/22/cameroon-special-relation ship-with-france-a-benefit/ (accessed 5 September 2017). 104 OECD OECD Development Cooperation Peer Reviews: France 2013 (2014) 118. 105 UNDP ‘Human Development Report 2013: Cameroon’ (2013) UNDP 2; UNDP ‘Human Development Reports: Human Development Index trends 1980-2013’ http:// hdr.undp.org/en/content/table-2-human-development-index-trends-1980-2013 (accessed 30 August 2017). 106 Sengupta (n 19) 849. 107 MINEPAT ‘Cameroon Vision 2035: Working paper’ (2009) Republic of Cameroon ix. 108 K Singh Rural development: Principles, policies and management (2003) 63. 109 Amuwo (n 95) 2-4. 110 Amuwo 2; the late President Bongo of Gabon is quoted to have also remarked that ‘France without Gabon is like a car without petrol, Gabon without France is analogous to a car without a driver’.

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relations that constrains Cameroon from adopting appropriate domestic policies to ensure the realisation of the constitutional right to development.

5.3

Debt burden

The boom in export trade across Africa during the 1960s ushered in a period of transformation that envisaged ‘greater development, equality and social justice’.111 However, the optimism soon translated into plunging depression, stagnation and a debt crisis as development initiatives dramatically grounded to a halt.112 In a desperate effort to stabilise the economy following the period of depression and instability, the Cameroonian government resorted to donor assistance, which unfortunately failed to rescue the country.113 The situation was exacerbated with the introduction of the International Monetary Fund (IMF) and World Bank-engineered Structural Adjustment Programmes, which resulted in the devaluation of the CFA franc,114 the discontinuation of development initiatives and deepening poverty as living conditions plummeted.115 The destitute government of Cameroon, as most other African governments, wrongfully succumbed to the IMF and World Bank’s illadvice to introduce austerity measures which, instead of salvaging the ailing economy, rather pushed the country into a debt trap.116 At face value, the austerity measures seemed like sound economic policies but in effect were intended to constrain African governments to pay off accumulated debts or surrender their economies to foreign control.117 As Boaduo points out, by 1990 many African countries had borrowed much more than they could pay off.118 Left with a deteriorating situation and a negative balance sheet, the IMF and the World Bank found a reason to invade African economies with even more stringent austerity measures.119 The strategy worked and the indebted governments were compelled to rollback the provision of basic services; to privatise state-owned enterprises, most of which were purchased by foreign conglomerates; and to reduce public expenditure in the form of salary cuts and massive retrenchments as well as currency devaluation such as, for example, the CFA franc which in 1994 suffered a 104 per cent devaluation.120 Like

111 NAP Boaduo ‘Africa’s political, industrial and economic development dilemma in the contemporary era of the African Union’ (2008) 2 Journal of Pan African Studies 96. 112 As above. 113 MINEPAT (n 107) ix. 114 Ngwa (n 98) 4. 115 MINEPAT (n 107) ix. 116 Boaduo (n 111) 97. 117 As above. 118 As above. 119 As above. 120 Awung & Atanga (n 85) 95; Boaduo (n 111) 97-99; Ngwa (n 98) 5.

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other African countries, Cameroon became ensnared in a debt trap that has rendered the country permanently dependent on foreign loans in substitution of fiscal revenues.121 The structure of Cameroon’s external debt stands at 50,7 per cent distributed as follows: World Bank, 24,5 per cent; IMF, 15,6 per cent; African Development Bank Group, 13,1 percent; Paris Club, 12,3 per cent; multilateral donors, 20,6 per cent; and other official bilateral donors, 13,6 per cent.122 The implication is that a greater proportion of the country’s wealth and resources has to be deployed for servicing these debts, thus virtually robbing the people of any measure of self-determination. In our estimation, the heavy debt burden arises not because of a dire need for external support but because of the lack of a workable model to enable domestic policy making in harnessing the country’s extensive wealth. Under such circumstances, it is unlikely for the government to create the conditions for the realisation of the right to development without provoking a coercive reaction from its many creditors.

5.4

Weak right to development jurisprudence

The two right to development-related cases that have emanated from Cameroon have had no impact in compelling the government to take seriously its constitutional and treaty obligations on the right to development. The Bakweri Lands Claim case, in which the complainants alleged the expropriation of their historic lands as constituting a violation of their right to development protected by the African Charter, was the first right to development claim to be brought before the African Commission.123 However, the complaint failed the admissibility test for not having satisfied the requirement of exhausting local remedies and, therefore, the Commission did not have the opportunity of deciding the case on the merits.124 The Gunme case involved 14 individuals acting on their behalf and on behalf of the peoples of Southern Cameroon who for a few decades had felt treated unfairly by the state. The complainants alleged marginalised treatment by the government amounting to a violation of a range of provisions of the African Charter, including the right to development.125 In adjudicating the case, the African Commission held that the realisation of the right to development

121 GJ Akum ‘The impact of foreign debt on GDP growth: Cameroon MSc dissertation, Ritsumeikan Asia Pacific University, 2011 8. 122 IMF ‘Cameroon: Staff report for the 2010 Article IV consultation and debt sustainability analysis’ (2010) IMF Country Report 10/25 Washington DC36; Akum (n 121) 8. 123 OC Okafor ‘A regional perspective: Article 22 of the African Charter on Human and Peoples’ Rights’ in UN Human Rights (n 4) 376. 124 As above. 125 Paras 1-19 Gunme case (n 3).

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posed a challenge to the respondent state in the sense that it is a developing country with scarce resources.126

Basing solely on ‘explanations and statistical data’ provided by the respondent state on how it allocates resources in various socio-economic sectors, the Commission hastily concluded that it found no violation of the right to development.127 Such a conclusion, as we argue, was hastily drawn in the sense that the right to development in Africa does not straightforwardly invoke the resource availability and progressive realisation requirements that are commonly associated with the realisation of socio-economic and cultural rights, as the African Commission held. The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes the requirement of development cooperation for the realisation of the rights enshrined therein. Article 22 of the African Charter does not impose such a requirement, which means, as other scholars have also argued, that the right to development in Africa demands immediate realisation notwithstanding resource constraints.128 Because development is an ongoing process, immediate realisation entails taking at least the procedural measures to ensure that the substantive components are increasingly achieved. In this regard, the African Commission held in the Endorois decision that ‘[a] violation of either the procedural or substantive element constitutes a violation of the right to development’.129 The standard for adjudication that the African Commission should have applied was to test the substantive contents of the right in question and not only the means of achievement on which it based its conclusion. The Vienna Declaration states that the lack of development may not be invoked to justify the failure to achieve the right to development.130 By taking the defensive stance in favour of the respondent state on the basis that it is a ‘developing country with scarce resources’, the African Commission failed to do justice to the complainants. Being a developing country does not necessarily imply a lack of resources for development. Cameroon in reality is not a resource-poor country as the African Commission made it out to be. In the Preamble to the Constitution the state takes cognisance of the fact that the country is not lacking in resources but rather explores how to equitably utilise the resources to ameliorate living standards. Unfortunately, the complainants in their submissions failed to invoke the state’s constitutional obligation regarding the right to development.

126 Para 206 Gunme case. 127 Para 197 Gunme case. 128 DM Chirwa ‘Towards revitalising economic, social, and cultural rights in Africa: Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria’ (2002) Human Rights Brief 15. 129 Para 277 Endorois case (n 63). 130 Para I(10) Vienna Declaration (n 36).

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In accordance with the promotion mandate necessitating research on issues pertaining to human and peoples’ rights in Africa,131 the African Commission had the duty to commission a study on Cameroon’s resource potential and the manner of allocation of such resources to determine whether the complainants’ claims were founded. The basis on which the complainants formulated their claim was the question of equitable distribution with evidence of ‘cases of economic marginalisation and lack of economic infrastructure’.132 The inquiry that the African Commission should have engaged with is whether the country’s resources had been equitably distributed. In our understanding, ‘economic marginalisation’, which the complainants averred, stems from discriminatory practices resulting from unfair resource allocation. Paradoxically, the African Commission found the respondent state guilty of discriminatory practices133 but failed to establish a violation of the right to development resulting from such discriminatory practices. The Commission failed to properly investigate the facts to be able to determine whether the allocation of resources was equitable and, thus, we argue that its decision was one-sided and biased. A favourable ruling is likely to have had a positive impact on national development policy making, not only for Cameroon but for Africa as a whole. However, the African Commission squandered the opportunity to advance the right to development.

6

Conclusion

An indispensable prerequisite for raising living standards as a substantive entitlement guaranteed to all the peoples of Cameroon is the need to create an enabling environment for the enjoyment of the right to development. It requires the government to take appropriate measures in the form of legislation, policy reforms, genuine human rights guarantees as well as implementation and enforcement mechanisms. It also requires taking the right to development seriously as a development model for engineering transformation in the country as a means of rupturing the status quo of the predatory nature of Franco-Cameroonian relations, which is more exploitative of than beneficial to Cameroon. That is, if the government has the political will to do so because, as Sengupta rightly observes, the right to development can most effectively be achieved through political processes.134 However, when ‘political frontiers’ and conventional strategies at vindicating popular demands are blurred and the balance of political forces

131 132 133 134

Art 45(1)(a) African Charter. Para 205 Gunme case (n 3). Paras 100 & 215(1)(1) Gunme case. Sengupta (n 19) 860.

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become overbearing against a subjugated people, it is not unlikely that recourse may be had to extreme measures as the only means to achieve redistributive justice.135 Although the right to development originally was not designed to be confrontational, the Cameroonian government’s intransigence in addressing the legitimate expectations for better living standards leaves its dispossessed peoples with no other option. It is noted that it is not by natural design that over one billion people around the world are ‘locked in the jaws of poverty’ but because they are denied their fundamental right to development.136 Most popular uprisings around the world have often resulted from a denial of human rights and the deprivation of basic survival needs. Because political and legal processes do not provide sufficient assurance that these essential entitlements embodied in the right to development can be achieved, the peoples of Cameroon, as demonstrated by the Anglophone population, are left with the only alternative, namely, to become radical as a legitimate means of asserting the right to development.

135 See JF Handler Social movements and the legal system: A theory of law reform and social change (1978) 22; C Mouffe On the political: Thinking in action (2005) 30. 136 UN ‘25th Anniversary of the Declaration on the Right to Development’ http:// www.un.org/en/events/righttodevelopment/ (accessed 22 November 2017).

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11

THE RIGHT TO DEVELOPMENT IN UGANDA: MYTH OR REALITY?

Ginamia Melody Ngwatu*

1

Introduction: The right to development and some Ugandan history

One of the definitions that have been attributed to development is to view it as a comprehensive process that goes beyond economics to cover social, cultural and political fields with a view to ensuring ‘constant improvement’, in terms of the progressive and regular improvement of well-being.1 This definition is a departure from previous definitions that viewed development in terms of industrialisation2 which, unfortunately, the President of Uganda appears to adopt in his quest to convert Uganda to a middle-income economy by 2021,3 thus prioritising over improvement in the economic and social well-being of citizens. For there to be development, it is recommended that the process is participatory and efforts are to be undertaken to guarantee a fair and equitable distribution of the benefits in line with human rights standards for the well-being of all people.4 Human rights and development have been described as being interdependent and mutually-reinforcing.5 Authors such as Sengupta link human rights and development by determining that various human rights may be enjoyed if the outcomes of development are attained.6 Consequently, the changes being undertaken ought to be more visible than the actual rights to be enjoyed, for instance, through growth of resources * 1 2 3 4 5 6

Doctoral candidate, Centre for Human Rights, University of Pretoria, South Arica; [email protected] A Sengupta ‘The human right to development’ (2004) 32(2) Oxford Development Studies 181. Sengupta (n 1) 180. ‘Uganda: We can be a middle-income economy in 5 years’ The Observer 11 July 2016 http://allafrica.com/stories/20167110308.html (accessed 6 September 2017). Sengupta (n 1) 180. JC Mubangizi ‘A human rights-based approach to development in Africa: Opportunities and challenges’ (2014) 39(1) Journal of Social Science 70. Sengupta (n 1) 183. 203

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and institutions.7 The enjoyment of social and economic rights is key to the realisation of development,8 hence the link between the two concepts of human rights and development. These social and economic rights include the rights to education, health care, food, water, social security and housing, although these are ordinarily treated as secondary rights.9 Considering that the right to development and socio-economic rights are indivisible and interconnected, the need for the attainment of these rights is crucial for Uganda. Consequently, the right to development does not merely involve economic and social development; it is both an independent right and one that is intrinsically linked to the full enjoyment of a range of human rights with social, cultural, political and economic dimensions.10 This is taking into account Uganda’s turbulent political history that has led to stagnation in development in some parts of the county; especially also considering that regime change in the country has never been peaceful. Since 1986 Uganda has had one regime, and it was hoped that during the last 31 years of the National Resistance Movement (NRM) government, the right to development would substantially have been realised and enjoyed by all Ugandans. However, this has not been the case, with 84 per cent of the population of Northern Uganda living below the poverty line, representing a remarkable increase from 64 per cent in 2006.11 The recognition of the right to development as a human right in Uganda has its origins in a commission of inquiry that was instituted under the Commission of Inquiry Act Legal Notice 512 and headed by Justice Arthur Oder. The Commission sought to investigate all human rights abuses that occurred under the pre-1986 governments from the time of Uganda’s independence on 9 October 1962 until 25 January 1986 when President Yoweri Museveni assumed power. Following the recommendations of the commission of inquiry, some aspects were incorporated into the 1995 Ugandan Constitution, including the insertion of a Bill of Rights as well as the creation of a national human rights institution. It was the Constitutional Review Commission headed by Justice Benjamin Odoki that brought about the amendments to the Ugandan Constitution, as alluded to, and drafted constitutional amendments that recognised the existence of the right to development as a human right, which the new NRM government under President Yoweri Museveni was to enforce.

7 8 9 10 11 12

As above. Mubangizi (n 5) 70. As above. B Gawanas ‘The African Union: Concepts and implementation mechanisms relating to human rights’ in A Bösl & J Diescho J (eds) Human rights in Africa: Legal perspectives on their protection and promotion (2009) 144. ‘Poverty level in Uganda down by 11 percent – Report’ Daily Monitor 20 September 2016 http://www.monitor.co.ug/News/ (accessed 15 October 2017). Commission of Inquiry Act 1986.

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The President’s subsequent election campaign promises never strayed far from socio-economic development. In 1996 the pledge was to ‘tackle the tasks ahead’, and the emphasis was on the modernisation of agriculture; in 2001 the pledge was consolidating the achievements; in 2006 it was prosperity for all; and in 2011 it was ‘prosperity for all: better service delivery and job creation; while in 2016 the campaign pledge was ‘taking Uganda to modernity through job creation and inclusive development’.13 However, it has now reached a point where ordinary Ugandans wish to see some tangible change in their socio-economic welfare. According to the Uganda Human Development Report, livelihood and health were highlighted as determinants of poverty in areas that have experienced violent conflict.14 In the report it was noted that where livelihood and health are negatively affected, there would be a corresponding limited opportunity for advancement in human development.15 Uganda has had various partners supporting different development interventions in the country, including partnering with foreign embassies and aid agencies, which render direct budget support to government ministries, departments and agencies. Donor support has also been achieved through a sector-wide approach such as the Justice Law and Order Sector where donor countries jointly fund government programmes based on priorities set by the sector. The idea here is that aid and policy would be used to achieve economic growth.16 The right to development has been defined as consisting of three main aspects, namely, the right to a means of creating a conducive environment for development; the right to the process of creating this environment; and the right to the benefits that flow from the creation of such an environment.17 The government of Uganda may create what it perceives to be a conducive environment for the attainment of the right to development. The question is whether such an environment could be considered conducive in the light of the perception of the citizens. Does it address development issues in a way that caters for their human rights concerns, needs and aspirations? In the formulation of these development policies, how participatory and inclusive are the policy formulation and implementation processes? It should be borne in mind that each region in Uganda has its own unique human rights and development needs. For Northern Uganda, their priorities would stem from the need for the

13 14 15 16 17

Uganda (n 3). United Nations Development Programme ‘Uganda human development report: Unlocking the development potential of Northern Uganda’ (2015) 19. As above. P Collier ‘Development and conflict’ (2004) Centre for the Study of African Economies – Oxford University. Sengupta (n 1) 183-192.

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implementation of transitional justice mechanisms, including reparations.18 For Eastern Uganda, their human rights concerns would ordinarily stem from famine and mudslides that annually plague the area.19 Meanwhile, in the western part of the country, especially in the Rwenzori area, most of their concerns would arise from floods and insecurity caused by Allied Democratic Front rebels.20 Central Uganda generally has been more stable with the exception of the period between 1966 and 1986. Following the largely turbulent pre- and post-NRM regime, the attainment of the right to development has been elusive to some Ugandans in some regions more than others. For instance, the central and southwestern regions of Uganda have largely enjoyed peace during the NRM regime. The northern, eastern and parts of the western region, on the other hand, have at one point or another suffered from the effects of conflict, especially regarding the enjoyment of human rights. The realisation of the right to development, therefore, is necessary in light of the government of Uganda’s constitutional obligation to respect, protect, promote and fulfil human rights. This is discussed in detail in the section below on the legal framework guaranteeing the right to development in Uganda. With the NRM regime having literally been in power since the time when the UN Declaration on the Right to Development (UN Declaration) was adopted, it follows that the attainment of the right to development in Uganda should have been more visible through the enjoyment of economic, social and cultural rights. With this the justiciability question arises, namely, whether the right to development indeed is justiciable in Uganda. In light of the foregoing, this chapter seeks to explore what Uganda’s state duty on the right to development entails; to highlight the minimum core content of this right to development; to analyse the legal regime governing the realisation and enjoyment of the right to development in Uganda; to examine the government’s interventions for attaining the right to development; and exploring factors affecting the attainment of the right to development in Uganda. The chapter also offers recommendations on how best the right to development can be realised in Uganda.

18

19

20

LO Ogora ‘Calls for reparations and a speedy trial prevail as ICC President visits Northern Uganda’htpps://www.ijmonitor.org/2017/03/calls-for-reparations-and-aspeedy-trial-prevailas-icc-president-visits-northern-uganda/ (accessed 13 September 2017). ‘200 000 Ugandans affected by disasters annually – World Bank’ Daily Monitor 13 September 2013, http://www.monitor.co.ug/News/National/200-000-ugandansaffected-by-disasters-annually/688334-1990466-ghfaasz/index.html (accessed 13 September 2017). See ‘Insecurity in Rwenzori: Who will defuse the standoff ’ The Daily Monitor 5 December 2016 http://www.monitor.co.ug/Magazines/PeoplePower/Insecurity-inRwenzori-Who-will-defuse-the-standoff-/6898443475654-pu2970z/index.html (accessed 13 September 2017).

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207

States’ obligations on the right to development

Individual states ordinarily bear the duty of ensuring that the right to development is respected.21 This state duty of guaranteeing the right to development includes the creation of an environment both nationally and internationally conducive to facilitating the realisation of the right to development, as well as its progressive enhancement.22 In light of the NRM’s 31-year rule, with a corresponding increase in poverty levels in some regions in the country, particularly the northern and eastern regions, Ugandan people tend to ask when their right to development will be made a reality. Flowing from this, the Ugandan government is enjoined by its national obligations to ensure that the realisation of the right to development commences right from the formulation of policies that address each individual right within the right to development as well as considerations of rights in tandem as part of a development programme.23 The Ugandan government, in accordance with its obligations under international human rights law, is committed to respect, protect and fulfil human rights. This obligation is based on commitments made by Uganda under the international human rights treaties that it has signed and ratified. Some of these international human rights instruments include the Universal Declaration on Human Rights (Universal Declaration); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the African Charter on Human and Peoples’ Rights (African Charter), which are analysed in the ensuing sections. Although the right to development is a contentious subject in international human rights discourse, in the Ugandan context the government is duty bound by the African Charter to guarantee its protection. The contention about the right to development revolves around whether it is justiciable, which fuels the north-south debate, with states to the south, arguing that it is a human right while those in the north object to the existence of such a right. Uganda has ratified the African Charter, which recognises and guarantees the right to development. This means that Uganda not only is obliged to respect the right to development, but is also required to protect the right, bearing in mind that all states have a duty to protect the human rights that are enshrined in the treaty instruments that they ratify. This duty was highlighted in the SERAC case24 where the African Commission on Human and Peoples’ Rights (African Commission) stated that state parties were required to protect rights holders through the enactment of legislation

21 22 23 24

MA Tadeg ‘Reflections on the right to development: Challenges and prospects’ (2010) 10 African Human Rights Law Journal 330-334. As above. Sengupta (n 1) 193. Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (SERAC), para 48.

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as well as the provision of effective remedies.25 Further, the definition of a state duty to protect human rights was expounded on to include the creation and maintenance of an environment that facilitates the effective interaction of laws and regulations that empower members of the public to freely realise their rights and freedoms.26 It is one thing to have Uganda’s state obligations for the fulfilment of the right to development on paper, and another to have the right enforced in reality. According to the 1995 Ugandan Constitution, where human rights have been violated, an individual or group of individuals can claim such right through competent courts of law.27 Over the years under the NRM government, and with the slow attainment of the right to development, especially in the northern and eastern regions, communities in the two regions would be entitled to hold the Ugandan government to account for their limited development. The government has indeed created institutions to guarantee the enjoyment of human rights, including the Uganda Human Rights Commission (UHRC) and the Equal Opportunities Commission (EOC). These institutions however, face challenges in enforcing the observance of human rights. For instance, the UHRC, in line with its constitutional mandate to hear complaints regarding violations of human rights, had awarded compensation to be paid by the state. An example of such an instance was the complaint lodged by Opio Charles, whose arms had to be amputated following torture that was meted out to him by government soldiers.28 He was compensated with Uganda shillings 215 million since he could no longer fend for himself. As of 31 December 2015, there was an outstanding amount of Uganda shillings 5 047 671 968 billion that has accumulated over the years and is yet to be paid by government.29 The Equal Opportunities Commission is fairly new on the scene, having been operationalised in 2007 with the passing of the Equal Opportunities Commission Act, but is yet to make its mark. Consequently, even in situations where the government would wish to raise severe resource constraints as justification for its inability to guarantee the right to development, ICESCR obliges Ugandan to protect the vulnerable members of society.

25 26 27 28 29

SERAC case (n 24) para 46. As above. Art 50 Constitution of the Republic of Uganda 1995. Okech Rickson (Opio Charles) v Attorney-General UHRC Complaint GLU/122/2003. Uganda Human Rights Commission 2015 Report on the state of Human Rights in Uganda 31.

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209

Minimum core content of the right to development

The contents of the right to development include the following aspects that determine its realisation: 2.1.1

Right to participate

As already highlighted, the right to participate30 is enshrined in the 1995 Ugandan Constitution. This provision caters for the participation of Ugandan citizens in development processes either individually or through chosen representatives. This provision mirrors the Universal Declaration, the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR, which provide for the right to self-determination. This brings into play the interrelatedness of the right to participate and the right to selfdetermination. It is under this right to participate that the right to selfdetermination can be realised. The enjoyment of the right to participate requires active participation of citizens in the formulation, implementation and evaluation of development. This essentially requires that the local populace be afforded access to information. Fortunately the Ugandan Constitution recognises the right of access to information, which right is operationalised by the Access to Information Act which requires state institutions to avail information to the public, the only exception being where such information would prejudice the security or sovereignty of the state.31 With this obligation to avail information to members of the public, people would be empowered to determine how their right to development could be realised. 2.1.2

Human-centred development

A human-centred approach to development is at the core of the enjoyment of the right to development. This is bearing in mind that the economic, social and cultural well-being of the people is the primary focus. It ties in with the promotion of the right to participate and self-determination, since people’s views are crucial in the identification of local human rights needs, how these should be addressed and which concerns should be prioritised. Human-centred development, therefore, promotes the implementation of a rights-based approach to development, which empowers citizens to claim their right to development by participating in policy 30

31

A Al Faruque ‘Participation as a human right: Its implication for development, human rights and development’ 83, cited in KF Rahman ‘Linkage between right to development and rights-based approach: An overview’ (2010) 1 The Northern University Journal of Law 98. Sec 5(1) Access to Information Act.

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formulation and implementation and, where there is a failure to guarantee their rights, such citizens are afforded an opportunity to hold the state accountable.32 2.1.3

Right to self-determination

As already seen, the right to self-determination is a human right distinctly separate from the right to participate, hence its consideration independently as a core content of the right to development. This is a right guaranteed by international, regional and national human rights instruments, including ICCPR and ICESCR, at the international level,33 as well as the African Charter at the regional level. As noted by Korten, development issues should be treated as shared problems,34 which ties in with the right to self-determination. The right to self-determination, therefore, affords an opportunity for Ugandans to collectively and freely address concerns affecting the attainment and enjoyment of the right to development. An example is the ongoing attempt by the NRM government to have article 102(b) of the 1995 Ugandan Constitution amended to pave the way for the removal of age limits for those seeking election as President. The Constitution in its current form prescribes that one is not eligible to stand for election upon attainment of the age of 75 years. There have been voices of dissent across the population, including the elders’ forum, against this move. For those who oppose the lifting of the age limit, the removal of the age limit signifies another five years of no development. 2.1.4

Respect for human rights

The UN Declaration recognises that respect for all human rights and fundamental freedoms should be facilitated.35 This is in line with the state’s duty to respect human rights, including the right to development, which requires the state to refrain from violating the right to development. In the Ugandan context, this would include requiring the UHRC and the EOC to monitor the observance of human rights by state agents. In the case of any violation by the state, these institutions are mandated to hold the state or its agents liable and, in some instances, in their individual capacities. 32 33

34 35

A Cornwall & C Nyamu-Musebi ‘Putting the “rights-based approach’ to development into perspective’ (2004) 25(8) Third World Quarterly 1416. Common Article 1(1) of the International Covenant on Civil and Political Rights, adopted by General Assembly Resolution 2200A (XXI) of 16 December 1966; International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly Resolution 2200A (XXI) of 16 December 1966, respectively. DC Korten ‘Getting to the 21st century: Voluntary action and the global agenda (1990) 146-147, cited in N du Plessis ‘Socio-economic and political development and human rights’ (2001) 31(2) Africanus 74. Declaration on the Right to Development, adopted by General Assembly Resolution 41/128 of 4 December 1986, art 1(2); see also Rahman (n 30) 98.

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With the implementation of these core contents, the right to development would be attained in a manner that is reflective of the human rights needs of the people, be they economic, social, cultural, civil or political. Flowing from the minimum contents on the right to development, the government of Uganda is obliged to ensure that the entitlements emanating from the right to development are respected, protected, promoted and fulfilled. These core contents are strengthened by their being embedded in the legal framework that guarantees the right to development at the international, regional and national levels. Admittedly, the right to development in the Ugandan context is largely guaranteed in the 1995 Constitution and the African Charter. At the international level, the right to development is largely soft law as recognised in the UN Declaration. These are discussed in the next section.

3

Legal framework guaranteeing the right to development

The legal framework guaranteeing the right to development is discussed at three levels, namely, the national, regional and international legal frameworks. Ordinarily the international legal framework would have been discussed first due to the universality of human rights. However, because of the fact that the right to development has not attained the status of a jus cogens norm in the international legal regime; and also considering that it is a recognised right in the national legal regime in Uganda, the national legal framework is discussed first.

3.1

National legal framework

Broadly speaking, the 1995 Ugandan Constitution guarantees fundamental and other human rights and freedoms for all persons under its domain but also obliges the state to respect institutions that are mandated with the responsibility of protecting and promoting human rights.36 This obligation includes the provision of adequate resources to enable such institutions to function effectively.37 Specifically, the right to development is recognised in the1995 Ugandan Constitution, albeit in the National Objectives and Directive Principles of State Policy (NODPSP) as opposed to the Bill of Rights, where civil and political rights are largely guaranteed.38 The provision does not define what to the right to development entails but obliges the Ugandan government to facilitate rapid and equitable development through encouragement of private initiatives and self-reliance.39 This could explain the various poverty 36 37 38 39

Principle V Ugandan Constitution (n 27). As above. Principle IX Ugandan Constitution. As above.

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alleviation programmes the government has undertaken, although the extent of their effectiveness is for another discussion. Arising from the obligation to facilitate development, the 1995 Constitution of Uganda further requires the government to formulate and implement development plans and programmes in consultation with the people, especially where such plans and programmes affect them.40 The level of engagement with the citizenry, however, is debateable, especially in terms of access to information regarding development programmes. The Ugandan government has a duty to carry out an integrated and coordinated planning approach,41 and to ensure that appropriate measures are employed to guarantee balanced development in all parts of the country.42 The Constitution, however, does not define what would constitute ‘balanced development’ and whether the term would be coined depending on the local context and how development would be viewed locally. This way, given that the right to development generally involves both infrastructural development and the attainment of social and economic well-being of the local populace, a rights-based approach would have been employed to address the needs of each region as opposed to adopting a ‘one-size-fits-all’ approach. The government of Uganda is further enjoined to fulfil the fundamental rights of all its citizens to social justice and economic development by ensuring that developmental efforts guarantee the attainment of the maximum social and cultural well-being of the people,43 and that all people are able to enjoy their rights and opportunities; as well as have access to education, health services, work, decent shelter and food security.44 In essence, all developmental efforts should be enjoyed equally by all citizens and should cater for their social, economic and cultural wellbeing. To guarantee this, the 1995 Constitution considers all Ugandans to be treated equally before the law and in all spheres of life, be it political, economic, social or cultural, and in every other aspect.45 For the right to development to be enjoyed, there is a need for active participation by all members of the public in the policy formulation and implementation processes. The right to participate is equally guaranteed by the 1995 Constitution, which protects the rights of all citizens to participate in all affairs of government either individually or through representatives.46 However, the right to participate can most appropriately be enjoyed only where there is adequate access to information to ensure 40 41 42 43 44 45 46

Principle X Ugandan Constitution. Principle XII(i) Ugandan Constitution. Principle XII(ii) Ugandan Constitution. Principle XIV(a) Ugandan Constitution. Principle XIV(b) Ugandan Constitution. Art 21(1) Ugandan Constitution. Art 38(1) Ugandan Constitution.

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effective participation of Ugandans in making decisions on developmental issues affecting them. Access to information indeed is a right under the 1995 Constitution, which guarantees the right of access to information in the possession of the state, unless the release of the information would prejudice state security or sovereignty or affect the privacy of any other person.47 This provision is buttressed by the Access to Information Act, which reiterates the right of every citizen to access information and records in the possession of the state or any public body, the exception being if the release of the information is likely to prejudice national security.48 The challenge, however, is that, first, often consultative meetings are not conducted at the grassroots level and even where such meetings are held, political/opinion leaders are mainly consulted who in turn promote the views of their political parties as opposed to local sentiments. Further, at times information is not readily available, thereby affecting the full and informed participation of ordinary Ugandans in decision-making processes. Consequently, actual access to information would facilitate the shaping of development interventions and enable Ugandans to determine their destiny. Article 50 of the 1995 Constitution makes it possible for the right to development to be claimed through the courts of law. In this instance, any individual whose right to development has been threatened or infringed upon can apply to court for redress.49 The Constitution also allows any person or organisation to institute court action seeking remedies for the violation of another person’s or group’s human rights.50 This provision is yet to be tested, as most human rights cases that have been filed in court or before the UHRC tribunal have been of a civil and political nature, while in the more recent past a few cases have related to socio-economic rights. Some of these cases are highlighted in the ensuing sections. The Constitution guarantees the rights of women in Uganda and makes it an obligation for women to be accorded full and equal dignity with men.51 It also recognises the unique status of women in society and requires that their rights be protected on account of this unique status and their natural maternal functions in society.52 Further, the Constitution requires that women be treated equally with men including being availed equal opportunities in, among others, economic and social activities,53 as well as a right to have affirmative action implemented to address any 47 48 49 50 51 52 53

Art 41(1) Ugandan Constitution. Sec 5(1) Access to Information Act. Art 50(1) Ugandan Constitution. Art 50(2) Ugandan Constitution. Art 33(1) Ugandan Constitution. Art 33(3) Ugandan Constitution. Art 33(4) Ugandan Constitution.

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imbalances that may have been created by history, tradition or custom.54 These provisions are crucial considering that Uganda is a patriarchal society in which women, in some instances, have been marginalised and left out of decision-making processes; as well as from accessing opportunities that could lead to the realisation of the right to development. These provisions were necessary in post-conflict Northern Uganda where, following the killing and abduction of a large number of men, there was a shift in gender roles, requiring some women to head households and fend for the families. Furthermore, the 1995 Constitution requires that facilities and opportunities to facilitate improvement in the welfare of women are made available as a way of enabling them to realise their full potential and advancement. However, due to the deep entrenchment of culture in Ugandan society, the right to development may only be progressively realised once cultural boundaries are opened up to enable women to play a more active role in the formulation and implementation of development policies. However, even though cultural boundaries are being opened up, women, especially in rural Uganda, continue to play a lesser role in decision-making processes in spite of the constitutional provisions that guarantee their right to participate.55

3.2

Regional legal framework

3.2.1

African Charter on Human and Peoples’ Rights

The African Charter recognises the right of all peoples to enjoy the rights and freedoms enshrined in it irrespective of sex and social origin or other status.56 The African Charter further recognises the rights of all peoples to existence and the right to freely pursue their economic and social development according to the policies they have freely chosen.57 This means that the starting point for the formulation of any development policy is from the masses. They are duty bound to identify the policies they require and to implement the policies that best reflect their aspirations with regard to economic and social development. However, in Uganda, despite there being a decentralisation policy, the trend is that there is limited or no consultation of rights holders on development policies to be undertaken. Further, a top-down approach ordinarily is utilised in the policy formulation and implementation processes. The right of ordinary people to participate in most cases is only

54 55 56 57

Art 33(5) Ugandan Constitution. Art 38 Ugandan Constitution. African Charter on Human and Peoples’ Rights, adopted in Nairobi, Kenya, on 27 June 1981, art 2. Art 20(1) African Charter.

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recognised at the level of project evaluation. For instance, in Northern Uganda, other than ongoing road construction, the locals are largely ignorant of the nature of the programme being undertaken, their rights as the beneficiaries of the development programmes, government’s role as the duty bearer, let alone their obligations as citizens. Further, the African Charter suggests that African peoples should be in a position to consider alternatives in instances where government policies are unsuccessful. This provision is unrealistic given the status quo in some state parties such as Uganda. First, ordinary Ugandans generally lack information on government policies being undertaken. Second, they often do not wholly or substantially take part in the formulation of development policies. Consequently, should there be gaps in the fulfilment of developmental rights through such policies, a section of the local populace would be unable to tell that there is a failure in the fulfilment of their human rights. Furthermore, even if the failure was pointed out, the ordinary Ugandan often would not know how to demand alternatives to be implemented. The African Charter guarantees the right of all people to economic, social and cultural development,58 and obligates the Ugandan government to individually or collectively ensure that the right to development is exercised.59 The African Charter does not indicate how the right to development is to be exercised but leaves it to the interpretation of state parties in their domestic domain. The Charter also guarantees the right of all people to a general satisfactory environment that is favourable to their development.60 However, the African Charter does not spell out what would amount to a ‘satisfactory environment’ for an ordinary Ugandan. This explains the tendency by the government to adopt a one-size-fits-all approach when attempting to implement some of these legal provisions. 3.2.2

Protocol on the Rights of Women in Africa

It should be noted that the African Charter also recognises the family as the natural unit and basis of society, and the ‘custodian of morals and traditional values’ that need to be protected.61 The Charter makes it an obligation for individuals to preserve the harmonious development of the family and to ensure that the family is respected and its cohesion preserved.62 The African Charter further requires state parties to ensure that ‘every’ discrimination against women is eliminated and that the rights of women and children are protected.63 This provision is buttressed by the

58 59 60 61 62 63

Art 22(1) African Charter. Art 22(2) African Charter. Art 24 African Charter. Art 18(1) African Charter. Art 29(1) African Charter. Arts 18(2) & (3) African Charter.

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Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol) which recognises the rights of women to sustainable development and obliges state parties to guarantee the participation of women in the formulation, decision making, implementation and evaluation of development policies and programmes.64 Much as the role of women in the family generally is appreciated, culture continues to play an important role in determining the nature of the protection accorded to women and children. In the traditional Ugandan setting, which is still largely patriarchal, development is supposed to be a shared responsibility between men and women, but women are often relegated to the background. 3.2.3

African Youth Charter

Uganda ratified the African Youth Charter on 6 August 2008, which obliges Uganda as a state party to abide by the provisions therein. The Youth Charter recognises the right of every young person to social, economic, political and cultural development.65 In the Ugandan context, this provision relates to the provisions of the Ugandan Constitution that provide for the governing of the state in line with democratic principles, which empowers and encourages the active participation of all citizens at all levels in their own governance.66 The Ugandan Constitution makes provision for youth representation in parliament as a means of facilitating their active involvement in the formulation of laws to impact on how the right to development is enjoyed.67 As to whether youths are able to effectively exercise the right to participate in the decision-making processes to ensure the realisation of the right to development is another debate, although the government has, at the bare minimum, made provision for this.

3.3

International legal framework

3.3.1

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (Universal Declaration) guarantees the equality of all people in dignity and rights, and emphasises the need to act towards one another in a spirit of brotherhood.68 This provision focuses on the idea that in the formulation and implementation of policy aimed at achieving the right to development, all citizens should be catered for equally, given that they all inherently enjoy the same status

64 65 66 67 68

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted in Maputo, Mozambique, on 11 July 2003, art 19(b). African Youth Charter, adopted in Banjul, The Gambia, on 2 July 2006, art 20(1). Principle II(i) Ugandan Constitution (n 27). Art 78(1)(c) Ugandan Constitution. Universal Declaration of Human Rights 1948, art 1.

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in society. The Universal Declaration also guarantees the entitlement of all persons to all the rights enshrined in the Declaration.69 It should, however, be noted that the right to development is not specifically guaranteed in the Universal Declaration. However, it provides for the right to a standard of living adequate for health and well-being which includes access to food, housing, medical care and social services.70 Further, all citizens are accorded equal protection of the law and are entitled to be protected from any form of discrimination.71 In essence, where an individual or group considers that they have been discriminated against, they are entitled to sue government for its failure to guarantee their right to development. In light of this, the Universal Declaration guarantees the right to an effective remedy in instances where a fundamental right granted by the Constitution has been violated.72 This provision is in line with the 1995 Ugandan Constitution, which equally grants the right to remedy in the event of a breach of a human right before a competent court for redress.73 3.3.2

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic Social and Cultural Rights (ICESCR) is the international legal instrument that provides a platform upon which the right to development is protected. ICESCR lays the foundation by guaranteeing the right of all peoples to self-determination and, in light of this right, to freely determine their political status and to freely pursue their economic, social and cultural development.74 ICESCR obliges state parties to guarantee equal rights of both men and women in the enjoyment of economic, social and cultural development;75 to recognise the rights of all persons to an adequate standard of living, including a continuous improvement in living conditions;76 and provides for non-discrimination in the pursuit and attainment of economic, social and cultural development.77 However, ICESCR provides that economic, social and cultural rights may only be attained progressively.78 The challenge here is that ICESCR does not define at what pace the ‘progressiveness’ is to be achieved and, in a country such as Uganda with a political environment where the government has been in place for over 30 years,79 the question arises as to what the yardstick is to determine that

69 70 71 72 73 74 75 76 77 78 79

Art 2 Universal Declaration. Art 25(1) Universal Declaration. Art 7 Universal Declaration. Art 8 Universal Declaration. Art 50(1) Ugandan Constitution. Art 1(1) ICESCR (n 33). Art 3 ICESCR. Art 11 ICESCR. Art 2(2) ICESCR. Art 2(1) ICESCR. The National Resistance Movement government came into power in 1986.

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the right to development has been attained, and who monitors its realisation. 3.3.3

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) has wording similar to ICESCR by guaranteeing the right of all peoples to selfdetermination.80 In addition to guaranteeing the right to selfdetermination, ICCPR insinuates the acknowledgment of the existence of the right to development by protecting the right of all peoples to ‘freely determine their political status and freely pursue their economic, social and cultural development’.81 ICCPR also guarantees the right to participation by specifically protecting the right of all citizens, without any restrictions, to participate in the conduct of public affairs either directly or through chosen representatives.82 With a future universal recognition of the right to development as a substantive human right, ICCPR provides a starting point by guaranteeing the right to self-determination and the right of all citizens to participate in public affairs concerning them. 3.3.4

UN Declaration on the Right to Development

The UN Declaration on the Right to Development (UN Declaration) was the first attempt at having the right to development codified. The UN Declaration ushers in the aspect of universality of the right to development as it is the first international human rights instrument to recognise the existence of the right to development apart from the African Charter. The UN Declaration contains various provisions concerning respect for, protection and promotion of the right to development. For instance, it offers a definition of the right to development as an inalienable human right, which has the consequential effect of entitling all peoples to participate in, contribute to and enjoy economic, social, cultural and political development.83 The UN Declaration recognises the concept of the indivisibility of human rights by acknowledging that through attainment of the right to development, all human rights and fundamental freedoms can equally be realised.84 Further, the UN Declaration requires states to adopt development policies with the participation of citizens and that these policies ought to improve the well-being of the entire population.85 This provision is linked to article 1(1) of ICCPR as well as ICESCR, which guarantees the right to

80 81 82 83 84 85

Art 1(1) ICCPR (n 33). Art 1(1) ICCPR. Art 25(a) ICCPR. Art 1 UN Declaration (n 35). As above. Art 2(3) UN Declaration.

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self-determination; as well as the right to participate in governance.86 The UN Declaration also obliges states to create favourable conditions for the realisation of the right to development both at the national and international levels.87 Additionally, the UN Declaration makes it a duty for states to cooperate with each other in ensuring development and in eliminating obstacles to development.88 The challenge, however, remains that the UN Declaration is soft law and not a jus cogens norm, which implies that it does not guarantee justiciability of the right to development. Fortunately, Uganda being a state party to the African Charter, which guarantees the right to development as a legally-binding right, and the fact that the Ugandan Constitution recognises its existence as a right, the right to development can legitimately be claimed through domestic courts in Uganda.

3.4

Justiciability debate

It has always been contentious whether the right to development indeed is a justiciable right both in the international arena as well as in the Ugandan legal regime. An argument suggested is that the right to development is a human right, which argument is put forward by states in the south. On the other hand, states in the north dispute the existence of the right to development as a human right, especially since there is no binding international human rights treaty confirming its status as a substantive right. As observed earlier, only the African Charter and other African human rights treaties specifically recognise the right to development as a human right. The UN Declaration at best is soft law with no absolute binding force on states, which are only expected to adhere to the provisions of the Declaration in good faith since it was adopted as a UN General Assembly Resolution and not out of any legal obligation. In the Ugandan context, as a state with a dual constitutional regime, for the right to development to be recognised as guaranteed in the UN Declaration, it would first have to be domesticated before it can be enforced. This raises the question as to whether the right to development is justiciable in Uganda. First, Uganda being a signatory to the African Charter, which reflects the spirit of the UN Declaration and recognises the right to development, there is an obligation on Uganda as a state party to recognise development as a human right.89 At the national level, as already highlighted in the previous section, Uganda does have a national legal framework in place

86 87 88 89

The right to participation is guaranteed in art25 of the ICCPR. Art 3(1) UN Declaration (n 35). Art 3(3) UN Declaration. Art 22(1) African Charter.

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that seeks to ensure respect for as well as the protection and promotion of the right to development. The dilemma is whether the right to development indeed is an enforceable right, especially as it is not contained in Bill of Rights of the 1995 Constitution. Despite the fact that the right to development is not enshrined in the Bill of Rights but rather in the National Objectives and Directive Principles of State Policy, article 8A(1) of the Constitution renders it a justiciable right. This is because article 8A(1) requires the Ugandan government to govern bearing in mind principles of national interest and the common good as enshrined in the National Objectives. Considering that these principles require the government to ensure the realisation of balanced development in Uganda,90 in lieu thereof one would be entitled to seek enforcement on the grounds of violations of the right to development.91 Further, it should be observed that under the 1995 Ugandan Constitution, it is recognised that the Bill of Rights does not exhaust all human rights to be protected.92 Consequently, any human right contained in any international human rights instrument ratified by Uganda is rendered justiciable.93 Considering that the right to development is guaranteed in the African Charter94 and recognised in the UN Declaration; it becomes justiciable in Uganda. This position was upheld in SERAC where, despite Nigeria not guaranteeing the right to health under its Constitution, the African Commission found the Nigerian government liable for violating the right to health contrary to its commitment to enforce human rights enshrined in the African Charter.95 Enforceability of the right to development, however, becomes another issue since at the African regional level reliance is placed on the goodwill of state parties to guarantee the realisation and enjoyment of the human rights enshrined in the African Charter.

4

Government interventions for attaining the right to development

Since it assumed power in 1986, the NRM government introduced various interventions, discussed below, in a bid to develop the nation and consequently attain the right to development.

90 91 92 93 94 95

Principle XII Ugandan Constitution. Art 50 Ugandan Constitution. Art 45 Ugandan Constitution. As above. Art 22 African Charter. Para 48 SERAC (n 12).

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221

Government programmes

The Ugandan government has introduced different poverty alleviation programmes targeting local communities. To begin with, the Poverty Eradication Action Plan (PEAP) was based on four pillars. These pillars include the creation of a framework for economic growth and transformation, directly increasing the ability of the poor to raise their incomes, and directly increasing the quality of the life of the poor.96 To this end, other policies have been developed, including the youth livelihood programme and national agricultural advisory services. With regard to advancing human capacity, the government also introduced free primary and secondary school education to increase development opportunities for school-going children. To a certain extent it would appear that some of these programmes have not been as successful as anticipated. Tracer studies are yet to be conducted to assess the level of the impact of these programmes in promoting the realisation of the right to development.

4.2

Decentralisation policy

The policy of decentralisation is one of the measures that the government of Uganda has undertaken to facilitate development in the country. Its implementation was in line with the 1995 Constitution, which requires that governmental functions and powers be decentralised and devolved to the people to enable them to manage and direct their own affairs.97 This is in accordance with the constitutional provision that guarantees the rights of all Ugandans to participate in the conduct of public affairs,98 which becomes possible through the decentralisation policy. This policy paves the way for the generation of development ideas right from the grassroots. The Constitution further requires, within the local government system, the state authority to devolve from higher to lower local government units to guarantee peoples’ participation and democratic control in decision making.99 One of the goals of decentralisation is to ensure that a more democratic government is in place which is responsive to the needs of the people and is accountable to them; as well as its ability to ensure local ownership of public service delivery.100 It was one of the civil service reforms the Ugandan government undertook to improve service delivery, including constitutional reforms to democratise the national political system and

96

Ministry of Finance, Planning and Economic Development, Uganda’s poverty eradication action plan, Poverty Reduction Strategy Paper, Kampala, Uganda, 24 March 2000 3. 97 Principle II(iii) Ugandan Constitution. 98 Art 38 Ugandan Constitution. 99 Art 176(2)(b) Ugandan Constitution. 100 P Langseth ‘Civil service reform: A general overview’ in S Villadsen & F Lubanga (eds) Democratic decentralisation in Uganda: A new approach to local governance (1996) 15.

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economic reforms to strengthen the performance of the public service.101 This system of governance provides room for the enhancement of participatory planning and monitoring capacities right at the community level,102 which promotes the generation of policies based on the human rights needs of the local communities and facilitates ownership of policy implementation processes and outcomes.

4.3

Affirmative action

The Ugandan government has endeavoured to promote affirmative action, especially with regard to the protection of human rights, particularly for women. This step by the state stems from its recognition of the important role that women play in society103 and the need to accord them a right to affirmative action in a bid to provide redress for imbalances brought about by history, tradition and custom.104 The promotion of affirmative action has been timely in eliminating traditional stereotypes, given that Uganda is a largely patriarchal society. Traditionally the girl child was expected to care for the home and later to get married upon attaining puberty, while the boy child was exposed to opportunities such as education. As a practical measure in implementing the affirmative action policy, girls that have completed their secondary education are accorded an additional 1,5 points on top of the advanced secondary level scores to increase their opportunities for enrolment into university, thereby affording them better chances for advancement. Attempts have also been made to promote affirmative action in terms of opportunities for regions that were affected by conflict to develop. In this regard, these efforts specifically targeted regions such as Northern Uganda where various government programmes, such as the Northern Uganda Reconstruction Programme, the Northern Uganda Social Action Fund and the Peace Recovery and Development Plan, were undertaken. Whether these efforts have been successful is a subject for debate.

4.4

Institutional framework

The government of Uganda has put in place institutions to implement developmental programmes in line with the National Development Plan. First, there is the National Planning Authority that coordinates efforts to ensure that budgets of government ministries, departments and agencies are aligned to the institutional work plans.105 However, its monitoring

101 102 103 104 105

Langseth (n 100) 11. Ministry of Finance, Planning and Economic Development (n 96) 5. Principle XV Ugandan Constitution. Art 33(5) Ugandan Constitution. National Planning Authority Second National Development Plan (NDPII) 2015/16– 2019/20 142.

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capabilities to ensure that the attainment of the right to development is a central focus of all policy formulation and implementation processes are not visible. With regard to the Uganda Human Rights Commission (UHRC), which is mandated to protect and promote human rights, including the right to development, it is challenged by the fact that in most instances its mandate is invoked largely in the event of the violation of civil and political rights since the local populace are more used to dealing with these violations and can easily identify them. The protection of socioeconomic and cultural rights, including the right to development, is not common, even though there is room for a rights claimant to invoke this right within the jurisdiction of the UHRC as well as in domestic courts. In addition, the Equal Opportunities Commission is mandated to handle complaints concerning violations of the right to equality as guaranteed in the Bill of Rights, considering that the National Objectives and Directive Principles of State Policy in the 1995 Constitution oblige the state to enhance the right of Ugandans to equal opportunities in development.106 It is yet to be seen how complaints concerning violations of the right to development would be handled, since this is a fairly new Commission. Other institutions include the Office of the Auditor-General, which conducts value-for-money audits on all public spending by government entities; the Inspectorate of Government, a government watchdog to curb corruption in public service delivery; and the courts of judicature to which members of the public can also have recourse to enforce their human rights in cases of breaches.

4.5

Creation of district human rights desks

Through the UHRC, in partnership with the Ministry of Local Government, attempts were made for the creation of a human rights desk in each district in Uganda. The goal of the desks was to ensure that a rightsbased approach to development was adopted during the district planning and budgeting process. A committee and a human rights desk officer were assigned in each district. Much as this was a noble idea, it stalled at some point due to a number of factors including the creation of more districts in Uganda, which disintegrated the desks/committees that had been created. This is because staff of the district local government had to be split between the old districts and the new ones that were curved out. As noted, the government of Uganda has endeavoured to put in place measures aimed at creating a conducive environment in which Ugandans can exercise and enjoy their right to development. Unfortunately, these programmes have not had much impact in making the right to development a reality in Uganda.

106 Principle XI(i) Ugandan Constitution.

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5

Factors affecting the right to development in Uganda

5.1

Corruption

Development efforts in Uganda seem to be tainted with corruption. It is almost impossible to imagine that any development programme can be executed without corruption rearing its ugly head. This affects not only the nature of the interventions undertaken but also the quality of the outcomes. Corruption remains a big problem and it affects service delivery and, consequently, the realisation of the right to development on at least two levels. The starting point is whereby government officials draw work plans and budgets with the central focus being how they can directly ‘benefit from the resources’. For instance, with the unveiling of plans to construct an oil refinery in Western Uganda, some individuals privy to the information rushed and bought land at very low cost from the locals in the area so that they would later be compensated by government when their land was compulsorily acquired. The second aspect is outright corruption in the disbursement of funds for activities as well as accounting and audit processes. Personal gain often tramps national needs. A case in point is the government’s decision to scrap the National Agricultural Advisory Services (NAADS) programmes that were launched in 2001 and meant to increase farmers’ access to market information and agricultural technology. More than $700 million was spent on the first and second phases of the programme, but the projects were mismanaged.107 In addition, not only is there a high level of corruption in the abuse of funds meant for the attainment of developmental rights, but there has also been a general failure to prosecute those involved in high-level corruption. Consequently, it is only the ‘smaller fish’ that tend to be prosecuted to hoodwink the public into believing that there indeed is a zero tolerance policy towards corruption. Embezzlement of huge sums of public funds in the Ugandan public service has to be a well-orchestrated network given the levels of approval one has to obtain to access funds through the integrated financial management system (IFMS), which is used to electronically disburse funds. At least three institutions have to be involved: the MDA through its accounting officer (permanent secretary); the Ministry of Finance; and, lastly, the Bank of Uganda, which disburses the funds.

107 N Wesonga ‘Government to scrap failed NAADS programme’ Daily Monitor 25 March 2013 http://monitor.co.ug/News/National/Goverment-to-scrap-failed-Naads-pro gramme/688334-1729418-m6kr46z/index.html (accessed 16 October 2017).

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The level of corruption in Uganda could not be described better than in the words of an opposition leader citing a Chinese quote to the effect that ‘fish rots from the head’.108 Where such networks for abuse of public funds exist, the attainment of the right to development will at best be minimal. The failure to contain corrupt practices not only bleeds the country dry of resources that are already inadequate but also affects the services delivered, thereby leading to a vicious cycle of poverty among local populations and a failure to realise socio-economic rights, including the right to development.

5.2

Lack of systematic/holistic planning on the right to development

This is a challenge that could be referred to as a ‘Ugandan’ problem. In essence, a number of government programmes are focused on the ‘here and now’ without paying due attention to cross-cutting issues such as gender; as well as almost zero effort to project what in the long run would be programme successes. Further, multiple government programmes are created which, when analysed, appear to have the same objective. There is a tendency to implement these programmes concurrently or even consecutively without conducting tracer studies to determine whether the desired impact has been attained. For instance, with specific reference to Northern Uganda, there was the Northern Uganda Social Action Fund (NUSAF) phases I and II and currently phase III, as well as Peace Recovery and Development Plan (PRDP) phases I, II and III, which are currently running. An observation on some of these government programmes is that they tend to have objectives that are similar to previous programmes that have since been closed. For instance, the NUSAF, Northern Uganda Reconstruction Programme (NUREP) and PRDP targeted at Northern Uganda for almost 20 years all sought to eradicate poverty during and after the conflict, but to date not much has changed. If anything, the poverty level in Northern Uganda has increased to 84 per cent of the total population living below the poverty line in 2016.109

5.3

Absence/limited use of a rights-based approach to development

As much as the 1995 Ugandan Constitution prescribes that democratic principles be employed to empower nationals to actively participate at all levels of governance,110 this has largely remained on paper. The lack or

108 https://m.facebook.com/permalink.php?story_fbid=10153598700344144&id=89143 559143 (accessed 4 July 2017). 109 Daily Monitor (n 11).

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limited use of a rights-based approach to development is attributed to various reasons. First, most of the planning processes are a top-down approach as opposed to a bottom-up approach that is promoted under a rights-based approach to development. As far as budgetary allocations are concerned, the budget ceiling and the areas of focus are set by the central government, which currently only prioritises infrastructural development even though the different regions of Uganda have their unique needs. In Northern Uganda, for example, the primary interest after 20 years of conflict is in the implementation of transitional justice mechanisms including truth-telling and reparations, whereas for the western and eastern regions, floods have been a perennial problem that has affected the livelihood and the general enjoyment of human rights for the local populace. The central and south-western regions, on the other hand, have largely enjoyed peace during over 30 years of the NRM rule and have other human rights interests. Setting areas of focus at the central government level, therefore, beats the essence of a rights-based approach since ideas on how to attain the right to development for the local population are meant to be locally generated in a bid to obtain community ownership of the development process and its implementation; and eventually the sustainability of development efforts. This is lacking and partly explains why various poverty eradication programmes are being developed but with limited or no success or sustainability. Further, even where attempts to ensure a rights-based approach are made through consultations with local leadership, at times the views reflected are not necessarily the views or interests of the local communities. The planning process tends to be politicised with the primary interest of local leaders being their own political interests, which require tangible services to be in place by the next elections.

5.4

Enforceability of the right to development

Another challenge is the limited enforcement of the right to development, which may be attributed, first, to the limited knowledge about its existence as a justiciable right entitlement in Uganda. This does not only apply to the ordinary Ugandan citizens but also to public service providers such as lawyers and judges who should be facilitating the processes to ensure that rights holders claim their rights in instances where the government has failed to fulfil its obligations. It is unusual, for instance, that no public interest litigation has been instituted to seek remedies for the Acholi of Northern Uganda for the government’s failure to guarantee their right to peace and to attain and enjoy development during the 20 years of conflict. This is the situation despite the existence of article 50 of the 1995 Constitution, which allows any person, although not specifically 110 Principle II(i) Ugandan Constitution.

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aggrieved, to bring an action against the violation of another person’s or group’s right to development.111 In addition, the enforcement of the right to development at the African regional level would face its own challenges given that the African Commission, which is mandated to promote and guarantee the protection of human and peoples’ rights in Africa,112 largely relies on the good will of state parties such as Uganda to enforce its decisions. Uganda’s history in abiding by and enforcing the African Commission’s decisions still is negative in light of the DRC case.113 In this case, Uganda, Burundi and Rwanda were found to have committed massive human rights violations in the eastern provinces of the Democratic Republic of the Congo (DRC) where they, among other things, looted, killed and indiscriminately transferred civilian populations, and were required to pay reparations for violations committed against the Congolese people. No such reparations have ever been paid by Uganda, nor have any sanctions been instituted against it. Furthermore, for one to invoke the African Commission’s powers; there ought to have been an exhaustion of local remedies within the justice system in Uganda, except where the processes have been unduly prolonged.114 However, bearing in mind that a number of the envisaged beneficiaries of the right to development in Uganda are either illiterate, poor or generally dis-empowered, the chances of them having access to information about the existence and mandate of the African Commission are limited, and they would also not be able to afford the costs of litigation in Banjul. Even where there is some form of empowerment, state interference often inhibits them from claiming remedies through the African Commission.

5.5

Limited level of local participation and empowerment

The level of involvement of ordinary Ugandans in both the formulation and implementation of development programmes to address their human rights needs has in some instances been limited. This limited participation is largely attributed to two aspects: first, the tendency of the central government to use a top-down approach in the formulation and issuing of directives on policy implementation; as well as a general lack of empowerment or access to information by the public on policies to be developed or implemented.

111 Art 50(2) Ugandan Constitution. 112 Art 30 African Charter. 113 Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2004). 114 Art 56(5) African Charter.

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In other instances, especially in light of the previous non-involvement of the locals, some level of complacency has emerged. This could be explained by the fact that policies formulated at the grassroots level still are subject to amendment and ‘fine tuning’ at the level of the central government. At the end of the day the policy released to the public for implementation bears little or no resemblance to the views that have been gathered. In a study conducted by the UHRC in partnership with the UN Office of the High Commissioner for Human Rights, what clearly emerged from the locals, which they maintained in other consultative meetings, was the need for the implementation of transitional justice mechanisms, particularly reparations and truth recovery.115 However, with the formulation of policies such as the peace recovery and development plan, where similar sentiments were raised, these aspects were not catered for. For the Acholi in Northern Uganda, truth-telling is almost central to their being able to promote psychological healing116 as well as justice.117 It is because of this that they are able to move on with their lives and develop. This is bearing in mind that any dispute, even among two individuals, disturbs the community as well as the spirit world which is equally disturbed by the conflict. Conflict, therefore, must be resolved communally through traditional justice systems. Where such mechanisms that are central to the people for whom the programme was created, but their views are not incorporated, such development interventions lose their meaning. This affects efforts to attain and ensure enjoyment of the right to development.

5.6

Mismatched government priorities

The Ugandan government’s priorities towards the needs of their citizens are mismatched. As noted earlier, the government prioritises infrastructural development, especially road construction, whereas to the ordinary Ugandan (a subsistence farmer, for example), having a wellconstructed road may not necessarily be a priority. Where attempts have been made to facilitate farmers, for instance through NAADS, these have been marred by allegations of corruption. Some of the so-called model farms are non-existent, save for a signpost by the roadside indicating that there is one in the area. The President has commenced promoting what has been termed as ‘drip irrigation’,118 whereas a farmer in a district such as Masindi may be interested in modern farming methods that are less 115 Uganda Human Rights Commission and UN Office of the High Commissioner for Human Rights The dust has not yet settled: Victims’ views on the right to remedy and reparation: A report from the greater north of Uganda (2011) 59. 116 L Kriesberg ‘Transforming intractable conflicts’ (2017) 10 Desafíos, Bogotá (Colombia) 188. 117 RG Teitel ‘Transitional justice genealogy’ (2003) 16 Harvard Human Rights Journal 69. 118 ‘Uganda: President calls for drip irrigation as a solution to drought’ Daily Monitor14 April 2017http://allafrica.com/stories/201704140006.html (accessed 16 October 2017).

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tedious. This is contrary to the strategic guidelines for the President’s term running from 2016 to 2021, which highlights that agriculture in Uganda is underdeveloped and proposes the conversion of the 68 per cent homesteads from practising subsistence farming to commercial agricultures.119 There has also been a recent spate of outcries from public servants demanding an increment in salaries to match the rising cost of living. Between July and October 2017, there have been strikes by state attorneys and magistrates, as well as threats to strike by government medical doctors and public servants working in district local government. Should all of the professional bodies go on strike, the country would be shut down since service delivery would be heavily affected, including access to justice and the enjoyment of the rights to life and health.

5.7

Lack of political will

The dice was cast right from the colonial area where the northern part of the country was pitted against the south. The status quo has remained the same with successive governments, although the approach by previous regimes, such as that of President Milton Obote, appeared to be more nationalistic in nature. Hospitals being constructed across the country to guarantee the right to health would have the same design and offer the same services; most of which are still standing today. With the current regime, the north-south divide has widened even more, with most developments being undertaken in the south. With regard to the performance of ordinary level secondary schools in the Uganda Certificate of Education examinations, a survey revealed that in the last ten years the top ten schools were from the central region,120 while the schools in Northern and Eastern Uganda were reported to have scored poorly.121 The Ugandan government has often also celebrated the increment in primary school enrolment in the northern region since 2006 under PRDP at 8,5 million as at 2012/2013.122 However, according to the National Service Delivery Survey report, 48 per cent of children aged six to 12 years were not in a position to attend school due to various economic factors.123 This is contrary to the obligation set in the 1995 Constitution to the effect

119 President YoweriKaguta Museveni ‘Strategic guidelines and directives for the term 2016–2021’ http://www.statehouse.go.ug/media/speeches/2016/06/23/strategicguidelines-and-directives-term-2016-2021 (accessed 16 October 2017). 120 ‘Uganda: O-level schools where quality education is guaranteed’ Daily Monitor 14 January 2016http://allafrica.com/stories/201601140224.html (accessed 16 October 2017). 121 ‘Why north, east score poorly in UCE’ Daily Monitor 4 February 2017 http:// www.monitor.co.ug/News/Education/North-east-score-poorly-UCE/688336-379879 2-6crbll/index.html (accessed 16 October 2017). 122 UNDP (n 14) 3. 123 Uganda Bureau of Statistics ‘The National Service Delivery Survey’ (2015) 22.

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that there should be integrated and coordinated planning124 as well as balanced development in the different areas in Uganda.125 Given that human rights are indivisible and interrelated, having poor quality education is likely to affect opportunities for the realisation of the right to development of some students. The 1995 Ugandan Constitution further enjoins the state to take affirmative action in favour of the development of least-developed areas,126 including the northern and eastern regions. However, development efforts such as the PRDP that were meant to rehabilitate and enable Northern Uganda to recover from the effects of the 20-year conflict were abused. The abuse was either through the embezzlement of funds, for which only the senior accountant in the office of the Prime Minister was prosecuted and convicted, while others were left to go free, or through inflation of the list of districts that were meant to benefit from the programme. Originally, only districts in Northern Uganda that were affected by the conflict were to benefit. However, the list was stretched to include other districts falling under other regions such as the districts of Mbale and Tororo, which fall under the eastern region.

5.8

Weak oversight institutions

One area where the Ugandan government has done fairly well is in the institution of various oversight institutions to ensure effective and efficient service delivery and the overall attainment and enjoyment of human rights. Some of these institutions include the office of the Auditor-General, which is obliged to ensure that there is value for money in the provision of public goods and services; the National Planning Authority, which is in charge of coordinating the planning of government programmes; and the UHRC, which is mandated to protect and promote the enjoyment of human rights. With regard to the mandate of the office of the Auditor-General, it is mandatory for every government institution to have an in-house auditor to ensure that there is value for money in the implementation of government programmes. These auditors are deployed by the Ministry of Finance, Planning and Economic Development and their role is to conduct a valuefor-money audit on all public spending. In addition, at the end of every financial year, external auditors directly from the office of the AuditorGeneral conduct a separate audit, although some of the large anomalies in the utilisation of public funds generally are not ‘detected’. This points towards the possible compromise of such officers. The weak oversight capacity of the office of the Auditor-General is not assisted by the fact that

124 Principle XII(i) Ugandan Constitution. 125 Principle XII(ii) Ugandan Constitution. 126 Principle XII(iii) Ugandan Constitution.

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the Public Accounts Committee of Parliament that considers its reports also takes a long time to take action against public officers found to have mismanaged public funds.127 Therefore, it is no wonder that corruption has continued unabated. The Inspectorate of Government, on the other hand, has attempted to put in place measures requiring senior public servants to regularly declare their assets in a bid to curb corruption. This has not been effective, since the Inspectorate of Government has not been able to effectively verify and investigate instances where such assets were not commensurate with the earnings of a public servant. The UHRC, on the other hand, has equally tried to fulfil its human rights protection mandate by holding government accountable for human rights violations. However, most of the complaints reported to the Commission are of a civil and political rights nature, whereas socio-economic and cultural rights as well as the right to development are rarely reported. This raises a question as to the relevance of such institutions in the guaranteeing of socio-economic and cultural rights. Not only are these institutions weak, but they are also underfunded and understaffed and, therefore, cannot be expected to fully and effectively fulfil their mandates.

6

Conclusion: The way forward

As can been discerned from the discussion in this chapter, the enjoyment of the right to development in Uganda is more of a myth than a reality despite the pent-up expectations that the NRM government gave the people of Uganda by providing for the right to development in the 1995 Constitution. The discussion has shown that, at most, developmental efforts have largely favoured the southern part of the country while funds meant for affirmative action in the northern region have not yielded much in terms of making the right to development a reality, especially for a population that has for more than two decades suffered the impact of conflict. It calls for coordinated and harmonised approaches towards the realisation of the right to development of all Ugandans, including the adoption of a rights-based approach to development that takes into account the unique human rights and developmental needs of each region of the country and males room for local ownership of development interventions and their sustainability. Further, there is a need for the decentralisation policy to be revisited, particularly on how it should feed into central government planning and 127 ‘Accounting standards must be enforced’ Daily Monitor 14 June 2017 http://www. monitor.co.ug/Business/Prosper/Accouting-standards-enforced-Presidet-Museveni/ 6886163968556-158o874/index.html (accessed 5 July 2017).

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implementation of development policies in a bid to achieve the right to development. Where the provision of public services to guarantee the enjoyment of the right to development is proving to be difficult, other alternatives such as public/private partnerships should be considered as provided for by law. In addition, institutions and the national legal framework should be strengthened to curb the mismanagement of public funds. The Ugandan government must also ensure that effective mechanisms are put in place to deal with the perpetrators of mismanagement and corruption. In line with this, a vibrant civil society is required to monitor the level and quality of policy implementation. In this way, state acts or omissions would easily be identified and adequate follow-up done to ensure that the Ugandan government fulfils its obligation to progressively guarantee that the right to development is achieved for all Ugandans.

CHAPTER

12

‘TOWARDS A HAPPY, PROSPEROUS AND FULFILLING LIFE’: RECOGNISING THE RIGHT TO DEVELOPMENT IN THE ZIMBABWEAN CONSTITUTION

Kucaca Ivumile Phulu* and Serges Djoyou Kamga**

1

Introduction

The 2013 Constitution of Zimbabwe (Constitution) embraces the agenda of national development as one of the national objectives.1 The notion of development is interspersed throughout the Constitution and is characterised by terms such as ‘development’;2 ‘development priorities’;3 ‘further[ing] their development’;4 ‘social and economic development activities’;5 and ‘facilitat[ing] development’. However, there is no specific wording referring directly to a right to development. As there is no explicit mention of a right to development in the Declaration of Rights, it is necessary to analyse the Constitution and to interrogate whether there indeed is a right to development in Zimbabwe. Only through a thorough understanding of the nature and character of the right to development will its usefulness in practical terms be realised. The reduction of the right to development into its core constituent elements will assist in achieving its operationalisation. The operationalisation of the right to development will contribute towards achieving the call to a prosperous, happy and fulfilling life for every Zimbabwean, an aspiration that is captured in the Constitution.6

* ** 1 2 3 4 5 6

Senior Partner, Phulu & Ncube Legal Practitioners; the Chairperson of Abammeli Human Rights Lawyers; [email protected] Associate Professor of Law, Thabo Mbeki African Leadership Institute (TMALI), University of South Africa; [email protected] Constitution of Zimbabwe Amendment Act No 20 of 2013. Sec 13 Constitution of Zimbabwe Amendment Act (n 1). Preamble & ch 14 Constitution of Zimbabwe Amendment Act. Sec 264(d) Constitution of Zimbabwe Amendment Act. Sec 270(a) Constitution of Zimbabwe Amendment Act. This is set out as the all-embracing National Objective in sec 8(1) of the Zimbabwean Constitution. 233

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The focus of this chapter is to provide a legal analysis of the Zimbabwean Constitution in order to determine whether it provides for a justiciable right to development. This is done by a doctrinal analysis of the various sections in the Constitution in order to establish whether they create a right to development. The chapter uses the elements of the right to development as set out in the Endorois case7 as the legal principles and the basis of the analysis. These elements are used to examine the selected constitutional provisions to determine whether they can be said to create a justiciable right to development. Given the controversial discourse around this right, the chapter gives a background to the right to development in order to provide a context of the legal principles used and to show that the right to development is a stand-alone right, before proceeding to analyse the text of the Constitution.

2

Background on the right to development

For the first time in Zimbabwean constitutional history the Constitution progressively includes a wide variety of economic, social and cultural rights. One may correctly question whether in light of this progressive development it is necessary to make provision fora right to development. Is the right to development not encapsulated within the rich bundle of rights already existing in the Constitution? Certainly, others may want to challenge the very existence of a right to development in the first place. It is necessary to give a background to the right to development, as it will provide a context for understanding the content and key elements of the right to development that will be the used to analyse the Constitution. Ozoemena and Hansungule attribute the first proposition of development as a right in international law to the Senegalese jurist, Kéba M’baye, and pinpoint his argument in 1972 that ‘[e]very person should enjoy in just measure the goods and services produced thanks to the effort of solidarity of the members of the community’.8 While the proposal on the right to development was made by academics, African political leaders accepted the idea, which resulted in the Organisation of African Unity (OAU) (now the African Union (AU)) including the right to development in the African Charter on Human and Peoples’ Rights (African Charter).9 The African Charter has been lauded as the first (and only) binding human rights instrument to provide for the right to development in article 22.10 On 7 8

9 10

Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) (Endorois case). R Ozoemena & M Hansungule ‘Development as a human right in Africa: Changing attitude for the realisation of women’s substantive citizenship’ (2014) 18 Law, Democracy and Development 226, who indicate that the right to development has been a right in Africa since the adoption of the African Charter; K M’baye ‘Le droit au développement comme un droit de l’homme’ (1972) Revue des Droits de l’Homme 503. African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986. F Viljoen International human rights law In Africa (2012) 226.

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the whole, the Charter is a welcome intervention to ensure the promotion, protection, respect for and fulfilment of human rights in Africa. Articles 18 to 24 provide for the rights of peoples as opposed to individuals, and article 22 particularly provides for the right to development. Although the rest of the world did not take up the idea of the right to development with equal enthusiasm, discussions in international arena, however, led to the adoption of the United Nations Declaration on the Right to Development (UN Declaration) in 1986.11 As a simple declaration as opposed to a treaty, the UN Declaration has been identified in literature dealing with the right to development as a non-binding instrument. Notwithstanding the non-binding nature of the UN Declaration, it is acknowledged that the Declaration highlights the importance of the right to development.12 The UN Declaration recognises that [t]he right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be realised.13

Indeed, a textual reading of the Declaration couches the right to development as an inalienable human right and also states that it is the agency through which other rights can be enjoyed. Article 1 refers to the right to development as a right that is due to human persons and all peoples and, thus, expands the right beyond the traditional individual rights standards. It is this collective nature of the right that leads some scholars to question whether the right to development can be classified as a human right at all.14 Nwauche and Nwobike explore the furore that ensued after the adoption of the UN Declaration and conclude that the adoption of the Declaration has been mired in controversy.15 Accordingly, the adoption of the Declaration further polarised the membership of the United Nations (UN) rather than resolve the question whether a right to development exists. They summarise this divide as follows: ‘The southern governments contend for a right to development while the rich countries of the north oppose the existence of such right’.16 The right to development was reaffirmed at the 1993 Vienna World Conference on Human Rights which,

11 12 13 14 15 16

Declaration on the Right to Development adopted by the UN General Assembly, Resolution 42/128 of 4 December 1986. Ozoemena & Hansungule (n 8) 227. Art 1 UN Declaration (n 11). See eg, A Vandenbogaerde ‘The right to development in international human rights law: A call for its dissolution’ (2013) 31(2) Netherlands Quarterly of Human Rights 187. ES Nwauche & JC Nwobike ‘Implementing the right to development’ (2005) 2(2) SUR-International Journal on Human Rights 93. Ozoemena & Hansungule (n 8) 92.

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according to Nwauche and Nwobike, provided ‘an opportunity for the debate to move from rhetoric towards actual implementation’.17 The impasse on the right to development led to the appointment of an independent expert, Professor Arjun Sengupta, without the mention of who many analysis of the right to development in international law would be incomplete. Sengupta was appointed by the Open-Ended Working Group and mandated to find a way to operationalise the right to development.18 Sengupta recommended a development compact between a specific developed country and the international community and international financial institutions as a mechanism for implementing the right to development.19 According to Sengupta’s idea of a development compact, developing countries would be under an obligation to realise the right to development, and the international community would also be under an obligation to cooperate to enable the implementation of the programme through resource transfers and technical assistance.20 Sengupta attempted to merge the interests of the north and south as can be seen from the insistence that any developing nation that was interested in being part of the compact must accept to advance its development programmes in a rights-based manner,21 while the northern institutions must accept ‘the mutuality of duties’ to provide the necessary financial and technical assistance.22 Sengupta’s proposal remained controversial and did not bridge the gap between the north and the south on their views on the right to development. Some scholars have argued that while economic, social and cultural rights and the right to development are mutually supportive, the former rights cannot take the place of the right to development as it is a distinct stand-alone right. Kamga has summarised the right to development by stating that the ‘content of this right is a bundle of rights (civil and political as well as economic, social and cultural) which should be understood in their interdependency and interconnectedness’,23 which embodies the collective nature of the right to development.24 There is general consensus in the raging debate on the right to development that it is characteristically

17 18 19 20 21 22 23 24

Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights in Vienna, Switzerland, on 25 June 1993, paras 9, 10 & 11. AK Sengupta ‘Conceptualising the right to development for the twenty-first century’ in UN Human Rights Realising the right to development: Essays in commemoration of 25 years of the United Nations Declaration on the Right to Development (2013) 62. Ozoemena & Hansungule (n 8) 93. AK Sengupta ‘On the theory and practice of the right to development’ (2004) 24 Human Rights Quarterly 838. Sengupta (n 18) 94 called this the ‘reciprocity of conditionalities’. Ozoemena & Hansungule (n 8) 94. SAD Kamga ‘The right to development in the African human rights system: The Endorois case’ (2011) De Jure 388. SAD Kamga ‘Human rights in Africa: Prospects for the realisation of the right to development under the New Partnership for Africa’s Development’ LLD thesis, University of Pretoria, 2011 5.

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quite set apart from the other rights.25 It follows that the right cannot be collapsed into the civil and political as well as the economic, social and cultural rights. The right to development is separate from the other socioeconomic rights although it is interconnected with these rights. Vandenbogaerde26 represents the school of liberal scholars calling for a re-evaluation of the question concerning the added value of the right to development. Vandenbogaerde concludes his argument by calling for the outright dissolution of the right to development by stating that ‘[a]t the moment, the right to development is doing a disservice to other human rights, especially economic, social and cultural rights, as it considers those rights to be consolidated in their scope and content’.27 The debate on the right to development thus is rehashing into this new ideological sparring represented on the one hand by Vandenbogaerde, who reflects the views of the north, and Kamga, who represents the views of the south. Kamga emphasises the characteristic of the right to development as a group right that should stand alone, while Vandenbogaerde believes that it can be dissolved into the economic, social and cultural rights. Vandenbogaerde mythologises28 the right to development by expounding that it arguably is a prime example of the constant or progressive evolution of human rights and forms part of ‘the alleged third generation of human rights, or “solidarity” rights which espouse a shared or collective responsibility for the realisation of human rights around the globe’.29 Vandenbogaerde’s approach attacks the core of the right to development’s claim to protect collective rights. The rationale adopted by Vandenbogaerde is flawed in the sense that he perceives the right as creating a basis for poor states or the so-called Third World to ‘take out a begging bowl’ and impose a shared responsibility for the realisation of human rights around the world. Vandenbogaerde overlooks the fact that the historical basis of the global south’s claims are based on certain historical experiences such as the trans-Atlantic slave trade, colonialism and its attendant extractive policies and apartheid among other acts of the global north, for which they seek reparations as these issues have led to underdevelopment in Africa.30 These claims were well articulated by the Pan-African school of thought on the political plane and the dependency theorists in the arena of 25 26 27 28 29 30

Kamga (n 23) 384. Vandenbogaerde (n 14) 187. Vandenbogaerde188. A footnote refers to an article by J Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15(3) California Western International Law Journal 507. Vandenbogaerde (n 14) 188. A unicorn is a mythological creature. To be fair to Vandenbogaerde, he does not accept the assertion by Donnelly that the right to development is incapable of justification. HB Jallow The law of the African (Banjul) Charter on Human and People’s Rights (1988-2006) (2007) 18.

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development scholarship.31 Nevertheless, Vandenbogaerde’s paper is a well-articulated analysis of the content of the right to development to which attention should be paid. However, after analysing the core content of the right to development, Vandenbogaerde urges that it should be dissolved into already-existing rights. The right to development, therefore, remains highly controversial at the international level in terms of the north-south divide, such that it was expected of the south to develop their own understanding of the right to development from their perspective. The discussion around the right to development in African jurisprudence does not occur in a vacuum.32 It mirrors the debate on the meaning of development in the economic development arena. In order to properly contextualise the right to development in Africa, it is important to understand the context in which the African Charter was conceived and the context under which it currently operates.33 The former Executive Secretary of the UN Economic Commission for Africa, Carlos Lopes,34 articulates that on the economic front Africa has made big strides. Its economic growth has been faster than the global average since 2000, having registered an average growth rate of 5 per cent. Eight out of 10 of the world’s top performing countries are in Africa. Economic growth is cited as being at its best since the ‘independence’ of Africa.35 On the other hand, Lopes admits that inclusive and sustainable development remains a challenge. One of the challenges facing Africa is poverty.36 Lopes states that seven out of ten of the world’s most unequal societies, across many dimensions such as wealth, income and access to public services, are in Africa.37 Kamga and Heleba have observed that over the past several years, South Africa has experienced economic growth that could be expected, in terms of the neo-liberal approaches; to have filtered down to the poor in the form of access to rights.38 However, this has not happened.39 Accordingly we argue that access to the economy by the poor will not occur as a natural consequence of economic growth in Africa. 31

32 33 34 35 36 37 38 39

See Viljoen (n 10); WP Nagan ‘The right to development: Importance of human and social capital as human rights issues’(2013) 1(6) Cadmus 25, G Kanyeze et al Beyond the enclave, towards a pro-poor and inclusive development strategy for Zimbabwe (2011) 75; R Browning ‘The right to development in Africa: An emerging jurisprudence? Examining the Endorois recommendation by the African Commission on Human and Peoples’ Rights’ http://kenyalaw.org/kl/index.php?id=1900 (accessed 21 July 2016). M Mutua ‘A critical evaluation of the African human rights system’ 5 http:// hrd.undp.org/sites/default/files/mutua.pdf (accessed 14 June 2016). As above. C Lopes ‘Editorial’ New African October 2015 I C, 8 http://newafricanmagazine.com/ october-2015-2/ (accessed 4 January 2018). As above. Ozoemena & Hansungule (n 8) 229. Lopes (n 34) 8. SAD Kamga & S Heleba ‘Can economic growth translate into access to rights? Challenges faced by institutions in South Africa in ensuring that growth leads to better living standards’ (2012) 9(17) Sur International Journal on Human Rights 43. Kamga & Heleba (n 38).

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Rather, the right to development must be seen as a useful tool to ensure that the benefits of economic growth filter down to the impoverished. The debate on the right to development has thus mostly centred on its international dimension between states, and there has been little debate on the application of the right to development within a state as compared to the state and the various peoples within its borders. Article 22(1) of the African Charter states that ‘[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’. Article 22 allows the incorporation of the right to development as a justiciable right that imposes a binding obligation between the state and its subjects in the domestic legal systems of African states. For this reason, the right to development must be given content, context and scope so that it can become a worthy tool to help Africa to move toward the realisation of the aspirations encapsulated in the language of the African Charter. Zimbabwe has taken steps to recognise the right to development in its Constitution. It is important to analyse the provisions referring to the right to development in order to determine their content and justiciability.

3

The right to development as a stand-alone right

An analysis of whether the Zimbabwean Constitution recognises the right to development is useful only if the right to development is found to be a stand-alone right. The Constitution already provides for economic, social and cultural rights, the content of which, according to scholars such as Vandenbogaerde,40 are sufficient to remove a rationale for the right to development. While the rights in the Declaration of Rights are mutually supportive, the right to development is a distinct stand-alone right, and the economic, social and cultural rights cannot take the place of the right to development.41 In as much as the content of the right to development is a bundle of rights (civil and political as well as economic, social and cultural), its relationship with individual rights should be understood in the context of their interdependency and interconnectedness. The Endorois communication42 stated that the relationship between the right to development and the other rights should not lead to the conclusion that the right to development has been replaced by the rights in the Declaration of Rights, and it was definitively found that the right to development was a stand-alone right. The key feature that differentiates the right to development from the economic, social and cultural rights is the fact that 40 41

42

Vandenbogaerde (n 14). Kamga (n 24) 390, see also M Scheinin ‘Advocating the right to development through complaint procedures under human rights treaties’ in A Bard, A Andreassen & SP Marks Development as a human right: Legal, political and economic dimensions (2010) 339. Endorois case (n 7).

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it has unique components that permit the bundle of rights to be applied to whole communities as a collective entitlement.43 Other components that emerge from the Endorois case are meaningful participation; an entitlement to choices and capabilities; benefit-sharing; and the burden for creating conditions favourable to a people’s development which lies with the state.44 The Endorois case emphasises the need for meaningful and effective participation and establishes that a government has a duty to consult with the indigenous peoples, especially when dealing with sensitive issues such as land.45 Consultations with communities cannot be a fait accompli,46 and community members must be given an opportunity to shape the policies or their roles in matters affecting them, especially where natural resources are concerned. Another principle of the right to development that clearly emerges is that the community representatives must as far as possible be placed in an equal bargaining position with the authorities where negotiations are conducted in development-related matters and matters crucial to the life of the community.47 Consultations must take into account the customs and traditions of the community. The principle of good faith through culturally-appropriate procedures with the objective of reaching an agreement is a key attribute of participation in a development context.48 The result of development should be the empowerment of communities. It is not sufficient for the authorities merely to give, for instance, food aid and to provide safety nets as humanitarian actions. There must be an improvement in the capabilities and choices of the communities in order for the right to development to be realised.49 An important principle that may be distilled from the Endorois decision relates to benefit-sharing when developments take place in lands belonging to certain communities. Referring to the African Charter for Popular Participation in Development and Transformation50 as an important instrument in understanding benefit-sharing in the development process,51 the African Commission stated that benefit-sharing is vital both in relation 43 44 45 46 47 48 49 50 51

Kamga (n 24) 390. Art 2(3) of the UN Declaration states that the right to development includes active, free and meaningful participation in development. Para 281 Endorois case (n 7). The Oxford Dictionary defines a fait accompli as something that has already happened or has been decided before those affected learn about it, leaving them with no option but to accept. Para 282 Endorois case (n 7). Para 289 Endorois case. Para 283 Endorois case. African Union African Charter for Popular Participation in Development, adopted in Arusha, Tanzania, 1990 https://www.issafrica.org/uploads/POPULARPPART CHARTER.PDF (accessed 2 September 2016). Para 295 Endorois case (n 7).

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to the right to development and, by extension, the right to own property.52 The benefit-sharing principle is strongly related to the question of rights to land and control of land by communities. The right to development would be violated when development within a community decreases the wellbeing of the community members concerned. In addition, the African Commission stated that the concept of benefit-sharing ‘also serves as an important indicator of compliance for property rights; failure to duly compensate (even if the other criteria of legitimate aim and proportionality are satisfied) result in a violation of the right to property’.53 The concept of benefit-sharing is similar to the concept of compensation for acquired land, but goes beyond this in that it allows communities in which development takes place to participate in the ventures and share in the profits. There is no requirement on the part of the communities to prove ownership in terms of the common law or statutory requirements, but ownership can be proved in terms of constitutional property law as amplified by the right to development.54 The Endorois recommendation also states that the right to obtain just compensation is a right of people to reasonably share in the benefits made as a result of a restriction or deprivation of their right to the use and enjoyment of their traditional lands and of those natural resources necessary for their survival. The burden for creating conditions favourable to a people’s development lies with the state. This is an important principle which should be read into every provision that concerns development issues. This means that the state cannot argue that it is for communities to take care of their development requirements.55 In the Endorois case the African Commission stated that ‘[i]t is certainly not the responsibility of the Endorois themselves to find alternate places to graze their cattle or partake in religious ceremonies’.56 The Commission emphasised that the state is obligated to ensure that the Endorois are not left out of the development process or benefits. The right to development is an entitlement that is due to ‘peoples’ as opposed to ‘individuals’ in terms of article 22 of the African Charter. A claim that there is a right to development for individuals emanating from the African Charter, however, may be possible to sustain if the UN Declaration is used as an interpretative aid as it makes the human person

52 53 54 55 56

Para 294 Endorois case. Para 298 Endorois case. The latest judgment of the African Court on Human and Peoples’ Rights in African Commission on Human and Peoples’ Rights v The Republic of Kenya, Application 006/2012, is a landmark judgment on this issue. Para 298 Endorois case (n 7). Para 160 Endorois case.

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the central subject of development.57 The Endorois communication, however, emphasises the rights of ‘peoples’ as opposed to individuals and uses the terminology of collectives and communities58 and provides general principles that can be adapted and used to identify groups to whom this right applies in Zimbabwe. The African Commission affirmed its decision in the SERAC case59 on the rights of ‘peoples’ to bring claims under the African Charter. The Commission stated that the importance of community and collective identity in African culture was recognised throughout the African Charter.60 The value of this reasoning is that it recognises that peoples may appear in different contexts and there are certain characteristics that may be used to determine who qualifies to be a people. The occupation and use of a specific territory, the voluntary perpetuation of cultural distinctiveness, self-identification as a distinct collectivity, as well as recognition by other groups, an experience of subjugation, marginalisation, dispossession, exclusion or discrimination were identified in the Endorois case as the criteria for identifying indigenous peoples. The same principles can be adapted to apply mutatis mutandis to other groups to whom the right to development can be found to apply. The identification of indigenous peoples in a municipal setting such as Zimbabwe is important as some communities may be made up of groups who claim certain rights, privileges, ownership of land and chieftainships on the basis of indigenous heritage and similar claims. This principle should be read to expand, supplement and clarify common law concepts on collective action, and constitutional provisions related to the locus standi of communities to bring legal action.61 The issue of collective action has remained controversial in Zimbabwe with courts being wary of burdening the procedure with a myriad of technicalities.62 The principles will undoubtedly be useful to clarify when there is a dispute as to the distinctiveness of a community, should that situation arise. The African Commission established that the right to development is a two-pronged test in that it is both constitutive and instrumental, coupled with the fact that it is useful as both a means and an end.63 The Commission proceeded to note that a violation of either the procedural or substantive element constituted a violation of the right to development.64 57 58 59 60 61

62 63 64

Preamble, arts 2(1)&(2) UN Declaration. Para 150 Endorois case (n 7). Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (SERAC case). Para 75 Endorois case (n 7). In Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General & Others (2001) AHRLR 248 (ZSC 1993) the Court granted locus standi to a human rights organisation to represent persons who were detained and could not represent themselves. L Chiduza & PN Makiwane ‘Strengthening locus standi in human rights litigation in Zimbabwe: An analysis of the provisions in the new Zimbabwean Constitution’ (2016) 19(4) Potchefstroom Electronic Law Journal. Para 277 Endorois case (n 7). As above.

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It not sufficient to fulfil only one of the two prongs in order to satisfy the right to development. Recognising the right to development requires fulfilling the following five main criteria; (i) equitability, (ii) nondiscrimination, (iii) participation, (iv) accountability, and (v) transparency.65 The above criteria should always be read in the context of equity and choice as the overarching themes of the right to development. There are eight major features emerging from an analysis of the Endorois decision that make up a right to development framework. These are summarised below. Table 1: Eight (8) Major features of a right to development framework NO 1. 2.

3.

4. 5.

6.

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FEATURE Collectiveness

SUMMARY

The right to development is collective in nature and is applicable to peoples, communities, groups which can be defined on a case by case basis. Constitutive and The right to development has a two-pronged test in Instrumental that it is both constitutive and instrumental, that is to say, useful as both a means and an end. The violation of either the procedural or substantive element constitutes a violation of the right to development. It not sufficient to fulfil only one of the two prongs in order to satisfy the right to development. Five main criteria Recognising the right to development requires fulfilling five main criteria these are: (i) equitability; (ii) non-discrimination; (iii) participation; (iv) accountability; and (v) transparency. Onus of ensuring The burden for creating conditions favourable to a benefits people’s development lies with the state Benefit sharing The benefit-sharing principle is strongly related to the question of rights to land and control of land by communities. The right to development will be violated when the development within communities decrease the wellbeing of the communities in issue. Entitlement to Choices The right means that communities must not merely and Capabilities be given goods but must have choices and must have the capabilities to fend for themselves.

As above.

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7.

The relationship of right to development and other rights

8.

Justiciability

The right to development is interdependent on all other human rights The content of the right to development right is a bundle of rights; however it is a stand-alone right. An element of the right to development is that it is enforceable in the African Charter and thus all state parties must not interpret their laws in a way that does violence to the charter (the principle in Dow).

Source: Author

These major features of the right to development will be used in analysing the constitutional provisions in the Constitution of Zimbabwe, to determine the extent to which they provide for the right to development. The next section utilises these features of the right to development to analyses the Preamble, sections in the Founding Provisions and the National Objectives of the Constitution of Zimbabwe. All of these sections fall outside of the Declaration of Rights wherein, the bulk of human rights are provided.66 This section also considers whether the Constitution allows for the existence of human rights outside the Declaration of Rights.

4

Declaration of Rights and the right to development

This analysis of the Zimbabwean Constitution dwells more on the National Objectives as there is much more content that refers to the right to development in this part of the Constitution, whereas there is no reference to the right in the Declaration of Rights. Section 47 of the Constitution states that the Declaration of Rights does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that those rights are consistent with the Constitution. Section 47 acknowledges that the rights in the Declaration of Rights are not exhaustive. In other words, in effect there are rights other than those enshrined in the Declaration of Rights. These may be classified into three types. The first type consists of rights that are contained in other parts of the Constitution; the second type are rights that may be conferred by law; and the third type consists of those rights that are explicitly recognised by law. There is no statute that currently confers the right to development in Zimbabwe. Therefore, it is necessary to analyse the Constitution in order to determine whether or not the right to development is contained in other parts of the Constitution. If the right is already provided for in other parts of the Constitution, it is not necessary to ask the courts to recognise it on the ground of it being an already-existing right in international law.

66

Chapter 4 of the Constitution of Zimbabwe Amendment Act (n 1).

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Nonetheless, it is necessary to take into account the relevant international or regional law sources in interpreting the Constitution to determine whether it provides for the right to development. Zimbabwe is a state party to the African Charter, and our courts have often freely relied on its provisions in the interpretation of rights and accepted the need to fulfil its obligations.67 Article 22(2) stipulates that ‘[s]tates shall have the duty, individually or collectively, to ensure the exercise of the right to development’. The binding nature of article 22 has been pronounced in the Endorois case. The decision of the African Commission has been welcomed as a major step towards giving content to the right to development. Viljoen has described the Endorois decision as the first comprehensive interpretation of the ‘right to development by an international adjudicatory body and a ground-breaking statement on the potential contribution of a human rights-based approach to development’.68 Therefore, there is a constitutional leeway to recognise in Zimbabwe the existence of the right to development as stated in the African Charter. Zimbabwean courts may rely on the right to development if it is found to exist outside the Declaration of Rights since section 47 provides for this approach. Another reason is that, as elucidated by the Endorois case, article 22 is an international law source that imposes a duty on Zimbabwe as a member state to ensure that it is exercises the right to development.69 It is concluded that as a result of the clear wording of section 47 and the recognition of the right to development by the African Charter and by the African Commission in the Endorois case, there is justification for surveying parts of the Constitution to consider whether they provide, either explicitly or implicitly, for a right to development. The Preamble to the Zimbabwean Constitution provides insight as to the philosophy of the Constitution as far as the north-south argument on the right to development is concerned.

4.1

The Preamble

The purpose of the Preamble is to give expression to the fundamental values and purposes of the Constitution as a whole.70 Although it does not in any way use the words ‘development’, the Preamble to the Constitution of Zimbabwe echoes the Pan-African philosophy of Africa’s founding

67 68 69

70

Simon Francis Mann v The Republic of Equatorial Guinea HH 1-2008 Case CA 507/07. Viljoen (n 10) 226. This approach has already been accepted by the Botswana Court of Appeal in AttorneyGeneral of Botswana v Unity Dow and the Zimbabwean case of Rattigan & Others v Chief Immigration Officer 1994(2) ZLR 54(SC) which cited Dow with approval. Jallow (n 30) 18 indicates a bold shift in some jurisdictions, which has seen a trend to rely on treaty provisions to fill in gaps that become apparent in the municipal law. See also the Ghanaian case of NPP v IGP (1996), and the Tanzanian case of Peter Ngomongo v Mwangwa and the Attorney-General (1992) Tanzania. J Kentridge & G Spitz ‘Interpretation’ in M Chaskalson Constitutional law of South Africa (1997) 11-12.

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fathers in crafting the African Charter when it refers to ‘our heroic resistance to colonialism, racism and all forms of domination and oppression’. The Preamble is rich in symbolism, with reference to forebears and compatriots who ‘toiled for the progress of the country’, which provides the setting for development or on which a developmental state can flourish. The Preamble refers to the need to entrench ‘democracy’, ‘good government’, ‘accountability’, ‘transparency’ and ‘the rule of law’ as well as affirming Zimbabwe’s commitment to upholding and defending ‘human rights and freedoms’. The Preamble to the Constitution evokes important development themes; it embraces the notion of development and aspires towards the key elements of the right to development. The issue of collectiveness, which represents the idea of peoples, communities and the principles that are used to identify these groups is embodied in the recognition of ‘our diversity’. The reference to ‘honouring our forebears and compatriots who toiled progress of our country’ illustrates allegiance to the idea that development is part of that progress, especially when read with the reference to the resistance to colonialism, racism and all forms of domination and oppression. The Preamble emphasises the notion of development to the extent that it is not inimical to a right to development. However, it cannot be said that the Preamble establishes the right to development. It provides an important interpretative aid and shows that Zimbabwe is committed to the spirit behind the establishment of African institutions such as the African Commission on Human and Peoples’ Rights (ACHPR). The themes stated in the Preamble are brought alive and given content in the founding provisions of the Constitution.

4.2

Founding provisions

Over and above the Preamble, the Constitution contains the founding provisions which deal with matters such as the definition of the Republic;71 the supremacy of the Constitution;72 the values and principles upon which Zimbabwe is founded;73 the national symbols;74 the tiers of government;75 languages and promotion76 and awareness of the Constitution. Section 3(1) recognises the human rights and freedoms and the nation’s diverse cultural religious and traditional values. Section 3(2) requires the state to respect the rights of the people of Zimbabwe from whom authority to govern derives and compels the recognition of the diversity of languages.77 Section 3(2)(i) specifically recognises group rights

71 72 73 74 75 76 77

Sec 1 Constitution of Zimbabwe Amendment Act. Sec 2 Constitution of Zimbabwe Amendment Act. Sec 3 Constitution of Zimbabwe Amendment Act. Sec 4 Constitution of Zimbabwe Amendment Act. Sec 5 Constitution of Zimbabwe Amendment Act. Sec 6 Constitution of Zimbabwe Amendment Act. Sec 6 reiterates and places a duty on the state to recognise all languages in Zimbabwe.

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for diverse groups, including recognition of the rights of ethnic, racial, linguistic, cultural and religious groups. Given that the right to development is collective in nature and is applicable to peoples, communities and groups who can be defined depending on the facts of a particular case, this section of the Constitution clearly recognises the collective aspect of the right to development. Recognising the right to development requires fulfilling five main criteria. These are equitability, which is specifically mentioned in section 3(2)(j), and non-discrimination mentioned in sections 3(1)(g) and (2)(i). Participation is provided for in section 5 as the tiers of government are meant to enhance this aspect. Section 7 promotes awareness of the Constitution and enhances participation. Accountability and transparency are specifically mentioned in section 3(2)(g) over and above other terms supporting these five criteria. The language of sections 2, 3(2), 5, 6 and 7 is binding on the state and all its institutions and the duty to fulfil any obligations arising from the Constitution and these values enshrined therein. It places the onus of ensuring development on the state. Section 3(2)(j) states that there shall be equitable sharing of national resources, including land. This ensures that there is benefit-sharing, a feature of the right to development. The founding provisions require good governance, human rights and freedoms, which imply choice and capabilities. The expansion of human freedoms is viewed by Sen both as the primary and the principal means of development.78 Sen advances the argument that since economic and political freedoms reinforce each other, there is a need for an integrated analysis of economic, social and political activities involving a variety of institutions and many interactive agencies.79 The founding provisions taken in their totality have the clearest expression of the elements of the right to development such that it is arguable that the founding provisions standing alone provide for the right to development. However, the occasion requiring the founding provisions to be read as stand-alone provisions will not arise as the National Objectives make a clear reference to the right to development.

4.3

National Objectives

The Constitution provides for National Objectives in Chapter 2.80 The objectives have two explicitly-stated functions: first, to guide all institutions and agencies of the government at every level in formulating and implementing laws and policy decisions that will lead to the establishment, enhancement and promotion of a sustainable, just, free and

78 79 80

A Sen Development as freedom (1999). As above. Sen views development as based on human agency. Secs 8-34 Constitution of Zimbabwe Amendment Act.

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democratic society in which the people enjoy prosperous, happy and fulfilling lives; and, second, to have regard to the national objectives when interpreting the state’s obligations under the Constitution and any other law. This approach is novel. It certainly is important for constitutional law and constitutional interpretation in Zimbabwe. Section 13 is couched as follows: (1) The state and all institutions and agencies of government at every level must endeavour to facilitate rapid and equitable development and in particular must take measures to – (a) promote private initiative and self-reliance; (b) foster agricultural, commercial, industrial, technological and scientific development; (c) bring about balanced development of the different areas of Zimbabwe, in particular a proper balance in the development of rural and urban areas.

Section 13 is couched in a way that is similar to the formulation of some of the economic, social and cultural rights in the Declaration of Rights to the extent that it asserts the right to development and also states the obligation of the state regarding that right.81 In fact, some rights in the Declaration of Rights do not have the assertion of entitlement but merely state in negative terms what the state may not do. Section 74, for example, states that no person may be evicted from their home or have their home demolished without a court order considering all relevant circumstances.82 Rights may be stated in a variety of ways, and one must determine the essence of the provision to be able to determine whether a right is created by that provision and the nature of such a right. The obligations imposed on the state by section 13 are such that it clearly provides for a right to development. Section 13(3) puts it beyond doubt that the measures referred to in sub-section 2 are envisaged to be rights. It states that ‘[m]easures referred to in this section must protect the right of the people, particularly women, to equal opportunities in development’.83 At a superficial level, it would appear that the national objectives are no more than an interpretive aid. However, at close scrutiny the national objectives indeed are justiciable. This is apparent when one considers the language and structure used in the construction of the provisions. To begin with, the objectives guide all institutions and agencies of government at every level. Government formulation and implementation of laws and policy decisions are to be guided by these objectives. Such policies should have as their desired end product the establishment, enhancement and 81 82 83

See for example, sec 73 on environmental rights. Sec 74 Constitution of Zimbabwe Amendment Act. Sec 13(2) Constitution of Zimbabwe Amendment Act.

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promotion of a sustainable, just, free and democratic society in which people enjoy prosperous, happy and fulfilling lives. A duty is imposed on the courts to have regard to the objectives set out in chapter 2 in interpreting a provision imposing obligations on the state. In a way, the courts cannot make a determination of a matter where the subject of contest is the nature of the state’s obligations without having regard to the National Objectives set out in Chapter 2. In this regard, they constitute interpretative aids to which the court has to have regard in arriving at the meaning of the contested provision. This requirement is mandatory. This is gleaned from the language of the text used: It uses the word ‘must’, which is peremptory. At the same time, from the nature of the language used in section 8(1) of the Constitution it would appear that the clause in fact is justiciable. The section makes it mandatory for state institutions and agencies at all levels to be guided by the National Objectives set out in Chapter 2 in formulating and implementing all laws and policy decisions. One may argue that the Constitution requires that in coming up with laws and policy decisions, the government has to be guided by the provisions set out in the national objectives. To that extent, a law or policy decision by a government institution or agency should reflect the spirit of the National Objectives, including the right to development. If it does not do so, then it can be subjected to a challenge and a court faced with such a challenge, once it concludes that the law or policy decision is inconsistent with the National Objectives, will have to nullify the same as being unconstitutional. Consequently, one may safely conclude that the National Objectives confer rights to the subjects of the Constitution and can be enforced. In fact, when having special regard to the language used, a rundown of the objectives set out in the chapter will reveal that the National Objectives are couched in a language that is imperative. The state is obliged to adopt and implement policies and legislation to develop efficiency, competence, accountability, transparency, personal integrity and financial probity in all its institutions and agencies at all levels. Emphasis is placed on the fact that the state has to ensure that appointments to public office are made on merit, and the state has to put in place measures to expose, combat and eradicate corruption and all forms of abuse of power by holders of political and public office. An analysis of these provisions clearly indicates that a positive duty is imposed on the state to ensure that policies and legislation are adopted and implemented to develop components of the right to development such as efficiency, competency, accountability, transparency, personal integrity and financial probity in all institutions and agencies of government at all levels. As such, Zimbabwean courts are at large to order an institution or agency of government to comply with a particular provision in the National Objectives. The same applies to all the other provisions in Chapter 2. Thus, one can bring a government institution or agency to account by resorting to litigation to enforce

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compliance. In essence, the provisions outlined in the National Objectives confer the right to development, which can be enforced against the state’s institutions or agencies involved. It is apt to put a rider to a blanket approach of all the sections contained in Chapter 2. It does not follow that the justiciability of the sections is based on the chapter in which they are found. The courts will have to look at each section standing alone and determine whether indeed it is justiciable. In Austin & Another v Chairman, Detainees Tribunal & Another84 the court found that although section 11 of the Lancaster House Constitution was in Chapter 3 of that Constitution, going by the manner in which it was crafted it was merely a preamble and not justiciable. Although the court in Austin found section 11 to be merely declaratory, it still accepted the principle that ‘the section must be given such declaratory force as it independently possesses’. Subsequently, the Supreme Court in Re-Mhunhumeso85 and Rattigan86 found section 11 to confer substantive rights, making it justiciable and not merely declaratory. In arriving at this conclusion, the Court interpreted the section as a stand-alone provision and looked at the import of its contents rather than where the provision was located.

5

Formulation of the right to development in the Constitution

The formulation of section 13 shows that there is a right to development which the Constitution recognises. The right to development is recognised by the requirement to fulfil the principles of equitability, nondiscrimination, participation, accountability and transparency, among other rights, to development indicators. A reading of section 13 meets all the criteria set out in Endorois for recognising the right to development. The manner in which the text of the section is crafted contains all the elements by which the right to development can be recognised in accordance with the rationale expounded in Endorois. The section is targeted towards local communities, and in section 13(3) makes explicit reference to protecting the rights of people to equal opportunities in development. Section 13(3) is similar to the wording of article 22 of the African Charter, which illustrates that the text enacting the right to development is always coupled with the element of equality. Therefore, the ‘right to equal opportunities in development’ is similar to the phrasing of article 22, which makes for the ‘equal enjoyment of the common heritage of mankind’, the raison d’être of the right to development. Thus, it is argued that the right to

84 85 86

1986 (4) SA 281 (ZS). Re-Mhunhumeso & Others 1994 (1) ZLR 49 (S). Rattigan & Others v Chief Immigration Officer 1994(2) ZLR 54(SC).

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development is provided for very strongly and explicitly in section 13 of the Constitution. Over and above the explicit enactment of the right to development, the remainder of section 13 provides for all the elements by which the right to development may be recognised. This reinforces the notion that the text was intended to enact a right to development. Section 13(2) emphasises the involvement of the people in development plans and programmes. It rehashes the explicit mention of development and goes on to enact the participation element of the right to development. The five main criteria for recognising the right to development in the form of ‘equitability’, ‘non-discrimination’, ‘participation’, ‘accountability’ and ‘transparency’ feature very strongly and are directly addressed by reference to equitable development in section 13(1), participation in section 13(2)(3), as well as equal opportunities and gender mainstreaming in section 13(3). This aspect is strongly emphasised, particularly when read together with section 9, which deals with good governance. Sections 13(3)-(4) directly address the aspect of benefit-sharing as a duty imposed on the state to ensure that everyone has equal opportunities for development87 and that local communities benefit from the resources in their area.88 The reference to self-reliance,89 private initiative90 and the involvement of people in development plans and programmes91 incorporates a rights-based approach, which highlights choices and capabilities. The onus is placed on the state to ensure the realisation of the right to development,92 which reflects the strong correlation between the indicators of the right to development and all the elements contained in section 13 of the Constitution.

5.1

Core interest of the right

The content of the right to development that is provided for has people in their collective sense as its core interest. According to section 8 of the Zimbabwean Constitution, the right is formulated in favour people enjoying prosperous, happy and fulfilling lives.93 This is in line with development terminology, which has its emphasis on communities and peoples.94 Section 8 states that the objectives that should guide the state and all its institutions and agencies when formulating and implementing laws and policy decisions should be the establishment, enhancement and promotion of a ‘sustainable’, ‘just’, ‘free’ and democratic society. The

87 88 89 90 91 92 93 94

Sec 13(3)-(4) Constitution of Zimbabwe Amendment Act. Sec 13(4) Constitution of Zimbabwe Amendment Act. Sec 13(1)(a) Constitution of Zimbabwe Amendment Act. As above. Sec 13(2) Constitution of Zimbabwe Amendment Act. Sec 13(1) Constitution of Zimbabwe Amendment Act. MP Todaro & MC Smith Economic development (2011) 19-20. See art 22 of the African Charter as interpreted in the Endorois decision.

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words used in this section are palatable with the development terminology that connotes the constitutive and instrumental aspects of the right to development.95 Emphasis is placed on the attainment of prosperity and happiness and, at the same time, this must be attained in a free, just and sustainable way.96 This means that attention is paid to both the substance of development as an end and also its attribute as a means to prosperity and happiness.97

5.2

Good governance

Sections 9 and 11 of the Zimbabwean Constitution focus on the good governance aspect and provides that the state must adopt and implement legislation to develop efficiency, competence, accountability, transparency, personal integrity and financial probity in all government institutions and agencies. Section 11 is a particularly important link between the right to development and the Declaration of Rights, given that the right to development and the fundamental rights in Chapter 4 are part of the same bundle of rights, as observed by Kamga.98 The elements of equitability, non-discrimination, participation, accountability and transparency are recognised in sections 9(1) and (2), and the onus to ensure that the criteria are adopted in the implementation of policies and legislation is on the state. There is indirect justiciability through policy level implementation and interpretation of other rights with which objectives are interconnected, such as in the Declaration of Rights.

5.3

Justiciability of the right to development

The state and all institutions and agencies at every level must endeavour to facilitate rapid and equitable development generally.99 In particular, the state must take measures to ensure specific development benchmarks.100 This places a duty on the state to promote and respect the right to development. In fact, the words promote101 and protect102 are used specifically in section 13. The justiciability of these rights is framed in a manner similar to that of the socio-economic rights in the Declaration of Rights. For example, in section 75(4) the state is obligated to ‘take reasonable legislative and other measures, within the limits of the

95 96 97

Sen (n 78) 36. According to Sen, freedom has both constitutive and instrumental roles. Todaro & Smith (n 93) 19-20. Todaro & Smith (n 93) 19, citing Sen, state that happiness is part of well-being and happiness may itself expand the capacity to function. 98 Kamga (n 24) 390. 99 Sec 13(1) Constitution of Zimbabwe Amendment Act. 100 Sec 13(1)(a)(b)(c)&(d) Constitution of Zimbabwe Amendment Act. 101 Sec 13(a) Constitution of Zimbabwe Amendment Act. 102 Sec 13(3) Constitution of Zimbabwe Amendment Act.

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resources available to it, to achieve the progressive realisation of the right’.103 The framing of the right to development in section 13 is justiciable in the same manner as the economic and social rights enshrined therein. The right to development is enforceable in the African Charter and, thus, all state parties must not interpret their laws in a way that does violence to the Charter (the principle in Dow)104 and, as such, section 13 must be interpreted to be binding in light of the fact that article 22 of the African Charter is binding on Zimbabwe as a state party. The justiciability of the right to development is both direct and indirect. Indirect application means that where it is ‘reasonably possible’,105 a court must first read a provision or policy that is challenged in a way that conforms to the right to development before it can resort to direct application or to striking down the provision.106 This approach would ensure that government actions to initiate and implement development policies must, as far as is practicable, be read to be consistent with the requirements of the right to development. The purpose of the indirect application is not to generate a constitutional remedy of striking down a provision where it can be read up so as to conform to the right.107 According to Currie and De Waal, the purpose of direct application is to determine whether, on a proper interpretation of the law, there is any inconsistency between the action, policy or law and the Constitution, in this case the right to development.108 The state must adopt and implement policies and legislation that comply with the right to development and must ensure that resources and facilities are provided to enable officials implementing these indicators to do their work efficiently, fairly, honesty and conscientiously.109 All the sections in Chapter 2 taken together require that all programmes, policies and legislation must be interpreted in such a way that furthers the right to development. Direct application, unlike indirect application, has the purpose of generating a constitutional remedy.110 The powers of the courts to declare constitutional invalidity111 or to make any order that is just and equitable among other powers are applicable with equal force to the right to development as to any other constitutional issue.112 The direct application also allows the right to development to be taken into account by the courts in the development of the common law or customary law.113

103 Sec 75(4) Constitution of Zimbabwe Amendment Act. 104 Attorney-General of Botswana v Unity Dow 1992 LRC (Const 623) Court of Appeal Botswana. 105 I Currie & J de Waal The Bill of Rights handbook (2005) 66. 106 See Currie & De Waal (n 105) 64 and the test in Govender v Minister of Safety and Security 2001(4) SA 273(SCA). 107 Currie & De Waal (n 105) 74. 108 Currie & De Waal 73. 109 Sec 9 Constitution of Zimbabwe Amendment Act. 110 Currie & De Waal (n 105) 74. 111 Secs 175(1)-(5) Constitution of Zimbabwe Amendment Act. 112 Sec 175(6) Constitution of Zimbabwe Amendment Act. 113 Sec 176 Constitution of Zimbabwe Amendment Act.

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Conclusion

This chapter has demonstrated that section 13 of the Zimbabwean Constitution indeed enacts in explicit terms the right to development. The right to development as expressed in this section is targeted towards local communities and in sub-section (3) makes explicit reference to protecting the rights of people to equal opportunities in development. The chapter established that all the indicators for identifying the right to development are present in section 13. Although the provisions of Chapter 2 have the explicit function of being interpretative aids, the language of the provisions is also such that certain sections, such as section 13, have a substantive function. Zimbabwean jurisprudence has often demonstrated that the question of whether or not a provision is substantive lies not in where it is located in the Constitution, but what it says. It is concluded that there is an explicit right to development in the Constitution of Zimbabwe, mainly in section 13. This right is elaborated in sections 9 and 11 and focuses on the aspect of good governance. The content of the right to development may be discerned from the text of the constitutional provisions, which Zimbabwean courts should recognise and interpret purposively when called upon to do so.

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13

IMPLEMENTING THE RIGHT TO DEVELOPMENT AT THE DOMESTIC LEVEL: A CRITIQUE OF THE ZIMBABWEAN CONSTITUTION OF 2013

Khulekani Moyo*

1

Introduction

The legal status, normative content and implementation of the right to development at the international level have been extensively debated since the adoption of the United Nations Declaration on the Right to Development (UN Declaration) of 1986.1 The debates on the right to development, to a large extent, have focused on three main issues.2 These issues relate to the conceptualisation of development as a human right;3 identifying the rights holders of such a right given its individual, collective and international dimensions;4 and suspicions regarding the feasibility of * 1

2 3 4

Senior Researcher, Mandela Institute, School of Law, University of the Witwatersrand, South Africa; [email protected] United Nations Declaration on the Right to Development UN GAOR 41st session, Annex, UN Doc. A/RES/41/128 (1986) (UN Declaration). For the debates, see J Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15 California Western International Law Journal 473; S Marks ‘The human right to development: Between rhetoric and reality’ (2004) 17 Harvard Human Rights Journal 137; SAD Kamga ‘The right to development in the African human rights system: The Endorois case (2011) 44 De Jure 381; K Moyo ‘An analysis of the impact of corruption on the realisation of the right to development’ (2017) 33 South African Journal on Human Rights 193; NG Villaroman ‘The right to development: Exploring the legal basis of a super norm’ (2010) 22 Florida Journal of International Law 299; ID Bunn ‘The right to development: Implications for international economic law’ (2000) 15 American University International Law Review 1425; B Ibhawoh ‘The right to development: The politics and polemics of power and resistance’ (2011) 33 Human Rights Quarterly 76; A Sengupta ‘On the theory and practice of the right to development’ in A Sengupta, A Negi & M Basu (eds) Reflections on the right to development (2005) 61; See also OC Okafor ‘A regional perspective: Article 22 of the African Charter on Human and Peoples’ Rights’ in UN Human Rights Realising the right to development: Essays in commemoration of 25 years of the United Nations Declaration on the Right to Development (2013) 373; A Vandenbogaerde ‘The right to development in international human rights law: A call for its dissolution’ (2013) 31 Netherlands Quarterly of Human Rights 187; M Salomon ‘Legal cosmopolitanism and the normative contribution of the right to development’ in SP Marks (ed) Implementing the right to development: The role of international law (2008) 17-26. Ibhawoh (n 1) 76; Bunn (n 1) 1435. Donnelly (n 1) 473-509. See also AK Sengupta ‘Conceptualising the right to development for the twenty-first century’ in UN Human Rights (n 1) 71. Bunn (n 1) 1435. 255

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the practical implementation of such a right, particularly with regard to its external dimension.5 However, it must be noted that, notwithstanding the debates regarding the legal status and practical enforceability of the international dimension of the right to development, key developments at the United Nations (UN) in the past two decades point to concerted international efforts not only to giving legal clarity but also to operationalising the right.6 The UN Human Rights Council (formerly the UN Commission for Human Rights) over the years has established several bodies and mechanisms to elaborate on and clarify the normative scope, content and the modalities for implementing the right to development. These include various intergovernmental working groups on the right to development; a UN Independent Expert on the Right to Development (1999–2004);7 a High-Level Task Force on the Implementation of the Right to Development (2004–2010);8 and a recently-appointed Special Rapporteur on the Right to Development in September 2016 for a three-year period.9 The focus of this chapter is not to engage in the debate on the legal foundations and feasibility in the implementation of the right to development as these issues have been extensively canvassed in the literature, as highlighted above.10 Nevertheless, under the African human rights system the question on the legal status of the right to development is now largely moot as the right is explicitly enshrined in the African Charter on Human and Peoples’ Rights (African Charter) as a legally-binding norm imposing enforceable obligations on African state parties.11 Rather, the debate now is focused on the content of such a right and its implementation both at the interstate and the intra-state levels, referred to respectively in this chapter as the external and internal dimensions of the right to development. The chapter provides some clarity on the domestic implementation of the right to development by using Zimbabwe’s 2013 Constitution (Constitution)12 as an entry point. The significance of the

5 6 7 8

9 10 11

12

As above. See Marks (n 1). See United Nations Commission on Human Rights Res 72 UNESCOR 44th session Supp 3229, E/CN.4/1998/177 (1998). The High-Level Task Force was established by the Commission on Human Rights at the recommendation of the intergovernmental Working Group on the Right to Development, in order to make appropriate recommendations to the various actors on the implementation of the right to development. See United Nations Commission on Human Rights, Commission on Human Rights Resolution 2004/7: The right to development, 13 April 2004, E/CN.4/RES/2004/7. See UN Human Rights Council Resolution on the Right to Development UN Doc A/ HRC/33/L.29 (2016). See generally (n 1). African Charter on Human and Peoples’ Rights (1981) OAU Doc CAB/LEG/67/ rev.5. The African Charter provides for a legally-binding right to development. Art 22(1) of the Charter states that ‘[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’. Constitution of Zimbabwe (Amendment 20) 2013.

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Zimbabwean Constitution, as will become clear below, is that it is one of the few constitutions on the continent that explicitly enshrines the right to development. The chapter is divided into five sections. The first section provides an overview of the content of the right to development, followed by a brief discussion and evaluation of the components of the right. The third section focuses on the state’s duty to implement the right to development, which is followed by a discussion and evaluation of the internal dimensions of the right to development. The fifth section discusses and analyses specific constitutional provisions that explicitly enshrine the right to development under the 2013 Constitution of Zimbabwe as well as the potential challenges likely to be confronted in their implementation.

2

An overview of the content of the right to development

The African Charter not only provides for the right to development as a legally-binding and enforceable right in article 22, but also explicitly stipulates in article 24 that ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development’.13 The African Commission on Human and Peoples’ Rights (African Commission), drawing from the work of the UN special mechanisms and the UN Declaration, has provided some semblance of clarity on the normative content, practical dimensions and nature of state obligations imposed by the right to development in its celebrated Endorois case.14 In the Endorois case, the African Commission endorsed the complainants’ arguments that recognising the right to development requires fulfilling five main criteria, namely, equitable, non-discriminatory, participatory, accountable and transparent development.15 What emerges from the Endorois case, the literature, particularly the reports and scholarly writings by the late former UN Independent Expert on the Right to Development, Arjun Sengupta, is a detailed elaboration on the nature, contents, scope and recommendations towards the practical implementation of the right to development.16 These are briefly discussed below as a backdrop to the discussion and analysis of the implementation of the right to development under the Zimbabwean Constitution.

13 14 15 16

See African Charter Preamble para 8, where African states stated that ‘it is essential to pay particular attention to the right to development’. Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009). Endorois case (n 14) para 277. See Moyo (n 1) 200-203 on the contributions of the late Arjun Sengupta in elaborating the contents of the right to development.

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Development as a process

A key component of the right to development is the conceptualisation of development as a ‘particular process of economic, social, cultural and political development’ that facilitates the realisation of all human rights.17 The rights of individuals and groups to be consulted and to participate in decision-making processes that may affect their exercise of the right to development must be an integral part of any policy, programme or development strategy. International human rights law emphasises the need for policies to be conceived and implemented in a manner that allows for public consultation and participation.18 The UN Declaration on the Rights of Indigenous Peoples, for instance, stipulates that states must obtain indigenous peoples’ ‘free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’.19 The importance of participation is buttressed in article 1(1) of the UN Declaration, which states that ‘[e]very human person and all peoples have a right of participation in the process of development’.20 In its interpretive approach, the African Commission provides clarity on the understanding of development in which the aim of any development endeavour is not only for people to benefit from development endeavours but also to effectively participate in the development process.21 In the Endorois case the African Commission utilised a two-pronged test in assessing whether the community concerned effectively participated in the development process and whether the community actually benefited from such a process.22 Of particular importance is the fact that participation must be ‘active, free and meaningful not only in the process, but also in the outcome of development policies’.23 In this regard, effective participation must be based on active consultation, adequate information and must be carried out through culturally-appropriate means. Significantly, the state must ensure that the consultation process is sensitive to the language preferences of the communities, their decision-making processes, and the needs of disadvantaged or vulnerable groups. The UN Declaration particularly emphasises a special concern for the participatory role of women in the development process,24 which should also apply to vulnerable groups such as indigenous peoples and the disabled.

17 18 19 20 21 22 23 24

Sengupta (n 3) 68. DM Chirwa ‘Privatisation of water in Southern Africa: A human rights perspective’ (2004) 4 African Human Rights Law Journal 234. See United Nations Declaration on the Rights of Indigenous People (2007) UN Doc A/RES/47/1 art 19. United Nations Declaration on the Rights of Indigenous People (n 19) art 1. Para 279 Endorois case (n 14). Paras 281-383 Endorois case. Art 2(3) UN Declaration. Art 8 UN Declaration.

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The lack of participation has been highlighted as one of the reasons for the failure of development policies in developing countries.25 An important reason for this failure is the absence of accountability of state institutions. The emphasis on participation is to ensure that state institutions are ‘more accountable and their performance more transparent in the process and the outcomes of development’.26

2.2

Interdependence and interrelatedness of all human rights

Another key feature of the right to development is the recognition of the interrelatedness and interdependence of all human rights,27 which is also enshrined in the UN Declaration. Accordingly, development entails a ‘comprehensive economic, social, cultural and political process which aims at the constant improvement of the well-being of the entire population’.28 One of the legacies of the Cold War, in the human rights sphere, was the creation of a dichotomy between civil and political rights, on the one hand, and economic, social, and cultural rights (socio-economic rights), on the other.29 The traditional understanding of civil and political rights is to perceive them as negative rights, requiring the state merely to refrain from interfering with the enjoyment of such rights. The classical understanding of socio-economic rights is to regard them as requiring positive state action and significant budgetary demands on state resources. The above dichotomy has been challenged as being out of date and not steeped in reality.30 All human rights impose obligations on states to respect, protect, promote and fulfil the protected rights. The African Charter is unique in its attempt to append what Mutua has termed an ‘African fingerprint’ on the human rights approach.31 It is the only regional human rights instrument that recognises economic and social rights on the same footing with civil and political rights. The Preamble to the Charter endorses the indivisibility and interrelatedness of all human rights, pointing out that ‘civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as their universality.32 Additionally, articles 6, 9 and 10 of the UN 25 26 27 28 29 30 31 32

K Iqbal ‘The Declaration on the Right to Development and implementation’ (2007) 1 Political Perspectives 8. As above. The Declaration underscores the unity of all human rights, asserting that all human rights are indivisible and interdependent. Preamble UN Declaration. K Moyo ‘Water as a human right under international human rights law: Implications for the privatisation of water services’ LLD thesis, University of Stellenbosch, 2012 88. V Petrova ‘At the frontiers of the rush for blue gold: Water privatisation and the human right to water’ (2006) 31 Brooklyn Journal of International Law 499. See M Mutua ‘The Banjul Charter and the African fingerprint: An evaluation of the language of duties’ (1995) 35 Virginia Journal of International Law 339. Preamble para 8 African Charter.

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Declaration clearly state that the implementation of the right to development entails the realisation of all civil, political, economic, social and cultural rights, as these rights are indivisible and interdependent. The UN has emphasised the interrelatedness, indivisibility and interdependence of all human rights through a number of resolutions and declarations.33 For instance, the distinctive feature of the Universal Declaration of Human Rights (Universal Declaration) is its emphasis on the interdependence and interrelatedness by placing all human rights – civil and political as well as economic, social and cultural rights – on the same footing.34 The International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the International Covenant on Civil and Political Rights (ICCPR) affirm in their respective Preambles that ‘the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights’. It follows that any strategy or mechanism for implementing human rights should address all rights as an integrated whole, fully recognising the implications of their interrelationship. The UN Declaration thus underscores the unity of all human rights, in terms of their indivisibility and interdependence.35 In this regard, equal attention should be given to the implementation, promotion and protection of civil and political as well as economic, social and cultural rights.36 Emphasis on the interdependence of human rights is important as it helps to understand the extent to which distinct rights are mutually dependent on each other for their effective realisation.37 The emergence of the global trend towards the constitutionalisation of socio-economic rights as justiciable entitlements demonstrates a concrete desire to ensure that the political process also focuses on assisting the poor and marginalised in accessing their basic needs to ensure a livelihood with dignity.38 The constitutionalisation of socio-economic rights is a clear demonstration that issues of poverty alleviation, social justice and access to social goods necessary for a dignified existence are not left to the

33

34 35 36 37 38

UN General Assembly Resolution emphasised that ‘[e]qual attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political rights and economic, social and cultural rights’. See Preamble to UN General Assembly Indivisibility and Interdependence of Economic, Social, Cultural, Civil and Political Rights (1986) A/RES/41/117. The Universal Declaration contains both civil and political and economic and social rights in the same instrument. See art 6(2) UN Declaration. Sengupta (n 3) 68. See C Scott ‘The interdependence and permeability of human rights norms: Towards a partial fusion of the international covenants on human rights’ (1989) 27 Osgoode Hall Law Journal 779-786. B Ray Engaging with social rights: Procedure, participation and democracy in South Africa’s new wave (2016) 11.

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vagaries of the markets.39 Significantly, socio-economic rights are also considered a precondition for public participation or successful democracy as effective political participation to a large extent depends on the existence of a socio-economically-empowered society.40

2.3

Development as an individual and a collective right

A cardinal feature of the right to development is its conceptualisation as both an individual and a collective right. Conceived as transcending individual entitlements, the right to development represents an entitlement that is claimable by peoples and also by states.41 Importantly, the duty bearers charged with the responsibility of fulfilling the right to development are not only states but also the international community.42 In this regard, the right to development is one of the few rights alongside the rights to self-determination and the right to a healthy environment that are predicated on the rights of peoples in addition to those of individuals.43 The UN Declaration underscores the collective nature of the right to development, which states that ‘[e]very human person and all peoples are entitled to the human right to development’.44 In this context, human rights go beyond the traditional definition of being individual-centred entitlements that such individuals hold against the state. They are also construed as entitlements that collectives hold against the state, and entitlements that states concomitantly hold against other states and the international community at large. Collective rights are not to be considered as necessarily opposed to individual rights. There are many cases where individual rights can only be fully enjoyed through the protection of group rights, for example, indigenous peoples’ rights as reflected in the Endorois case.45 Ultimately, it is the individual who stands to benefit from the protection of group rights, such as a trade union’s rights to freedom of association and assembly, or an indigenous group’s right to self-determination. The right to development as a collective right should thus be understood from that perspective.

39 40 41

42 43 44 45

DM Chirwa & L Chenwi ‘Protection of economic, social and cultural rights in Africa’ in DM Chirwa & L Chenwi (eds) The protection of economic, social and cultural rights in Africa: International, Regional and national perspectives (2016) 17. Chirwa & Chenwi (n 39) 15. See art 1(2) of the UN Declaration, which states that ‘[t]he human right to development also implies the full realisation of the right of peoples to selfdetermination’. Art 2(3) of the UN Declaration provides that ‘[s]tates have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals’. See also Ibhawoh (n 1) 85. Art 1(2) of the UN Declaration states that ‘[t]he human right to development also implies the full realisation of the right of peoples to self-determination’. The African Charter also provides in art 22 for the right to development as claimable by ‘peoples’. Art 1 UN Declaration. Moyo (n 1) 203.

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The African Commission was instrumental in providing clarity on the internal dimension of the contents of the right to development in the Endorois case. In broad terms, the Commission placed the burden of ‘creating conditions favourable to a people’s development’ on the government of Kenya.46 It held that Kenya was ‘under obligation to invest its resources in the best way possible to attain the progressive realisation of the right to development’.47 The African Commission’s elaboration of the right to development must be commended for providing clarity that any development process not only must ensure that all human rights can be fully enjoyed, but also that all people affected by such a process are entitled to participate in, contribute to and equitably benefit from the development process.48 The right to development thus can be viewed as encompassing the right to an environment propitious for development, the right to participate in the development process and the right to the benefits of development.49

3

States’ duty to implement the right to development

The right to development generally is viewed as encompassing two dimensions, namely, an internal and an external dimension.50 States’ responsibilities in relation to the right to development entail acting collectively and individually as they adopt and implement policies affecting persons not strictly within their jurisdiction.51 The internal dimension of the right to development focuses on the duties of each state to ensure that its domestic policies contribute to the realisation of human rights, including the right to development for all the peoples within its jurisdiction.52 The external dimension, on the other hand, consists of states’ extraterritorial obligations to cooperate globally or regionally for the realisation of the right to development.53

46 47 48 49 50 51 52 53

Para 206 Endorois case (n 14). As above. J Gilbert ‘Indigenous peoples’ human rights in Africa: The pragmatic revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative Law Quarterly 268. A Sengupta ‘The human right to development’ (2004) 32 Oxford Development Studies 179. ME Salomon Global responsibility for human rights: World poverty and the development of international law (2007) 112-113. K Arts & A Tamo ‘The right to development in international law: New momentum 30 years down the line’ (2016) 63 Netherlands International Law Review 239-241. Salomon (n 1) 18. As above.

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In this regard, ‘the external dimension addresses disparities of the international political economy which evidence massive global inequities’.54 Opposition to the right to development is largely directed at the apparent difficulties in identifying the specific holders of obligations in the right’s external dimension.55 Opponents argue that human rights as entitlements cannot be regarded as proper rights if the duty holders are not properly identified.56 As highlighted above, the focus of this chapter is on the internal dimension of the right to development, particularly with regard to implementation at the domestic level, using Zimbabwe’s 2013 Constitution as a case study. Many international and regional human rights treaties include specific obligations that enjoin particular actions at the municipal level in order to ensure state compliance. Such provisions impose specific obligations on ratifying state parties to implement international and regional norms at the domestic level. In addition to the specific textual obligations enshrined in some human rights treaty provisions, the view increasingly is that human rights law generally carries certain ‘positive’ obligations enjoining states to ‘take affirmative actions to implement these treaty obligations at the domestic level’.57 The UN High Commissioner for Human Rights defines implementation in the context of international human rights law as ‘moving from a legal commitment, that is, acceptance of an international human rights obligation, to realisation by the adoption of appropriate measures and ultimately the enjoyment by all of the rights enshrined under the related obligations’.58 Domestication thus entails that the provisions of national laws and regulations are harmonised with the norms and standards contained in international instruments with a view to their full domestic implementation. The African Charter imposes an obligation on African states to adopt legislative or other measures to give effect to the rights protected under the Charter.59 Read in conjunction with the definition of development highlighted above, African states, therefore, are required to enact laws that

54

55 56 57 58 59

Salomon (n 1) 17. The external dimension of the right is reflected in art3(3) of the UN Declaration, which enjoins states to cooperate with each other in ensuring development and in eliminating obstacles to development. Importantly, art 4(1) provides for the duty of all states to take steps individually and collectively to formulate international development policies that facilitate the full realisation of the right to development. N van der Have ‘The right to development and state responsibility: Can states be held to account?’ (2013) SHARES Research Paper 23 10. As above. IM Kysel ‘Domesticating human rights norms in the United States: Considering the role and obligations of the federal government as litigant’ (2015) Georgetown Journal of International Law 1020. UN Report of the High Commissioner for Human Rights on Implementation of Economic, Social and Cultural Rights UN Doc E/2009/90 (2009) para 3. See art 1 African Charter.

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enable the creation of an environment in which individuals and peoples under their jurisdiction can develop their full potential and lead productive, creative lives in accordance with their needs and interests as part of realising the right to development. The ICESCR, the major UN treaty that protects socio-economic rights, for example, contains provisions that impose specific obligations on ratifying states regarding the domestic implementation of the instrument. These have been further elaborated on by General Comments 360 and 961 and various theme-specific General Comments of the Committee on Economic, Social and Cultural Rights (ESCR Committee). Article 2(1) of ICESCR requires a state party to use any appropriate means, including the adoption of legislation, when domesticating the Covenant.62 The following section focuses on the internal dimension, which is important in the practical implementation of the right to development at the national level.

3.1

Internal dimension of the right to development

The internal dimension of the right to development focuses on the duties of each state to ensure that its domestic policy framework contributes to the realisation of the human rights of all those within its jurisdiction.63 Article 22(1) of the African Charter, as noted above, explicitly imposes duties on African states to individually or collectively ensure the exercise of the right to development.64 This provision was interpreted in the Endorois case as enjoining a state to create conditions favourable to peoples’ development.65 Importantly, in a number of its provisions the UN Declaration emphasises the complementarities of national and international obligations in the implementation of the right to development. Accordingly, states have a duty, as part of implementing the right to development, to ‘formulate appropriate national development policies’;66 ‘undertake, at the national level, all necessary measures for the realisation of the right to development’;67 ‘take steps, individually and collectively’ aimed at the realisation of the right to development;68 ‘take steps to eliminate obstacles to development resulting from failure to observe civil and political rights, as well as economic, social and cultural 60 61 62 63 64 65 66 67 68

ESCR Committee General Comment 3 on the Nature of State Parties’ Obligations (5th Session, 1991) UN Doc E/1991/23. ESCR Committee General Comment 9: The Domestic Application of the Covenant E/C12/1998/24 (1998). See art 2(1) ICESCR. M Salomon ‘Legal cosmopolitanism and the normative contribution of the right to development’ in SP Marks (ed) Implementing the right to development: The role of international law (2008) 17-26. See art 22 African Charter. Endorois case (n 14 above) para 298. Art 2(3) UN Declaration. Art 8(1) UN Declaration. Art 4(1) UN Declaration.

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rights’;69 and ‘encourage popular participation in all spheres as an important factor in development and in the full realisation of all human rights’.70 These provisions of the UN Declaration reinforce the idea that states are the primary duty bearers in the implementation of the right to development. Clearly, development as a human right has to be firmly rooted in equity and equality in access to and distribution of resources at the municipal level.71 The above provisions of the Declaration reinforce the orthodox position in human rights law that states are the primary duty bearers in the protection and realisation of human rights, including in the realisation of the right to development at the domestic level. Nevertheless, scholars and government officials from developing states tend to emphasise demands for a fundamental reconfiguration of the international economic order while resisting calls for domestic reforms in the implementation of the right to development to ensure equitable development.72 Ibhawoh has crisply captured this irony, noting that [t]he right to development has provided legal and ethical authority to the Third World’s request for the international redistribution of resources. However, it has been less effective in drawing attention to redistributing resources within the states. If anything, the right to development has offered developing countries an effective means of maintaining the domestic status quo.73

Vociferously arguing for a right to development solely in terms of the rights of states to a just international economic order while denying the same at the national level reflects double standards of the highest order.74 The role of developing countries in asserting the right to development of their people internationally does and should not nullify the obligation of these states to create a political, economic and social order at the domestic level conducive for the realisation of the right. Developing countries thus have an obligation to create a conducive environment to enable people in their respective jurisdictions to exercise the right to development. This should be done through the adoption of legislative, regulatory, programmatic and other measures that facilitate the equal protection and holistic enjoyment of civil, political, economic, social and cultural rights in a participatory manner with special consideration being given to vulnerable groups. The following section looks at the implementation of the right to development under Zimbabwe’s Constitution of 2013.

69 70 71 72 73 74

Art 6(3) UN Declaration. Art 8(1) UN Declaration. Sengupta (n 1) 69. Ibhawoh (n 1) 78. Ibhawoh 102-103. Ibhawoh 95.

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Right to development under Zimbabwe’s 2013 Constitution

Zimbabwe adopted a new Constitution75 in 2013 to replace the 1979 Constitution (Independence Constitution). What is unique about the Constitution is that its Declaration of Rights enshrines justiciable socioeconomic rights76 alongside civil and political rights.77 The constitutionalisation of socio-economic rights is a fundamental departure from the Independence Constitution, which only protected civil and political rights. The development follows the emerging trend towards the judicialisation of socio-economic rights as reflected in the Constitutions of South Africa,78 Kenya79 and various Eastern European and Latin American countries emerging from dictatorships and authoritarian regimes.80 The protected rights include the rights to freedom from arbitrary eviction,81 health care,82 food, water83 and education.84 The Declaration of Rights also enshrines socio-economic rights for vulnerable groups such as children,85 women,86 the elderly,87 persons with disabilities88 and veterans of the 1970s liberation struggle.89 Importantly, the Constitution also protects the rights of access to information90 and administrative justice,91 which no doubt plays a fundamental role in facilitating people’s rights to be heard in decision-making processes that impinge on their socioeconomic interests.92 Significantly, the Constitution gives courts the

75 76

77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

See Constitution of Zimbabwe (n 12). For the purpose of this chapter, socio-economic rights are defined as the rights that protect and improve the material living conditions of all human beings in their individual capacity and in groups. These rights include the rights to health, education, social security and an adequate standard of living, including water, food and housing. See Constitution of Zimbabwe (n 12) ch 4. See S Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010). See J Biegon & GM Musila (eds) Judicial enforcement of socio-economic rights under the new Constitution: Challenges and opportunities for Kenya (2012) for a discussion of socioeconomic rights under the Kenyan Constitution. See M Langford ‘The justiciability of social rights: From practice to theory’ in M Langford (ed) Socio-economic rights jurisprudence: Emerging trends in comparative and international law (2008) 30. Sec 74 Constitution of Zimbabwe (n 12). Sect 76 Constitution of Zimbabwe. Sec 77 Constitution of Zimbabwe. Sec 75 Constitution of Zimbabwe. Sec 81 Constitution of Zimbabwe. Sec 80 Constitution of Zimbabwe. Sec 82 Constitution of Zimbabwe. Sec 83 Constitution of Zimbabwe. Sec 84 Constitution of Zimbabwe. Sec 62 Constitution of Zimbabwe. Sec 68 Constitution of Zimbabwe. See Liebenberg (n 78 above) 53.

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power to enforce the rights and a broad discretion to make any order that is just and equitable in the event of an infringement of these rights.93 Due to structural limitations, I shall not delve into the specific contents of individual socio-economic rights or the philosophical debates on the pros and cons of the judicial enforcement of such rights. Section 13 of the Constitution titled ‘national development’ enjoins the state and all its institutions at every level to ‘endeavour to facilitate rapid and equitable development’ through taking ‘measures to bring about balanced development of the different areas of Zimbabwe, in particular a proper balance in the development of rural and urban areas’.94 The above constitutional provision is in accordance with article 2(3) of the UN Declaration, which obligates states to ‘formulate appropriate national development policies’.95 A question often arising relates to the added value of the right to development to the already protected socio-economic rights as well as the civil and political rights.96 For Ibahwoh, considering development as a participatory process that demands equal attention towards the realisation of all rights predicated on equity and justice brings out the value of the right.97 In Zimbabwe, section 13 of the Constitution obligates the state at every level to ‘involve the people in the formulation and implementation of development plans and programmes that affect them’.98 The importance of participation is highlighted by the UN Declaration which, as stated above, enjoins states to ‘encourage popular participation in all spheres as an important factor in development and in the full realisation of all human rights’.99 Viewed through a human rights lens, development entails that the people of Zimbabwe who are affected by any development endeavour must, apart from participating in and contributing to the formulation of development plans, also enjoy the benefits deriving from the development process. It is important that such participation must be active, free and meaningful not only in the process but also in the development outcomes.100 The paucity of consultation and participation in the formulation and operationalisation of development processes are key reasons for the less than stellar performance in the realisation of development projects in developing countries such as Zimbabwe.101 Genuine participation by those involved in and affected by development processes and projects will ensure that state institutions are more 93

See sec 175(6) Constitution of Zimbabwe (n 12). See also sect 86 on the power of courts to grant any appropriate remedy. 94 Sec 13(1) Constitution of Zimbabwe. 95 See also art 8(1) of the UN Declaration, which enjoins the state to ‘undertake, at the national level, all necessary measures for the realisation of the right to development’. 96 Sengupta (n 3) 70; Vandenbogaerde (n 1) 196-197. 97 Ibhawoh (n 1) 91. 98 Sec 13(2) Constitution of Zimbabwe (n 12). 99 See art 8(1) UN Declaration. 100 Art 2(3) UN Declaration. 101 Moyo (n 1) 202.

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accountable and their performance more transparent in the utilisation of public resources. It is worth noting that Zimbabwe’s new Constitution also enshrines the rights to administrative justice and access to information. These rights are important in ensuring that the rights of individuals and groups to be consulted and to participate in development initiatives that may affect their well-being must be an integral part of any development policy or strategy. A credible community consultation and participatory process must be based on the prior disclosure and dissemination to the affected community of relevant, transparent, objective, meaningful and easily-accessible information. It is important that the public consultation and participation process is free of external manipulation, interference, coercion and intimidation and enables meaningful participation by the community.102 Under the new constitutional dispensation which guarantees the right to development, implementation (through a human rights-based approach) entails that all those affected by a development initiative, particularly the poor and the marginalised, must be given the opportunity to participate and make inputs in key decisions on the development initiative. The participatory process should be conducted in such a way that it fully reflects the divergent concerns of both men and women through separate consultative forums. Importantly, public consultation and participation must apply at different levels and stages of the process. This should include participation in the formulation and implementation of development initiatives. The Constitution explicitly states that women, in particular, should be accorded equal opportunities in development. It must be noted that the preceding provision is contained in Chapter 2 of the Constitution which provides for ‘national objectives’ meant to guide the state and all its institutions and agencies in formulating and implementing developmentoriented laws and policies. The judicial enforcement of Chapter 2 of the Constitution is not clear as it falls outside the Declaration of Rights contained in Chapter 4 of the Constitution. Zimbabwean adjudicative mechanisms, particularly the Constitutional Court, will have to provide legal clarity on the justiciability of the norms enshrined in Chapter 2. It must, however, be noted that the Declaration of Rights is very clear that ‘[e]very woman has full and equal dignity of the person with men and this includes equal opportunities in political, economic and social activities’.103 Clearly, this is an explicit recognition of women’s rights to development in a judicially enforceable chapter of the Constitution. Of particular note is the fact that the Declaration of Rights is explicitly binding on the legislative, judicial and executive arms of the state as well as on natural and juristic persons, and that it expressly provides for the judicial 102 See International Finance Corporation Performance Standards on Environmental and Social Sustainability para 30 http://www1.ifc.org/wps (accessed 24 October 2017). 103 See sec 80(1) Constitution of Zimbabwe (n 12).

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enforcement of all the rights protected therein.104 The Constitution also establishes a Gender Commission to spearhead the implementation of women’s rights.105 The Gender Commission is specifically tasked with investigating violations of women’s rights, recommending actions to address gender discrimination, conducting research, advising on gender equality, and recommending affirmative action to promote gender equality.106 The focus on traditionally-marginalised groups such as women is important in the implementation of the right to development. The Constitution also emphasises the responsibility on the state to ensure that local communities benefit from the resources in their areas.107 Section 18 of the Constitution is of particular importance regarding the implementation of the right to development in the sense that it enjoins the state to promote the fair representation of all regions in Zimbabwe in all institutions and agencies of government at every level.108 The Constitution also imposes an obligation on the state to take ‘practical measures to ensure that all local communities have equitable access to resources to promote their development’.109 Such an approach is in accordance with the African Commission’s articulation of the contents of the right to development as entailing that development must be equitable, nondiscriminatory, participatory, accountable and transparent.110 The domestic implementation, therefore, must ensure that ‘the capabilities and choices of individuals and groups within a state’s jurisdiction must improve in order for the right to development to be realised.111 Development, conceptualised as a right, should entail the equitable distribution of the benefits of development, which constitutes a challenge in many African countries such as Zimbabwe, which is afflicted by the ills of corruption, tribalism, regionalism and political intolerance. This has often led to the deliberate marginalisation of ethnic groups or regions that are deemed to be politically less compliant. There is no doubt that the right to development makes a unique contribution to the discourse on human rights and development in adequately linking development and human rights by placing the human person at the centre of the development process. Such an approach not only ensures that all human rights can fully be enjoyed but that all peoples affected by the development process are entitled to participate in, contribute to and benefit from national development endeavours.

104 Sec 45 Constitution of Zimbabwe. 105 Sec 245 Constitution of Zimbabwe. 106 See sec 246 of the Constitution of Zimbabwe on the functions of the Gender Commission. 107 Sec13(4) Constitution of Zimbabwe. 108 Sec 18(1) Constitution of Zimbabwe. 109 Sec 18(2) Constitution of Zimbabwe. 110 Para 277 Endorois case (n 14). 111 Para 283 Endorois case.

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Challenges in implementing the right to development

As noted above, the Zimbabwean Constitution not only incorporates a broad range of socio-economic rights, which are an important constituent of the right to development, but also provides for these rights to be subjected to the same forms of judicial protection and remedies available in respect of civil and political rights. The inclusion of socio-economic rights and the right to development in the new Constitution, and a range of other provisions that seek to address the socio-economic plight of individuals and groups, is informed by a history of social exclusion and marginalisation which the post-independent government has failed to address. The constitutionalisation of the right to development also occurs against the backdrop of the traditional privileging of civil and political rights and the virtual neglect of socio-economic rights under the previous constitutional dispensation. The implementation of constitutional rights such as the right to development requires the adoption of legislative, policy and programmatic measures backed by adequate resources if this right is to be meaningful. It is important to note that most of the socio-economic rights enshrined in the Declaration of Rights (sections 74-84) impose a duty on the state to undertake ‘reasonable legislative and other measures’, within the available resources, to ensure their progressive realisation. The concept of progressive realisation is a reflection of the resource-dependant nature of state obligations in relation to the rights in question. From a constitutional perspective, Zimbabwe has a margin of appreciation to adopt whatever measures it considers the most appropriate for the realisation of human rights such as the right to development. Nevertheless, the state would be under a constitutional obligation to adopt deliberate, concrete and targeted steps towards the progressive realisation of the right to development. Insights from the African Commission’s decision in the Endorois case112 place great importance on transparent and participative decision-making processes at the domestic level in the assessment of whether a state has taken reasonable steps to the maximum of its available resources to progressively realise the right to development. State bureaucrats and adjudicative bodies, such as courts and various constitutional and statutory organs such as the Human Rights and Gender Commissions, will have to engage with a web of difficult doctrinal issues around the implementation of the right to development. These include the proper role of such organs in enforcing the right to development and related rights in light of the separation of power considerations; articulating the scope and content of the right to development as well as the socio-economic rights entrenched in sections 74 to 84 of the Constitution; ascertaining the appropriate remedies for breaches of the right to 112 Para 277 Endorois case.

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development; and determining the appropriate training for various role players such as judges, lawyers and human rights commissioners to expand their understanding of the right to development and its ensuing obligations. Adjudicative organs will also have to engage with the question of the justiciability of the right to development under the Constitution in the sense that sections 13 and 18, which contain elements of the right to development, are not located under the Declaration of Rights in Chapter 4, which (wrongfully) is considered to have more legal force. Rather, these provisions are located in Chapter 2 of the Constitution titled National Objectives.113 Whether the rights contained under Chapter 2 are legally enforceable or constitute mere guidelines to assist in the interpretation of the rights protected under the Declaration of Rights remains unclear until such time that the courts provide an authoritative interpretation. It must, however, be noted that the Constitution explicitly provides that ‘[r]egard must be had to this chapter [Chapter 2] when interpreting the state’s obligations under this Constitution or any other law’.114 Either way, this clearly shows that the rights protected in Chapter 2 of the Constitution, including the right to development, should not be taken lightly in understanding the nature of the state’s obligations under the 2013 Constitution. Significantly, it is insufficient to simply focus on the right to development and its component entitlements without paying attention to the broader aspects of the legal system and legal culture impacting on individuals’ and groups’ access to enforcement mechanisms, legal reasoning and legal education. These factors play a cardinal role in ensuring that the right to development is meaningful and effective in practice. With the advent of the new constitutional dispensation, the Zimbabwean legal profession is confronted by a fundamentally changed legal order. The legal profession and judges will only be able to effectively guide the constitutional implementation project by adopting a new way of thinking about legal problems and interpretation of the law. The new constitutional ethos encapsulated in the 2013 Constitution thus requires fundamental changes to the Zimbabwean legal culture to render it better equipped to engage with the innovative rights such as the right to development. Furthermore, crafting remedies for violations of human rights such as the right to development is extremely complex and will demand adjudicative bodies to fashion effective and, in some cases, innovative remedies to make the right to development a reality. Socio-economic injustices are systemic in nature, often reflecting underlying structural

113 See ch 2 Constitution of Zimbabwe (n 12). 114 Sec 8(2) Constitution of Zimbabwe.

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failures that result from the historical denial of the rights of large numbers of individuals and groups. In such situations, adjudicative bodies need to craft remedies that will have a wider positive impact on the lives of both the claimants before adjudicative bodies and similarly-situated individuals and groups that are not before such bodies, if the Constitution is going to have any positive effect on the lived experiences of the people of Zimbabwe.

5

Conclusion

This chapter evaluates the domestic implementation of the right to development by using Zimbabwe’s 2013 Constitution as an entry point. Significantly, the Zimbabwean Constitution is one of a few on the continent that explicitly enshrines the right to development. The chapter provides an overview of the content of the right to development as well as a discussion about the duty of the state to implement international and regional human rights norms, including the right to development. What is clear is that development, viewed as a human right, not merely is a matter of enlarging a state’s gross national product. It is argued that any implementation of development in its human rights form must fulfil certain criteria, namely, equitable, non-discriminatory, participatory, accountable and transparent development, and also as focus on the indivisibility and interrelatedness of all human rights. However, in their adjudicative work Zimbabwean courts and tribunals will have to engage with numerous difficult issues around the question of the justiciability of the right to development, particularly ascertaining the precise scope and content of the right and its relationship with other rights entrenched in Chapter 4 of the Constitution. Crafting remedies for violations of human rights such as the right to development is extremely complex and will demand of adjudicative bodies to formulate effective and, in some cases, innovative judicial responses to make the right to development a reality.

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14

THE RIGHT TO DEVELOPMENT IN AFRICA: LESSONS FROM CHINA

Phoebe Oyugi*

1

Introduction

The right to development is controversial and often is highly politicised. Debates surrounding the right to development always revolve around economic differences between the global north and global south and whether the right to development leads to the establishment of a new international economic order. The impact on the north-south divide on the right to development was discussed at length at the International Seminar on the 30th Anniversary of the UN Declaration on the Right to Development held in December 2016 in Beijing, China, which this author attended.1 The theme of the seminar was ‘Sharing development: Delivering greater benefit to all the people in the world’. The occasion was attended by government officials and scholars from China and from over 40 countries all over the world, mostly from the global south – Africa and Asia. The recurring theme at this seminar was how China prioritises the right to development over all other rights and how this has led to the uplifting of 700 million people from poverty in only 30 years. In a congratulatory letter addressed to the seminar attendees by President Xi Jinping, he reiterated China’s long-held belief that the fulfilment of the right to development is key to the realisation of other rights which, as he stated, the Chinese government is committed to achieve.2 Similarly, in the keynote address, Mr Liu Zhenmin, the United Nations (UN) UnderSecretary-General for Economic and Social Affairs, stated that China’s * 1

2

Doctoral candidate, University of Stellenbosch; [email protected] Xinhua ‘Beijing proposal – In commemoration of the 30th anniversary of the Declaration on the Right to Development’ (2016) China Society for Human Rights Studies http://www.chinahumanrights.org/html/2016/POLITICS_1206/6661.html (accessed 1 September 2017). Xinhua ‘Xi’s congratulatory letter to symposium on UN development right declaration’ (2016) China Society for Human Rights Studies http://www.chinahuman rights.org/html/2016/POLITICS_1205/6648.html (accessed 1 September 2017). 273

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practice and experience on the right to development ‘serves as an example for other countries’.3 In the same vein, African countries were at the forefront in championing the right to development, and the African Commission on Human and Peoples’ Rights (African Commission) has made a tremendous contribution to the right to development jurisprudence. However, despite its seeming commitment to the right to development, Africa, unlike China, still grapples with poverty and underdevelopment and is home to some of the poorest countries in the world. This, therefore, gives rise to the need to pay closer attention to the right to development, if it can result in lifting millions of people out of poverty, as appears to be the case in China. This begs the following questions: To what extent has China been committed to the right to development and how has this been demonstrated? What is the Chinese interpretation of the right to development? How has China implemented the right to development and what is the impact of such implementation? Following the UN UnderSecretary-General’s recommendation for other countries to learn from the Chinese experience, as noted above, this chapter aims to determine what lessons African countries could learn from such experience. In responding to these questions, the purpose first and foremost is to highlight the Chinese interpretation and implementation of the right to development and, in this relation, to identify lessons from which African countries could learn. On the basis of this analysis, I then make the argument that to advance the right to development in Africa; African states need to conduct a microscopic and detailed analysis of the Chinese development model that prioritises the right to development. The chapter is organised in six main sections including this introductory section. In section two I discuss the origins and politics as well as some of the core themes of the right to development. In section three I examine China’s interpretation and implementation of the right to development and the impact of this on poverty reduction. Section four focuses on the journey towards the recognition and implementation of the right to development in Africa as well as the jurisprudence of the African Commission. Section five explores the lessons that Africa could learn from China, and section six contains concluding observations.

3

Wo Hongbo ‘Keynote address – International seminar on the 30th anniversary of the adoption of the UN Declaration on the Right to Development – Sharing development: For delivering greater benefit to all people in the world’ (2016) UN Department of Economic and Social Affairshttps://www.un.org/development/desa/statements/mrwu/2016/12/keynote-address-international-seminar-on-the-30th-anniversary-of-theadoption-of-the-un-declaration-on-the-right-to-development.html (accessed 1 September 2016).

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Right to development as a human right

2.1

Origin and politics of the right to development

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The right to development boasts of African origins.4 The Senegalese jurist Kéba M’baye, one of its earlier proponents, famously stated that ‘everyman has a right to live and to live better’.5 This was in line with the general feeling by developing countries in the global south in the 1970s that were determined to form a new international economic order (NIEO) and to codify new, more favourable international trade norms in a legal document.6 The main idea behind the NIEO was to challenge the economic status quo by, for example, championing preferential treatment in trade by developed states in favour of developing states and paying special attention to least-developed and landlocked states. This is clear in the Declaration on the Establishment of a New International Economic Order (NIEO Declaration) adopted by the United Nations General Assembly (UNGA) on 1 May 1974 in which developing states declared, among others, their determination to create a NIEO:7 [B]ased on equity, sovereign equality, interdependence, common interest and co-operation among all states, irrespective of their economic and social systems which shall correct inequalities and redress existing injustices, make it possible to eliminate the widening gap between the developed and the developing countries and ensure steadily accelerating economic and social development and peace and justice for present and future generations …

Subsequently, the General Assembly also adopted the Charter of Economic Rights and Duties of States8 (Charter of Economic Rights), which supplemented and codified the NIEO Declaration. Its objective was to attempt to create obligations on the part of developed states to assist their developing counterparts in order to bridge the economic gap. The general sentiment throughout the NIEO Declaration and the Charter of Economic Rights is that northern states had played a part in colonial domination, foreign occupation, racial discrimination, apartheid and neo-colonialism which weighed down the southern states and impeded their development. Therefore, northern states had a responsibility

4 5

6 7 8

CC Ngang ‘Towards a right-to-development governance in Africa’ (2018) 17(1) Journal of Human Rights 111. K M’baye ‘Le droit au développement comme un droit de l’homme’ (1972) 5 Revue des Droits de l’Homme 503, cited in ID Bunn ‘The right to development: Implications for international economic law’ (1999) 15 American University International Law Review 1433. Bunn (n 5) 1430. Declaration on the Establishment of a New International Economic Order Resolution A/RES/S-6/3201, adopted by the General Assembly on 1 May 1974 (my emphasis). Charter of Economic Rights and Duties of States Resolution A/RES/29/3281, adopted by the General Assembly, on 12 December 1974.

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to contribute towards the development of the southern states9 or, as one scholar put it, ‘it was an expression of south’s frustration in the face of intransigent north power’.10 As expected, northern states, which are more economically developed, are averse to this argument, and rejected the NIEO, leading to perennial debates between the north and the south on this issue.11 Despite the rejection of the NIEO by the northern states, it is clear that the discourse helped to shape the coining of the right to development as it later appeared in the 1986 United Nations Declaration on the Right to Development (UN Declaration).12 The first legally-binding instrument enshrining the right to development as an enforceable entitlement is the African Charter on Human and Peoples’ Rights (African Charter). It provides:13 (1) All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. (2) States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

International recognition came with the adoption of the UN Declaration. Some of its salient features are the following: It declares that all humans and all peoples have the inalienable right to enjoy and participate in the economic, social and cultural development as well as the right to selfdetermination; it designates both humans and peoples as the subjects of the right to development; it places the primary duty on states to formulate policies and engage in international cooperation to facilitate the realisation of the right to development; it further obligates states to eliminate situations resulting from apartheid, foreign occupation, colonialism, racism and racial discrimination, which hinder the development.

9

10 11 12

13

ME Ellis ‘The new international economic order and General Assembly resolutions: The debate over the legal effects of General Assembly resolutions revisited’ (1985) 15 California Western International Law Journal 647-661; see generally, W Zhang & A Zhang ‘The relationship between human rights and development: An analysis of Chinese scholars’ perspectives and the practice of the Chinese government’ (2007) China Society for Human Rights Studies. RL Barsh ‘The right to development as a human right: Results of the global consultation’ (1991) 13 Human Rights Quarterly 322. GS Varges The new international economic order legal debate: Background, status, and alternatives (1983) 42-43; B Ibhawoh ‘The right to development: The politics and polemics of power and resistance’ (2011) 33 Human Rights Quarterly 87. Declaration on the Right to Development Resolution 41/128, adopted by the UN General Assembly, on 4 December 1986, art 3(3), which provides: ‘States should realise their rights and fulfill their duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and co-operation among all states, as well as to encourage the observance and realisation of human rights’ (my emphasis). African Charter on Human and Peoples’ Rights, adopted in Nairobi, Kenya, on 27 June 1981, art 22.

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Despite the adoption of the UN Declaration, discussions around the right to development have been heavily politicised debates between the north and the south.14 Having analysed states’ voting patterns on right to development-related resolutions before the Commission on Human Rights and the UNGA, Marks categorised states into four groups.15 The first group is the active members of the Non-Aligned Movement (NAM) in the Working Group of Governmental Experts on the Right to Development (Working Group) which consists of Algeria, Bangladesh, Bhutan, China, Cuba, Egypt, India, Indonesia, Iran, Malaysia, Myanmar, Nepal, Pakistan, the Philippines, Sri Lanka, Sudan and Vietnam. He states that this group is interested in using the right to development as a tool to reduce inequities of international trade, the negative impacts of globalisation, differential access to technology, the crushing debt burden, and similar factors they see as detrimental to the enjoyment of human rights and development.16

The second group consists of ‘more moderate developing countries’, which seek to integrate the right to development and human rights in their domestic policies and to maintain a good working relationship with donor countries and international agencies. The third group is made up of countries in transition and developed countries which would like to support the right to development as a ‘vehicle to improve the dialogue between developed and developing countries’.17 These countries, for example, which form part of the European Union (EU), are often willing to vote in favour of resolutions relating to the right to development as long as ‘nothing particularly objectionable is inserted’, in which case they abstain.18 The fourth group consists of states that often vote against these resolutions, and the United States (US) is the key protagonist. Other states, including Denmark, Japan and other smaller states under the influence of the US, belong to this group depending on the content of the specific resolution.19 From the voting patterns it is evident that the issue is divided, on the one hand, between developing countries in the global south that support the right to development and, on the other, developed countries in the north that moderately support it, at best, and become hostile to it, at worst. There has also been disagreement in the discussions on the right to development by scholars. The proponents argue, among others, that the right to development exists in ‘the history of the international human rights 14

15 16 17 18 19

S Marks ‘The human right to development: Between rhetoric and reality’ (2004) 17 Harvard Human Rights Journal 137; Barsh (n 10); see also SAD Kamga ‘The right to development in the African human rights system: The Endorois case’ (2011) 44 De Jure 381, fn 44 where he analyses the voting patterns of states which illustrate divisions between the north and the south. Marks (n 14) 141. As above. As above. As above. Marks (n 14) 142.

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movement’ and that it ‘does little more than synthesise various strands of existing international law and emerging international policy’.20 However, even the proponents recognise that many aspects of the right to development are ‘artfully vague’,21 which, therefore, makes it ‘nebulous in terms of concrete entitlements and obligations, justiciability and enforcement’.22 While some critics argue that the right to development is non-existent, others lament its construction and justiciability problems, and yet some go as far as to warn that it could be dangerous to recognise the right to development.23 For example, Donnelly is of the view that [t]he right to development is not merely a delusion of well-meaning optimists, but a dangerous delusion that feeds off of, distorts, and is likely to detract from the urgent need to bring together the struggles for human rights and development.24

Despite this controversy, ‘the prevailing view is that the right to development is, at the very least, on the threshold of acceptance as a principle of positive international law’.25

2.2

Themes at the core of the right to development

Following the UN Declaration and the African Charter, the right to development has been reaffirmed in many other international and regional documents. These include the Arab Charter on Human Rights (Arab Charter); the 1992 Rio Declaration on Environment and Development; the 1993 Vienna Declaration and Programme of Action; the UN Millennium Declaration; the 2002 Monterrey Consensus of the International Conference for Financing and Development; the 2005 World Summit Outcome Document; and the 2007 UN Declaration on the Rights of Indigenous Peoples. An analysis of the above instruments reveals at least five consistent themes, although there may be others, which seem to be the cornerstones of the right to development. The first is the recognition of the right to development as a universal, inalienable and equal right with humans and 20

21

22 23 24 25

P Alston ‘Making space for new human rights: The case of the right to development’ (1988) 1 Harvard Human Rights Year Book 20. See also NJ Udombana ‘The Third World and the right to development: Agenda for the next millennium’ (2000) 22 Human Rights Quarterly 768. Barsh (n 10) 322; see also OC Okafor ‘A regional perspective: Article 22 of the African Charter on Human and Peoples’ Rights’ in UN Human Rights Realising the right to development: Essays in commemoration of 25 years of the United Nations Declaration on the Right to Development (2003) 375. O Oduwole ‘International law and the right to development: A pragmatic approach for Africa’ (2014) International Institute of Social Studies 4. J Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15 California Western International Law Journal 473. Donnelly (n 23) 478. Bunn (n 5) 143; see also P Alston ‘The shortcomings of a Garfield the Cat approach to the right to development’ (1985) 15 California Western International Law Journal 510.

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peoples as the central subjects. Second, there is self-determination and sovereignty over natural resources. The third is the freedom to pursue political or economic policies for development without being subjected to external pressures through, for example, economic and political sanctions. The fourth tenet is the call for the elimination of discriminatory practices such as apartheid, racism and racial discrimination, Zionism, colonialism, among others, which undermine the efforts of developing countries to achieve economic development. The last is the insistence on cooperation between states and assistance of developing states by developed states and the international community through, for example, debt reduction or cancellation, technology transfer and improved markets. For the purposes of this chapter, I proceed to discuss only the first two of these themes. 2.2.1

Persons and peoples as subjects of the right to development

The UN Declaration states:26 The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

The right to development is both an individual and a collective right since both persons and peoples are recognised as the subjects of the right to development. This is an example of a new formulation of rights since the classical subjects of human rights were individuals.27 Brownlie explains that the assumption behind focusing on individuals was that by protecting individuals, the rights of the society or group or peoples would be automatically taken care of, since the individual is part of the group.28 However, the reality is that providing for the human rights of persons does not necessarily ensure that the rights of groups are guaranteed which, therefore, necessitated the introduction of collective rights.29 The express introduction of collective rights was met with confusion, scepticism and criticism.30 Many Western scholars argue that the collective dimension is contradictory to the known formulation of human rights and that, therefore, collective rights should not be considered human rights ‘in order to help to preserve the conceptual integrity of the muchabused idea of human rights’.31

26 27 28 29 30 31

Art 1(1) UN Declaration (n 12). I Brownlie ‘The rights of peoples in modern international law’ (1985) 9 Bulletin of the Australian Society of Legal Philosophy 104. Oduwole (n 22) 105. Brownlie (n 27) 105. See discussion in Alston (n 20) 24-28. Donnelly (n 23) 498.

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As will be illustrated below, the idea of collective rights exists in many southern cultures, notably in China and Africa. It is not surprising that China considers the right to development, a collective right, as the most important right, and the African Charter was adopted to protect both human and peoples’ rights. In fact, the African Commission has been instrumental in defining the concept of ‘peoples’ rights’ in the context of the right to development.32 2.2.2

Right to self-determination and sovereignty over natural resources

The right to development entails the right to self-determination and sovereignty over natural resources. The right to self-determination is contained in many instruments, including article 1 of the UN Charter; UN General Assembly Resolution 1514(XV); Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). According to these instruments, it is a people’s right to ‘freely determine their political status and freely pursue their economic, social, and cultural development’. The right to self-determination encompasses both internal and external obligations, that is, of a state to its people and of a state to other states.33 Furthermore, the UN Declaration provides:34 The human right to development also implies the full realisation of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

Similarly, article 1 of the Arab Charter provides inter alia that ‘[a]ll peoples have the right of self-determination and control over their natural wealth and resources’. Furthermore, principle 2 of the Rio Declaration reaffirms the right to self-determination and ownership of natural resources and adds an aspect on environmental consciousness and protection. In interpreting this principle, the African Commission held in the case of the DRC case that [t]he deprivation of the right of the people of the Democratic Republic of Congo, in this case, to freely dispose of their wealth and natural resources, has also occasioned another violation – their right to their economic, social and cultural development and of the general duty of states to individually or collectively ensure the exercise of the right to development, guaranteed under article 22 of the African Charter.35

32 33 34 35

See a discussion of this in sec 4.2 below. SE Allgood ‘United Nations human rights entitlements: The right to development analysed within the application of the right of self-determination’ (2002) 31 Georgia Journal of International and Comparative Law 330. Art 1(2) UN Declaration (my emphasis). Democratic Republic of Congo v Burundi, Rwanda and Uganda (2009) AHRLR 9 (ACHPR 2009) (DRC case) para 95.

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China and the implementation of the right to development

3.1

China’s perception of human rights

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Before going into the specific issue of the right to development, it is important to briefly discuss China’s perception of human rights generally, as this informs China’s interpretation of the right to development. There are at least two important principles in this regard. The first is the emphasis on the collective over individual rights and the second is the prioritisation of economic, social and cultural rights over civil and political rights.36 On the first issue, both the traditional and the modern Chinese society place the emphasis on the interests of groups or communities over that of individuals.37 This explains the Chinese affinity towards collective rights as opposed to individual rights. This is different from the classical, Western perception of human rights, discussed above, which places the individual interest before that of a group, and which originated from the desire to protect individual interests from state interference.38 Contrary to this, China places the interests of the community or the state before that of the individual. As one scholar puts it:39 The individual does not lie at the heart of Chinese society, either presently or in traditional China. Like other Asian countries, China stresses communitarian values, the importance of groups within society and the state’s interests over those of the individual. From a rights perspective, China would prefer to buttress the rights of the entire community, rather than permit an individual to assert rights against the state or community.

The Chinese perception of human rights, which prioritises collective over individual rights, shapes China’s implementation of human rights. The philosophical difference between the Chinese and Western perception of human rights often leads to confusion and criticism of China’s human rights record by the West, as discussed below. Second, China prioritises socio-economic rights over civil and political rights. Socio-economic rights are those contained in ICESCR such as the right to subsistence – the right to food, shelter and clothing, the right to education, and the right to work, among others. The civil and political 36 37

38 39

T Webster ‘China’s human rights footprint in Africa’ (2012) 51 Colombia Journal of Transnational Law 633. Webster (n 36) 634; C Saipeng ‘The exploration of universality and particularity of human rights in Chinese culture: Taking Macau as an example’ in C Zhenggong & R Danhong Cultural traditions, values and human rights (2011); H von Senger ‘Chinese culture and human rights’ in W Schmale (ed) Human rights and cultural diversity: Europe, Arabic-Islamic world, Africa, China (1993) 291. See sect 2.2.1. Webster (n 36) 634.

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rights are those contained in ICCPR, which entail the right to vote and the freedom of religion, association, speech and the press, among others. It is clear from the first White Paper on Human Rights issued by China, as well as numerous subsequent White Papers, that China prioritises the former. The first White Paper states inter alia that ‘[t]he right to subsistence is the most important of all human rights, without which the other rights are out of the question’.40 To justify and explain this position, the first White Paper recalls the century-long fight of the Chinese against ‘the three mountains’ – imperialism, feudalism and bureaucratic capitalism – during which millions of Chinese people lost their lives.41 It explains that for 110 years, from 1840 to 1949, China endured wars resulting from British, French, German, Russian, US and Japanese imperialism which turned old China into ‘an abyss of misery’.42 At the end of the many years of wars and suffering, the fundamental demand of the Chinese people was ‘to eat their fill and dress warmly’.43 Therefore, the coming of the Communist Party of China (CPC) is described akin to the arrival of the proverbial white knight on a horse coming to save the Chinese people from the misery. The first White Paper states:44 Ever since the founding of the People's Republic of China in 1949, the Communist Party of China and the Chinese government have always placed the task of helping the people get enough to wear and eat on the top of the agenda.

The CPC insistence on economic growth has been described as ‘a type of “performance legitimacy” – as a benchmark and measure of the regime’s success’.45 This means that the CPC’s success no longer is measured by adherence to Marxist-Leninist theories but by the success of its economic policies.46 Indeed, the CPC’s focus on economic growth has resulted in tremendous success, as Abebe and Masur explain:47 From a national perspective, the CCP’s economic reforms are an unqualified success. Fuelled by these reforms, the Chinese economy has produced tremendous economic growth and a rapidly improving standard of living for many of China’s citizens (in addition to severe consequences for the environment). Between 1978 and 2000, ‘[o]verall per capita gross domestic product (GDP) in constant Yuan roughly quadrupled’. Today, China has the

40 41 42 43 44 45 46 47

The right to subsistence – The foremost human right the Chinese people long fight for’ http://www.chinesehumanrightsreader.org/governments/91wp/i.htm (accessed 30 August 2017). As above. As above. As above. As above. D Abebe & JS Masur ‘International agreements and internal heterogeneity: The “two Chinas” problem’ (2010) 50 Virginia Journal of International Law 329. Abebe & Masur (n 45) 328. Abebe & Masur 333.

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world’s second largest economy by purchasing power parity, surpassing Japan, India, and Germany. It has the world’s largest foreign capital reserves. It enjoys a trade surplus of $163.3 billion with the United States. It is a leading destination for foreign direct investment, and has become more integrated into the world economy through its membership in the WTO. By almost every economic measure, the CCP’s economic policies and drive for modernization have produced tremendous aggregate gains for China and its citizens.

Economic development in China, however, has given rise to inequality between urban and rural areas, as well as the east and west of China.48 Moreover, China has been criticised, mostly by Western states, the press49 and non-governmental organisations (NGOs)50 for sacrificing civil and political rights at the altar of economic development. China is often accused of massive human rights violations, ranging from the suppression of freedom of expression and religion; the suppression of freedom of the press and internet; political arrests; detentions and torture; discrimination against minorities; harassment of activists and dissidents; the violation of labour rights; and forced family planning.51 The position of the Chinese government on its implementation of civil and political rights, however, is that ‘while struggling for the right to subsistence, the Chinese people have waged a heroic struggle for democratic rights’.52 The CPC explains that since its founding in 1949, it has championed the cause of human rights. It illustrates this with reference to the Constitution of the People’s Republic of China, which states that China belongs to the people, bestows the right to vote on all persons over the age of 18 without discrimination, guarantees equal rights to men and women and ensures equality of people of minority nationalities.53 Additionally, the CPC refers to the National People’s Congress which legislates as well as elects and removes the President from office and whose membership is comprised of representatives directly voted for by the

48

49 50

51 52 53

See generally Abebe & Masur (n 45); 19 October 2016 W Guobao ‘Ending poverty in China: What explains great poverty reduction and a simultaneous increase in inequality in rural areas?’ (2016) The World Bank http://blogs.worldbank.org/ eastasiapacific/ending-poverty-in-china-what-explains-great-poverty-reduction-and-asimultaneous-increase-in-inequality-in-rural-areas (accessed 31 August 2017). C Ruz ‘Human rights: What is China accused of ?’ BBC News Magazine 21 October 2015 http://www.bbc.com/news/magazine-34592336 (accessed 31 August 2017). Human Rights Watch ‘China events of 2016’ 12 January 2017 https://www.hrw.org/ world-report/2017/country-chapters/china-and-tibet (accessed 31 August 2017); Amnesty International ‘China: Latest information on crackdown against lawyers and activists’ https://www.amnesty.org/en/press-releases/2015/07/china-list-of-lawyersand-activists-targeted/ (accessed 31 August 2017). Ruz (n 49). ‘Human rights in China: The Chinese people have gained extensive political rights’ http://www.chinesehumanrightsreader.org/governments/91wp/ii.htm (accessed 31 August 2017). Constitution of the People’s Republic of China 1988.

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citizens at the grassroots level.54 Furthermore, the CPC describes the party system as a ‘multi-party cooperation and political consultation’ and proceeds to state that apart from the CPC, there are eight other democratic parties that work in consultation with the CPC to form the government of China.55 The CPC notes somewhat ominously that ‘China implements the system of people’s democratic dictatorship, which combines democracy among the people and dictatorship against the people’s enemies’.56 The extent to which China promotes civil and political rights is beyond the scope of this chapter. However, what is clear is that China has indeed made tremendous strides as far as social and economic rights are concerned, which does not receive the attention in the international arena that it should. The frequent criticism against China gives it a ‘victim’57 status, which seems to force commentators into choosing sides in the human rights debate – whether for or against China. Perhaps the human rights regime would benefit more from an honest and open-minded understanding of philosophical differences between the Chinese and Western conceptions of human rights followed by cooperation between states instead of constant criticism and rebuttal.58

3.2

Right to development in China’s human rights regime

As the rest of the world debates the very existence of the right to development, the Chinese government regards it as the most important right in the hierarchy of rights. This became clear with China’s participation and contribution towards the adoption of the UN Declaration.59 The CPC reiterated its commitment to this right during the international seminar,60 which the author attended. The Chinese government took the opportunity at this seminar to ‘join the international community to share its philosophy and experiences and to boost sound development of global human rights’.61 They issued a White Paper, which explains China’s philosophy, practice and contribution to the right to

54 55 56 57

58 59 60 61

‘The National People’s Congress of the People’s Republic of China’ http://www. npc.gov.cn/englishnpc/Organization/node_2846.htm (accessed 7 September 2017). ‘Human Rights in China’ (n 52). As above (my emphasis). See AE Kent ‘China and the international human rights regime: A case study of multilateral monitoring, 1989-1994’ (1995) 17 Human Rights Quarterly 2. Kent discusses the undesirable consequences of putting China in a ‘victim’ position using the precise example of the 1994 decision taken by the Clinton administration to sever Most Favoured Nation treatment from US human rights relations with China. See eg, Wei (n 9) where he says that the back and forth criticism on human rights issues has only created a ‘greater human rights catastrophe in the world’. See generally Kent (n 57). Xinhua (n 1). The State Council Information Office of the People’s Republic of China ‘Chinese White Paper on the right to development: China’s philosophy, practice and contribution’ 1 December 2016 http://english.gov.cn/archive/white_paper/2016/12/ 01/content_281475505407672.htm (accessed 23 August 2017).

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development.62 I discuss briefly two of the salient features of this White Paper. 3.2.1

Compatibility with Chinese culture and core beliefs

According to the White Paper, the right to development arises from Chinese culture, values and core beliefs.63 For example, it states:64 In traditional Chinese culture, concepts such as ‘moderate prosperity’ (xiaokang), ‘great harmony’ (Datong), ‘having ample food and clothing’ (fengyizushi) and ‘living and working in peace and contentment’ (anjuleye) fully reflect the Chinese people’s aspiration for and pursuit of a better, happier life.

Some commentators add that the implementation of the right to development in China is based on the teachings of Chinese philosophers such as Kuan-Tzu and Confucius. Kuan-Tzu, a philosopher from the seventh century BC, formulated the philosophy of ‘people first’, which means that all leaders should focus on serving the people and putting the needs of the people first.65 Similarly, Confucius formulated the concept of ren which is translated as ‘humanity, benevolence, love, and to bring out the sense of relationship, co-humanity’.66 Wang and Tang add:67 In Confucian philosophy, if one wants to be dignified, he should let others be dignified, and if one wants to be prosperous, he should let others be prosperous. Only in this way can he be a gentleman and ren be realised … In other words, survival of a person is based on survival of all, and development of a person depends on development of all.

The teachings of ancient Chinese philosophers illustrate that Chinese society is more communal than individualistic.68 This is also reflected in both traditional and modern Chinese society, and it is with this spectrum that China views human rights, in general, and the right to development, in particular.69 This therefore explains the attachment China has to the right to development, which presents both an individual and a collective right.

62 63 64 65 66 67 68 69

As above. As above. As above. X Wang & Y Tang ‘The right to equal development and its practice models in China’ (2015) 10 Frontiers of Law in China 570. As above. As above. Saipeng (n 36) 28. See sec 3.1.

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3.2.2

Right to development as the most fundamental human right

The White Paper further expresses that the right to development, which is related to the right to subsistence, is the most fundamental human right from which other rights derive. This is in conformity with the Chinese view on human rights in general (discussed in section 3.1 above) that the right to subsistence and economic development is the most fundamental human right. Many Chinese scholars agree with the view that the right to development, which embodies the right to subsistence, is the most important right.70 Because China considers the right to development as the most important human right, it has been one of the greatest defenders of this right. In this regard, the White Paper recalls how, as a founding member of the UN, China participated in the drafting of the UN Charter, facilitated the adoption of the Universal Declaration of Human Rights and upheld the principles in the international human rights covenants. The White Paper adds:71 China participated in all the previous meetings of the Group of Governmental Experts of the United Nations Commission on Human Rights (UNCHR) for drafting the ‘Declaration on the Right to Development’, and made an important contribution to the formal adoption of the Declaration in 1986. China has always been a co-sponsor of UNCHR resolutions on the right to development, supporting the UNCHR’s global debate on realizing the right to development, and consenting to the deliberation of the right to development by the UNCHR as a separate issue. Since the UNHRC was established in 2006, China has been elected as a member four times, and has contributed its wisdom and strength to making the right to development a mainstream issue.

The Chinese government, therefore, considers that it has guaranteed the right to subsistence of the poor since ‘the poverty reduction campaign in China is the most significant sign of China’s progress in human rights’.72 In only some 40 years China has reduced the number of people living in poverty by about 700 million and cut the rate of poverty by 5,7 percent.73 In this regard, China made a significant contribution to the UN Millennium Development Goals, especially goal number one – the eradication of extreme poverty and hunger.74 By the end of 2015, it is reported that the number of people living in poverty in the rural areas in

70

71 72 73 74

See the collection of academic papers presented at the commemoration of 30thanniversary of the Declaration on the Right to Development’; Xinhua (n 1); see also Y Xiang (interview with Huang Nansen) ‘Human rights ideas and concepts in traditional Chinese culture’ http://www.humanrights.cn/zt/magazine/ 20040200489150205.htm (accessed 4 September 2017). State Council Information Office (n 61) 43. As above. As above. UNDP ‘China’s success on Millennium Development Goals provides an example for others to follow for the post-2015 development agenda, says new UNDP Report’

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China had fallen to 55,75 million.75 Furthermore, the White Paper states:76 In the five autonomous regions of Inner Mongolia, Guangxi, Tibet, Ningxia and Xinjiang, and in the provinces of Guizhou, Yunnan, and Qinghai, where ethnic minorities are concentrated, the number of rural people living in poverty had fallen to 18,13 million.

It is undeniable that ‘China has achieved sustained economic growth and the most rapid, large-scale poverty reduction in human history’.77 China’s poverty reduction strategy has led to the creation of jobs, thereby ensuring the right to work and, accordingly, the people’s basic living standards have greatly improved. Apart from pursuing its own right to development, China cooperates with other countries in the global south in a bid to promote development.78 At the international seminar, the CPC’s main argument was that the fulfilment of the right to development ultimately leads to the fulfilment of other social, economic and cultural rights, such as the rights to education, housing, water, clothing and health care, among others. Subsequently, once economic, social and cultural rights are fulfilled, civil and political rights would follow naturally. For example, a citizen who has a good education and enough food to eat and a roof over their head is more likely to exercise their right to vote independently or to make demands for better governance. In this way, civil and political rights would also be fulfilled. It remains to be seen whether this will be realised.

4

The right to development in Africa

4.1

Origins of the right to development

Before discussing the right to development in Africa, it is necessary to point out, albeit briefly, the historical and continuing causes of Africa’s underdevelopment. This is important because, there are some similarities between the causes of underdevelopment in Africa and ‘the three mountains’ – imperialism, feudalism and bureaucratic capitalism – against 74

75 76 77 78

(2015) http://www.undp.org/content/undp/en/home/presscenter/articles/2015/02 /17/china-s-success-on-millennium-development-goals-provides-an-example-forothers-to-follow-for-the-post-2015-development-agenda-says-new-undp-report0.html (accessed 4 September 2017); ‘Report on China’s implementation of the Millennium Development Goals (2000-2015)’ 2015 http://www.fmprc.gov.cn/mfa_eng/zxxx_662 805/W020150730508595306242.pdf (accessed 4 September 2017). As above. State Council Information Office (n 61). The World Bank ‘Reducing poverty on a global scale: Learning and innovating for development’ (2005) The World Bank. See, eg, Webster (n 36). The author makes the argument that ‘China’s engagement with Africa has actually improved the human rights conditions of millions of Africans’.

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which China fought in its journey towards development. The need to eliminate these ‘three mountains’ is at the core of the Chinese government’s desire to prioritise development in China, something that could be emulated in Africa.79 From the 14th to the 19th Centuries, there was active slave trade where able-bodied Africans were sold off to slavery in Africa as well as in the Middle East, India, Europe and the United States.80 To call it a ‘trade’ is a misnomer since it implies that Africa also benefited economically from these transactions.81 This is not the case since the goods received by Africans in exchange for the slaves, such as firearms, gunpowder, brandy, cloth and tobacco, did not lead to economic growth in Africa.82 In fact, qualitative and quantitative research has shown that the long-term effects of the slave trade continue to date and that the regions from which more slaves were traded seem to be lagging behind in development.83 The end of the slave trade in the nineteenth century saw the advent of colonialism in Africa whereby European imperialism was couched under the terms of bringing civilisation to the ‘dark continent’.84 From the nineteenth through to the twentieth century, the unfair international trade system between Africa and the international community continued as Europe used Africa as the source of raw material for its industrialisation. There was neither consultation with nor participation of the indigenous communities.85 However, towards the beginning of the 20th Century, as Africans became educated and interacted with other civilisations, they began to demand a change of the status quo. This culminated in the push for a new economic order, backed by 70 developing countries, most of which were African.86 Prominent African politicians and scholars advocated for the right to development in the 60s and 70s.87 This culminated into the adoption of the African Charter in 1981, of which articles 20 and 22 enshrine the right to self-determination and the right to development.88

79 80 81 82 83 84 85 86 87 88

See sec 3.1. Oduwole (n 22) 10; N Nunn ‘The long-term effects of Africa’s slave trades’ (2008) 123 The Quarterly Journal of Economics 142. Ngang (n 4) 110. As above. Nunn (n 80). A Ibidapo-Obe ‘The dilemma of African criminal law: Tradition versus modernity’ (1992) 19 Southern University Law Review 243. Oduwole (n 22) 10. See sec 2.1. Ngang (n 4) 112. See sec 2.1 for the wording of art 22 of the African Charter.

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289

Africa’s contribution to the jurisprudence on the right to development

The African Commission through its interpretation of the African Charter has made a significant contribution in several cases to the evolving jurisprudence on the right to development.89 The first case was the SERAC case, decided in 2001.90 The complainants alleged that Nigeria had violated the rights of the Ogoni people by allowing Shell Corporation to exploit oil in Ogoniland without the involvement of the Ogoni people. The oil was exploited in a manner that degraded the environment and had a negative impact on the health of the Ogoni people. Moreover, when the people protested, the government deployed the military to violently quash the protests, to attack, torture, kill and burn the houses of the Ogoni people. The African Commission held that by committing these acts, the government failed to respect, protect, promote and fulfil the rights of the Ogoni people. However, the African Commission did not define the meaning of ‘people’ or what the ‘rights of people’ entailed, resulting in criticism by scholars.91 Besides, the complaint was not brought under article 22 of the African Charter and, therefore, the Commission did not pronounce on the right to development specifically. Be that as it may, the Commission held that the government was in violation of article 24 of the African Charter which mandates the government to maintain an environment that is satisfactory for a people’s development.92 By so doing, the African Commission upheld and reaffirmed the collective rights of peoples to development, which has been relied on in subsequent cases. In 2003, the African Commission decided on another case, the DRC case,93 which touched on the right to development. The DRC submitted a complaint to the African Commission alleging that the governments of Uganda, Rwanda and Burundi (respondent states) had deployed their respective soldiers to occupy the eastern provinces of the DRC, where they committed massacres, murders, rape, looting, plundering and the illegal exploitation of resources. The Commission held that by looting and illegally exploiting the natural resources of the DRC, the respondent states had deprived the DRC of the right to freely dispose of its natural resources and, thereby, committing a violation of the right to development.94 This is

89 90 91 92 93 94

Kamga (n 14). Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (SERAC case). Kamga (n 14) 387 SERAC case (n 101) para 69. DRC case (n 34). DRC case para 95; see also sec 2.2.2 of this chapter for the discussion of the right to freely exploit and dispose of resources as a component of the right to development.

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in line with the right to self-determination and sovereignty over resources as part of the right to development discussed above. In 2009, the African Commission pronounced itself more comprehensively on the right to development in the case of Sudan Human Rights Organisation & Another v Sudan.95 A complaint was brought before the African Commission alleging a violation of the rights of the black African tribes in Darfur –the Fur, Marsalit and Zaghawa. The allegation was that government forces and government-sponsored Arab militia (the Janjaweed) had continuously attacked these black African tribes, causing gross and massive human rights violations. As far as the right to development is concerned, the complainants alleged that the attacks led to displacements and instability of the Darfurians; preventing them from pursuing their social, economic and cultural development. The African Commission, holding in favour of the complainants, availed itself of the opportunity to define the concept of ‘people’ and ‘peoples’ rights’ in the context of the right to development. The African Commission started by admitting that the jurisprudence on the concept of peoples’ rights ‘is still very fluid’.96 It went on to hold:97 An important aspect of this process of defining ‘a people’ is the characteristics, which a particular people may use to identify themselves, through the principle of self-identification, or be used by other people to identify them. These characteristics, include the language, religion, culture, the territory they occupy in a state, common history, ethno-anthropological factors, to mention but a few. In states with a mixed racial composition, race becomes a determinant of groups of ‘peoples’, just as ethnic identity can also be a factor. In some cases, groups of ‘a people’ might be a majority or a minority in a particular state. Such criteria should only help to identify such groups or sub groups in the larger context of a state’s wholesome population.

Furthermore, the African Commission commented on the school of thought that the rights of peoples can only be enforced against foreign occupation, aggression or colonisation.98 The Commission held that the rights of peoples, as provided for in the African Charter, are meant to protect the African peoples from both internal and external abuse. It concluded that the black tribes of Darfur were a people and that the state of Sudan, by meting out collective punishment, had indeed violated the provisions of article 22 of the African Charter.99 In the same year, 2009, the African Commission again pronounced itself on the right to development of an indigenous community, the

95 96 97 98 99

(2009) AHRLR 153 (ACHPR 2009). Sudan Human Rights Organisation (n 95) para 220. As above. Sudan Human Rights Organisation para 222. Sudan Human Rights Organisation para 223.

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Endorois of Kenya, in Centre for Minority Rights Development & Others v Kenya (Endorois case).100 In this case a complaint was lodged on behalf of the Endorois people, alleging that the Kenyan government had evicted the community, turned their ancestral land into a game reserve and granted mining and logging concessions to third parties without adequate compensation, consultation with or participation of the Endorois people. The African Commission agreed that the acts of the Kenyan government constituted a violation of the right to development. The Commission formulated a two-prong test for determining violations of the right to development, comprising the constitutive and the instrumental, both of which have to be fulfilled for the right to development to be realised.101 The Commission further adopted the argument of the complainants that ‘recognising the right to development requires fulfilling five main criteria: It must be equitable, non-discriminatory, participatory, accountable, and transparent, with equity and choice as important, over-arching themes in the right to development.’102 The Commission concluded that the Kenyan government had violated the right to development of the Endorois people since the decision to evict them from their ancestral land was devoid of choice, participation and effective consultation.103 Finally, there was the case of Gunme & Others v Cameroon (Gunme case).104 The complainants alleged that the people of Southern Cameroons had been marginalised by the Republic of Cameroon, resulting in their inability to develop economically, socially and culturally. However, the African Commission held that Cameroon, like other African states, was struggling to fulfil the right to development because of inadequate resources.105 Under such circumstances, it is inevitable that resources would be distributed in a manner that leaves some of the citizens disgruntled, which the Commission held did not constitute a violation of the right to development.106 The above illustrates how the African Commission has defended and made a significant contribution to the jurisprudence of the right to development. However, Africa’s interaction with the right to development, unlike that of China, does not seem to have resulted in significant improvement in the living conditions of African people and the fulfilment of economic, social and cultural rights. Africa’s perception of the right to development tends to be more on a superficial or theoretical level while it continues to grapple with the actual challenges of poverty and underdevelopment. Unlike China that has overcome a history of colonialism, foreign occupation and imperialism to lift millions of people 100 101 102 103 104 105 106

(2009) AHRLR 75 (ACHPR 2009) (Endorois case). Endorois case (n 100) para 277. As above. Endorois case (n 100) para 292. (2009) AHRLR 9 (ACHPR 2009) (Gunme case). Gunme case (n 104) para 206. As above.

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out of poverty, Africa has been unable to overcome these barriers. It is therefore submitted that China’s experience with the right to development, in lifting about 700 million people out of poverty in 30 years, might provide important lessons from which Africa can learn.

5

Lessons from China

Since China is a country while Africa is a continent composed of 55 different countries with varying cultures, the suggestion that Africa could learn valuable lessons from the Chinese experience may be criticised as treating Africa as a homogenous entity. However, because the similarities between China and Africa outweigh the differences, I submit that the Chinese experience is relevant to Africa. First, although China is a country, its population of over 1,3 billion people is larger than that of all African countries combined, which is approximately 1,2 billion. Second, there are similarities in economic growth between China as a developing country and Africa as a continent of developing countries, though at different stages of development. Third, the idea of collectivism or the concept of ren in China, discussed above, is closely related to the sense of community in many African countries, as discussed below. Moreover, China, just as Africa, is heterogeneous and made up of people from different nationalities, religions and languages. Finally, both China and Africa have a common history of colonialism, imperialism and foreign occupation, which contributed to poverty and suffering of the populations. Because there are more similarities than differences, with regard to development-related issues, the suggestion that Africa could learn from China is justified.

5.1

Place of the right to development in the hierarchy of rights

As discussed in section 3.2.2 above, China considers the right to development as the most important right in the hierarchy of rights. This seems to be working, as China has succeeded in lifting millions of its people out of poverty within a relatively short period of time. As the UN Under-Secretary-General for Economic and Social Affairs stated, other countries can learn from the Chinese right to development experience.107 Admittedly, China’s human rights record is not perfect and, as discussed earlier, China has been accused of preconditioning the achievement of political rights on the fulfilment of social economic rights. Nonetheless, I submit that as compared to Africa, where the fulfilment of both political and socio-economic and cultural rights leaves a lot to be desired, China’s human rights record, even if limited to social-economic and cultural rights, is worth learning from. 107 Keynote Address (n 3).

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As compared to 30 years ago, millions of Chinese people currently are better able to put food on their tables, clothes on their backs and a roof over their heads, to go to hospital when sick, receive an education, and work to support their families. If you cannot do all this, is it not better to prioritise one thing? It remains to be seen whether China’s insistence on the right to development as key to the fulfilment of other rights would inspires better protection of civil and political rights. Nevertheless, I think that African countries should consider putting the right to development first on the hierarchy of rights, if it can lead to economic growth as has been experienced in China. However, there is a caveat to this. While the prioritisation of rights is desirable, as China has done and achieved immense economic development in a short period of time, it is important to consider other rights owing to the fact that human needs are diverse. As one Chinese scholar remarks:108 Since the reform and opening up, the Chinese government has been committed to the development of the economy, seeing economic development as the centre of all work, believing that economic development can solve all problems, including the legitimacy problem of the CCP. But in recent years, with the number of mass incidents (ie public riots), the Chinese government is aware of the fact that people’s needs are diverse, including material needs and many other needs, such as the need for political participation.

Because of this realisation, the Chinese government is increasingly taking steps to ensure civil and political rights such as political participation and voting.109 Therefore, even as I recommend the prioritisation of the right to development, I appreciate that the needs of people are diverse and that a government ought to refrain from violating other rights for the purpose of providing for the right to development. The right to development itself requires that development be in accordance with human rights and, therefore, the human rights of citizens cannot be violated in the name of development.

5.2

Culture and human rights

As pointed out earlier, China draws it interpretation of the right to development from cultural and traditional concepts such as ren, xiao-kang and Datong. Similarly, in the spirit of finding African solutions to African problems, it is imperative for Africa to look within and find innovative

108 L Wang ‘Human rights protection and economic development in China: Right to subsistence-based development and its future’ (2014) 7 Fudan Journal of the Humanities and Social Sciences 592. 109 As above.

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solutions that can concretely deal with the realities in the African context. It is clear that the development models adopted on the continent since independence have not been productive.110 Africa has a rich culture that protects human dignity, which it could tap into in order to fulfil its human rights obligations.111 Admittedly, through years of colonisation, Africa has lost some of its cultural identity. Makumbi compares African colonisation with being on the operating table where different parts of the African body are removed and replaced by European parts. She writes:112 [F]irst, he [the European] severed the hands then cut off the legs and he put the black limbs into a bin bag and disposed of them. Then he got European limbs and set upon grafting them on the black torso.

The result of this ‘operation’, according to Makumbi, is a hideous selfhating and self-harming creature, which is forced to function on foreign parts. She adds that ‘[w]e cannot go back on the operating table and ask for African limbs. Africa must learn to walk on European legs and work with European arms.’113 It is true that African culture has been mixed with Western culture in a way that is not always beneficial to Africa. Yet in what remains there are certain features that are so inherently African, and which can be leaned on to create policies that work on the continent. One major example of this is the belief in the community rather than the individual under the philosophy of ‘I am because we are, and because we are therefore I am’.114 The guiding principle in Africa is the belief in the ‘entire community and a sense of cooperation, interdependence, and collective responsibility’.115 Just as China relies on its cultural uniqueness to implement the right to development, Africa can do the same. Because there are cultural commonalities around the continent, there is a need to come up with development policies that reflect the realities of our societies, who we are as people, our culture, beliefs and way of life.116 The caveat here is that, like any culture, not all about the African culture is perfect. There is a need, therefore, to study other cultures and borrow, assimilate and adjust117 where necessary in order to promote development and human rights on the 110 See eg the discussion in Ngang (n 4) 113-114. 111 JAM Cobbah ‘African values and the human rights debate: An African perspective’ (1987) 9 Human Rights Quarterly 309. 112 JN Makumbi Kintu (2017) 336-337. 113 Makumbi (n 112) 337. 114 Cobbah (n 111) 320. 115 As above. 116 See eg, Udombana (n 20) 772. Udombana argues that Third World countries must define national development policies that work for them. 117 See a similar approach adopted in Y Guang ‘Chinese culture and universal values’ (2012) Human rights in China http://www.hrichina.org/en/crf/article/6128 (accessed 4 September 2017). While recognising that not all parts of Chinese culture are good or desirable, Guang proposes a similar approach for China.

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continent. This is the contribution of this chapter in looking at the right to development in China with a view to drawing lessons that are relevant to Africa.

6

Conclusion

I have endeavoured in this chapter to draw attention to the Chinese achievements and the similarities that exist between China and Africa. More importantly, I also suggest that Africa can and should learn from China with a view to accelerating socio-economic and cultural development on the continent. There is a need for further research into the Chinese method of implementing development to be able to provide a comprehensive list of lessons that could be learnt from the Chinese experience with regard to the right to development. China is hardly mentioned among the leading human rights enforcers in the world. However, as the world debates the very existence of the right to development, the Chinese people are committed to development, essentially with the aim to eradicate poverty. The result is that China has effectively raised millions of its people out of poverty. More so, China is partnering with developing and underdeveloped countries to undertake major infrastructural developments in these countries. Admittedly, China’s human rights track record is not faultless and there is still a lot to be done in terms of protecting the human rights of the entire population. For example, the country is grappling with environmental degradation, as evidenced by the air pollution visible in Beijing, while extreme poverty remains a problem for several millions of Chinese people, especially in the rural areas. However, the fast pace economic development of China is undeniable. More Chinese people increasingly have access to work, food, health care, water, housing, education, social security and many other socio-economic rights. It remains to be seen whether this improvement in socio-economic and cultural rights will directly translate into an improvement in the exercise of civil and political rights, as the CPC argues. The lesson that African countries can draw from this is that there is an urgent need to re-examine the needs of African people and to reset the priorities of African countries since conventional methods have proven not to be workable. In this regard China sets a good example because despite criticism by the rest of the world, it has chosen its path to development and the results are evident. From the presentations at the international seminar it is evident that the Chinese government is committed to the right to development, and Chinese scholars believe it is the key to the fulfilment of all other rights. Time will tell whether this philosophy is right or wrong. What is evident is that the Chinese government chose to focus on the need for development and millions of people have been lifted from poverty, and many socio-economic and cultural rights have been fulfilled. African countries could learn from the Chinese experience by choosing what is

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most important depending on the cultures, needs and priorities of the people, and working diligently on these in order to bring about development.

PART IV: REGIONAL PERSPECTIVES

CHAPTER

15

CRITICAL REFLECTIONS ON THE PROSPECTS AND CHALLENGES OF THE RIGHT TO DEVELOPMENT IN THE ASEAN HUMAN RIGHTS SYSTEM

Bright Nkrumah*

1

Introduction

The year 2017 marks the fiftieth anniversary of the Association of Southeast Asian Nations (ASEAN).1 The association was established principally as a political organisation on 8 August 1967.2 With an initial five member states, the organisation has grown to 10 member states as of 2017.3 The founding members were the Philippines, Thailand, Singapore, Malaysia and Indonesia. Brunei, Darussalam, Vietnam, Myanmar, Lao People’s Democratic Republic (PDR) and Cambodia joined later.4 The objective of the organisation did not include human rights, given that the provisions of the formative instrument, the 1967 Bangkok Declaration, excluded the term ‘human rights’.5 Yet, a seminal provision in the 2008 ASEAN Charter called for the establishment of a regional human rights system or ‘body’.6

* 1 2 3 4 5 6

Post-doctoral Research Fellow, NRF/British Academy Chair in Political Theory, Department of Political Studies, University of the Witwatersrand, South Africa;[email protected] HD Phan ‘The evolution towards an ASEAN human rights body’ (2008) 1 Asia-Pacific Journal on Human Rights and Law 8. C Jie ‘Human rights: ASEAN’s new importance to China’ (1993) 6(3) The Pacific Review 229. A Acharya ‘Human rights and regional order: ASEAN and human rights management in post-Cold War Southeast Asia’ in TH James & OC Tang (eds) Human rights and international relations in the Asia Pacific (1995) 93. M Munro ‘The relationship between the origins and regime design of the ASEAN Intergovernmental Commission on Human Rights (AICHR)’ (2011) 5(8) The International Journal of Human Rights 1210. M Davies ‘Explaining the Vientiane Action Programme: ASEAN and the institutionalisation of human rights’ (2013) 26(4) The Pacific Review 388. Charter of the Association of Southeast Asian Nations, adopted at the 13th ASEAN Summit in Singapore in November 2007 (ASEAN Charter); see art 14. 298

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As a consequence, ASEAN heads of state, meeting in Phnom Penh (the capital of Cambodia) adopted the ASEAN Human Rights Declaration (ASEAN Declaration) on 18 November 2012, giving impetus to the establishment of a regional human rights system (first envisaged by ASEAN foreign ministers in 1993).7 The ASEAN human rights system, therefore, is the youngest sibling of the four regional human rights systems (European (1950); Inter-American (1969); and African (1981)). Important elements of the ASEAN human rights system worth citing are the ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW); the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC); and, most importantly, the ASEAN Inter-governmental Commission on Human Rights (AICHR) (responsible for promoting human rights).8 Through a review of its wider regional human rights mechanism and the ASEAN Declaration, this chapter seeks to contribute to the debate on how the ASEAN human rights system can improve the socio-economic needs of its people by invoking the right to development set out in articles 35 to 37 of the Declaration. This discussion provides insights on how to promote the right to development in the ASEAN region by juxtaposing the right to development in the ASEAN system with the right to development in the African human rights system, given that the latter imposes a binding obligation on states to individually or collectively ensure the exercise of this right. The primary objective of the chapter is to set out recommendations on how to make states fulfil their human rights obligations in terms of committing resources to ensure that their citizens have adequate access to employment, housing, food, healthcare and water. The discussion focuses on situations where the universality of the right to development and the cultural relativity of ASEAN leaders intersect, that is to say, where ASEAN member states do not recognise the right to development as a Western concept and, thus, are not given teeth in the regional human rights instrument.

2

Why the right to development matters

It is worth bearing in mind that the right to development continues to be one of the most contested rights in the development discourse, continuing to attract the attention of human rights scholars, international lawyers and 7 8

MG Manea ‘How and why interaction matters: ASEAN’s regional identity and human rights’ (2009) Cooperation and Conflict 93; PJ Eldridge Politics of human rights in Southeast Asia (2013) 19. N Doyle ‘The ASEAN Human Rights Declaration and the implications of recent Southeast Asian initiatives in human rights institution-building and standard setting’ (2014) 63(1) International and Comparative Law Quarterly 68.

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academics.9 From the moment of its conception in 1972 by Kéba M’baye (then head of the United Nations High Commission on Human Rights), jurists from the north continued to question whether such a right existed, while scholars from the south advocated the recognition and inclusion of this right into human rights treaties.10 This attempt culminated in the adoption of the 1986 United Nations (UN) Declaration on the Right to Development (UN Declaration), which recognised the right to development as an important element of human rights.11 Apart from the UN Declaration, the 1993 Vienna Declaration and Programme of Action (Vienna Declaration) reaffirmed this right as an integral component of universally-recognised human rights.12 Nonetheless, the question whether a legal right to development exists remains unresolved, even after more than three decades since the adoption of the 1986 UN Declaration.13 In spite of the protracted debate, it must be noted here that the right to development may be perceived as a comprehensive political and socio-economic process, which aims at improving the living conditions of people.14 Since individual states (acting alone) might not be able to directly fulfil this obligation, it is important that all actors (both domestic and international) act together to ensure the realisation of the right to development.15

2.1

Legal framework of the right development in the ASEAN

With approximately 640 million people (double the population of the United States and nearly 20 per cent of the world’s population), a total land

9 10

11 12

13 14 15

BS Santos Towards a new common sense: Law, science and politics in the paradigmatic transition (1995) 357; O Sheehy ‘The right to development and the proliferation of rights in international law’ (2002) 5 Trinity Law Review 253. K M’baye ‘Le droit au développement comme un droit de I’homme’ (1972) Revue International des Droits de I’Homme, cited in RL Barsh ‘The right to development as a human right: Results of the Global Consultation’ (1991) 13 Human Rights Quarterly 322. Also see arguments advanced for and against the right to development by I Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15 California Western International Law Journal 475; TA Aguda Human rights and the right to development in Africa (1989) 6-7; A Sengupta ‘Implementing the right to development’ in N Schrijver & F Weiss (eds) International law and sustainable development: Principles and practices (2004) 15. Declaration on the Right to Development Resolution 41/128 adopted by General Assembly on 4 December 1986. Vienna Declaration and Programme of Action A/CONF 157/23 12 July 1993. Also see Open-Ended Working Group on the Right to Development E/CN/4 RES/1998/ 72; UN Commission on Human Rights Resolution 1989/45, 6 March 1989; ‘The realisation of the right to development’ Global Consultation on the Right to Development as a Human Right HR/PUB/91/2 United Nations, New York (1991). M Bedjaoui ‘The right to development in international law: Achievements and prospects’ (1991) cited in RW Perry ‘Rethinking the right to development: After the critique of rights’ (1996) 18 Law and Policy 228. BA Andreassen & S Marks (eds) Development as a human right: Legal, political and economic dimensions (2006) 241. A Eide ‘Human rights requirement to social and economic development’ (1996) 21 Food Policy 23.

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area of 4,5 million square kilometres and with an aggregate economic size of almost $2,6 billion, ASEAN would be the fifth largest economy in the world (after the US, the European Union, China and Japan) if it was a unitary system of government.16 Therefore, the ASEAN can hardly be ignored in the international human rights discourse, especially as it is gradually becoming an important political actor globally. The genesis of the right to development in the ASEAN can be traced back to the history of the construction of the regional human rights architecture.17 Amidst the escalation of the Vietnam War in 1967, five states (Singapore, Malaysia, the Philippines, Indonesia and Thailand) formed the ASEAN to resolve their ongoing border disputes.18 In 1984, Brunei joined the association and was followed by Vietnam (1995), Laos and Myanmar (Burma) (1997) and Cambodia in 1999.19 The only Southeast Asian nation that is not a member of the ASEAN is East Timor (Timor-Leste), which at the time of writing was demanding admission into the organisation.20 On 8 November 2012 during the 21st ASEAN Summit held in Phnom Penh, Cambodia, ASEAN leaders adopted the ASEAN Declaration amidst criticism from civil society organisations (within the region and the international community) that a human rights document must have binding effect rather than just ending up as a soft law declaration. Irrespective of the criticism, the Declaration (the first overarching human rights instrument in the region) raises the hopes of the people of ASEAN that their access to basic needs (such as food, water, health care and education) will be improved. Three years earlier, on 23 October 2009, the AICHR was launched.21 In line with article 1(4) of its Terms of Reference, the AICHR is mandated to promote (not protect) human rights in the region.22 With the authorisation of ASEAN leaders, the AICHR commenced a drafting process of the Declaration, which was subsequently adopted in 2012.23

16 17 18 19 20

21 22 23

N Al-Tamimi ‘Will ASEAN become a global economic power’? Arabnews 24 March 2017. DK Mauzy ‘The human rights and “Asian values” debate in Southeast Asia: Trying to clarify the key issues’ (1997) The Pacific Review 216. R Foot ‘Collateral damage: Human rights consequences of counterterrorist action in the Asia-Pacific’ (2005) 81(2) International Affairs 412. As above. While Laos and Singapore have objected that East Timor is not yet developed enough to join the ASEAN, Indonesia, from which East Timor gained independence in 2002, has pushed for them to be granted membership. See CS Chin ‘Why Timor-Leste deserves to join ASEAN’ Japan Times19 August 2017. J Munro ‘Why states create international human rights mechanisms: The ASEAN Intergovernmental Commission on Human Rights and democratic lock-in theory’ (2009) 10(1) Asia-Pacific Journal on Human Rights and the Law 16. This cleavage is examined further below. See ASEAN ‘Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, July 2009 http://www.ref world.org/docid/4a6d87f22.html (accessed 3 November 2017). MS Kelsall ‘The new ASEAN Intergovernmental Commission on Human Rights: Toothless tiger or tentative first step?’ (2009) 90 Asia Pacific Issues 4.

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Apart from containing expansive provisions seeking to promote fundamental human rights, the Declaration echoes universal as well as regional human rights values, while representing a balance of rights and duties. It places key safeguards to ensure that its provisions in their entirety are in accordance with international human rights. In this respect, the Declaration reaffirms the commitment and adherence of the ASEAN to international human rights instruments such as the Universal Declaration of Human Rights (Universal Declaration), the UN Declaration on the Right to Development and the Vienna Declaration and Programme of Action.24 It could, therefore, be argued that the ASEAN Declaration was adopted to complement and not to undermine such global standards of ensuring the right to development to ASEAN people.25 This reiteration of adherence in fact is exemplified in the Declaration, which states:26 The right to development is an inalienable human right by virtue of which every human person and the peoples of ASEAN are entitled to participate in, contribute to, enjoy and benefit equitably and sustainably from economic, social, cultural and political development. The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. While development facilitates and is necessary for the enjoyment of all human rights, the lack of development may not be invoked to justify the violations of internationally recognised human rights. ASEAN member states should adopt meaningful people-oriented and gender responsive development programmes aimed at poverty alleviation, the creation of conditions including the protection and sustainability of the environment for the peoples of ASEAN to enjoy all human rights recognised in this Declaration on an equitable basis, and the progressive narrowing of the development gap within ASEAN. ASEAN member states recognise that implementation of the right to development requires effective development policies at the national level as well as equitable economic relations, international cooperation and a favourable international economic environment. ASEAN member states should mainstream the multidimensional aspects of the right to development into the relevant areas of ASEAN community building and beyond, and shall work with the international community to promote equitable and sustainable development, fair trade practices and effective international cooperation.

Irrespective of the fact that the character of the specific model or conception of development as set out in the Declaration (social democratic or neoliberal) is relevant to the failure or success of the ASEAN human rights mechanism to ensure the realisation of the right to development, articles 35 to 37 are hardly clear as to the exact meaning of development. 24 25 26

See Preamble. G Clarke ‘The evolving ASEAN human rights system: The ASEAN human rights Declaration of 2012’ (2012) 11(1) Northwestern Journal of International Human Rights 273. ASEAN Human Rights Declaration adopted during the 21st ASEAN Summit held in Phnom Penh, Cambodia, on 8 November 2012, arts 35-37 (my emphasis).

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Yet, since this is a short chapter, it will avoid venturing into a lengthy discussion on the conceptual contours of development (which have been summarised above). The meaning of development (from the perspective of available conceptual guideposts) should be perceived as no longer solely in terms of socio-economic and cultural growth;27 that at its core, citizens’ participation or bottoms-up approach is to be favoured over the top-down approach to development; that the peoples of the ASEAN region have the right to participate in development; that gender interests must be mainstreamed into development practice; and that development at its core encompasses the fostering of equity among and within ASEAN states. In particular, article 37 clearly disaggregates its notion of development into gender-responsive and people-oriented development programmes aimed at eradicating poverty. Although the Declaration provides expansive provisions seeking to enhance the realisation of the right to development of the ASEAN people, it could be said that at best it is a weak instrument. As indicated under the last paragraph of article 35, citizens have no right to file a complaint. This provision does not only deny the AICHR an opportunity to protect citizens’ rights to development by providing remedies for violations, but also denies it the avenue to monitor states’ compliance with this provision. Given that the provisions of the Declaration do not oblige member states to report on the steps taken to ensure the realisation of the right to development, the AICHR lacks the mandate to request information (in the form of state reports) to determine the efforts each state party has taken to ensure the realisation of the right to development incorporated in the Declaration.28 Against this background, the content and jurisprudence of the right to development under articles 35 to 37 have not been enriched through litigation or interpretation by the AICHR.29 Therefore, it is not surprising to see that the right to development is not enshrined in any of the national constitutions of the ASEAN member states.30 Unlike some African Union (AU) member states, including Malawi, Uganda, the Democratic Republic of the Congo (DRC) and Ethiopia, none of the 10 ASEAN member states has entrenched the ‘right to development’ nor do they make (direct) reference to essential elements of the UN Declaration on the Right to Development.31 Thus, in the ASEAN human rights system the right to development has not been included in binding human rights instruments, both regionally and nationally (presumably due to a lack of

27 28 29 30 31

Art 35 ASEAN Human Rights Declaration (n 26). M Davies ‘ASEAN and human rights norms: Constructivism, rational choice, and the action-identity gap’ (2013) 13(2) International Relations of the Asia-Pacific 209. As above. MG Manea ‘Human rights and the interregional dialogue between Asia and Europe: ASEAN-EU relations and ASEM’ (2008) 21(3) Pacific Review 371. See the Constitutions of Malawi (art 31); Uganda (Objective IX of National Objectives and Directive Principles of State Policy); Democratic Republic of the Congo (DRC) 1996 (art 58); and Ethiopia (arts 43(1)-(2).

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political will on the part of ASEAN leaders).32 Since ASEAN leaders lack the political commitment and the AICHR lacks the legal mandate to enforce this right, it is important to examine the extent to which this right has been operationalised in a hostile regional environment such as the ASEAN region.

2.2

From non-interference to indifference

Since its inception in 1967, the concept of the right to development has not featured prominently on the agenda of the 10 ASEAN member states.33 The paramount ASEAN objectives, instead, have been the pursuit of regional security and cooperative measures for promoting inter-state trade and development.34 Unlike the AU, ASEAN has marginalised human rights, in general, and the right to development, in particular, by insisting on a strict separation between trade issues and human rights policy, and has constantly opposed the use of diplomatic, economic or other forms of pressure by international organisations or foreign states to induce a change in poverty and mortality rates.35 ASEAN member states have displayed an aversion towards reports by non-governmental organisations (NGOs) such as Human Rights Watch, Amnesty International as well as reports from the United States Department of State.36 The general response of ASEAN has been that this violates the sacred principle of non-intervention in domestic matters and, thus, constitutes foreign intervention in internal affairs, thereby undermining the sovereignty of states as enshrined in article 2(c) of the 1976 Treaty of Amity and Cooperation in Southeast Asia.37 Among the ASEAN member states, there is an emphasis on consensus, compromise and harmony in ordering inter-state engagements.38 According to Arendshorst, these principles undoubtedly help to perpetuate a fraternal silence on member states’ non-compliance with the right to development as set out in the ASEAN Declaration.39 Articles 35 to 37 of the Declaration have displayed non-engagement and reticence. Thus, the stark disparity between rhetoric and reality in the 32 33 34 35 36 37 38 39

Davies (n 28). HL Tan The ASEAN Intergovernmental Commission on Human Rights: Institutionalising human rights in Southeast Asia (2011) 16. CS Renshaw ‘The ASEAN human rights declaration 2012’ (2013) 13(3) Human Rights Law Review 558. Y Ginbar ‘Human rights in ASEAN: Setting sail or treading water’ (2010) 10(3) Human Rights Law Review 505. H Katsumata ‘ASEAN and human rights: Resisting Western pressure or emulating the west?’ (2009) 22(5) The Pacific Review 619. M Mohamad ‘Towards a human rights regime in Southeast Asia: Charting the course of state commitment’ (2002) 24(2) Contemporary Southeast Asia 235. S Linton ‘ASEAN states, their reservations to human rights treaties and the proposed ASEAN Commission on Women and Children’ (2008) 30(2) Human Rights Quarterly 437. J Arendshorst ‘The dilemma of non-interference: Myanmar, human rights, and the ASEAN Charter’ (2009) 8(1) Northwestern Journal of International Human Rights 53.

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ASEAN is nowhere more evident than in the area of the right to development.40 Similar to Africa, Southeast Asia is not devoid of high unemployment rates, a lack of access to education, housing, social security and adequate food. For instance, NGOs, internet and the media have paid specific attention to the plaguing hunger in Cambodia;41 Vietnam’s poor healthcare system;42 the increasing unemployment rate in Myanmar;43 and the poverty situation in Lao PDR. Clearly, the lack of commitment by ASEAN member states over the right to development, coupled with the lack of enforcement mechanisms, pose a formidable challenge to the realisation of this right in the region. The situation in ASEAN highlights the obstacles to ensuring government accountability toward the substantive content and enforcement of the right to development through the regional human rights system. The next section offers a critical analysis of obstacles to the enforcement of the right to development in the ASEAN human rights system.

3

Challenges in promoting the right to development

In order to understand the various challenges confronting the operationalisation of the right to development in the ASEAN human rights system (human rights standards and institutions), it is essential to assess the perception and misperception of human rights by ASEAN governments. This analysis helps to provide an explanation as to why the provisions of the ASEAN Declaration include some claw-back clauses, which do not accord with international standards on the right to development, and why the established ASEAN human rights mechanisms are not equipped with monitoring power. According to Tay and Estanislaois, much of the ASEAN region’s attraction and credibility to the outside world is ‘built on the economic success of many of its members’.44 Apart from this, a good measure of cohesion among its members as well as the stability in the region were ASEAN’s other strong points.45 According to Tommy Koh (former director of the Institute of Police Studies, Ministry of Foreign Affairs,

40 41 42 43 44 45

M Camacho ‘The plaguing hunger in Cambodia’ The Borgen Project 27 September 2017. As above. A Narr ‘Vietnam’s poor health-treatment, hospital and pharma situation’ Vietnam’s Business News4 March 2015. Trading Economics ‘Myanmar unemployment rate 1994-2017’ https://trading economics.com/myanmar/unemployment-rate (accessed 3 November 2017). S Tay & J Estanislao ‘The relevance of ASEAN: Crisis and change’ in S Tay, J Estanislao & H Soesastro (eds) A new ASEAN in a new millennium (2000) 14. Tan (n 33) 35.

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Singapore), no issue is as controversial and divides the ASEAN family as deeply as human rights.46 These observations are still relevant today, and it is evident that the glue that binds member states is the principle of consensus and the written norm of non-interference. These principles, which were earlier entrenched in the 1976 founding Treaty of Amity and Cooperation in the South East Asia, were reinforced in the ASEAN Charter.47 Article 2(2) of the Charter emphasises respect for the right of every member state to lead its national existence free from external interference, subversion and coercion, non-interference in their national affairs, and respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN member states. Member states have for a long time emphasised that the international community must recognise non-interference, national borders and national sovereignty when seeking to protect and promote the right to development (and other human rights) in the region. ASEAN member states view citizens’ rights to development as an internal affair. Thus, the different national views of the concept of the right to development have continued to pose a barrier for the organisation, especially since the advent of ASEAN 10 in the early 1990s. It is difficult to conceive how this barrier could be overcome, particularly since the concept of ‘Asian values’ (preference for collectivism and communitarianism) is still alive. While it was expected that the inclusion of human rights in the ASEAN Charter and the guarantee of the right to development in the ASEAN Declaration would shift the perception of ASEAN leaders and/ or help ASEAN governments to develop a right to development discourse, this situation has not changed.48 As asserted by Clarke, ASEAN governments do not view the right to development as universal.49 By condemning the universality of the concept of the right to development, ASEAN leaders avow that there is a disparity between the right to development at the global level and its application at the regional level.50 For ASEAN, citizens’ rights to development must be shaped by the specific religions, cultures, traditions and history of each society. All these features form the foundation for social values.51 The 1992 ASEAN

46 47 48 49 50 51

See S Petcharamesree ‘The ASEAN human rights architecture: Its development and challenges’ (2013) Equal Rights Trust http://www.equalrightstrust.org/ertdocument bank/Sriprapha%20Petcharamesree%20ERR11.pdf (accessed 3 November 2017) 5. Tan (n 33) 37. Arts 1(7), 2(2)(1) & 14 ASEAN Charter (n 6). Clarke (n 25). Petcharamesree (n 46) 7. S Sutthisunsanee ‘Response of ASEAN to human rights violations in Southeast Asia: Case studies of Cambodia and East Timor’ MA thesis, Mahidol University, 2006 22.

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Ministerial Meeting affirmed this assertion when it states that the right to development, [w]hile universal in character, [is] government by the distinct culture and history of, and socio-economic conditions in each country, and that their expression and application in the national context are within the competence and responsibility of each country.52

Realising that the principle of non-intervention is being used as a shield by some member states who have violated their obligation to promote the right to development, the former Deputy Prime Minister of Malaysia, Anwar Ibrahim, and the former ASEAN Secretary-General, Surin Pitsuwan, proposed the notion of flexible engagement and constructive engagement respectively.53 To be specific, Pitsuwan mooted:54 It is time that ASEAN’s cherished principle of non-intervention is modified to allow it to play a constructive role in preventing or resolving domestic issues with regional implications … when a matter of domestic concerns poses a threat to regional stability, a dose of peer pressure or friendly advice at the right time can be helpful.

However, these ideas have been rejected by some ASEAN member states who argue that ‘there is no valid reason to change something that has worked successfully for [several] decades in the ASEAN’.55 To these states, ASEAN’s key principles, particularly non-intervention, should not change although the association will continue to adapt to changing situations.56 In terms of change, however, there has been very little observable transformation in the ASEAN’s stance towards the right to development since 1999.57 The principle of non-interference and state sovereignty remains a cardinal principle in the ASEAN.58 It was against this backdrop that the former Prime Minister of Cambodia, Hun Sen, stated that ‘[n]o state can dictate and make judgments on others about [the right to development]. Foreign policies should not be linked to the [right to development].’59 All these principles, which are set out in the ASEAN Declaration, the Terms of Reference of AICHR and the ASEAN Charter have on several

52 53 54 55 56 57 58 59

Joint Communiqué of the 25th ASEAN Ministerial Meeting, Manila, 21-22 July 1992 para 18. Sutthisunsanee (n 51) 26. As above. Sutthisunsanee (n 51) 24. M Davies ‘An agreement to disagree: The ASEAN human rights declaration and the absence of regional identity in Southeast Asia’ (2015) 33(3) Journal of Current Southeast Asian Affairs 109. As above. Sutthisunsanee (n 51) 24. Petcharamesree (n 46) 57.

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occasions been invoked by states, particularly when NGOs send complaints regarding violations of human rights to the AICHR for review. The disappearance of the leading NGOs in Laos and the plight of the Rohingya in Thailand are some of the famous cases referred to the AICHR for deliberation. Yet, since the AICHR is not equipped with investigative and/or monitoring powers, it cannot reconcile the protection of the right to development and the principle of non-interference in internal affairs. Thus, at the time of writing the AICHR still has not decided on these complaints. The AICHR does not function with an accusatory approach, implying that there is no ‘naming and shaming’.60 Instead, it endorses state sovereignty and the need to take into consideration the diverse circumstances and histories of ASEAN member states.61 The ASEAN Charter’s provision in article 14 for a human rights body clearly can be seen as an act of compromise given that it was set out as a ‘body’ without any particular name.62 Thus, the principle of noninterference in internal affairs and resistance to the universal human rights concepts have been principal in the inclusion of the right to development in the cooperation agenda of the organisation.63 It, therefore, is apparent that any reconciliation between the principle of non-interference and the right to development in the ASEAN human rights system is not foreseeable in the near future.64 Besides these challenges, the enforcement of the right to development in the ASEAN is confronted with three other challenges. First, unlike the European Union (EU) and the AU, admission policies into ASEAN exclude the right to development and human rights in general. In stark contrast to the other three regional organisations, where normative conditions such as a commitment to international human rights standards, the rule of law and good governance apply, a prospective ASEAN member state had only to satisfy non-human rights-related conditionalities, namely, (i) it must have the capacity to participate in all economic partnerships; (ii) it must agree to join the ASEAN Free Trade Area; and (iii) it must accede to all ASEAN agreement, declarations and treaties, including the Treaty of Amity and Cooperation. Prospective member states to the ASEAN, therefore, are not obliged to fulfil their right to development obligations to their citizens.

60 61 62 63 64

Munro (n 21). Sutthisunsanee (n 51). Davies 2015 (n 56). S Narine ‘Human rights and the evolution of ASEAN: Moving without moving in a changing regional environment’ (2012) 34(3) Contemporary Southeast: A Journal of International and Strategic Affairs 372. Munro (n 21).

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Second, the distinct group of nations composed in the ASEAN has created political barriers in the construction of an effective human rights mechanism.65 These political challenges (which became evident during the drafting stage of the 2012 ASEAN Declaration) begun with the accession of authoritarian and poorer states in the 1990s.66 Member states of the ASEAN (from the 1990s to the present) differ substantially in their socio-economic well-being, the size of their population as well as their commitment to human rights. For instance, according to the Freedom House report, none of the countries in the ASEAN can be classified as ‘free’ in 2016, while 40 per cent are ‘partly free’ (Indonesia, Philippines, Malaysia and Singapore), and 60 per cent are ‘not free’ (Myanmar, Thailand, Cambodia, Lao PDR, Vietnam and Brunei).67 With the majority of member states classified as non-observers of human rights, it will be difficult for the minority states to pressure the majority into fulfilling the right to development obligations.68 Thus, half a decade after the adoption of the ASEAN Declaration, the question arises as to how the right to development (as enshrined in the Declaration) can be operationalised and how such operationalisation is to be monitored. Before responding to this question, it is important to assess the prospect of realising the right to development in this hostile environment.

4

Prospects for promoting the right to development

This section argues that although the ASEAN agenda in general has relegated the right to development to the background, there is cause for cautious optimism in terms of the prospects for advancing the right in ASEAN member states through the regional human rights system. This observation is based on an assessment of recent developments which have evolved on three levels, namely, international, sub-regional and national. Within the UN fora, individual member states have demonstrated greater openness to the right to development at the international level by vigorously participating in right to development debates and acceding to right to development-related instruments.69 At present, 60 per cent of ASEAN member states are parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) which guarantees people’s basic fourth generation rights, such as adequate access to food, water, health care, housing and employment. Cambodia ratified ICESCR in 1992, Vietnam in 1982, the Philippines in 1974, Thailand in 1999,

65 66 67 68 69

M Davies ‘The perils of incoherence: ASEAN, Myanmar and the avoidable failures of human rights socialisation?’ (2012) 34(1) Contemporary Southeast: A Journal of International and Strategic Affairs 19. As above. Freedom House ‘Freedom in the world 2016’ 20-24. Munro (n 21). Davies (n 56).

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Indonesia in 2006 and Lao PDR in 2007.70 This majority ratification may appear as an unambiguous recognition that the right to development is a legitimate international matter. However, how this issue is expressed at the regional level remains open to debate.71 Empirically, the practice of these states by ratifying the right to development-related treaties and affirming certain human rights declarations demonstrates their acceptance of the right to development.72 Yet, the operationalisation of the right to development is affected by diverse cultural values.73 In the regional context, although ASEAN member states continuously stress that the enforcement of the right to development is contingent on the distinct socio-economic conditions of each member state, ASEAN states have departed from the previous practice of discussing thematic issues on the right to development in formal regional engagements.74 The seed of promise for realising the right to development in the ASEAN human rights system was sown a month after the Vienna Human Rights Conference.75 In the 1993 Joint Communiqué issued at the 26th Annual Ministerial Meeting, the ASEAN foreign ministers explicitly affirmed the Vienna Declaration and Programme of Action, thereby acknowledging the right to development as a fundamental human right.76 There was an important agreement that ‘ASEAN should consider the establishment of an appropriate regional mechanism’ (to ensure the realisation of the provisions of the Vienna Declaration), which culminated in the establishment of the AICHR.77 Equally, in the 2017 Joint Communiqué of the 50thASEAN Foreign Ministers’ Meeting, the Ministers reaffirmed their commitment to promote the right to development among ASEAN people through corporate social responsibility.78 At the national level, some ASEAN member states have taken some steps which might contribute to the advancement of the right to development. While Indonesia and the Philippines have established national human rights commissions, the Thailand legislative assembly in August 2017 approved a draft law which seeks to revamp the country’s

70 71 72 73 74 75 76 77 78

United Nations Treaty Collection ‘3: International Covenant on Economic, Social and Cultural Rights’ https://treaty.un.org (accessed 3 November 2017). A Durbach, C Renshaw & A Byrnes ‘A tongue but no teeth: The emergence of a regional human rights mechanism in the Asia Pacific region’ (2009) 31(211) Sydney Law Review 82. Davies (n 56). M Bunyanunda ‘Burma, ASEAN, and human rights: The decade of constructive engagement 1991-2001’ (2002) Stanford Journal of East Asian Affairs 72. M Davies ‘The ASEAN synthesis: Human rights, non-intervention, and the ASEAN Human Rights Declaration’ (2013) 14(2) Georgetown Journal of International Affairs 53. HJS Kraft ‘Human rights, ASEAN and constructivism: Revisiting the “Asian values” discourse’ (2001) 22(45) Philippine Political Science Journal 34. See Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore, 23-24 July 1993. Paras 16-18Joint Communiqué (n 76). Joint Communiqué of the 50th ASEAN Foreign Ministerial Meeting Philippines 5 August 2017 para 25.

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human rights commission.79 The setting up of human rights commissions will help in the promotion and protection of people’s rights to development at the national level. The attention and effort of the AICHR should be directed towards establishing such national human rights commissions in all 10 member states.

5

Conclusion

Akin to the African Charter on Human and Peoples’ Rights (African Charter), the ASEAN Declaration recognises the right to development. However, in sharp contrast to the former, the latter contains more expansive provisions on this right.80 Despite this optimistic background, several issues could pose a challenge. While Africa has a human rights treaty (setting out the right to development) as well as mechanisms (the African Commission and Court on Human Rights) for individuals to seek redress for violations at the regional level, ASEAN has neither such an instrument nor a regional mechanism to receive complaints for the nonfulfilment of this right by member states. In light of these challenges, this chapter demonstrates that the right to development can be achieved under the ASEAN system by sketching out the legal framework under the ASEAN Declaration, which now represents a principal component of the ASEAN human rights system. The task of enforcing the right to development in the ASEAN human rights system is twofold. First, the ASEAN Declaration should be reformulated into a charter with widespread participation in and consultation with states and non-state actors (such as NGOs), with standards akin to international human rights instruments such as the African Charter, the European Charter and the Inter-American Human Rights Charter. Second, the AICHR should also be revamped and vested with protective (as well as promotional) powers, allowing individuals to file communications (after exhausting local remedies) for violations of their rights to development such as in the Endorois case.81 These litigation efforts need to be supplemented with right to development promotional measures such as information dissemination to sensitise the ASEAN people of their rights in this regard. A four-tier international/regional/national strategy to enforce the right to development is proposed. Such a strategy perceives engagement between the international community and NGOs in entreating ASEAN member states (collectively and individually) to adopt and implement

79 80 81

Human Rights Watch ‘Thailand: Don’t weaken rights commission’ 23 August 2017. African Charter on Human and Peoples’ Rights, adopted in Nairobi, Kenya, on 27 June 1981. Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) para 2.

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development programmes (as part of their commitment to human democratic governance). To do so, their incentive would be both international and domestic rewards of a good human rights and governance record. First, although non-state actors (such as NGOs) play an important role in shaping policy, ASEAN states will continue to act as the regional lawmaking body. Given that ASEAN states lack the political will to adopt a binding human rights instrument and empower the human rights commission to receive individual complaints, NGOs, in consultation with citizens and treaty-based human rights bodies at the international level, should lobby state officials to bring into effect binding human rights instruments. In the national context, citizens can shape the way their governments behave in regional fora, through right to development education and information dissemination to the general public, although this presumes a constitutional government and functioning democracy. Second, ASEAN states believe that the realisation of the right to development is contingent upon other rights. According to Thio, the ASEAN belief is that one can enjoy the entire spectrum of human rights only after a certain degree of socio-economic development has been reached.82 This assertion further holds that civil and political legislations (such as preventive detention laws, censorship, media restrictions and libel laws as enforced in some ASEAN states, including Darussalam, Cambodia, Myanmar, Brunei and Vietnam) must be subject to social order for the attainment of economic development. Thus, legislation limiting people’s rights to attain development must be suspended or curtailed to provide citizens with adequate access to employment, housing and food. It is important to indicate that the ASEAN people must ensure the enforcement of both civil/political liberties and socio-economic rights since some civil/political rights advance economic development. The right to freedom of expression, for instance, is necessary for citizens to call for social justice and the equitable distribution of the benefits of economic development, and to denounce government corruption while criticising misconceived economic policies. Although the engagement between development and civil/political merits a closer review, it is important to draw one’s attention to a valid point, namely, that states must not prioritise one right over another. Third, it is important to also indicate that in line with the traditional ASEAN way, any engagement with states to improve the basic economic needs of their citizens should adopt diplomacy rather than confrontation. Change is induced through peer pressure or ‘constructive engagement’, as an alternative strategy of managing enforcement of the right to

82

L Thio ‘Implementing human rights in ASEAN countries: ‘“Promises to keep and miles to go before I sleep”’ (1999) 2 Yale Human Rights and Development Law Journal 21.

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development. The essence of this approach is not to embarrass offending states or the object of engagement through condemnation or isolation which could induce non-receptivity or resistance to external pressure. Rather, more effective results can be attained through the wielding of ‘economic carrots’ and gentle suasion, which can benefit the citizens of the offending states. Fourth, presently the ASEAN human rights system seems to be an ineffective infrastructure to promote the right to development since it has numerous defects. Yet, whether or not ASEAN member states are ready to reconstruct the regional human right system in order to promote the right to development is based on several key factors, such as a review of the Terms of Reference of the AICHR and other human rights bodies, the ASEAN Declaration as well as a review of the ASEAN Charter. It is the appropriate time for ASEAN citizens, NGOs and the international community to push ASEAN to change its perception of the right to development while calling for greater space for people’s participation in decision making in the region on issues that impact on the well-being of people.

CHAPTER

16

IMAGINING CARIBBEAN DEVELOPMENT: THE RIGHT TO DEVELOPMENT AND THE REPARATIONS NEXUS

Ramona Biholar*

Old pirates, yes, they rob I, Sold I to the merchant ships, Minutes after they took I From the bottomless pit. But my hand was made strong By the hand of the Almighty. We forward in this generation Triumphantly. Won’t you help to sing These songs of freedom? ‘Cause all I ever have: Redemption songs. Bob Marley1

1

Introduction

Thirty years after the adoption of the United Nations (UN) Declaration on the Right to Development (UN Declaration)2 and much debate around the right to development,3 governments of the world have not yet taken a firm decision on the articulation of this right in an international legally-binding human rights instrument. The question that comes to mind is whether the right to development should be dissolved and how its ‘dissolution’ would

* 1 2 3

Lecturer, Faculty of Law, University of the West Indies, Jamaica; [email protected] B Marley Redemption song (1980). UN Declaration on the Right to Development Resolution 41/128, adopted by the General Assembly, on 4 December 1986. See P Alston ‘Making space for new human rights: The case of the right to development’ (1988) 1 Harvard Human Rights Year Book 20; J Donnelly ‘In search of the unicorn: The jurisprudence and politics of the right to development’ (1985) 15 California Western International Law Journal 473; A Lindross The right to development (1999); S Marks ‘The human right to development: Between rhetoric and reality’ (2004) 17 Harvard Human Rights Journal 137; SAD Kamga ‘The right to development in the African human rights system: The Endorois case’ (2011) De Jure 381. 314

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affect developing countries in the global south, such as those of the Caribbean. This may seem an irrelevant discussion as far as the Caribbean is concerned, especially since the right to development is rarely used in human rights and development discourses in the region. However, I argue in this chapter that the formal recognition of the right to development is critical for the restoration of the dignity of the Caribbean people and for the fulfilment of comprehensive development in the region. Such discussion should not disregard the past rooted in, what I mentioned elsewhere, the ‘brutality and denial of rights’.4 The Caribbean historical journey of colonial oppression, enforced and reinforced through slavery, plantation economy and even ‘deepening colonialism’5 following the Emancipation in 1834, manifests in the present day in individuals’ everyday lives. As Beckles explains, ‘[s]lavery and genocide in the Caribbean are lived experiences despite over a century of emancipation. Everywhere their legacies shape the lives of the majority and harm their capacity for advancement.’6 This nowadays is reflected in ‘wage controls, price increases, arbitrary dismissals, reduction in public spending on social issues, unemployment and underemployment’ that have during the past two decades led to increased levels of ‘raising indices of social inequality and poverty’.7 While this is addressed in Caribbean development discourses, the region is silent on the value of a human right to development to its development endeavours. I explain in this chapter that once societies struggle with inequalities and social exclusion, economic growth only does not automatically translate into development, especially not for those living in poverty, who are marginalised and excluded. Therefore, in the context of the Caribbean, the history of which is intimately related to colonialism, the transatlantic slave trade and slavery, links between development, reparations for slavery and human rights must be established, with the right to development as the connector. For this reason, I discuss the reparatory nature of the right to development. I propose the positioning of development discourses in the Caribbean and, more specifically, in Jamaica, in a human rights framework, stressing the potential of the right to development to strengthen the approaches to development as well as the reparations discourses in the region.

4 5 6 7

R Biholar Transforming discriminatory sex roles and gender stereotyping: The implementation of article 5(a) CEDAW for the realisation of women’s right to be free from gender-based violence in Jamaica (2013) 90. R Nettleford ‘Introduction: Fledging years’ in R Nettleford (ed) Jamaica in independence: Essays on the early years (1989) 2. H McD Beckles Britain’s black debt. Reparations for Caribbean slavery and native genocide (2013) 2. Organisation of American States ‘OAS Unit on Economic, Social and Cultural Rights’ http://www.oas.org/en/iachr/desc/ (accessed 3 August 2017).

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In order to do this, I first outline the various discourses on development in the Caribbean, showing that there is no solid conceptualisation of the right to development. In the second place, I show that claims for reparations for slavery allude to and contain elements that are encompassed in the right to development. Next, I analyse the content, nature and scope of the right to development and, in addition, I discuss the rights holders, duty bearers and the resultant state obligations. In doing this I show that there is merit in ensuring its legal recognition and protection and, thus, I imagine a conceptualisation of the right to development for the Caribbean. I suggest that this right is critical to the claims for reparations that Caribbean countries undertake and, consequently, I make the case that it should be conceptualised in relation to Caribbean reparatory justice initiatives. I argue that reparations for slavery that are embedded in a right to development framework would operate in international cooperation endeavours on a normative basis, with legal categories of rights holders and duty bearers, and guarantees for legal protection.

2

Conceptualisation of the right to development in the Caribbean

2.1

Situating the right to development in the Inter-American human rights system

The Organisation of the American States (OAS) is a regional organisation that promotes peace and security, democracy, human rights and development in the Americas, including North America, Central America, South America and the Caribbean. More specifically, the protection of human rights within the member states of the OAS is monitored and guaranteed by the Inter-American system of human rights. The main human rights instruments relevant for the discussion in this chapter are the American Convention on Human Rights ‘Pact of San Jose, Costa Rica’; the Protocol of San Salvador; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights; and the Charter of the Organisation of American States. Without deliberately articulating the right to development, the American Convention on Human Rights (American Convention),8 in line with the Universal Declaration of Human Rights (Universal Declaration), in its Preamble alludes to the outcome in the realisation of the rights enshrined therein, which is the enjoyment of freedom from fear and want. This is possible in an environment where all civil, political, economic, social and cultural rights are guaranteed and, thus, may be enjoyed by 8

American Convention on Human Rights ‘Pact of San Jose, Costa Rica’ (B-32) http:// www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm (accessed 3 August 2017).

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everyone.9 While civil and political rights are discussed at length in the American Convention, economic, social and cultural rights are expressed generally in the singular article 26. At a first read, this article, titled ‘Progressive Development’, might make one draw a quick connection between the concept of development to the progressive realisation of economic, social and cultural rights. However, a sole reading of article 26 may render such conclusions implausible. The Charter of the Organisation of American States (OAS Charter) clarifies the intention of the Convention’s drafters, namely, referring in article 26 to a relationship between development and the realisation of economic, social and cultural rights, and to establish these as progressive in nature.10 Although the right to development is not as such pronounced in the OAS Charter, it seems to refer in its article 17 to what Sengupta calls a ‘process of development’,11 in which individuals are guaranteed rights that must be respected by the state. The OAS Charter’s conceptualisation of development is clarified in article 30 in which the term ‘integral development’ is established and defined as encompassing ‘the economic, social, educational, cultural, scientific, and technological fields through which the goals that each country sets for accomplishing it should be achieved’.12 Article 33 further explains that development is an integral and continuous process that is conducive to ‘the establishment of a just economic and social order’, which enables individual development.13 For that reason, equality of opportunity, the equitable distribution of wealth and income, the elimination of extreme poverty, and peoples’ full participation in the decision-making processes related to their own development are set as basic objectives of integral development.14 Apart from declaring the objectives of integral development, article 34 establishes the goals that must be accomplished in order to achieve the mentioned objectives. These goals range from an increase in per capita national product; equitable distribution of national income and adequate and equitable systems of taxation; to a modernisation of rural life; accelerated and diversified industrialisation; stability of domestic price levels; fair wages; employment opportunities and acceptable working conditions for all; the eradication of illiteracy and expansion of educational opportunities for all; the extension and application of modern medical science; proper nutrition; adequate housing; urban conditions for a healthful, productive, and full life; private initiative and investment; and

9 10 11 12 13 14

American Convention (n 8) Preamble para 4. Charter of the Organisation of American States adopted at the 9th International Conference of American States at Bogotá, Columbia, 30 April 1948. A Sengupta ‘On the theory and practice of the right to development’ (2002) 24 Human Rights Quarterly 848. Art 30 OAS Charter (n 10). Art 33 OAS Charter. Art 34 OAS Charter.

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an expansion and diversification of exports.15 In this way, article 34 is programmatic in nature, indicating the practical approach to integral development. A joint reading of the aforementioned articles 33 and 34 of the OAS Charter, referring to integral development and article 26 of the American Convention entitled Progressive Development, reveals that article 26 does not only addressed economic, social and cultural rights, but implicitly addressed development as a process to which economic, social and cultural rights and their realisation are fundamental. Importantly, the OAS Charter indicates in article 17 that individuals are holders of rights in the process of development, while states are the duty bearers, as ‘development is a primary responsibility of each country’.16 Moreover, article 26 of the American Convention places an explicit obligation on states to take measures that are not limited to legislative measures, at the domestic level and through international cooperation, to realise economic, social and cultural rights and to achieve the development standards set in the OAS Charter. The interpretation of the rights in article 26 American Convention is enlarged by the Protocol of San Salvador.17 The Preamble to the Protocol stresses that the recognition, respect and protection of economic, social and cultural rights18 consolidate in the Americas ‘the right of peoples to development, self-determination, and the free disposal of their wealth and natural resources’.19 In other words, the Protocol makes an explicit affirmation of the right to development and declares that economic, social and cultural rights that are respected and protected and, thus, realised, strengthen the right of peoples to development in the region. Notwithstanding the merit of a conceptualisation of the right to development in the Inter-American human rights system, such approach reinforces the generational understanding of civil, political and economic, social and cultural rights, hence the hierarchisation of rights.

15 16 17 18

19

As above. Art 33 OAS Charter. See Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador)http://www.oas.org/ juridico/english/treaties/a-52.html (accessed 3 August 2017). The Protocol of San Salvador affords particular protection to, inter alia, the right to work; trade union rights; rights to social security; the right to health; the right to a healthy environment; the right to food; the right to education; the right to the benefits of culture; and the right to the formation and protection of families. Thus, the interpretation of the economic, social and cultural rights in article 26 of the American Convention must be pursued in conjunction with the Protocol of San Salvador. Preamble Protocol of San Salvador (n 17).

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319

Situating the right to development in the Caribbean: Competing discourses

As members of the OAS, some Caribbean countries are also members of the Caribbean Community known as CARICOM – a sub-regional organisation of the OAS. Initially known as the Caribbean Community and Common Market, CARICOM was established by the Treaty of Chaguaramas (1973). Later on, in 2001, a Revised Treaty of Chaguaramas established the CARICOM Single Market and Economy (CSME).20 The achievement of development that is economic in nature is placed at the heart of the Revised Treaty. In fact, as the title illustrates,21 the Revised Treaty premises economic and social development on market-driven industrial development, making the CARICOM first and foremost an economic community.22 For example, while recognising the potential of micro, small and medium enterprises for national economies, the creation of a macro-economic environment that attracts investment and ensures the competitive production of goods and services is an explicit desire articulated in the Revised Treaty.23 Among the main community objectives are achieving an ‘accelerated, coordinated and sustained economic development and convergence’;24 the ‘expansion of trade and economic relations with third states’;25 ‘enhanced levels of international competitiveness’;26 and ‘organisation for increased production and productivity’.27 Therefore, the Community is concerned with the movement of goods, capital, services and skilled labour among its members, within a customs union framework. Apart from Suriname, Belize and Guyana, all CARICOM members are island states, and qualify as small island developing states (SIDS). SIDS are defined by distinctive characteristics, such as being of a small size and remote; having a maritime location; having limited resources and a narrow export base; and being susceptible to environmental challenges and external economic shocks, making them inherently vulnerable countries

20

21 22 23 24 25 26 27

See the Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy (CSME) 2001 art 3(1). According to art3 of the Revised Treaty, members of CARICOM are Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, St Kitts and Nevis, Saint Lucia, St Vincent and the Grenadines, Suriname and Trinidad and Tobago. Haiti joined CARICOM in 2002. The British Overseas Territories, such as Anguilla, Bermuda, British Virgin Islands, Cayman Islands and Turks and Caicos, have the status of associate members to CARICOM. See ‘Caribbean Community’ http://caricom.org/about-caricom/who-we-are/our-governance/mem bers-and-associate-members/ (accessed 17 August 2017). Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy (CSME) 2001. Preamble Revised Treaty of Chaguaramas (n 21). As above. Art 6(c) Revised Treaty of Chaguaramas. Art 6(d) Revised Treaty of Chaguaramas. Art 6(e) Revised Treaty of Chaguaramas. Art 6(f) Revised Treaty of Chaguaramas.

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requiring high levels of resilience and adaptation.28 Some obvious challenges confronting SIDS are climate change and the consequent exposure to more frequent natural disasters, resulting in destruction of social and economic infrastructure and loss or threat of loss of territory; high, unsustainable debts; and poverty. Clearly, the circumstances of all CARICOM SIDS are peculiar and highly disadvantageous, rendering all of them in need of financial and technical assistance. The one-sided focus on economic integration and development in the Revised Treaty is not surprising. Apart from this econometric paradigm for development,29 there are perspectives in the region that expand the understanding of and the discourse on development. CARICOM heads of government agreed by consensus on a framework for community development and for implementation priorities,30 which is reflected in the report Towards a Single Development Vision and the Role of the Single Economy31 developed by Professor Norman Girvan (Girvan report).32 Far from being merely economic growth-oriented, the framework advances a concept of development that is wider in scope. It depicts development in its four dimensions, namely, economic, social, environmental and relating to governance. The principles of social and economic justice, social equity, cohesion and personal security enshrined in law and in practice ground the concept of development proposed in the framework. Adopting a general human rights language without specific reference to the right to development, the document alludes to social, economic and cultural rights. Moreover, the intention to consider human rights standards in sustainable development efforts in the Caribbean community is indicated by the proposal to adopt a Regional Human Rights Convention. The development discourse undertaken in the Girvan report is preceded by earlier Caribbean development thought, which advocated development priorities that are socio-economic instead of purely economic.33 Sustained

28 29 30 31 32

33

UN General Assembly Res 66/288 ‘The future we want’ (2012), para 178. See AEscobar ‘Power and visibility: Development and the intervention and management of the Third World’ (1988) 3 Cultural Anthropology 428. The report was endorsed at the 18th Inter-sessional Meeting of Heads of Government in St Vincent and the Grenadines in February 2007. N Girvan ‘Towards a single economy and a single development vision’ in K Hall & M Chuck-A-Sang (eds) CARICOM single market and economy: Genesis and prognosis (2007) 409. Prof Norman Girvan was a leading authority in the political economy of development thought in the Caribbean. In addition to being a University of the West Indies professor, he also served as Secretary-General of the Association of Caribbean States between 2000 and 2004 and as member of the United Nations Committee on Development Policy since 2009, to name a few of his contributions. The economist and development specialist, Dr William G Demas, former SecretaryGeneral of CARICOM, pioneered Caribbean thought on issues of integration and development. Sir Kenneth Dwight Vincent Venner, Governor of the Eastern Caribbean Central Bank from 1989 until 2015, has advocated ‘paradigm shifts in the nature and scope of [Caribbean] economic responses’; see L Clarke ‘A postscript to contemporary and future Caribbean: A comment on Demas’ critical issues in Caribbean development’ in KO Hall (ed) The Caribbean community: beyond survival (2001) 136.

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social development is critical to such a paradigm, requiring ‘ample doses of political will’ locally and adequate institutional, political and administrative structures that ensure ‘better governance’.34 As much as domestic political will is essential, it ought to be matched to the power of decision making at the international level. Currently, as CARICOM Secretary-General stressed at the 9th Biennial CARICOMUN General Meeting held in July 2017, the vulnerability of CARICOM SIDS renders them in no position to play a role ‘in shaping the global changes which impact them’.35 They become visible to and heard by the international community only through international collaboration, such as that with the UN.36 Consequently, the vulnerability of SIDS becomes the issue of a Working Group established by the United Nations Development Programme (UNDP) comprising the World Bank, the Organisation for Economic Cooperation and Development (OECD) and the Commonwealth, which address the development needs of SIDS.37 Regional development matters have been mainstreamed in the common UN Multi-Country Sustainable Development Framework (UN MSDF) that offers a platform for action focused on national development needs and challenges.38 The Sustainable Development Goals (SDGs) guide these development processes in the region. One may conclude that, although without specific reference to the right to development, human rights standards are incorporated in the development framework for the Caribbean.39 The broader scope that is characteristic of the SDGs is particularly important for the Caribbean. Despite middle-income status and moderate to high human development classification, the region has experienced poor growth performance over several decades and unsustainable levels of debt. The region also has one of the highest rates of adolescent pregnancy, youth unemployment, rising crime and gender based violence. Non-communicable diseases and climate change also present major challenges. The region can benefit from SDG goals that serve to strengthen economic performance, promote inclusive and transparent governance, support gender equality and sustainable development, and promote beneficial engagement with the global economy.

Consequently, the development priorities that have been identified for regional and national action are ‘(a) a sustainable and resilient Caribbean;

34 35

36 37 38 39

Clarke (n 33) 136. CORICOM ‘CARICOM Secretary-General pushes development issues at UN’ CARICOM Press Release 21 July 2017 http://www.caricom.org/media-center/ communications/press-releases/caricom-secretary-general-pushes-developmentissues-at-un (accessed 23 July 2017). As above. As above. Executive Board of the UNDP, the UNFPA and the UN Office for Project Services ‘Country programme document for Jamaica (2017-2021)’ 8 July 2016 para 15. United Nations ‘Towards a Caribbean multi-country assessment (CMCA)’ (2015) 9.

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(b) a safe, cohesive and just Caribbean; (c) a healthy Caribbean; and (d) an inclusive, equitable and prosperous Caribbean’.40 However, even if established in partnership with Caribbean governments, the UN MSDF, at the end of the day, is a development agenda in accordance with the business plan of UN agencies, funds and programmes in the region, during a certain period of time. Hence, this SDGs-based development discourse is largely triggered by this.

2.3

Jamaican discourses on development

Within the developing country paradigm, CARICOM states may be categorised as ‘less or more developed countries’.41 Although classified as a ‘more developed country’, Jamaica is ‘a highly indebted small island developing state (SIDS)’.42 For approximately two decades it has been wedged in the ‘high-debt-low-growth trap’. Research indicates that Jamaica is challenged by an unsustainable debt burden. From 2015 to 2018, the island owes $650 million to the World Bank and the InterAmerican Development Bank (IDB).43 It runs ‘the most austere budget in the world, with a primary surplus of 7,5 percent’.44 It was projected that between 2013 and 2017, Jamaica would have ‘the highest average primary surplus in the world outside of major oil producers’.45 This is in a context where its 2015 economy was smaller than in 2008.46

40

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42 43 44

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UNDP, UNFPA and UNOPS (n 38) para 15. These four priority areas are in accordance with the ‘Caribbean Community (CARICOM) strategic plan (2015-2019)’, the ‘SIDS accelerated modalities of action (SAMOA) pathway’ and the ‘2030 Agenda for sustainable development’. Art 4 Revised Treaty of Chaguaramas (n 21); see also art 3(1). Art 4 read in conjunction with art 3(1), Antigua and Barbuda, Belize, Dominica, Grenada, Montserrat, Saint Lucia, St Kitts and Nevis and St Vincent and the Grenadines are classified as ‘less developed countries’, whereas the Bahamas, Barbados, Guyana, Jamaica, Suriname and Trinidad and Tobago are classified as ‘more developed countries’. Ranked as a more developed country, Guyana is also categorised as ‘highly indebted poor country’. See CARICOM Development Fund ‘2015 Annual report the first cycle … consolidating the gains’ (2015) 1. UNDP, UNFPA and UNOPS (n 38) para 2. J Johnston ‘Partners in austerity: Jamaica, the United States and the International Monetary Fund’ (2015) Centre for Economic and Policy Research 14. Johnston (n 43) 1. The research further points out that, at 2015, the required primary surplus required ‘is enormous; even Greece, which is facing a tense standoff with the IMF and European authorities over its, is only expected to run a primary surplus of 3.0 percent of GDP this year and 4.5 percent for years thereafter – and this is widely considered politically unsustainable’. Johnston (n 43) 7. The same research explains that ‘Oil-exporting countries that run large primary budget surpluses are doing so because of excess oil revenues, not budget tightening as in the case of Jamaica.’ Johnston (n 43) 1.

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Research demonstrates that for economy recovery, the plausible solution is debt cancellation.47 Nevertheless, Jamaica is classified by the World Bank as an upper-middle-income country, ruling the country out from debt relief.48 While recent country performance measurements through International Monetary Fund (IMF) assessments of macroeconomic stability are positive49 and quantifications of the country’s well-being, such as the human development index (HDI), show improvements, positioning Jamaica 99thout of 188 countries,50 the reality on the ground raises questions about such measurement outcomes.51 More than numerical quantifications, what is tangible is that increased poverty,52 deepening inequalities,53 ignored marginalisation and, thus, perpetuated (human) vulnerabilities,54 structural discrimination,55 significantly high youth unemployment,56 a high incidence of crime,57 susceptibility to natural disasters, insufficient institutional capacity58 and governance deficit59 continue to erode the Jamaican social and economic fabric. Jamaica’s conceptualisation of and strategy to achieving development are delineated in the long-term plan ‘Vision 2030 Jamaica: National Development Plan’ (commonly referred to as Vision 2030 Jamaica).60 Initially guided by the Millennium Development Goals (MDGs),61 the document currently aligns with the Sustainable Development Goals (SDGs)62 to address the aforementioned issues. It sets four key priorities as national goals, as follows: Goal 1: Jamaicans are empowered to achieve their fullest potential; Goal 2: the Jamaican society is secure, cohesive and 47

48 49 50 51 52

53 54 55 56 57 58 59 60 61 62

Johnston (n 43) 12. Johnston explains that research ‘found that over the life of the current IMF program, Jamaica’s net disbursements from multilaterals would be positive at about $346.1 million, whereas multilateral debt relief would free up over $1.6 billion in funds, much-needed resources for a country which is being forced to drastically cut spending as part of its IMF agreement.’ UNAIDS ‘Legal reforms, social change: HIV/AIDS, human rights and national development in Jamaica’ (2013) 14. UNDP, UNFPA & UNOPS (n 38) para 3. As above. See K Davis et al (eds) Governance by indicators: Global power through quantification and rankings (2012); see also SE Merry The seductions of quantification: Measuring human rights, gender violence, and sex trafficking (2016). UNDP, UNFPA and UNOPS (n 38) para 3; see also Johnston (n 41) 1; Planning Institute of Jamaica (PIOJ) ‘A review of current and emerging vulnerabilities in Jamaica in the context of risks to income, poverty and food security’ (2014); PIOJ ‘Jamaica survey of living conditions 2010’ http://www.pioj.gov.jm/Portals/0/ Social_Sector/OVERVIEW%20JSLC%202010.pdf (accessed 24 July 2017). As above. See R Biholar ‘“Nuttinnuhgwaan fi we”: Challenges faced by adult ex-inmates upon their release in Jamaica’ (2017). See Biholar (n 4) 2013. Johnston (n 43) 9. UNDP, UNFPA and UNOPS (n 38) para 6; PIOJ ‘Vision 2030 Jamaica: National development plan’ (2009) 7. UNDP, UNFPA and UNOPS (n 38) paras 9 & 11. PIOJ (n 57) 8. See PIOJ (n 57). PIOJ (n 57) xxi, 7 & 9. UNDP, UNFPA and UNOPS (n 38) para 1.

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just; Goal 3: Jamaica’s economy is prosperous; Goal 4: Jamaica has a healthy natural environment.63 Such a development plan is implemented through Medium Term Socio-Economic Policy Frameworks (MTFs), in which priority outcomes, strategies and actions for every three years, starting from 2009 until 2030, are identified. The MTF for the period 20152018 identified four strategic areas for national development action, namely, (i) development and protection of human capital; (ii) national security and justice; (iii) economic stability, growth and employment; and (iv) environmental sustainability and climate change.64 These strategic areas are mapped into eight national outcomes, namely, (i) a healthy and stable population; (ii) world class education and training; (iii) effective social protection; (iv) security and safety; (v) effective governance; (vi) a stable macro-economy; (vii) an enabling business environment; and (viii) hazard risk reduction and adaptation to climate change.65 The strategic outcomes for the period 2015-2018 all feed into the four national goals defined in Vision 2030 Jamaica. Having said that, if we are to largely position human rights in such development planning, we could argue that some human rights standards are comprised in the national outcome of effective governance. Equity, tolerance and respect for human rights are recognised among the elements that are ‘fundamental to the development of [the] society’.66 A platform for a paradigm shift in governance is thus set in this development plan. A lack of respect for and the violation of human rights, such as child prostitution, trafficking in persons, violence against women and police abuse, as well as weak accountability, are noted as amounting to the challenges to effective governance in Jamaica.67 Ensuring tolerance of and respect for human rights is identified as a sector that must be addressed for achieving this priority outcome. By strategising respect for human rights among the legal profession, constitutional reform, the incorporation of human rights issues in all national policies, and aligning development programmes with human rights commitments under international treaties and domestic legislation,68 Vision 2030 Jamaica proposes a platform to enhance the human rights practices in the country. Nevertheless, respect for human rights is conceptualised in general, rather vague language, as an element of an outcome – effective governance – related to short-term strategic areas of protection of human capital, and national security and justice. The SDGs guiding development policy processes are programmatic in nature and are not legally binding. A pertinent question that emerges is whether it is sufficient to say that Vision 63 64 65 66 67 68

PIOJ (n 57) xxiv. PIOJ ‘Medium Term Socio-Economic Policy Framework 2015-2018: Achieving inclusive growth and sustainable development’ (2015) 21. PIOJ (n 64) 22. PIOJ 112. PIOJ 116. PIOJ 121.

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2030 Jamaica takes a human rights approach to development and, furthermore, whether it is possible to talk about a right to development in such national development planning. The answer is that development is not conceptualised on a human rights normative basis. First, leaders setting the tone of the national development discourse couch their language in economic and trade terms, stressing that Vision 2030 Jamaica is a development plan operationally directed at achieving the acceleration of economic growth, social welfare improvement, preparedness for integrating in the global economy, trading globally in efficient and competitive fashion, and ultimately gaining developed country status.69 Thus, human rights law is not envisioned as an analytical tool that has the potential to point to the inequalities at the root of development underperformance, and to address discrimination and asymmetric relations of power at the individual, community and national levels that obstruct the development process. Second, although the individual is placed at the heart of development, and citizens’ and communities’ empowerment and participation in governance processes are envisioned in the development plan,70 the individual neither is conceptualised as the rights holder with defined entitlements and ability to bring claims under the law, nor are corresponding obligations attributed to the relevant duty bearers in the development process. Thus, the aims of increasing individuals’ participation in the development process and the accountability of the decision makers run the risk of being mere cosmetic statements. In turn, an approach to development that is embedded in and operationalised on the basis of human rights norms ensures people’s participation and their ability to make the demands of accountability from decision makers. Third, nowhere in the Vision 2030 Jamaica has development been conceptualised as a right. Needless to say, the right to development is not even mentioned in this mainstay development policy document, neither have human rights been the compass on which the approach to development is built. The Universal Declaration of Human Rights (Universal Declaration) and the International Covenant on Civil and Political Rights (ICCPR) are mentioned as being mirrored by the Jamaican Constitution, while the economic, social and cultural rights in the Universal Declaration and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are referred to as ‘aspirational provisions of human rights law’.71 In fact, the Jamaican Constitution, like

69 70 71

PIOJ x-xiii. See in particular the message from the then Prime Minister, Bruce Golding, and the message from the leader of the opposition, subsequently Prime Minister of Jamaica until 2016, Portia Simpson Miller. PIOJ (n 64) 119. PIOJ 120.

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most Caribbean constitutions,72 focuses on civil and political rights.73 In its Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, it barely articulates economic, social and cultural rights. It affords children the right to publicly-funded pre-primary and primary education74 and offers protection against environmental abuse and degradation by recognising the right to enjoy a healthy and productive environment.75 With such a constitutional setting deprived of a solid sanctioning of economic, social and cultural rights, it is not surprising that development is not conceptualised and endorsed as a right. Therefore, the development discourse in Jamaica is aligned to the regional one, and is enveloped in the SDGs, especially SDG 1, no poverty, SDG 2, zero hunger, and SDG 16, peace, justice and strong institutions. The economic growth paradigm for development is expanded with the inclusion of principles of social justice and equity, understanding development not only in its economic dimension, but also in its social, environmental and governance dimensions. However, human rights are not conceptualised as a normative basis for development processes. Without such a conceptualisation of the process to start with, it is difficult to envision a right to development at all. In seeking to situate in this section the right to development in the Caribbean region, competing frameworks of development emerge. The OAS Charter, in conjunction with the American Convention and the Protocol of San Salvador, depicts development as an integral and progressive process essentially based on economic, social and cultural rights and their realisation. The conceptualisation of development on a human rights normative basis co-exists with CARICOM regional and national discourses that mainly take on an econo-centric view, and only allude to human rights standards through affiliation with non-binding SDGs. The recognition of the right to development has not yet been afforded at the regional or national level.

3

Righting the wrongs of the past: Reparatory justice and development ‘In this bright future you can’t forget the past.’

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73 74 75 76

Bob Marley (1974)76

Guyana’s Constitution stands out among Caribbean constitutions by giving recognition to social and economic rights, affording protection to indigenous peoples and expanding on equality rights. See T Robinson et al Fundamentals of Caribbean constitutional law (2015) 430. Robinson et al (n 72) 422. Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, secs 13(3)(k) (ii). Sec 13(3)(l) Charter of Fundamental Rights and Freedoms. B Marley No woman, no cry (1974).

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Although not directly included in Caribbean development frameworks, there is a seemingly tangential yet outstanding dimension to regional and national development discourses – the Caribbean reparatory justice movement.77 Within the complex development discourses in the Caribbean, this section pays attention to reparations for Caribbean slavery. It is the duty of the scholar who examines development and human rights in this particular region to reflect on, address and be reminded that the present Caribbean realities are reflections of larger, still debilitating, histories of colonialism and slavery. As an offspring of the transatlantic slave trade, Caribbean governments ‘inherited the massive crisis of community poverty and institutional unpreparedness for development’.78 In taking on this task, this chapter highlights and connects the historical legacies of post-colonial Caribbean countries, in particular Jamaica, to current development challenges. It proposes as a feasible solution to overcoming such challenges the positioning of claims for reparations within a human rights framework.

3.1

Slavery has not yet ended: Colonial violations, present human rights challenges

A true understanding of the persistence of inequalities and structural discrimination, including racially-inflicted violence, confronting contemporary Caribbean societies demands connections to be drawn between the transatlantic trade and the ‘commodification’ of Africans, their enslavement and the enforcement of colonial laws, policies – of plantation economies – and practices of racial segregation, subordination and – labour and sexual – exploitation in the Caribbean islands. Therefore, the erasure of dignity through ideologies of inferiority based on race, class and sex, as well as the present-day underdevelopment in areas of education, health care and housing,79 and the unfair economic distribution of wealth,80 to mention but a few, represent the embodiment of such colonial legacies. As far as Jamaica is concerned, the island was under British colonial rule for 307 years, between 1655 and 1962, after having been seized from the Spanish who occupied Jamaica between 1509 and 1655. Jamaica had

77 78 79

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See CORICOM ‘CARICOM Reparations Commission’ http://caricomreparations. org/the-global-reparations-movement/ (accessed 5 August 2017). V Shepherd ‘Reparation and the right to development’ (2015) 16th Session of the WGEPAD3. Ralph Gonsalves, Prime Minister of Saint Vincent and the Grenadines, stressed during the 18th session of the UN Working Group of Experts on People of African Descent that ‘enslavement had produced a legacy of underdevelopment in respect of education, health, housing and other sectors’. He called on European nations to repair the legacy of underdevelopment caused by enslavement. See Human Rights Council ‘Report of the Working Group of Experts on People of African Descent on its seventeenth and eighteenth sessions’ (2016), para 26. Para 36 Human Rights Council (n 79).

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been organised as a sugar plantation economy sustained through the labour of large masses of enslaved Africans. During a period of only seven years of British rule, enslaved Africans formed one-sixth of the population of Jamaica. Among the other British colonies, Jamaica received the largest number of slaves by the mid-1700s, amounting to 25 per cent of Africans displaced through the transatlantic slave trade to the Americas.81 The British interest in this island was nothing less than their own ‘mercantile capitalist development … within a broader system of Atlantic exploration and exploitation’.82 In about a century Jamaica became Britain’s most profitable colony in the New World with a tremendous potential to produce wealth at the expense of the enslaved labourers. The few white plantation owners often resorted to violence to control the large masses of enslaved black population.83

Their bodies and labour were owned by the bakramassa84 and considered chattel, hence used and abused at will.85 This daily reality of a slave in the Jamaican colony is masterly depicted by James:86 People think that blood red, but blood don’t got no colour … Not when blood spurt from the skin, or spring from the axe, the cat-o’-nine, the whip, the cane and the blackjack and every day in slave life is a day that colour red. It soon come to pass when red no different from white or blue or black or nothing.

To be more specific, at the intersection of slavery and colonialism rests the operationalisation of violence as ‘an organising principal of state formation in Jamaica’.87 The legacy of slavery and the British colonial rule over the island deepened social categories and hierarchies in postemancipation and post-independence Jamaica. Race, gender and class ‘set the tone for a complex web of social relations founded on wide discrepancies, which continue to influence contemporary life’.88 Rigidlycontoured categories of men-women, public-private, white-black, brownblack, light skin-dark skin, upper class-lower class, uptown-downtown, urban-rural, educated-non-educated decide on access to power, status, resources and wealth, and ultimately define who is socially included and who is excluded.89

81 82 83 84 85 86 87 88 89

Biholar (n 4) 90. See also L Mathurin-Mair ‘A historical study of women in Jamaica from 1655 to 1846 (1974)’ in H Beckles & VA Shepherd (eds) Women in Caribbean history: The British colonised territories (1999) 37. D Thomas Exceptional violence: Embodied citizenship in transnational Jamaica (2011) 48; see also Beckles (n 6) 82-108. Biholar (n 4) 90-91. Bakramassa is the Jamaican patois for ‘white master’. J French ‘Women and colonial policy in Jamaica after the 1938 uprising’ in S Wieringa (ed) Subversive women: Women’s movements in Africa, Asia, Latin America and the Caribbean (1995) 123; see also Shepherd (n 81) 40-41. M James The book of night women (2009) 3. Thomas (n 82) 18. Biholar (n 4) 95. As above.

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Such link between the phenomenon of slavery and the perpetuation of direct and indirect discrimination against Afro-descendants in the Caribbean is clearly drawn by the Inter-American Commission on Human Rights in its report on ‘The Situation of People of African Descent in the Americas’. The Commission points out that the majority of the Caribbean population is an Afro-descendant population, and ‘it is also subject to discrimination, since the darker the person’s skin is, the fewer opportunities for personal and economic development they have’.90 Economic power and access to resources are grounded in skin colour politics and, thus, represent an obvious marker of white and light-skin privilege. As the Commission pointed out, although dark-skinned persons take part in the political process and in management, economic resources and power are owned and historically have been in the hands of white males in particular.91 Therefore, the Commission concluded that ‘racial discrimination in the Caribbean is linked to the darkness of the skin, poverty, and the control of economic resources’.92 This confirms the fact that legacies of slavery and colonialism hinder the self-determination of Caribbean people to decide on their own social and economic development. This ‘still-existing historical debt’93 existing among the Caribbean people obviously impedes the full realisation of their civil, political, economic, social and cultural rights. According to the InterAmerican Commission, ‘such deficiencies must be tackled by the states through measures specifically designed to address such deficiencies’.94 A nation can place all its efforts in economic development, trade policies, financial strategies and agreements, but as long as the citizens’ mode of thinking is couched in a pattern of inferiority or superiority based on class, colour, race, sex, language, marital status and financial status, these development measures are cosmetic in nature and, thus, only treating the symptoms. Reparatory justice stands up to point out that the playing field has not been levelled and that slavery and colonialism represent powerful tools at the basis of a myriad of social issues and human rights challenges in contemporary Caribbean societies.

3.2

Reparatory justice: The Durban perspective

An international reminder about states’ responsibilities to repair the harms done by the transatlantic slave trade, slavery and colonialism is firmly expressed by the Durban Declaration and Programme of Action, under the 90 91 92

93 94

Inter-American Commission on Human Rights Report ‘The situation of the people of African descent in the Americas’ (2011), para 99. As above. Para 100 Inter-American Commission (n 90). To support its argument, the Commission used the profitable industry of tourism in the region as an example to show that its capital, ownership and management are not in the hands of local, dark-skinned individuals. They have access to lower-ranked and less-paid jobs. Para 217 Inter-American Commission (n 90). Para 102 Inter-American Commission.

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‘Justice’ Programme of Activities. The Declaration acknowledges ‘the untold suffering and evils inflicted on millions of men, women and children as a result of slavery, the slave trade, the transatlantic slave trade, apartheid, genocide and past tragedies’.95 It thus calls upon the states concerned ‘to honour the memory of the victims of past tragedies’96 and urges them to ‘find some way to contribute to the restoration of the dignity of [these] victims’.97 Furthermore, the Declaration recognises that ‘these historical injustices have undeniably contributed to the poverty, underdevelopment, marginalisation, social exclusion, economic disparities, instability and insecurity that affect many people in different parts of the world, in particular in developing countries’, which place great efforts to address these challenges.98 As a consequence, the Declaration urges international financial and development institutions and the relevant agencies of the UN to seek the real interests of these countries and to ‘give greater priority to, and allocate appropriate funding for, programmes addressing the development challenges of the affected states and societies’.99 Therefore, the Declaration points to the urgency to address the developing countries’ challenges and contribute to their social and economic development through programmes anchored in partnership in areas, such as debt relief; poverty eradication; building or strengthening democratic institutions; promotion of foreign direct investment; market access… transfer of technology; transparent and accountable governance; investment in health infrastructure … infrastructure development; human resource development, including capacity-building; education, training and cultural development … trafficking in persons, particularly women and children; facilitation of welcomed return and resettlement of the descendants of enslaved Africans.100

Reparations for slavery fit perfectly into the contemporary efforts for development, as they are ‘transcending monetary compensation’ for historical crimes.101 As Jamaica’s High Commissioner to Great Britain, Aloun Assamba, highlighted, the argument for reparations is more profound, as it is about economic as well as social development. It is about

95

Durban Declaration and Programme of Action (DDPA) adopted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa on 8 September 2001. 96 Para 99 DDPA (n 95). 97 Programme of Activities for the Implementation of the International Decade for People of African Descent adopted by the General Assembly on 18 November 2014, para 17(i). 98 Paras 158 & 157DDPA (n 95). 99 Para 158 DDPA. 100 As above. 101 ‘Reparations debate in the UK … Assamba says it’s not just about monetary compensation’ Jamaica Gleaner 2 June 2015 http://jamaica-gleaner.com/article/leadstories/20150602/reparations-debate-uk-assamba-says-its-not-just-about-monetar (accessed 2 August 2017).

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closure from an indisputably wrong committed and restoring the dignity of a people. In fact, the argument for reparations takes further the development paradigm in that they actually call for the root causes of social injustice, inequalities and systemic discrimination to be addressed, demand accountability and enable self-determination of the voiceless and most marginalised. In other words, reparations address the structural inequalities and enduring exclusion rooted in the history of slavery. In addressing such root causes, calls for reparations operate from a place of recognition that historical oppression, asymmetric power relations between nations and race relations are at the root of underdevelopment. Therefore, they stand for a ‘process of repairing the consequences of crimes committed, and the attempt to reasonably remove debilitating effects of such crimes upon victims and their descendants’.102

3.3

Reparatory justice: The CARICOM Reparations Commission

In an open letter to the Prime Minister of the United Kingdom, the Chairperson of the CARICOM Reparations Commission, Professor Sir Hilary Beckles, called on the UK to pay its duties to Jamaica in the form of reparations for slavery. Beckles points to [t]he legacies of slavery that continue to derail, undermine and haunt our best efforts at sustainable economic development and the psychological and cultural rehabilitation of our people from the ravishes of the crimes against humanity committed by your British state and its citizens in the form of chattel slavery and native genocide …] The Jamaican economy, more than any other, at a critical moment in your nation's economic development, fuelled its sustainable growth. Britain, as a result, became great and Jamaica has remained the poorer …] We merely ask that you acknowledge responsibility for your share of this situation and move to contribute in a joint program of rehabilitation and renewal. The continuing suffering of our people, sir, is as much your nation's duty to alleviate as it is ours to resolve in steadfast acts of self-responsibility … We urge you then, in this light, to indicate your nation's willingness to work towards a reparatory justice programme for the Caribbean, with a view to allowing us to come together in order to come to closure, put this terrible past behind us, and to leave it to us to continue the making of our future.103

Caribbean governments referred to reparatory justice to address the deficiencies of the past and their present consequences, in order to bring

102 ‘Press statement, Fred Mitchell, Bahamas Minister of Foreign Affairs and Immigration’ http://www.thebahamasweekly.com/publish/bis-news-updates/Estab lishment_of_The_Bahamas_National_Reparations_Committee_printer.shtml (accessed 2 August 2017). 103 H Beckles ‘Open letter to Prime Minister, David Cameron’ Jamaica Gleaner 28 September 2015 http://jamaica-gleaner.com/article/commentary/20150928/ open-letter-prime-minister-david-cameron (accessed 2 August 2017).

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about an authentic process of development for Caribbean nations. Beckles’s104 book on reparations for native genocide and slavery, Britain’s black debt,105 motivated CARICOM leaders at the Thirty-Fourth Regular Meeting of the Conference of Heads of Government of CARICOM not only to discuss but to strongly uphold and promote the calls for reparations and reparatory justice at CARICOM level in order to right the wrongs of the transatlantic slave trade, slavery and racial apartheid in the Caribbean. A Prime Ministerial Sub-Committee on Reparations was established, followed by the establishment of National Reparations Committees106 and a regional CARICOM Reparations Commission (CRC). The Commission was mandated to [e]stablish the moral, ethical and legal case for the payment of Reparations by the Governments of all the former colonial powers and the relevant institutions of those countries, to the nations and people of the Caribbean Community for the Crimes against Humanity of Native Genocide, the TransAtlantic Slave Trade and a racialised system of chattel slavery.107

The CRC makes the case that victims of the crimes of genocide, slavery, slave trading and racial apartheid in the Caribbean and their descendants are rights holders in the process of reparatory justice. In turn, European perpetrators of these crimes, through the creation of legal and policy frameworks for the transatlantic slave trade and for the enforcement of slavery in the Caribbean, are the beneficiaries of the proceeds of these crimes and, thus, are the bearers of a duty to answer a reparatory case and pay a historical debt. This is to put an end to European colonial rule still enduring in Caribbean life. Recognising that current social injustices suffered by the Caribbean people are anchored in slavery and historic racial victimisation, and that these social injustices are the root causes for the ‘development failure in the Caribbean’, the Commission proposes a Ten Point Action Plan in order to guarantee Caribbean people ‘the full admission with dignity into the citizenry of the global community’ and, thus, ‘the path to reconciliation, truth and justice for victims and their descendants’.108

104 As of 2015, Professor Sir Hilary Beckles is the Vice-Chancellor of the University of the West Indies (UWI). 105 Beckles (n 6). 106 National reparations committees have been established in 12 CARICOM member states, namely, Antigua and Barbudathe Bahamas, Barbados, Belize, Dominica, Guyana, Jamaica, St Kitts and Nevis, St Lucia, St Vincent and Grenadines, Suriname and Trinidad and Tobago. See ‘CARICOM Reparations Commission’ http:// caricomreparations.org/about-us/ (accessed 2 August 2017). 107 CARICOM Reparations Commission (CRC) ‘Terms of reference’ (2013) para 1 http:/ /ncr.org.tt/about-us/terms-reference-caricom-reparations-commission-crc (accessed 2 August 2017). The CRC mandate is delivered through the CARICOM Reparations Justice Programme (CRJP). 108 CARICOM Reparations Commission (CRC) ‘Ten point plan for reparatory justice’ http://www.caricom.org/caricom-ten-point-plan-for-reparatory-justice/ (accessed 2 August 2017).

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The points of the action plan are the following: European colonial powers must (i) offer a full formal apology; (ii) establish a repatriation programme to resettle the persons who desire their return; (iii) establish a development programme for indigenous peoples of the Caribbean who are presently among the most marginalised social groups within the region; (iv) create cultural institutions to build a consciousness among Caribbean people of self and identity, and their role in history; (v) understand the public health crises as a consequence of slavery and colonisation and thus provide for the necessary science, technology, and capital – otherwise scarce in the region; (vi) understand the colonial roots of illiteracy in the region and its major setback on the development of newly-independent Caribbean nations, and support their efforts to eradicate it; (vii) establish an African knowledge programme to reverse ‘the social and cultural alienation from identity and existential belonging’109 through the transatlantic dislocation; (viii)offer psychological rehabilitation for the social trauma historically accumulated through the categorisation of enslaved Africans as nonhuman, chattel, property; (ix) ensure technology transfer and science sharing in order to facilitate development; and (x) effect debt cancellation in order to overcome the inherited crises of impoverishment through colonial exploitation and institutional unpreparedness for development upon independence.110

The government of Jamaica, through its Minister for Culture, Gender, Entertainment and Sport, reasserted in December 2016 its support and commitment to the campaign for reparations.111 On the celebration of the 2017 Emancipation Day in Trinidad and Tobago, the nation’s President, Antony Carmona, stressed that reparations for slavery represent a requirement in the dispensation of justice in the Caribbean. He asserts that ‘[a]s a former judge and a firm believer in reparatory justice, I am of the view that as we celebrate Emancipation Day 2017, we must examine affirmatively the case for reparation as adopted by CARICOM governments’.112

109 CARICOM Reparations Commission (n 108) point 7. 110 CARICOM Reparations Commission point 10. 111 CARICOM Reparations Commission (CRC) ‘Government will pursue reparation for slavery’ CARICOM News 28 December 2016 http://caricomreparations.org/govt-willpursue-reparation-slavery/ (accessed 4 August 2017). 112 ‘Support reparation’ Jamaica Gleaner 2 August 2017 http://jamaica-gleaner.com/ article/news/20170802/support-reparation (accessed 2 August 2017).

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This progressive regional and national initiative further trickles down with a major university initiative through the establishment of the Centre for Reparations Research at the University of the West Indies on 31 July 2017. This Centre aims to raise public awareness about the harmful consequences of the European invasion of indigenous peoples in the Caribbean, about the enslavement of African people and colonialism in the region, and to propose remedies for the overturning of these lasting injustices with the view to ensuring positive transformation. In taking such a cause, the Centre’s leadership intends to ‘achieve peace, reconciliation, socio-economic development and a sustainable future for the Caribbean’.113 Furthermore, the UN Working Group of Experts on People of African Descent endorsed the CARICOM Reparations Commission,114 indicating the relevance of its Ten-Point Action Plan on Reparations to development agencies in order to address human rights challenges.115

3.4

Reparatory justice and human rights: Necessary for Caribbean development?

The CARICOM-led initiatives for reparations align with the demands made in the Durban Declaration and Platform for Action and the aspirations highlighted, for example, in Vision 2030 Jamaica mentioned earlier in this chapter. Apart from debt cancellation, which has been highlighted as an important measure for economy recovery for Caribbean countries such as Jamaica, calls for reparations conceptualise development also in terms of psychological and emotional healing and closure through apology and the possibility of repatriation, knowledge-based development, the establishment of cultural institutions, technological transfer, support for the health and education sectors, and recognition and support of indigenous people. Obviously, the discourse of reparations is framed in the discourse of development and vice versa.116 As Angela Davis mentioned in the panel discussion at the UN Working Group of Experts on People of African Descent report, the implementation of economic, educational and environmental rights,117 which are basic elements of the right to development, leads to ensuring reparations. Consequently, the realisation of the right to development gives rise to reparations and vice versa and, thus, supports development in the Caribbean.

113 ‘The UWI establishes Centre for Reparations Research’ The University of the West Indies News Release 31 July 2017. See also CARICOM Reparations Commission CARICOM News 31 July 2017 http://caricomreparations.org/category/caricom-news/ (accessed 31 July 2017). 114 The UN Working Group of Experts on People of African Descent was established by Commission on Human Rights Resolution 2002/68. 115 Human Rights Council (n 79) para 69. 116 Shepherd (n 78) 3-4. 117 Human Rights Council (n 79) para 18.

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In seeking to do justice to Caribbean nations and cement the dignity of the Caribbean people, calls for reparations and development efforts should be addressed in an interconnected way in the context of this region. Critical to this discussion is a conceptualisation of development that is anchored in a human rights framework in order to strengthen development efforts in the Caribbean. The role of human rights for development processes was stressed by former UN Secretary-General, Kofi Annan, who alerted world leaders that ‘we will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights’.118 Poverty and underdevelopment not only involve a scarcity of economic resources, but also a lack of availability of and access to education and health care, food and housing, and inaccessible freedom from want. As Sengupta points out, opulence of resources may not give all individuals greater control over their environment, unless measures to afford equality of opportunity are taken. Moreover, freedom from discrimination, prejudices and biases is not increased through such opulence unless specific measures are taken to address underlying causes of discrimination, prejudices and biases.119 In order to address these root causes, a mentality shift about social, political and economic institutions must occur in order to overcome injustices. For this reason, the right to development comes to mind in order to address development issues on a normative basis.

4

Strengths of the right to development

Despite calls for the dissolution of the right to development,120 one should not disregard the merit of this right. This section proposes a pertinent, alternate question that should be answered in the context of the Caribbean: How would the formal recognition of this right help development in this region? Consequently, this section focuses on the validity of the right to development for the Caribbean by explaining its multifaceted content and its relevance for the region in the context of current development discourses and calls for reparations.

4.1

Right to development: Content, nature and scope

Although not pronounced in a legally-binding human rights treaty of its own, the right to development is not novel to the international human

118 UNGA Report of the Secretary-General ‘In larger freedom: Towards development, security and human rights for all’ (2005) http://www.un.org/en/ga/search/view_ doc.asp?symbol=A/59/2005 (accessed 15 June 2017) para 17. 119 Sengupta (n 11) 851. 120 See A Vandenbogaerde ‘The right to development in international human rights law: A call for its dissolution’ (2013) 31(2) Netherlands Quarterly of Human Rights 187.

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rights constellation. Elements of this right have been recognised and affirmed in various covenants and conventions, declarations and resolutions.121 For example, the Vienna Declaration reaffirms the right to development as a universal and inalienable right, which essentially creates an environment conducive to the realisation of all civil, political, economic, social and cultural rights.122 Similarly, the UN Declaration defines the right to development in article 1(1) as encompassing individuals’ and peoples’ participation in, contribution to and enjoyment of economic, social and political development, which creates conditions conducive to the enjoyment of all civil, political, economic, social and cultural human rights. This definition indicates the relational rapport between human rights and development. In the context of development processes, the protection of human dignity is ensured through the realisation of all human rights. Participation in and enjoyment of development gains enable the realisation of all human rights and, in turn, sets solid grounds for development processes. Moreover, article 8(1) of the UN Declaration states that in order to ensure the realisation of the right to development, states must ensure equality of opportunity to access ‘basic resources, education, health services, food housing, employment and the fair distribution of income’. Additionally, article 8(2) indicates that a factor that plays an important role in development is popular participation, which is also emphasised in article 2(3) in the context of deciding on national ‘development policies that aim at the constant improvement of the well-being of the entire population and of all individuals’. Such participatory nature of the right to development indicates that the human right to development should be considered, as a right to the process of development123 that is premised on the principles of social justice, equity and inclusion.124 Notwithstanding the importance of the economic aspect of development, it is clear that the right to development and to the process of development should not be limited to an economic framing. As Sen points out, economic growth should be understood as a means to another objective and not an end in itself.125 Thus, it is not sufficient to think about development in terms of economic growth only. Instead, social inclusion and equity should be placed at the heart of development. In this regard, Hadiprayitno explains that

121 UN Human Rights Realising the right to development: Essays in commemoration of 25 years of the United Nations Declaration on the Right to Development (2013) 10. 122 Vienna Declaration and Programme of Action adopted by the UN World Conference on Human Rights UN Doc A/CONF.157/24, 25 June 1993, part 1 para 10. 123 Sengupta (n 11) 848-852. 124 Sengupta 849 & 851. 125 See A Sen ‘Development: Which way now?’ (1983) 93 The Economic Journal 745.

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[i]t has been clear that economic development might improve productivity and contribute to the allocation of resources for eradicating certain development problems; however without corresponding human rights’ measures for the right-holder, it is not necessarily relevant to the improvement of capabilities in life.126

Thus, the right to development takes the idea of development further than macro-priorities for economic growth, productivity and competitiveness. It asserts that development is a process in which apartheid, racism and racial discrimination, colonialism, foreign domination and occupation, threats of use of force and disregard for the right to self-determination are denounced and are further recognised as ‘massive and flagrant violations of individual and collective human rights’.127 Article 5 of the UN Declaration requires states to eliminate such violations, while articles 3(2) and 3(3) assert the crucial role of international cooperation for the realisation of the right to development, as this right is based on solidarity and morality. In explaining the reason for and the moral features of the right to development, the UN Commission on Human Rights, at its 33rd session in 1977, referred, inter alia, to the ethical duty of industrialised countries and former colonial powers to pay reparations to decolonised, developing countries in the Caribbean in order to resolve the injustices of the past.128 While economic interdependence makes it an interest for all states to universally promote the right to development, moral interdependence makes the promotion of the right to development their responsibility.129 Clearly a complex right, its multiple facets illustrate that all human rights are critical for development processes; respect for the principles of equality and non-discrimination is central in development processes; the individual and peoples are subjects instead of objects of development; the individual is an active participant in deciding his or her own reality; development processes involve ‘the satisfaction of both material and nonmaterial needs’;130 and the individual and collective independence is crucial to the development process.131 Critical to the right to development and to a process of development is the pursuit for social justice by placing at its core the principles of equality of opportunity, fair distribution of development benefits and meaningful, popular participation in development. Obviously, the right to development demands transparency and accountability in development decision-making processes and places the empowerment of individuals and peoples at its centre.

126 I Hadiprayitno ‘Development hazard: A violation-based approach to the right to development’ (2017) 3 The Chinese Journal of Global Governance 32. 127 Art 5 UN Declaration. 128 UNDP (n 121) 9-10. 129 As above. 130 UNDP 8. 131 As above.

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Although it may appear as an amalgam of various standards already embodied in various human rights instruments, the right to development is ‘not just an “umbrella” right, or the sum of a set of rights’.132 The complexity of its characteristics makes it, as Sengupta defined it, ‘a composite right’.133 This means that ‘[t]he integrity of these rights implies that if any one of them is violated, the whole composite right to development is also violated’.134 In turn, the realisation of the right to development implies the recognition, protection and fulfilment of all civil, political, economic, social and cultural rights. Hence, it may be said that the right to development is a clear expression of the indivisible and interdependent character of human rights, overtly stated in article 6(2).135

4.2

Rights holders under the right to development

The definition of the right to development in article 1 indicates that the individual as well as peoples are rights holders. While article 1(2) states that the right to development includes the realisation of the right of peoples to self-determination, making it a people’s right, article 2(1) is clear on the centrality of the individual as an ‘active participant and beneficiary of the right to development’. This means that the rights holders are entitled to take an active role in decision making, and that they are entitled to reap the benefits of development processes. Even if the state is considered the guarantor of human rights, and can also be the perpetrator of human rights violations, interestingly, under the right to development the state is also conceptualised as a rights holder. While article 2(3) generally affirms the independence of states in the development process, stressing that states have a right (and a duty) to autonomously decide on the appropriate national development policy framework, article 4(2) asserts that ‘[s]ustained action is required to promote more rapid development of developing countries’, making it specific that developing countries in particular qualify as rights holders in development processes. With multiple rights holders, the right to development is both an individual and a collective right, whereby collective refers to peoples and also to a nation or a state. It demonstrates that individual and collective rights are not mutually exclusive. As Sengupta explains,136 when the state is the rights holder, the beneficiary of the exercise of the right is the individual. He states that ‘in many cases individual rights can be satisfied only in a collective context and the right of a state or a nation to develop is 132 Commission on Human Rights ‘Fifth Report of the Independent Expert on the Right to Development, Mr Arjun Sengupta, submitted in accordance with Commission Resolution 2002/69: Frameworks for development cooperation and the right to development’ (2002) para 6. 133 Commission on Human Rights (n 132) para 6. 134 As above. 135 Art 6(2) UN Declaration. 136 A Sengupta ‘Right to development as a human right’ (2001) 36 Economic and Political Weekly 2534.

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a necessary condition for the fulfilment of the rights and the realisation of the development of individuals’.137 It can be concluded, therefore, that the right to development has multiple rights holders, namely, the individual, peoples and states.

4.3

Duty bearers under the right to development

Using terminology such as ‘the duty’ and ‘the primary responsibility’ throughout its text, the UN Declaration makes it clear that the state and the international community are the duty bearers of the right to development. More precisely, article 10, which provides that ‘[s]teps should be taken to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels’, indicates that the duty bearer may be a national government or a state under international law.

4.4

State obligations under the right to development

The tripartite typology of state obligations to respect, protect and to fulfil applies to the right to development as with any other human right.138 The obligation to respect encompasses a negative state obligation. Thus, it requires states to refrain from directly or indirectly interfering with the enjoyment of the right to development. Article 6 defines in clear terms the state’s obligation to respect the right to development guaranteed to its people. Couched in the non-discrimination principle, article 6(1) stresses that states must respect all human rights and fundamental freedoms. In turn, article 6(3) is to the effect that a failure to respect all civil, political as well as economic, social and cultural rights hinders development. Article 3 may be read in a similar fashion and may also be understood as embodying the obligation of the state to respect. Article 3(2) requires respect for the principles of international law relating to inter-state relations and cooperation. This is with a view to creating conditions conducive for the realisation of the right to development, which implies, as stipulated in article 3(1), respect for civil, political, economic, social and cultural rights. The obligation to protect encompasses a positive obligation of states to prevent violations of the right to development by third parties and can be regarded as an obligation to ensure respect.139 Thus, states are required to

137 As above. 138 Commission on Human Rights (CHR) ‘Question of the realisation of the right to development’ (1998), para 66. 139 C Chinkin ‘Violence against women’ in MA Freeman et al (eds) The UN Convention on the Elimination of All Forms of Discrimination against Women (2012) 20.

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take all ‘necessary’,140 ‘effective’ measures141 or ‘resolute steps’,142 including economic and social reforms,143 the adoption of laws, and the formulation of development policy measures both at the national and international levels.144 The obligation to fulfil represents a positive duty on states to ensure the full realisation of the right to development. When assessing compliance, the obligation to fulfil places the emphasis on results. As the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights explain, such an obligation ‘requires states to achieve specific targets to satisfy a detailed substantive standard’.145 Accordingly, the state obligation to fulfil has two components, namely, an obligation to facilitate and an obligation to provide in order to realise the right to development. In other words, states have a duty to proactively work for the realisation of the right to development by means of facilitation or provision. In this regard, article 8(1) indicates that states have a duty to facilitate access to ‘basic resources, education, health services, food, housing, employment, fair distribution of income’146 by putting in place measures to ensure ‘equality of opportunity for all’.147 Article 3 encompasses not only an obligation to respect but also the obligation to fulfil. States must facilitate, inter alia, inter-state cooperation in order to ‘promote a new international economic order based on sovereign equality, interdependence, mutual interest and cooperation’,148 in that way to ensure the elimination of obstacles to development and the realisation of the right to development. Article 4(2) demands action from states and makes it a duty for them to cooperate to facilitate the advancement of developing countries and provide them ‘with appropriate means and facilities to foster their comprehensive development’.149 As mentioned above, this article makes it clear that developing countries are rights holders, while the duty bearers are the developed countries. In this regard, it is worth noting the position taken by the ESCR Committee in General Comment 3, stating that [i]t is particularly incumbent upon those states which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General

140 141 142 143 144 145 146 147 148 149

Art 8(1) UN Declaration. As above. Art 5 UN Declaration. Art 8(1) UN Declaration. Art 10 UN Declaration. International Commission of Jurists ‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (1997), paras 6-7. Art 8(1) UN Declaration. As above. Art 3(3) UN Declaration. Art 4(2) UN Declaration.

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Assembly in its Resolution 41/128 of 4 December 1986 and the need for states parties to take full account of all of the principles recognised therein.150

5

Envisaging the right to development for the Caribbean

The right to development triggers a paradigm shift to understanding the concept of development. This right takes the concept beyond economic growth, as advancement in terms of social justice and equity grounded in the fair redistribution of benefits and the meaning full participation of those concerned.151 Thus, it provides development processes with the human rights normative framework, meaning that it establishes entitlements to claim and obligations to comply with. The benefits of development are entitlements that rights holders can claim, and that states and the international community have the obligation, as duty bearers, to respect, protect and fulfil and, thus, achieve human rights standards of development.152 Its formal recognition constructs appropriate legal categories and enables the creation of legal measures and policies to guarantee respect for and ensure the realisation of human rights in the process of development. As mentioned previously, the UN Declaration states that sustained action is required to accelerate comprehensive development in developing countries, essentially through effective international cooperation.153 Accordingly, article 5 identifies apartheid, colonialism, racial discrimination, foreign domination, occupation and interference and aggression as major obstacles towards the realisation of the right to development, not only in countries that have been affected. Therefore, states have a duty to take ‘resolute steps’ to eliminate current injustices resulting from past violations. This entails an obligation to respect people’s and individuals’ rights to be free from apartheid, racial discrimination, colonial occupation and foreign domination. It also requires respect for their rights to self-determination. Article 5 requires states to protect peoples and individuals from the consequences of apartheid, racism, colonialism and foreign occupation, and to protect their right to self-determination with a view to restoring peoples’ and individuals’ dignity and to heal present wounds of past violations, thus facilitating ‘more rapid development’ for developing countries as stated in article 4(2) of the UN Declaration. To take the discussion further to the level of the rights holders, the participatory nature of the right to development gives them a sense of 150 151 152 153

ESCR Committee General Comment 3, para 14. Sengupta (n 11) 850. Sengupta 852. Art 4(2) UN Declaration.

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ownership over the process of development. Thus, development becomes tangible to the common individual and peoples. In this way, the right to development becomes a tool for empowerment and a guarantor of equality of opportunity in the process of development. This entitlement to participation under the right to development possesses a transformational value for the rights holders. The ultimate aim of the right is not merely to fulfil material needs, but also to empower rights holders to politically address the injustices that occur in development processes.154 In this way, rights holders (individuals, peoples or states) become not merely recipients of development programmes, measures and policies, but active actors in shaping their own realities. With this in mind, when imaging the conceptualisation of the right to development for the Caribbean, I argue in this chapter that the recognition of the right to development is critical for calls for reparations for slavery. Furthermore, I argue that in the context of the Caribbean, the right to development should be conceptualised in relation to reparatory justice. While reparations seek comprehensive development and represent a tool to reassert and restore the full dignity of the Caribbean people, positioning reparations in a human rights framework gives them a legal ground to make demands for comprehensive development and restoration of their human dignity. Reparations are ‘also about finding a new philosophy for the organisation of societies and the world in order to establish social justice, moral authority and peace within the human family’.155 Similarly, the right to development draws attention to the exclusion of certain nations and peoples, and to the asymmetrical relations of power between nations. It recognises the harms produced by violations of the past156 and, thus, offers a platform for challenging those power relations. Stressing the necessity for a new international economic and social order for all human rights to be fully realised,157 the right to development demands respect for an equitable process to development for developing nations. In this way, asserting the right to development rules out the historical exclusion of developing countries from the benefits of the global development process. Hence, it creates an empowering tool that is essential for the Caribbean call for reparations.

154 See I Hadiprayitno Hazard or right? The dialectics of development practice and the internationally declared right to development, with special reference to Indonesia (2009). 155 Human Rights Council (n 79) para 36. 156 Art 5 UN Declaration. 157 Art 3(3) UN Declaration.

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Grounding reparations for slavery on the right to development creates an unambiguous legal category of rights holders to the process of development.158 In the first place this means that there is a right to compensation for harms of the past, and there is a duty to compensate. Caribbean developing countries – representing individuals – have a legal entitlement to demand compensation for slavery and harms of the past, while the relevant developed countries, as duty bearers, have a legal obligation to honour such reparatory claims. Therefore, the right to development, once formally acknowledged, provides a normative framework for reparation claims, equipping them with authoritative ground and a legally-binding nature. Consequently, in addition to creating specific legal categories, the right to development creates legal protection. Couching reparations in a language of rights, more specifically the language of a right to development, implies legal protection and, thus, the right to development may be used as a base for political actions. It also gives necessary precision and strength to the language of reparations. For example, the request for debt cancellation has been identified by economic research as critical for the recovery of Caribbean economies, such as that of Jamaica. This is affirmed by the Durban Declaration and Platform for Action and highlighted as an action point in the CARICOM Ten Points Reparations Plan, which can be strengthened through the language of the right to development, which provides a legal platform for action at the international level. Additionally, this specific legal category of rights holders represents a signifier of enslavement of the African peoples and the harmful consequences of the transatlantic slave trade, slavery and colonialism. It sheds light on the contribution of the labour of enslaved populations and their descendants to the development of ‘civilisation’,159 and edifies the historical debt still owed by developed nations to the peoples of developing countries. This legal category also constitutes an analytical tool in that it indicates the historical construction of contemporary racial categories and inequalities and their reproduction. It indicates who the victims are and who the perpetrators of colonial oppression and exploitation are and, in relation, who has the right to be compensated and who has the obligation to compensate. This contributes to the promotion and protection of human rights in the Caribbean. It demands for a scrutiny of practices that are based on discrimination and inequalities, and for an understanding of the ways in which the past of slavery and colonialism affects the present social development of Caribbean countries. Recognising the peoples of the

158 This understanding is in line with the proposals made by the Inter-American Commission of Human Rights in its report ‘The situation of the people of African descent in the Americas’ (2011). See Inter-American Commission on HR (n 90) para 6. 159 Para 53 Human Rights Council (n 79).

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Caribbean as holders of the right to development entitles them to the benefits reaped by the developed, former colonial powers through the exploitation of the Caribbean colonies. In other words, the right to development is an instrument to ensure dignity by placing an obligation on former colonial powers to recognise the contribution of the Caribbean people to the development of Western civilisation. The right to development points to the fact that imbalances in power relations between Western and Caribbean societies reinforce the structural and institutional invisibility of the debilitating effects of colonisation, colonialism and slavery on Caribbean societies. It also reminds of the power asymmetry that reinforces the invisibility of Caribbean contributions to the development of Western civilisation, permitting a denial of responsibility by developed countries, such as the United Kingdom, to give back to the former colonies, which they exploited for their own development benefits. As Girvan points out, The immiserizing poverty and demoralizing economic impotence of Third World peoples today can in most cases be traced back to the destructive effects of the European impact and to the characteristics of the systems erected to service European interest.160

Once the slave trade is conceptualised and understood, in the words of Walter Rodney, as ‘social violence’,161 the consequences of slavery and colonialism for current Caribbean societies and their development are fully grasped. Clearly, the acknowledgment of the right to development mirrors such an understanding and challenges the asymmetrical power relations within society and between countries of the global south and the global north, by demanding respect for an equitable development process for developing counties. All the more, the right to development is critical to development processes, if such processes are understood as entailing the perpetuation of justice and rights, and the combating of inequalities and discrimination in all their forms.162 To conclude, the right to development understood in the light of calls for reparations for slavery makes visible the marginalised and gives voice to the voiceless.

6

Conclusion

In this chapter I have contoured the various discourses on development in the Caribbean, illustrating that there is no solid conceptualisation of the right to development. Yet, the Caribbean movement for reparations for slavery alludes to and contains elements encompassed in the right to development. By analysing the content, nature and scope of the right to 160 N Girvan ‘Expropriation and compensation from a Third World perspective’ in A Kamugisha (ed) Caribbean political thought (2013) 153. 161 As above. 162 Para 39 Human Rights Council (n 79).

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development, as well as its rights holders, duty bearers and the emerging state obligations, I show that there is merit to recognising this right in the context of the Caribbean. In imaging the conceptualisation of the right to development for the Caribbean, I argue that the right to development is critical to the calls for reparations that Caribbean countries undertake. A right to development framework to reparations would create a normative ground from where to operate in the context of international cooperation, would construct legal categories of rights holders and duty bearers, and would ensure legal protection. This would put into place a corresponding system of advancing the entitlement positions of developing nations, and their peoples and individuals as the rights holders to a process of development.163 One can thus conclude that incorporating a right to development language as an integral normative concept of reparations in the context of Caribbean development would have a transformative impact, by which deeply-engrained inequalities would be thoroughly addressed and accountability ensured. That is especially because ‘[i]t has to be a better world, one in which the rights of every individual are respected, one that builds on past aspirations for a good life, and one that enables every individual to optimally develop their potential’.164

163 Hadiprayitno (n 153) 12. 164 N Mandela Notes to the future: Words of wisdom (2012) 134.

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17

OPPORTUNITIES AND CHALLENGES IN THE IMPLEMENTATION OF RIGHTS-BASED APPROACHES TO DEVELOPMENT: AN OVERVIEW OF THE RIGHT TO DEVELOPMENT IN AFRICA Kwanele Pakati* and Thandiwe Matthews**

1

Introduction

The contemporary political, economic and social instability plaguing the African landscape raises sustainability concerns for many who seek to advance human rights. The continent continues to battle the legacy of colonialism and since gaining independence, there appears to have been an endless display of the inability of states to effectively combat development challenges, ranging from civil wars and political instability to endemic diseases, chronic food insecurity and pervasive poverty. At the same time, however, the continent has been lauded as the next global frontier. Despite the successive global food and financial crises, the continent has been growing at an unprecedented rate. Africa boasts abundant untapped natural resources, providing access not only to mineral and oil wealth, but also conducive environmental conditions and burgeoning economies that are essential for global sustainability.1 In this context the ‘right to development’ may be a useful tool to tackle the systemic political, economic and social challenges that inhibit the full realisation of human rights for African people, in addition to leveraging from the benefits the continent presents. Development initiatives on the continent have been fraught with inadequacies that have prevented many

* **

1

Research Advisor at the South African Human Rights Commission and LLD candidate specialising in International Law at the University of Johannesburg, South Africa; [email protected] Attorney and Senior Researcher at the South African Human Rights Commission; Research Fellow at the University of the Witwatersrand School of Law and PhD candidate specialising in Development Studies at the International Institute of Social Studies, Erasmus University, Rotterdam and the University of the Witwatersrand School of Law, South Africa; [email protected] African Development Bank Africa in 50 years’ time: The road towards inclusive growth (2011). 346

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African peoples from benefiting from the continent’s prosperity. However, while the African continent is confronted with the challenges of civil wars, political instability and pervasive poverty, there is now growing confidence regarding its potential prospects for global growth and sustainability.2 It has thus become even more of an imperative that the current development opportunities advance the collective civil, political, economic, social and cultural rights of all the peoples of the continent. The notion of ‘development’ finds expression in various international and regional instruments. In the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) economic, social and cultural development forms an intrinsic component of the right to selfdetermination.3 The African Charter on Human and Peoples’ Rights (African Charter) closely associates economic, social and cultural development with human freedom, identity and heritage.4 These instruments highlight the link between development and the economic, social and cultural, and civil and political rights of human freedom, identity and heritage. Further content to the right is provided for in the United Nations Declaration on the Right to Development (UN Declaration).5 In Africa, cases brought before the African Commission on Human and Peoples’ Rights (African Commission) have provided guidance on how the right ought to be interpreted and implemented in various country contexts.6 Where the concept of development has been (implicitly) included in national constitutions – such as those of Rwanda and South Africa – we argue that implementation must be done in a manner that safeguards peace and promotes democracy, social justice and equality, as well as ensures ecological sustainability while promoting socio-economic development.7 Yet, despite aiming to promote development that is fair, just and equitable, the human dignity of vulnerable and marginalised groups frequently is denied in the name of development. In unpacking these 2 3

4 5 6

7

As above. International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Resolution 2200A (XXI) 16 December 1966, art 1; International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly, Resolution 2200A (XXI) 16 December 1966, art 1. African Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5, 21 ILM 58 (1982), entered into force 21 October 1986, art 22. Declaration on the Right to Development, Resolution 41/128, adopted by the UN General Assembly, on 4 December 1986. African Commission on Human and Peoples’ Rights (Ogiek Community) v Republic of Kenya (2017) Appl 006/2017, paras 201-217; Centre for Minority Rights Development& Others v Kenya (2009) AHRLR 75 (ACHPR 2009) (Endorois case), paras 269-298; Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2003), para 95; Sudan Human Rights Organisation & Another v Sudan (2009) AHRLR 153 (ACHPR 2009), para 224. The Rwandan Constitution of 2003 with Amendments through 2015, art 47; Constitution of the Republic of South Africa, 1996, sec 24.

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nuances and contradictions, we aim to respond to the question of how the right to development, seen as both a human rights concept and a development paradigm, can fast-track implementation in Africa. The chapter is structured as follows: Section 2 provides an overview of the international and regional framework that informs the right to development, including an overview of case law emanating from the African Commission that provides content to the right in Africa. Section 3 provides an overview of the development agenda from a rights-based perspective with consideration of the extent of states’ commitments as articulated in the Sustainable Development Goals (and its predecessor, the Millennium Development Goals) and Agenda 2063 of the African Union (AU). Section 4 considers how the right to development is interpreted in the African context, and whether its implementation is sufficient to advance the human rights of all the peoples of Africa. Focusing on Rwanda and South Africa, we explore the dual notion of ‘development’, considering whether an emphasis on indicators such as the achievement of development goals or economic development have the potential to yield the results of a human development agenda that seeks to reduce poverty and inequality. We conclude with the argument that the implementation of the right to development constitutes a necessary first step in the allocation of resources and the crafting of policies that advance economic, social and cultural rights in the pursuit of human development. Therefore, a development agenda that does not prioritise the human rights principles of equity, non-discrimination, accountability and transparency is of little value when the outcomes thereof do not result in a society that promotes and protects the human dignity of all who live in it.

2

International and regional framework on the right to development

Common Article 1 of the ICESCR and the ICCPR states that ‘[a]ll peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. Whereas the ICESCR is primarily designed to enhance social justice through the progressive realisation of socioeconomic rights, the ICCPR is premised on the ideal of free human beings enjoying civil and political rights to be achieved if conditions are created for their enjoyment. A common characteristic between the two Covenants is the principle of self-determination in matters of civil and political as well as economic, social and cultural rights,8 which underscores the interconnectedness and indivisibility of human rights.

8

For an interpretation of common article 1, see General Comment 12 art 1 on the right to self-determination of peoples.

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In 1972 Kéba M’baye, Chief Justice of the Supreme Court of Senegal, coined the concept of the right to development and argued that all human beings collectively have the right to live better and to benefit equally from the goods and services produced by the international and national community to which they belong.9 The UN Declaration further affirms:10 The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

The UN Declaration underscores the dynamic nature of the right to development by stating that it encompasses civil, political, economic, social and cultural rights. In terms of article 1(2), the right to development implies the full realisation of the rights of peoples to self-determination, which includes the exercise of their inalienable right to full sovereignty over all their natural wealth and resources. It guarantees the humanisation of the right to development by affirming that the human person is the integral subject of development and should be the active participant and beneficiary of the right. Although non-binding, the UN Declaration places an emphasis on the global dimension of the right to development, highlighting the resultant inequities between the global north and south and the collective obligation of all states to create a just and equitable international environment to facilitate and advance its realisation.11 At a regional level, the African Charter normatively codifies the right to development and provides in article 22 that ‘[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’.12 Providing content to article 22, the African Commission held in the Endorois case:13 [T]he right to development is a two-pronged test, that it is both constitutive and instrumental, or useful as both a means and an end. A violation of either the procedural or substantive element constitutes a violation of the right to development. Fulfilling only one of the two prongs will not satisfy the right to development. The African Commission notes the complainants’ arguments that recognising the right to development requires fulfilling five main criteria: it must be equitable, non-discriminatory, participatory, accountable, and transparent, with equity and choice as important, over-arching themes in the right to development.

9 10 11 12 13

OC Okafor ‘A regional perspective: Article 22 of the African Charter on Human and Peoples’ Rights’ in UN Realizing the right to development (2013) 373. Art 1(1) UN Declaration (n 5). C Nyamu-Musembi & A Cornwall ‘What is the “rights-based approach” all about? Perspectives from international development agencies’ (2004) Institute of Development Studies Working Paper 234. Art 22 African Charter. Endorois case para 277.

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Citing the UN Independent Expert on the Right to Development, the African Commission further expressed the following view:14 [D]evelopment is not simply the state providing, for example, housing for particular individuals or peoples; development is instead about providing people with the ability to choose where to live[and that] … the state or any other authority cannot decide arbitrarily where an individual should live just because the supplies of such housing are made available. Freedom of choice must be present as a part of the right to development.

Noting the collective nature of the right to development, the African Commission states that:15 By attempting to interpret the content of a ‘peoples’ right’, the Commission is conscious that jurisprudence in that area is still very fluid. It believes, however, that in defining the content of the peoples’ right, or the definition of ‘a people’, it is making a contribution to Africa’s acceptance of its diversity. An important aspect of this process of defining ‘a people’ is the characteristics, which a particular people may use to identify themselves, through the principle of self- identification, or be used by other people to identify them. These characteristics, include the language, religion, culture, the territory they occupy in a state, common history, ethno – anthropological factors, to mention but a few. In states with mixed racial composition, race becomes a determinant of groups of ‘peoples’, just as ethnic identity can also be a factor. In some cases groups of ‘a people’ might be a majority or a minority in a particular state. Such criteria should only help to identify such groups or sub groups in the larger context of a States’ wholesome population.

Pursuant to article 62 of the African Charter, states are obliged to submit reports after every two years on measures adopted towards the (progressive) realisation of rights contained therein.16 Accordingly, Rwanda affirms that its domestic legal framework makes provision for the right to development. It should be noted that the Rwandan Constitution does not explicitly enshrine the right to development. Rwanda, however, ratified the African Charter in July 1983 and, therefore, is obligated to ensure the realisation of the right to development enshrined therein. The Rwandan government’s periodic report states:17 The Constitution of Rwanda clearly defines the role of the citizens and that of the State in socio-economic and cultural development of the community. Citizens have not only the right to development but also the duty to participate in their socio-economic and cultural progress. The Constitution enshrines the state’s obligation to allow the environment for citizens to freely 14 15 16 17

Endorois case para 278. Sudan Human Rights Organisation (n 6) paras 218-220; see also the Endorois case (n 6) para 151; Gunme & Others v Cameroon (2009) AHRLR 9 (ACHPR 2009), paras 174-176. M Hansungule ‘African courts and the African Commission on Human and Peoples’ Rights’ notes the inconsistent and poor reporting to comply with art 62. This is compounded by the absence of follow-up mechanisms. 11th, 12th & 13th periodic report of the Republic of Rwanda on the Implementation Status of the African Charter on Human and Peoples’ Rights, 2009-2016, para 157.

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participate in their development and to take the appropriate policies for the peoples’ development (see article 47 of the Constitution). Such initiatives are vast and compelling on the part of the state.

The South African Constitution also does not make provision for the right to development but, like Rwanda, has ratified the African Charter and therefore, is legally bound to fulfil the right to development. In this regard it is stated, taking into consideration the range of socio-economic rights as well as civil and political rights guaranteed that the right to development is implied in the South African Constitution.18 The combined report on the state’s commitments towards the implementation of the human and peoples’ rights provisions of the African Charter in light of its development trajectory highlights some poverty and structural inequality reduction efforts, stating:19 The National Planning Commission released their vision for 2030, the National Development Plan (NDP), in order to make recommendations about how South Africa ought to combat poverty, land inequity, and an underperforming economy. The NDP aims to eliminate poverty and reduce inequality by 2030. South Africa can realise these goals by drawing on the energies of its people, growing an inclusive economy, building capabilities, enhancing the capacity of the state, and promoting leadership and partnerships throughout society.

Indeed, in the African context the right to development has been recognised as an integral component of the human rights framework. However, whereas Okafor notes that the exact nature and content of the right to development or the preferred model for development remains obscure,20 Yusuf views the right to development as a distinct norm of African public law.21 Although the subject matter addressed in the Endorois case, for example, has contributed towards the evolution of the jurisprudence emanating from the African Commission in providing insight as to what characterises the right to development, Okafor argues that its specific dimensions and content require further clarity.22 The above notwithstanding, the African Commission has made provision for certain cornerstones that reveal broad characteristics of the right to development as provided for in the African Charter. It requires at a minimum that any conception of development under article 22 must (i) frame the process and goals of development as associated to the 18

19 20 21 22

First periodic report of South Africa to the African Commission, 38th ordinary session 2005, para 325; S Gutto ‘The right to development: An implied right in South Africa’s constitutional order’ in SAHRC Reflections on democracy and human rights: A decade of the South African Constitution (Act 108 of 1996) (2006) 109-118. Republic of South Africa Combined 2nd second periodic report under the African Charter on Human and Peoples’ Rights and initial report under the Protocol to the African Charter on the Rights of Women in Africa, paras 486-487. Okafor (n 9). A Yusuf Pan-Africanism and international law (2014) 210-211. Okafor (n 9) 377-378.

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enjoyment of peace; (ii) envision the process and ends of development in part through a human rights lens; (iii) consider the gender, ethnic and other inequities that may exist in the distribution of developmental benefits as impeding development; (iv) consider the affected people’s participation in their own development as a core minimum requirement of development processes; and (v) consider the right to development as inclusive of the rights to the means, processes and outcomes of development.23 Situating development processes within the human rights framework provides for normative, pragmatic and ethical justifications. As explained by Nyamu-Musembi and Cornwall, from a normative perspective the application of an internationally-agreed set of norms supported by international law to development processes provides a basis for citizens to assert claims and hold their states to account on their obligations to advance the realisation of human rights. Pragmatically, the human rights language also offers the possibility for citizens to hold both state and nonstate actors (such as development agencies, international nongovernmental organisations (NGOs) or donors) accountable for actions that have a direct impact on human rights. As the authors note, citing the UN Office of the High Commissioner for Human Rights, ‘[r]ights imply duties, and duties demand accountability’. The ethical dimension of the human rights language serves as an opportunity to reflect on the power dynamics inherent to international development, which allows for critical links between participation, accountability and citizenship, and legitimises a more progressive approach to development practice.24 However, as further noted, framing development within the human rights paradigm can also present challenges in the sense that poor people have limited access to institutions tasked with enforcing their rights. The different legal systems governing access to entitlements (customary laws, for example) make the process of recognising and claiming rights complex, while limited financial resources require a level of prioritisation when dealing with competing rights, leading to the undermining of the human rights principle of indivisibility.25 The right to development has been met with contestation. NyamuMusembi and Cornwall explain that a distinction must be drawn between the right to development and adopting a ‘rights-based approach’ to development. In previously colonised countries, human rights in their totality – civil, political, economic, social and cultural – have historically been a defining feature of the way in which liberation movements have framed their demands for independence, highlighting the constraints that colonialism imposed on their liberties as well as their livelihoods. Human rights, including the right to development, have thus always been 23 24 25

As above. Nyamu-Musembi & Cornwall (n 11) 234. As above.

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understood in these contexts as intrinsically linked to social justice. In contrast, the contemporary understanding of rights in the field of international development practice appears to display little understanding of political, economic and social complexities of these earlier struggles for social justice. Moreover, while it has become common practice to view recipients of development aid as rights holders, international development agencies still view the state as the primary duty bearer of the right to development. It is not clear what the role of these development agencies are with regard to their obligations on the right to development.26 Consequently, although provision for international development aid still is a priority on the global agenda, and acknowledged as essential for the realisation of the human rights of vulnerable and marginalised peoples around the world, it remains unclear what the obligations of wealthier states are towards the realisation of the right to development and, more so, in relation to redress for past and present human rights violations.27 Moreover, traditional donor countries and international agencies have increasingly reduced their development assistance to least-developed countries.28 In accordance with the human rights obligations imposed on states, we proceed in the next section to provide an overview of the global and regional development agenda and the extent to which obligations undertaken by states have achieved the advancement of the right to development or the economic, social and cultural rights as well as the civil and political rights associated therewith.

3

Conceptualisation of the global and regional development agenda

The Working Group on the Right to Development (Working Group) established in 1998 reports to the Human Rights Council and the UN General Assembly on the progressive realisation of the right to development. Notwithstanding the commitment at the international level, the right to development is contained only in ‘soft law’ instruments, notably the UN Declaration, the Millennium Development Goals (MDGs) and, more recently, the Sustainable Development Goals (SDGs). While these instruments are not strictly and legally binding on states, it is critical to take cognisance of the linkages between the UN Declaration, the MDGs and the SDGs. The Working Group has previously stated in its deliberations that the member states, experts, development practitioners,

26 27 28

As above. As above. ‘Development aid rises again in 2016 but flows to poorest countries’ http:// www.oecd.org/development/development-aid-rises-again-in-2016-but-flows-topoorest-countries-dip.htm (accessed 5 September 2017).

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international institutions and civil society should move toward a common understanding of the right to development, stating:29 [T]he right to development enriches growth-oriented development strategies through systematically incorporating the human rights principles of transparency, equality, participation, accountability and non-discrimination into the development processes, at both national and international levels. In that context, the right to development should act as a guide in setting priorities and resolve trade-offs in resource allocations and policy frameworks.

Since the adoption of the UN Declaration, the UN has been consistent in promoting the right to development, implicitly linking it to global contemporary challenges of widening poverty, food shortages, climate change, economic crises, armed conflicts, rising unemployment and popular unrest. Yet, despite declaring the right to development as inalienable to the realisation of the wide range of socio-economic and cultural rights as well as civil and political rights, millions of people around the world continue to have their human rights violated as a result of the non-fulfilment of these rights.30 Quoting the former High Commissioner for Human Rights, Navi Pillay, she stated in 2001:31 We must end discrimination in the distribution of the benefits of development. We must stop the 500 000 preventable deaths of women in childbirth every year. We must free the millions of children from hunger in a world of plenty. And we must ensure that people can benefit from their country’s natural resources and participate meaningfully in decision-making. These are the kind of issues addressed by the Declaration, which calls for equal opportunity and a just social order.

The UN has further emphasised that economic growth is not an end in itself in realising the right to development. While sustained economic growth is a crucial component of the realisation of the right to development, development has to be grounded in economic policies that foster growth with social justice.32 As highlighted in a 2016 Oxfam report, despite the wealth of 62 of the world’s richest people, increasing by more than half a trillion US dollars since 2010, during the same period the wealth of the poorest half of the world’s population has fallen by a trillion dollars.33 The implications of the widening gap between the rich and the poor and the high levels of inequality undermine both economic growth

29 30 31 32

33

UN General Assembly The right to development: Report of the Secretary-General A/66/216 1 August 2011, para 15. United Nations Information note: UN Declaration on the Right to Development at 25 (2011). As above. UN General Assembly (n 29) para 15; S Kamga & S Heleba ‘Can economic growth translate into access to rights? Challenges faced by institutions in South Africa in ensuring that growth leads to better living standards’ (2012) 9(17) SUR – International Journal on Human Rights 82-104. Oxfam International ‘An economy for the 1%: How privilege and power drive extreme inequality and how this can be stopped’ (2016) 210 Oxfam Briefing Paper.

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and social cohesion, resulting in the inability of those who are poor to access the socio-economic and cultural as well as civil and political rights that they are entitled to. It is noted in the same report that rising economic inequality compounds existing inequalities, reinforcing the gap between men and women in terms of health, education, labour market participation and political representation in institutions of governance.34 One of the core drivers of these inequities is that, while the capital wealth of owners have consistently grown globally, workers have retained less of the gains from growth and have seen their share of national income decreasing.35 This runs contrary to the objectives of the right to development as articulated in the UN Declaration, which aims to ensure the meaningful participation of the entire population in development processes and the fair distribution of its benefits.36 The Millennium Declaration, adopted by world leaders in 2000, aimed to end poverty by 2015, recognised the link between human rights, good governance and development. The Millennium Declaration explicitly reaffirms the commitment of global leaders to create the foundations for a peaceful, prosperous and just world. It further stated that in addition to individual state responsibilities to citizens, states also have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level.37 In particular, global leaders identified globalisation as the central challenge facing the world, noting:38 [W]hile globalisation offers great opportunities, at present its benefits are very unevenly shared, while its costs are unevenly distributed. We recognise that developing countries and countries with economies in transition face special difficulties in responding to this central challenge. Thus, only through broad and sustained efforts to create a shared future, based upon our common humanity in all its diversity, can globalisation be made fully inclusive and equitable. These efforts must include policies and measures, at the global level, which correspond to the needs of developing countries and economies in transition are formulated and implemented with their effective participation.

Emanating from the Millennium Declaration, the MDGs sought to address the challenges confronting a more integrated global community. MDG 8, for example, focused on global partnership for development, prioritising, among others, the needs of the least-developed countries and

34 35 36 37 38

As above. As above. United Nations (n 30). UN Millennium Declaration Resolution A/55/L.2 adopted by the UN General Assembly on 8 September 2000. UN Millennium Declaration (n 37) para 5.

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ensuring the development of an open, predictable, rule-based, nondiscriminatory trading and economic system.39 However, ten years after the establishment of the MDGs, it became apparent that the objectives of the MDGs – incorporating principles of human rights into development processes– would not be achieved. The UN Office of the High Commissioner for Human Rights, therefore, noted that while some countries were on track in achieving some of the MDGs, in 2010 more than a billion people were trapped in extreme poverty around the world. While those most affected were in the least-developed countries and those vulnerable to natural disasters and armed conflicts, even in wealthier countries that scored well in achieving the MDG objectives there were large disparities in terms of aspects of the population that were able to access the benefits of development.40 Although the MDGs were acknowledged as a step towards recognising that the achievement of equitable development was dependent on a global partnership between states, its implementation has been criticised for adopting ‘top-down’ rather than participatory approaches inclusive of affected communities and local governments in development processes; limited to focusing on the symptoms of poverty while insufficiently addressing issues of peace, stability, human rights and good governance; overlooking monitoring, evaluation and accountability; and failing to give adequate priority to challenging systemic patterns of discrimination and disadvantage that trap many people in poverty.41 In light of these challenges, the advent of the SDGs, adopted in 2015 subsequent to global consultations and intergovernmental negotiations, aims to integrate the economic, environmental and social aspects of sustainable development. The SDGs have been celebrated for being more transparent in its establishment with greater consensus between stakeholders than the MDGs. In recognition that the world has changed considerably since the formulation of the MDGs in 2000, and that international development is less about the transfer of aid from rich to poor countries and more about the progressive advancement of everyone, the SDGs apply to rich and poor countries alike to address contemporary challenges presented by a more interconnected community both locally and globally.42 At the African regional level, states are obliged to cooperate with one another to ensure the realisation of the right to development.43 The scope

39 40 41 42 43

MDG Goal 8: Develop a global partnership for development http://www.un.org/ millenniumgoals/global.shtml (accessed 8 October 2017). UNOHCR The Millennium Development Goals and human rights (2010). See eg, J Coonrod ‘MDGs to SDGs: Top 10 differences’ (2014) The Hunger Project; JS Clarke ‘7 reasons the SDGs will be better than the MDGs’ The Guardian 26 September 2015. Institute for Development Studies Sustainable Development Goals (2015). Art 22(2) African Charter.

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of cooperation envisage by the UN Declaration, spans from the national to the international level. At its core the right to development demands a human-centred, holistic approach to the realisation of socio-economic and cultural rights, while attempting to address underlying causes of poverty.44 This approach is reflected in the Agenda 2063 of the African Union, which calls on African states to ‘unite in order to realise its Renaissance’, and drive the objectives of Agenda 2063 to advance the continent’s interests.45 Agenda 2063 particularly seeks to achieve a prosperous Africa based on inclusive growth and sustainable development; an integrated and politically-united continent driven by the ideals of pan-Africanism, respect for good governance, democracy, human rights, justice and the rule of law; peace and security on the continent; shared values and ethics, with a strong cultural identity and common heritage; development that is people-driven, relying on unlocking the potential of the African people, especially women and the youth, and caring for children; while presenting Africa as a strong, united and influential global partner in the international arena.46 Despite these international and regional commitments, in addition to extensive development assistance to many African states through various development interventions, the continent continues to battle with high levels of poverty and inequality that hamper the ability of millions of its people to enjoy their fundamental human rights. On this account, we proceed to consider whether the implementation of the right to development contained in legal instruments is sufficient in advancing the socio-economic and cultural as well as civil and political rights necessary for everyone to live a life with dignity. The question we pose in this regard is to what extent the right to development advances the realisation of the range of human rights guaranteed to all the peoples of Africa.

4

Right to development guaranteed to all the peoples of Africa

We pointed out earlier that framing development within the rights-based framework provides citizens with the necessary tools for holding state governments accountable for their human right obligations, in addition to holding both state and non-state actors accountable for actions that may violate human rights in the process of implementing initiatives that aim to advance development. The human right discourse also presents an opportunity to reflect on the power dynamics inherent to development processes. At the same time, however, under-resourced communities may not have access to the institutions required to hold the state to account, and 44 45 46

See Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights regarding member states’ obligations in term of the Charter 10-18. African Union Commission Agenda 2063: The Africa we want (2015), para 2-3. As above.

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limited financial resources may impact on the ability of states to progressively achieve socio-economic and cultural as well as civil and political rights in a manner that recognises their interdependent and indivisible nature.47 Generating the resources required to implement the right to development and to advance the human rights associated therewith remains an insurmountable challenge, particularly on the African continent. A High-Level Panel appointed by the UN has reported that illicit financial flows (IFFs) have become of increasing concern because of the impact such flows have on Africa’s development and governance processes. It has been estimated that IFFs from the African continent could be as high as US$50 billion per annum, and approximately double the official development assistance received by the continent. However, noting the illicit nature of the transactions and the lack of accurate data across the continent, this number could be significantly short of reality. The effects of IFFs include the draining of foreign exchange reserves and reduced tax collection and impacts on governments’ ability to address poverty. They also stifle trade and undermine the rule of law, enabling an environment for the creation of disguised corporations, shell companies, anonymous trust accounts, fake charitable foundations, and money laundering.48 The result is that African governments are unable to capture resources to build strong institutions of governance required to implement laws to tackle IFFs and hold perpetrators accountable. In addition, governments are unable to collect the necessary maximum available resources due to them, in order to prioritise the progressive realisation of economic, social and cultural rights. Such circumstances fuel corruption, inhibit the ability of African governments to deliver on their human rights obligations and development goals and undermine the democratisation project on the continent. In particular, the consequences of IFFs disproportionately impact on the rights of women, children, people with disabilities and other vulnerable and marginalised groups, who remain unable to access work, affordable food, housing, water and education, as African governments are unable to respond to their needs, particularly during times of political, economic and social crises. A report by the Independent Expert on the Effects of Foreign Debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social and cultural rights, outlines how IFFs undermine the enjoyment of human rights. In the report the Independent Expert emphasises the need for due process and due diligence in the fight against IFFs; better protection of witnesses and

47 48

See Nyamu-Musembi & Cornwall (n 11). UN Economic Commission for Africa ‘Illicit financial flows: Why Africa needs to “track it, stop it and get it”’ (2013) High Level Panel on Illicit Financial Flows from Africa.

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whistle-blowers; and the incorporation of human rights considerations in the return of stolen assets.49 As further noted by the Independent Expert, tax abuse undermines the principles of equality and non-discrimination, as high net-worth individuals and large corporations have a far greater ability to evade or avoid taxes as they are able to open undeclared foreign bank accounts in low-tax jurisdictions. Consequently, governments have to raise revenue from alternative sources, often introducing regressive tax measures which are likely to have a disproportionate impact on the poor. Therefore, if states do not sufficiently address tax abuse, they are likely to disproportionately benefit wealthy individuals at the expense of the poor.50 If the SDGs are to have their desired impact, and if Africa is to become self-sustainable as envisioned in Agenda 2063, which highlights the need to overcome dependency on aid, particularly from the global north, governments of both the global north and south must be committed to ensuring that the necessary mechanisms are established, including those required to combat IFFs, to effectively advance the human rights of the African people. As highlighted by the OHCHR, in addition to mainstreaming human rights within the development frameworks, it is also crucial that the relevant human rights obligations and responsibilities for both state and non-state actors are reflected in financing for development projects to ensure equitable and inclusive development that benefits all persons without discrimination. Recommendations by the OHCHR for development financing regulations and procedures that highlight human rights principles include expending maximum available resources toward the progressive realisation of economic, social and cultural rights and the advancement of civil and political rights; international cooperation for the advancement of human rights; ensuring participatory and human rightsbased development; creating an international environment in which all human rights can be realised; guaranteeing equal access and nondiscrimination; ensuring the empowerment of excluded groups; protecting persons from human rights abuses committed by private actors; ensuring accountability of all duty bearers and rights holders; ensuring that sovereign debt arrangements do not undercut the realisation of human

49 50

UN General Assembly ‘Effects of foreign debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social and cultural rights: Note by the Secretary-General’ 5 August 2016, para 6. Human Rights Council Illicit financial flows, human rights and the post-2015 development agenda: Interim study by the Independent Expert on the effects of foreign debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social and cultural rights, Juan Pablo Bohavslavsky A/HRC/28/60 10 February 2015.

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rights; and aligning economic policies and institutions with human rights standards.51 Notwithstanding the aforementioned guidelines, which emphasise the inclusion of human rights principles in development processes, countries that have enshrined the right to development in their national constitutions or have effectively implemented global development agendas also underscore the multiple contradictions that emerge when prioritising the realisation of some rights at the expense of others. For example, the Rwandan Constitution provides that ‘[a]ll citizens have the duty to participate through work, in the development of the country; to safeguard peace, democracy, social justice and equality’,52 which in principle guarantees the right to development. Accordingly, Rwanda is distinguished as being one of the few African countries to have achieved most of the MDGs. A UN Fact Sheet on Rwanda’s successes regarding the MDG indicates that through concrete national development measures such as Rwanda’s vision 2020, the government has been able to bridge gender gaps through empowerment programmes for women, in addition to the constitutional amendment that presently allocates 30 per cent of leadership positions in parliament to women.53 Free education has been extended to between 9 and 12 years of basic schooling, while the proportion of people affected by hunger in the country has been halved. Rwanda has also been successful in reducing by half the proportion of its population living below the national poverty line and those living in extreme poverty.54 Infant mortality has also decreased considerably, with a significant improvement in maternal health. Deforestation has contributed toward environmental sustainability, while access to water and sanitation facilities also has improved considerably.55 It is to be noted that Rwanda has been heavily dependent on foreign aid to achieve the MDGs as a result of its fairly low ability to raise domestic revenue or to mobilise local resources. Other challenges include its landlocked position as a country in a region plagued by conflict and violence, which interferes with import and export costs, and its high population density in a small geographical territory.56 Notwithstanding these challenges, Rwanda has also been hailed as an example of good governance practice, strong, effective and functional institutions and 51 52 53 54 55 56

OHCHR ‘Key messages on financing for development and human rights’ (2015) 3rd International Conference on Financing for Development, Addis Ababa, Ethiopia, 1316 July 2015. Art 47 Constitution of the Republic of Rwanda. United Nations MDG Monitor: Fact sheet on current MDG progress of Rwanda (Africa) http://www.mdgmonitor.org/mdg-progress-rwanda-africa/ (accessed 2 November 2017). As above. As above. As above.

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respect for the rule of law, which provide assurance for future sustained development in the country.57 However, contrary to the UN assessment of Rwanda’s performance with regard to meeting the MDGs targets, a Human Rights Watch (HRW) report paints a very different picture of Rwanda.58 In contrast to Rwanda’s acclaimed model of development that has recorded significant gains, as highlighted earlier, the HRW report provides evidence of investigated instances where military and civilian authorities in Western Rwanda have arrested, beaten or threatened people who challenge the government’s decision to force residents off their lands. Some of these cases include initiatives undertaken by the government to modernise villages, against which residents have expressed fears of losing their lands and means of livelihood. While many residents, on the one hand, have welcomed aspects of the plan to ‘model villages’, which includes the provision of homes to be shared by four families with access to water and electricity, on the other hand, many residents will be forced to leave their homes and farmlands with varying amounts of compensation. The HRW report further states that some residents have expressed concern that their rights have not been respected during the expropriation process, including the right to free expression, fair compensation and public participation, in addition to the negative consequences relating to food security and income once they leave their lands.59 Other residents are reported to have expressed discomfort with the idea of sharing a home with other families in a grouped settlement. Residents who have raised concerns about these development policies have faced threats and intimidation, including exorbitant fines and arrests.60 Similar to the situation in Rwanda, section 24(b)(iii) of the South African Constitution provides that ‘[e]veryone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures’ and, accordingly, to ‘secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development’. Despite this constitutional provision, which in principle also guarantees the right to development, the South African government has continued to violate this human right provision at the expense of economic development. Mining, for example, remains the central backbone of the South African economy. However, as various civil society organisations have noted, poorly-regulated mining activities contribute to air and water pollution, the destruction of arable land and the loss of biodiversity, which in turn

57 58 59 60

As above. Human Rights Watch Rwanda: Government repression in land cases (2017). As above. As above.

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violates the constitutionally-guaranteed rights to life, health, water, food, culture and a healthy environment. The South African government’s inaction in enforcing the relevant environmental and human rights standards has also resulted in the mining industry allegedly being one of the least transparent in the country. Notwithstanding South Africa’s moderate levels of transparency61 and access to information laws, the vibrant civil society in the countries has decried the lack of access to basic information essential for communities to embark on informed decision-making processes, and to meaningfully participate in mining approval processes. Consequently, development projects supported by the government and the mining industry are implemented in a manner that does not reflect the affected communities’ interests and without the requisite support. Moreover, communities do not have access to effective remedies to hold both the government and the mining industry accountable for human rights violations.62 It has also become increasingly dangerous to defend environmental justice and human rights in South Africa. Activists are reported to have received death threats for opposing development projects, such as roads and bridges that will aid mining activities. Many have seen their property destroyed and lives lost, and have been threatened by mining companies with defamation suits, which many believe is a strategy to silence and intimidate activists noting the high costs associated with court processes.63 The aforementioned examples of Rwanda and South Africa highlight the fact that even where the right to development is articulated and implemented in national frameworks, it does not always lead to the advancement of rights-based development as envisioned in international, regional and domestic instruments. Contrary to prioritising a development agenda that advances the human rights values of dignity and social justice for everyone, indicators that measure the fulfilment of the MDGs or those that sustain economic development rather are given preference at the expense of the vulnerable, disadvantaged and marginalised poor, whom the right to development is supposed to protect. Acquired resources through development aid often are not expended in a manner that advances their economic, social and cultural rights, in particular, while their civil and political rights are violated because of their inability to adequately hold rights violators to account.

61 62 63

Transparency International ranks South Africa at 64 of the 176 countries measured in its 2016 Corruption Perception Index, https://www.transparency.org/country/ZAF# (accessed 27 November 2017). Centre for Environmental Rights et al Universal periodic review of South Africa 27th Session (March 2017) Joint Stakeholders’ Submission on: The threats to human rights from mining and coal-fired production in South Africa 5 October 2016. See eg, K Youens ‘The dangers of being a defender of environmental justice in South Africa’ Biz Community 25 August 2017.

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5

Conclusion

We have argued in this chapter that while the right to development constitutes a necessary first step towards the allocation of resources and the establishment of state institutions and policies that advance the realisation of economic, social and cultural rights in the pursuit of human development, it is not sufficient to ensure the advancement of a development agenda that prioritises the human rights principles of equity, non-discrimination, transparency and accountability. Although the right to development has been recognised as an integral component of the African human rights framework, the exact nature and content of the right, and the preferred model for development remain obscure. The lack of clarity on the appropriate model for development to ensure the realisation of the right to development has led to the implementation of a development agenda that prioritises the achievement of globallyformulated development goals or the advancement of the economy, exclusive of processes that are participatory and dismissive of the needs of the African people who are meant to benefit from such initiatives. Moreover, the lack of adequate resources and the establishment of appropriate mechanisms for the realisation of the right to development inhibit, on the one hand, the ability of African states to meet their obligations and, on the other, African people to hold both state and nonstate actors accountable when their rights are violated. While obligations are placed on state parties to the international and regional human rights instruments to report on the realisation of human rights, the Human Rights Committee bemoans the under-reporting by state parties in compliance with article 1 of the ICCPR and the ICESCR. The apparent ‘tick-box’ approach adopted by states when reporting only highlights the realisation of self-determination from a strictly political dimension while apparently ignoring the development of the individual.64 Irrespective of whether the right to development is recognised and implemented in domestic, regional and international frameworks, a development agenda that does not prioritise the collective advancement of the civil, political, economic, social and cultural rights of all the peoples of Africa is of little value when the outcomes thereof do not result in a society that promotes and protects the human dignity of all who live in it.

64

See eg, the Report by the Government of the Republic of Mozambique covering the period from 1994 to 2010, CCPR/C/MOZ/1. The report does not address the provisions of art 1 of the ICCPR.

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18

THE RIGHT TO DEVELOPMENT AND POVERTY ERADICATION IN AFRICA

Hesphina Rukato*

‘To deny people their human rights is to challenge their humanity’

1

Introduction

1.1

What is the right to development?

Nelson Mandela

Universally, the right to development derives from the United Nations (UN) Declaration on the Right to Development (UN Declaration) that was proclaimed on 4 December 1986 at the 97th Plenary Session of the United Nations General Assembly. The Declaration defines the right to development as an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.1

With reference to the particular circumstances in Africa, which experiences extreme levels of poverty, the Organisation of African Unity (OAU) – now the African Union (AU) – in July 1981 adopted the African Charter on Human and Peoples’ Rights (African Charter) which, unlike the UN Declaration, enshrines the right to development as a legitimate entitlement. The African Charter provides that:2

* 1 2

Development Consultant/Associate Lecturer, Thabo Mbeki African Leadership Institute (TMALI), University of South Africa;[email protected] Declaration on the Right to Development Resolution 41/128, adopted by the UN General Assembly, on 4 December 1986, art 1(1). African Charter on Human and Peoples’ Rights, adopted in Nairobi, Kenya, on 27 June 1981, art 22. 364

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(1) All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. (2) States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

A summary of the rest of the key elements of the UN Declaration is outlined in Box 1 below. Box 1: Summary of the Declaration on the Right to Development Article 2 stipulates that the human being is the centre of development, and should actively participate and benefit from the right to development. Secondly, it articulates the individuals’ responsibility for development in the political, social and economic spheres. Thirdly, it specifies the rights and duties of States in formulating appropriate national development policies to ensure development and the fair distribution of the benefits arising from such development. Article 3 stipulates that states have the primary responsibility for creating national and international conditions for the realisation of the right to development. This includes the respect of principles of international law in accordance with the Charter of the United Nations. This article further highlights the duty among states, to cooperate with each other to eliminate obstacles to development. States are called upon to realise their rights and fulfil their duties in ways that will promote a new international economic order based on sovereign equality, interdependence, mutual interest and cooperation, and at the same time observing and realising human rights. Article 4 specifies the duty of states to work individually and collectively to develop international policies that will facilitate the realisation of the right to development. It calls for the rapid development of developing countries, and at the same time calls on developing countries to provide appropriate means and facilities for the development of developing countries. Article 5 speaks to the need for states to prevent human rights violations, including racial discrimination, foreign domination and occupation, foreign interference and threats against national sovereignty, threats of war as well as safeguard the right of people to self-determination. Article 6 is focused on the need for states to cooperate for the promotion, respect, and observance of human rights and fundamental freedoms without discrimination. It specifies that all human rights and freedoms are indivisible and interdependent, including civil, social, political, economic and cultural rights. Article 7 stipulates that ‘[a]ll states should promote the establishment, maintenance and strengthening of international peace and security” and ensure that resources are used for development, especially in developing countries. Article 8 calls on states to take all measures necessary, at the national level, for the realisation of the right to development, including ensuring equal opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. States should also encourage public participation in development. Article 9 clarifies that all aspects of the Declaration are indivisible and interdependent. No action taken in the implementation of this Declaration shall in any way violate the Universal Declaration of Human Rights and the International Covenants on Human Rights. Article 10 concludes that ‘[s]teps should be taken to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels’.

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Right to development as a mechanism for poverty eradication in Africa

Africa is made up of 55 countries, all of which are member states of the UN General Assembly. Since the UN Declaration on the Right to Development is an instrument of the General Assembly, it follows that all 55 African countries are parties to the Declaration besides being member states of the AU (Morocco was admitted as a member in January 2017). In this regard, African countries are expected to comply individually and collectively with the Declaration. The Declaration gives states the opportunity to take action towards the realisation of their development objectives at two levels, namely, at the national and global levels. This means that partnerships and collaboration in and outside Africa are expected to be a key component of bringing the objectives of the UN Declaration to fruition. In the context of Africa, it is important to examine how the UN Declaration has been or is being implemented at the national, regional and continental levels. It is also important to look at how Africa as a block engages with the rest of the world in its quest to assert the right to development in addressing the challenge of poverty eradication and development at all levels across the continent. At the continental level, the framework collective action would be the AU while at the regional level the focus of attention will be the regional economic communities (RECs) and, in terms of individual action, at domestic level the focus will be on national governments. This chapter is intended to • assess the extent to which the Declaration on the Right to Development has been asserted in Africa through the three identified levels for implementation; • identify opportunities for asserting the right to development and challenges that hinder its full implementation in Africa; and • make recommendations on how the Declaration on the Right to Development could be used to respond to poverty eradication as well as socio-economic and cultural development in Africa.

2

Asserting the right to development at the continental level

The approach adopted in this chapter is that of responsibility to create development for a country, region, and the continent of Africa, rather than that of historical victim, whereby the responsibility to develop the continent is expected to be borne by the developed world. As such, the starting point in assessing the extent to which Africa, through the AU,

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asserts the right to development as a means to achieve poverty eradication and development is first and foremost to look at the Constitutive Act of the AU. The Constitutive Act is the founding document that enshrines the objectives and principles of the AU, aimed at implementing its key programmes for poverty eradication and development. The vision, objectives and principles of the AU are outlined below.

2.1

African Union vision

The vision of the AU is that of ‘[a]n integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the global arena’.3 From a normative point of view, this vision is aligned to a number of the objectives of the UN, for example: • For integration to be attained, it requires AU member states to work together. Collective action and responsibility is a key aspect for the realisation of the right to development. Whether deliberately or by coincidence, it can be said that the AU is to some extent, already addressing the need for collectivism for various other reasons, including for the purposes of development. • The vision of a prosperous Africa speaks to an Africa that is free from poverty, and an Africa that has created enough wealth to distribute to all its citizens without discrimination. This aspect of the AU vision is at the core of poverty eradication and wealth creation. Poverty eradication and wealth creation ought to have a positive ripple effect in attaining all other fundamental freedoms as articulated in the Declaration on the Right to Development. • The vision of a peaceful Africa means that AU member states will have to work individually and collectively to address the fundamental causes of conflict. The development of the African Peace and Security Architecture (APSA) was a key step in this direction. The AU, its member states and regional economic communities are already working on silencing the guns by 2020. Other mechanisms are being put in place to address the human security aspects of peace and security, including ensuring food security and access to health care and education. • The vision of an Africa that is driven by its citizens is a critical aspect in relation to fulfilling the requirements of the Declaration on the Right to Development. This aspect of the AU’s vision calls on all African citizens to own the African development agenda through participation in all development processes at the national, regional and continental levels. It also implies that the citizenry has the right to hold its leadership accountable in delivering on the right to development. • The last part of the AU vision is that of ‘representing a dynamic force on the global arena’. This aspect speaks to an Africa that is working collectively with the rest of the world, including the UN, from a point of strength and

3

African Union ‘African Union Vision’ (2001) https://au.int/en/about/vision (accessed 10 August 2017).

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mutual respect, taking into account the issues of equality and sovereignty as articulated in the UN Declaration on the Right to Development. It also speaks to the interdependence of member states and other parts of the world. Partnerships and collectivism are key in ensuring that the global community provides an environment conducive to the realisation of the right to development.

This section has demonstrated the extent to which the vision of the AU is aligned to the UN Declaration. It, therefore, follows that by virtue of AU member states working towards the attainment of the common vision, they will automatically be asserting the right to development for poverty eradication and development on the continent.

2.2

Constitutive Act of the African Union

A more detailed articulation of the AU’s quest for poverty eradication and development is articulated in the Constitutive Act the objectives and principles of which are outlined below. The objectives of the Constitutive Act include unity and solidarity; sovereignty and territorial integrity; political and socio-economic integration; the adoption of common policy positions; peace and security; popular participation and good governance; the creation of necessary conditions for Africa’s global positioning; sustainable development, including at the economic, social and economic levels; policy harmonisation; as well as international partnerships for the achievement of health care objectives. Two of these objectives have a direct bearing on the UN Declaration. These are objective 5, to ‘[e]ncourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights’, and objective 8, to ‘[p]romote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’.4 As indicated earlier, if the AU could implement its own policies, particularly the provisions of the Constitutive Act, it will at the same time be asserting the right to development. It is clear from a policy perspective that Africa, through the AU, has taken the necessary steps to formulate and develop mechanisms for the realisation of the UN Declaration. However, policy development only provides the starting point. The real meaning of the UN Declaration on the Right to Development is to be found in its implementation. The following section assesses the extent to which the AU implements the policies it has adopted, not necessarily in asserting the right to development, but the

4

Constitutive Act of the African Union, adopted in Lomé, Togo on 11 July 2000 and entered into force on 26 May 2001.

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implementation of which would further the realisation of the right to development. In addition to the AU’s vision and Constitutive Act, which may be used as instruments for asserting the right to development in eradicating poverty and for creating development in Africa, a number of frameworks have also been developed. These frameworks include • the New Partnership for Africa’s Development (NEPAD), under which priority programmes were formulated, and • Agenda 2063 (2015), with priority programmes for the first 10 years.5

2.3

Structures for implementation

In order to assess the extent to which the AU – through its own policies and frameworks such as the Constitutive Act – asserts the right to development, it is not sufficient to merely look at whether or not relevant policies have been developed. It is also important to look at the implementation mechanisms and the institutions that are put in place for the practical realisation of the set objectives. At the continental level, the institution tasked with implementing the decisions and policies of the AU is the AU Commission, the Secretariat of the AU. The Statutes of the Commission stipulate that ‘[t]he Commission shall carry out the functions assigned to it under the Constitutive Act, those specified in Protocols thereto, decisions of the Union as well as those established in these Statutes’.6 In addition to the AU Commission, the AU Union has other organs that have a responsibility to facilitate various programmes of the AU. These organs are • the Pan-African Parliament (PAP); • the African Court on Human and Peoples’ Rights; • the Permanent Representatives Committee (PRC); • the Specialised Technical Committees (STCs); • the Committee on Rural Economy and Agricultural Matters; • the Committee on Monetary and Financial Affairs; • the Committee on Trade, Customs and Immigration Matters; • the Committee on Industry, Science and Technology, Energy, Natural Resources and Environment; • the Committee on Transport, Communications and Tourism;

5 6

African Union Commission ‘Agenda 2063: The Africa we want’ (2015). Statute of the African Union Commission.

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• the Committee on Health, Labour and Social Affairs; • the Committee on Education, Culture and Human Resources; • the Peace and Security Council (PSC); • the Financial Institutions (not yet operational); • the African Central Bank; • the African Monetary Fund • the African Investment Bank; and • the Economic, Social and Cultural Council (ECOSOCC).

It is clear from a policy and policy formulation point of view that the AU has everything in place to cater for the right to development. However, a challenge that has bedevilled the implementation process is the lack of a common understanding of who ultimately is responsible for the implementation of AU’s decisions and other assignments of the Assembly of Heads of State and Government. While indeed the AU Commission should coordinate the development of policy frameworks, and to some extent trigger action by member states and related partners and institutions, it is clear that the AU Commission should not be held responsible for implementation, but rather for coordination. The responsibility to implement should be that of national governments. Governments own the implementation space for most of the programmes and projects that give effect to the right to development. The same applies to the functions of the RECs. The member states forming the RECs and the AU should be at the centre of implementation. Any expectation that the AU Commission and/or RECs should implement programmes to eradicate poverty and promote development is an abdication of responsibility by member states.

2.4

Gaps in asserting the right to development in Africa at the continental level

The Africa Millennium Development Goal Report of 2015 paints a gloomy picture in as far as the attainment of those goals is concerned. Despite reported improvements in certain areas, these improvements are not sufficient to ensure poverty eradication and/or to put the continent on a path to prosperity as expounded in the AU vision. Box 2 below provides an assessment of Africa’s performance in respect of the Millennium Development Goals. Overall, Africa was deemed to be off-track with regard to the realisation of these targets.

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Box 2: Summary conclusion on Africa’s MDG performance (1) Poverty is falling, albeit slow with a real risk of reversals from shocks. (2) Africa’s productivity, as measured by output per person employed, is on the rise. (3) Africa’s growth has been relatively strong but not rapid or inclusive enough to create adequate decent employment opportunities. (4) Disasters and persistent conflict are obstructing the path to food security. (5) Improving primary education completion rates remains a challenge. (6) High primary enrolment rates are boosting youth literacy. (7) Africa is close to the universal primary education enrolment target. (8) Improvements in girls’ enrolment and achieving gender parity. (9) Uneven gains in the share of women in wage employment in the nonagricultural sector. (10) Impressive progress in reducing child mortality. (11) Africa is leading the way in women’s representation in national parliaments. (12) Challenges abound in maternal health despite tremendous progress. (13) Africa’s progress on environmental targets exceeds global performance. (14) Access to safe drinking water and sanitation is improving slowly, but progress remains skewed towards urban areas. Source: Adapted from UNECA, AfDB, AUC and UNDP, 2014.

2.5

Opportunities

Africa is at a crossroads. Africa can take advantage of a number of opportunities to turn around the fortunes of the continent. 2.5.1

Domestic resource mobilisation

The main opportunity that has been created by the AU is with respect to the development of a framework for domestic resource mobilisation. In 2016 the AU decided to undertake an institutional reform process that would include its financial sustainability and self-reliance.7 This would be achieved by implementing a 2 per cent levy on all eligible imports by member states.8 So far 11 member states of the AU Union have initiated processes to implement this reform. If implemented fully by all member 7 8

African Union 2016: Assembly/AU/Dec.605-620 (XXVII) Assembly/AU/Decl. 1- 3(XXVII). President Paul Kagame’s Report to Heads of State at the 29th ordinary session of the African Union Summit in Addis Ababa, Ethiopia, 3 July 2017 http://ktpress.rw/ 2017/07/11-au-members-already-implementing-reforms-kagame/ (accessed 28 August 2017).

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states, the AU Union stands to mobilise $1,2 billion every year to finance its programmes. If this happens, it will put the AU and its organs in a better position in terms of resources to realise the right to development for all the peoples of Africa, especially through the implementation of transboundary projects that cannot be implemented by any one member state alone. 2.5.2

Institutional reform

The ongoing institutional reform of the AU and its organs presents an opportunity to have an AU that is better aligned to its purpose and, in turn, the realisation of the right to development. 2.5.3

Staying the course

Africa, through the AU, needs to be more consistent in implementing its formulated policies and priorities. While agility and adapting to emerging challenges are plausible, it is not in the interests of citizens to continue to change programmes every time there are institutional changes, particularly at the level of the AU Commission. For example, in 2001 Africans rallied around the launch of the New Partnership for Africa’s Development (NEPAD). While efforts were in the process of being made to realise its concrete benefits, Agenda 2063 came along. It is now the latest game in town and not much effort is being put into NEPAD. This is evidenced by the fact that Agenda 2063 now is the continental and global framework of interaction and engagement with the AU structures and institutions, whereas 10 years ago it was NEPAD. This dissipation of efforts (human, technical and financial) does not bode well for poverty eradication and Africa’s development. 2.5.4

Accountability

There is a need to implement accountability mechanisms, first, for member states to report on progress they have made at the national level in implementing AU decisions and, second, for member states to hold the leadership of the AU Commission and its organs accountable for delivery on stated goals. Heads of state also need to be held accountable by their citizenry. This will ensure that the decisions made at the AU level distil down to the people, and up to the apex of the AU. This will also foster citizen participation as articulated in the AU vision and the UN Declaration. Giving annual state of the nation statements is not sufficient.

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Capacity building of the African Union Commission and African Union organs

The pending institutional reforms of the AU and its organs should be accompanied by a robust and innovative approach to capacity building, which should be centred on an approach to changing the mind-sets of both staff and leadership. The old staff that oversaw a debilitated AU Commission cannot be expected to continue to be the agents of change. There is a need for a systemic overhaul, including at the regional and national levels. It cannot be a case of ‘old wine in new bottles’; rather, ‘new wine in new bottles’. 2.5.6

New global power relations

The ongoing changes in the global economic and political systems may be an opportunity for Africans to come together and compete with the rest of the world from a point of strength. For example, the Trump administration and British exit from the European Union provide opportunities for Africa to look inward and reflect and make the necessary sacrifices, with a view to strengthening its integration agenda, implementing its institutional as well as common market agenda.

3

Asserting the right to development at the national level

The UN Declaration on the Right to Development places the responsibility for the realisation of the right to development on states. Therefore, it is expected from states to develop appropriate mechanisms to deliver on this responsibility. One of the most important mechanisms for states to ensure that the right to development becomes part and parcel of every citizen’s right is through enshrining this right in their national constitutions. Part of assessing the extent to which member states are asserting the right to development at the national level includes an assessment of the national constitutions of 12 countries, on the basis of two countries per region: • Central Africa – Gabon and the Democratic Republic of the Congo; • East Africa – Kenya and Rwanda; • North Africa – Egypt and Tunisia; • West Africa – Ghana and Nigeria; and • Southern Africa – South Africa and Malawi.

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In addition to analysing national constitutions and in assessing the extent to which they enshrine aspects of the right to development,9 respective national development plans are also analysed, as illustrated in the Table 1 below.10 All African countries have constitutions that either directly or indirectly have a bearing on the right to development. The constitution in particular demonstrates the legal commitment of the countries or states to ensure that every citizen has their right to development realised. The above examples of provisions of the constitutions of 12 countries and their national development plans attest to this. The question arises as to, with so many commitments demonstrated at the policy formulation level, why Africa – both individually and collectively – is lagging behind in delivery on the right to development. Given that the right to development can be realised only at the local level, what recourse is there for citizens who are actually meant to be the beneficiaries and the reason for development? How can they hold the legal custodians of the UN Declaration on the Right to Development, the continental development frameworks and their national constitutions and national development plans accountable? As indicated above, the table below provides a summary of key aspects of each country with respect to the right to development, as well as the national development plans and what they seek to achieve or the problems they seek to redress. 9

10

Federal Republic of Nigeria, 1960: Constitution of the Federation of Nigeria; Government of Gabon, 1991; Constitution of the Gabonese Republic adopted on 26 March 1991 and amended on 22 April 1997; Republic of South Africa: Constitution of the Republic of South Africa 1996; Republic of Rwanda: Constitution of the Republic of Rwanda 2013; Republic of Kenya: Kenyan Constitution of 2010; Government of the Democratic Republic of Congo, 2005/2011: Constitution of the Democratic Republic of the Congo of 2005 with amendments through 2011; the Arab Republic of Egypt: Constitution of The Arab Republic of Egypt 2014; Government of Tunisia: Tunisia's Constitution of 2014; Republic of Ghana: The Constitution of the Republic of Ghana; Republic of Malawi: Constitution of the Republic of Malawi. Ghana: 40-Year National Development Plan for Ghana Republic of Egypt 2014; Government of Tunisia: Tunisia's Constitution of 2014; Republic of Ghana: The Constitution of the Republic of Ghana; Republic of Malawi: Constitution of the Republic of Malawi. Ghana: 40-Year National Development Plan for Ghana https://www.google.co.uk/ search?q=national+development+plan+ghana&rls; Nigeria: Nigeria Vision 2020 https://www.google.co.uk/search?q=national+development+plan+nigeria&rls; Kenya: National Development Plan of Kenya http://www.commonwealthgovern ance.org/countries/africa/kenya/national-development-plan/; Rwanda: National Development Plan of Rwanda http://www.commonwealthgovernance.org/countries/ africa/rwanda/national-development-plan/; Egypt: Egypt’s Sustainable Development Strategy, Egypt’s Vision 2030 and Medium Term Investment Framework, 2014/2015 2018/2019 http://extwprlegs1.fao.org/docs/pdf/egy151569.pdf; Tunisia: Tunisia 2020: A Development Plan based on five pillars http://www.tunisia2020.com/en/ plan-2016-2020/; Malawi: National Development Plan of Malawi http:// www.commonwealthgovernance.org/countries/africa/malawi/national-development -plan/; South Africa: The National Development Plan: A vision for 2030 https:// www.google.co.uk/search?q=national+development+plan+south+afric (accessed 28 August 2017).

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Table 1: Summary of constitutions and national development plans of 12 selected countries

DRC

Country

Constitution

National Development Plan

Article 36 of the Constitution guarantees • The right to work, protection against unemployment and an equitable and satisfactory remuneration, assuring the worker as well as his family of an existence in accordance with human dignity, together with all the other means of social protection, notably retirement pension[s] and life annuities. All Congolese have the right and the duty to contribute through their work to the national construction and prosperity.

Not found (there are various sectoral plans)

Kenya

Gabon

Article 58 also guarantees that: • All Congolese have the right to enjoy national wealth. • The state has the duty to redistribute the wealth equitably and to safeguard the right to development. Under the Preliminary Title: Principles and Fundamental Rights, the Constitution guarantees: • Each citizen has the right to the free development of his person, but respecting the rights of others and public order. • The state, subject to its resources shall guarantee to all, notably to the child, the mother, the handicapped, to aged workers and to the elderly, the protection of health, social security, a preserved natural environment, rest and leisure.

Not found (there are many sectoral development plans such as infrastructure)

Every person has a right to: • the highest attainable standard of health; health care, to accessible and adequate housing, and to reasonable standards of sanitation; shelter; to be free from hunger, and to have adequate food of acceptable quality; clean and safe water in adequate quantities; social security; and education.

The aim of Kenya Vision 2030 is ‘the globally competitive and prosperous country with a high quality of life by 2030’. It aims at transforming Kenya into ‘a newly industrialising, middle income country, providing a high quality of life to all its citizens in a clean and secure environment’ (p 9).

Rwanda

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Egypt

376

Article 47 • All citizens have the duty to participate, through work, in the development of the country; to safeguard peace, democracy, social justice and equality and to participate in the defence of the motherland. The law shall organise national service, whether civil or military. Other areas of the constitution speak to rights to education, health, and freedom of association.

‘Vision 2020 expresses the aspiration of Rwandans to be a united, democratic and inclusive nation. The aim of the Vision is to transform Rwanda into a middle-income country in which people are healthier, better educated, more prosperous and united, and that the country’s economy is competitive both regionally and globally.’ (Commonwealth Governance ‘National Development Plan of Rwanda’ http:// www.commonwealthgove rnance.org/countries/ africa/rwanda/nationaldevelopment-plan/ (accessed 30 August 2017).

Chapter Two of the Constitution focuses on the economic components. Article 27 stipulates that: • The economic system aims at achieving prosperity through sustainable development and social justice so as to raise the real growth rate of the national economy and the standard of living, increase job opportunities, reduce unemployment rates and eliminate poverty...environmental growth, prohibit monopolistic practices, maintain financial and trade balances and a fair tax system, in the context of a regulated economy guaranteeing the various types of ownership and striking a balance between the interests of various stakeholders preserving the rights of workers and protecting consumers.

‘a competitive, balanced and diversified economy, dependent on innovation and knowledge, based on justice, social integrity and participation, characterised by a balanced and diversified ecological collaboration system, investing the ingenuity of place and humans to achieve sustainable development and to improve Egyptians' life quality’.

Article 79 • Each citizen has the right to healthy and sufficient food and clean water. The state shall ensure food resources to all citizens. The state shall also ensure sustainable food sovereignty and maintain agricultural biological diversity and types of local plants in order to safeguard the rights of future generations.

Nigeria

Ghana

Tunisia

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The Constitution guarantees the rights to education, health, culture, scientific research, water, and protection of the environment, amongst other rights.

The plan focuses on ‘economic efficiency based on innovation and partnership, social inclusion and sustainable development’.

• The state shall take all necessary action to ensure that the national economy is managed in such a manner as to maximise the rate of economic development and to secure the maximum welfare, freedom and happiness of every person in Ghana and to provide adequate means of livelihood and suitable employment and public assistance to the needy. • Ensuring that individuals and the private sector bear their fair share of social and national responsibilities including responsibilities to contribute to the overall development of the country.

The plan is centred around an inclusive and resilient economy, equitable and healthy society, safe and sustainable communities, effective and efficient institutions ... civic and cultural life, gender equality and persons with disability as well as health and nutrition, poverty and inequality, social protection, employment and decent work, the aged, youth development and sports development.

Chapter III of the Constitution of the Federal Government of Nigeria deals with fundamental rights. These relate to deprivation of life; inhuman treatment; slavery and forced labour; deprivation of personal liberty; determination of rights; private and family life; freedom of conscience; and freedom of expression. It has no specific reference to issues of development.

The plan is centred around four pillars: • Social – building a peaceful, equitable, harmonious and just society; • Economic – developing a globally competitive economy; • Institutional – having a stable and functional democracy; and • Environmental – achieving a sustainable management of the nation’s natural resources.

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• All persons and peoples have a right to development and therefore to the enjoyment of economic, social, cultural and political development and women, children and the disabled in particular shall be given special consideration in the application of this right.

Emphasis is now on diversification of the economy, improving governance and promoting human capital development (2017 International Monetary Fund: IMF Country Report No 17/184.)

South Africa

• ‘Improve the quality of life of all citizens and free the potential of each person.

3.1

‘The overarching policy objective of the Government of Malawi is to improve national economic development and reduce poverty among the Malawian population’ (p 4).

The Bill of Rights, Chapter 2 of the Constitution, under the section on environment, para 24 stipulates that: Everyone has the right – • secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

The NDP is ‘a plan for the country to eliminate poverty and reduce inequality by 2030 through uniting South Africans, unleashing the energies of its citizens, growing an inclusive economy, building capabilities, enhancing the capability of the state and leaders working together to solve complex problem’ (p 1).

Challenges in asserting the right to development at national levels

In order for the collective institution, namely, the African Union, to work, member states have to do the right thing at the national level. If the Millennium Development Goals and Sustainable Development Goals for Africa are not met, it means that AU member states have not met their targets. When it is reported that poverty levels in Africa are rising, this means that poverty is rising at the national level. Most of the work that needs to be done to achieve the right to development has to be done at the national level. The challenges at the level of the AU are a mere reflection of what happens at national levels. Below are some of the challenges that hinder the effective realisation of the right to development at national levels: • overdependence on donor support: technical, financial, and to some extent ideological; • lack of domestic resources;

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• lack of capacity; • frequent changes in priorities as demonstrated by the ever-changing national development plans to align with changing governments; • poor alignment of national, regional and continental policies; • overlapping of institutional mandates; • lack of monitoring mechanisms and accountability; • lack of focus on the real causes of poverty, and an exaggerated focus on addressing symptoms; • non-participation of citizens in development processes, and overdependence on government, creating a cycle whereby people serve the government instead of the government serving the people; • undue focus on elections as an indicator of democratic governance instead of the extent to which citizens have access to basic resources; • states’ non-responsiveness to international, continental, regional and national obligations; • systemic corruption.

3.2

Opportunities at the national level

Many African countries are well endowed with natural resources. These could be better deployed to meet national development needs, and allow states to meet their constitutional, AU and UN obligations relating to the right to development. The African Peer Review Mechanism (APRM) provided member states with a platform to share experiences in the areas of politics, economic, social and corporate governance. Even though the APRM has drifted off course due to various reasons, it remains a good platform for African countries to share scarce resources for development and to support one another. Member states need to take advantage of the AU’s integration agenda and to develop their industrial capacities in order to respond to the recently-launched Continental Free Trade Area. The regular holding of elections as part of the democratisation process offers an opportunity for countries to test leadership that can break the old mould politics to focus more on poverty eradication, social and economic development in order to meet people’s rights to development. Spaces can be created for all stakeholders to participate in the development process by adopting a ‘government does-not-know-it-all approach’ and making use of available resources outside the technocrats in government.

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A value system could be created and adopted that regards development as a right, not a favour, thereby making those meant to serve accountable to the people in accordance with their national constitution. A ‘carrot and stick’ approach in the civil service could be implemented.

4

Asserting the right to development’s potential to eradicate poverty and stimulate development in Africa

In the context of the Millennium Development Goals, Africa failed to halve poverty by 2015. The question now is, in the context of the Sustainable Development Goals, how Africa will be able to eradicate poverty by 2030.11 The Constitutive Act of the AU provides in article 4(n) for the ‘promotion of social justice to ensure balanced economic development’ and in article 4(h) for ‘the right of the Union to intervene in a member state pursuant to a decision of the Assembly in respect of grave circumstances, namely, war crimes, genocide and crimes against humanity’.12 Therefore, governments and development institutions should be aware of the fact that providing services to the public is not a favour, but a responsibility they have to deliver on in light of the positions they hold and the roles they are obliged to play, at whatever level. Furthermore, periodic reporting to the UN General Assembly, the AU Assembly of Heads of State and Government or national parliaments on what has been achieved in a five-year period does not suffice. These reports need to be critiqued and those responsible held to account regarding their delivery on the right to development. As demonstrated above, the right to development has been enshrined, directly and indirectly, in national constitutions. Therefore, this right becomes a constitutional requirement to ensure that every citizen’s right to development is achieved. This is a requirement for which heads of state and government should be held accountable at all levels: at national, AU Assembly and UN General Assembly levels. Poverty in Africa refers to the lack of basic human needs faced by certain people in society. Therefore, the lack of basic needs of any person is a breach of the right to development and other fundamental human rights. Without access to basic needs, people are constrained from reaching other goals towards self-actualisation. Their participation in the development process is hampered. Acknowledging the fact that the right to

11 12

K Beegle et al Poverty is rising in Africa: Africa poverty report (2016) The World Bank Group. Arts 4(n) & (h) Constitutive Act (n 4).

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381

development embodies a composite of human rights that guarantee the most basic needs for livelihood, the question in this regard is whether the denial of the right to development could be regarded as amounting to a crime against humanity.

4.1

Denial of the right to development: A crime against humanity?

Recently the role of the International Criminal Court (ICC) in Africa has been controversial. The main reason for this controversy is the view of Africans that the ICC is biased against the continent, given that most of its recent cases have focused on Africa. These crimes, to say the least, have been largely politically motivated. According to the ICC, crimes against humanity are crimes that are ‘committed as part of a widespread or systematic attack directed against any civilian population’. They may include acts such as ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.13 According to The Guardian, ‘[n]early half of all children in sub-Saharan Africa are living in extreme poverty ... extreme poverty can either kill you, or ruin your potential for the rest of your life’.14 Poverty in Africa can rightly be attributed to a crime against humanity on account of the fact that, as Navi Pillay put it,‘[i]t’s not an act of nature that leaves more than one billion people around the world locked in the jaws of poverty. It’s a result of the denial of their fundamental human right to development.’15 The figures below demonstrate the severity of the situation. • Death in migration: In 2016 more than 2 500 Africans died in an attempt to cross the Mediterranean to seek greener pastures and a better life in Europe. In 2015 the number recorded was 1 885; in 2014 this number was 57. • Refugees: In late 2015 approximately 16 million African people were either displaced or forced to flee their homes to seek refuge in other countries. From 2014 this figure increased by 1,5 million. A UNHCR source states that ‘most of these people, about 10,7 million of them, were internally displaced persons (IDPs). The remaining 5,2 million were people that fled

13 14 15

Art 7(2)(a) Rome Statute of the International Criminal Court 2011. The Guardian 2016 https://www.theguardian.com/global-development/2016/oct/05/ (accessed 4 September 2017). Statement by Navi Pillay, UN High Commissioner for Human Rights on the 25th anniversary of the Declaration on the Right to Development in 2011 http://www. un.org/en/events/righttodevelopment/ (accessed 6 September 2017); see also O Oduwole ‘International law and the right to development: A pragmatic approach for Africa’ (2014) International Institute of Social Studies 3.

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their home countries. The vast majority of these refugees, roughly 4,4 million, sought refuge in neighbouring countries.’16 • Famine: In 2017 there were reports of famine in three African countries, namely, South Sudan, Nigeria and Somalia. This follows the famine that killed 260 000 people in Somalia between 2010 and 2012. • Health: Malaria: In 2015 292 000 children died of malaria in Africa. HIV/ AIDS: In Africa alone more than one million adults and children die every year from HIV/AIDS.

The state of poverty and underdevelopment on the continent gives the AU and its member states an opportunity to hold each other to account on matters of ‘grave circumstances’. The situation described above certainly is grave in the sense that there are more people dying on a daily basis due to states’ abdication of their responsibility under • UN Nations instruments, including the UN Declaration on the Right to Development; • the AU Constitutive Act; and • national constitutions.

4.2

Development observation missions?

Africa has a relatively long history of election observation. The value of election observation lies in the reporting of election fraud. Learning from the experience of election observation, efforts to assert the right to development would gain significantly from establishing development observations in countries. The role of development observers would be to report instances where citizens’ rights to development are grossly violated, and to make recommendations on how to fast-track the realisation of these rights of citizens. This process would transcend electoral cycles and also ensure that the current short-termism in planning and implementation of development plans go beyond election cycles. The teams would also observe and report on issues that are core to the right to development, such as • participation and relevant voice; • planning; • use of resources and budgeting; • access to services such as health, education, and so forth; • food security; and • human security.

16

UNHCR ‘UNHCR Report: Worsening refugee situation in Africa’ (2016) http:// www.dw.com/en/unhcr-report-worsening-refugee-situation-in-africa/a-19338619 (accessed 13 September 2017).

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4.3

383

Role of human rights commissions

At the global level, there is the United Nations Human Rights Council. At the continental level, the AU has the African Commission on Human and Peoples’ Rights. All African countries also have human rights commissions (see the box below for examples).17 Box 3: National human rights institutions Gabon:

National Human Rights Commission

DRC:

National Human Rights Observatory

Kenya:

Kenya National Commission on Human Rights (KNCHR)

Rwanda:

National Commission for Human Rights (NCHR)

Egypt:

Egyptian Organisation for Human Rights (EOHR)

Tunisia:

Tunisia Human Rights Commission (THRC)

Malawi:

Malawi Human Right Commission (MHRC)

South Africa: South Africa Human Rights Commission (SAHRC) Ghana:

Commission on Human Rights and Administrative Justice of Ghana

Nigeria:

The National Human Rights Commission of Nigeria (NHRC)

The challenge is that the modi operandi of these institutions are based on waiting for people to lodge complaints in order to investigate these. The reality on the ground is that most people are too busy trying to make a living instead of going to complain about the breach of their rights to development. In addition, most of the people that could have been assisted by the human rights commissions are not aware of the existence of these commissions. Further, the process of submitting a complaint is both time

17

National Human Rights Commission of Gabon http://www.ohchr.org/EN/ Countries/AfricaRegion/Pages/GAIndex.aspx; National Human Rights Commission of Democratic Republic of Congo: http://www.ohchr.org/EN/Countries/Africa Region/Pages/CDIndex.aspx; National Human Rights Commission of Kenya http:// www.knchr.org/; National Human Right Commission of Rwanda http://www. cndp.org.rw/fr/index.php?id=188; National Council for Human Rights of Egypt http://www.nchregypt.org/index.php/en/; Higher Committee for Human Rights and Fundamental Freedoms in Tunisia http://tunisia-tn.com/tunis-start-of-consultationson-human-rights-commission/; Commission on Human Rights and Administrative Justice of Ghana http://accessfacility.org/commission-human-rights-and-adminis trative-justice-ghana; National Human Rights Commission of Nigeria http:// www.nigeriarights.gov.ng/; National Human Rights Commission of Malawi available at: http://accessfacility.org/malawi-human-rights-commission; National Human Rights Commission of South Africa https://www.sahrc.org.za/ (accessed 18 September 2017).

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and resource-consuming. Those whose rights to development are violated do not have the resources, including internet access, to adequately make use of the services these commissions may offer. Therefore, it is important that the manner in which human rights commissions work is reviewed in order for them to be more accessible to the poor, who need them most. National human rights institutions need to do more outreach and create linkages with the poor in order to fast-track reporting on violations of human rights.

4.4

Asserting the right to development by citizens at all levels

Civil society plays an important role in asserting the right to development. This includes the private sector, non-governmental organisations (NGOs), the youth and their formations, as well as women and their formations. For a long time there has been the perception that governments can create space for stakeholder participation in development. However, the glaring gaps in delivering on basic human needs across stakeholder groups call for a new relationship between stakeholders and governments. Governments and non-state actors need not have an adversarial relationship. Civil society organisations can work with governments to attain national development objectives, provided there is mutual respect and acknowledgment of one another’s roles and responsibilities. One of the causes of tension between some governments and civil society organisations is the fact that civil society is regarded as focusing solely on political governance issues, which in many instances becomes a critique of government, and rightly so. However, this is done at the expense of the developmental arm of governance. Another source of acrimony has been the issue of funding. Most African governments rely on donor support to be able to create development. However, when civil society does the same, they are accused of being puppets of their funders. Therefore, just as governments hold on to power to perpetuate their sources of livelihood, civil society organisations have to find a means of survival. The ideal situation would be for governments to mobilise sufficient national resources, and to share a part of this with civil society with a view to fast-tracking citizen participation in development, and for each individual to realise their right to development. Alternatively, civil society could also embark on resource mobilisation initiatives that will give them some degree of independence from both funders and governments.

The right to development and poverty eradication in Africa

5

385

Conclusion

The right to development is a critical tool towards poverty eradication and development in Africa. In order to optimise the assertion of the right to development, there is a need to simultaneously link it to state obligations, to the UN Charter, the AU Constitutive Act and national constitutions, which are legally binding. It is clear that there are enough frameworks at the global, continental, regional and national levels that may be used to eradicate poverty and promote development through the lens of the right to development. However, the implementation of these frameworks faces many challenges. These include human, technical and financial resources, the overlap of mandates and weak accountability mechanisms. Another challenge is the narrow interpretation of what constitutes ‘grave human rights violations’. This interpretation has been restricted to situations of war. This is in spite of the fact that many people have died under the watch of their governments, due to states’ abdication of the duties and responsibilities they have committed to under their national constitutions, the AU Constitutive Act and other UN instruments. Therefore, it is important for grave human rights violations to extend beyond ‘gunfire’ situations. The new apartheid of inequality needs to be recognised as a crime against humanity. National institutions such as human rights commissions need to be more flexible and to reach out to people that need them, instead of waiting for people to send completed forms with complaints of human rights violations. A thirsty, hungry and sick woman in the rural areas is not likely to seek internet connection and complete a form in a foreign language to complain. Too many people lack the awareness and the resources to actively assert their rights to development. There is also a need to prioritise development observation and reporting to ensure that crises such as famines and other natural disasters are pre-empted before they strike. When they strike, societies can be better prepared. This will also assist in holding states and governments accountable. Finally, civil society organisations need to play a more dynamic role with respect to asserting the right to development as a tool for poverty eradication and development. They need to go beyond election observation and political governance agitation. The politics of development is more likely to come right if everyone participates in the development process. It is easy to proffer explanations, descriptions, reasons and sometimes excuses for the poor state in which the continent finds itself. While it is fair for Africans to bemoan the fate of history, the same history and current

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status quo should be put in their appropriate context. Africans need to acknowledge the fact that the responsibility to develop Africa belongs to Africans. The right to development should be used to pave the way to selfdetermination, and that determination should be the development of the African continent in order to realise a peaceful, prosperous and integrated Africa, driven by its own citizens.

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