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SADC and human rights – bridging the credibility gap
By
Tawanda
Mutasah
IT IS
difficult to read without some hint of fascination the news last week
that South African President Thabo Mbeki and his Nigerian counterpart,
Olusegun Obasanjo, have appointed, as Ivory Coast Prime Minister, Charles
Konan Banny, the Governor of the Central Bank of West African States.
While Mbeki’s and Obasanjo’s interesting but unusual role is obvious to those who have been following the Ivory Coast political crisis, and the transition from it, the moral of the story cannot be lost that the concept of sovereignty is changing in Africa.
Here is a Prime Minister of an African country being appointed by the presidents of two African countries that are several miles away from its shores. Could it be that, contrary to the disappointments we have seen on African engagement with the Zimbabwe question, the African Union is finally realizing that “domestic” African matters are, in fact, its own business?
Even then, to the vast majority of human rights-deprived citizens of the continent and its sub-regions, including the Southern Africa Development Community (SADC), cynicism remains endemic concerning the benefits of regional or pan-African institutions and processes. What, Africans question, is the point in the massive outlay of resources for the 2nd session of the Pan-African Parliament that sat in September in South Africa? Could the just ended 38th Ordinary Session of the African Commission on Human and People’s Rights put food, so to speak, on the tables or laps of ordinary Africans? What happens at the national level, to all the ringing declarations that SADC Heads of State and Government sign up to every year at Summit?
The African Commission on Human and People’s Rights courageously led the way when, at the conclusion of its 38th ordinary session, it emerged that it had adopted a progressive resolution on the human rights situation in Zimbabwe. Beyond these useful beginnings, however, the more systemic question of how protocols and other forms of regional treaty law are translated into the legal systems of our countries now begs wider discussion.
Without domestication, excellent regional agreements signed by African leaders are useless nationally, except as fashionable showpieces on the international good governance catwalk.
For instance, while it is positive that the African Women’s Rights Protocol has recently come into force, women and girls experiencing discrimination or violence have limited recourse to its protection if the protocol is not integrated into the domestic Constitutions, laws, institutions, policies, culture and practices of different African countries.
A number of civil society organizations, a few progressive lawyers and leaders in some of the region’s governments, and some parliamentarians across the region, have been providing leadership on domestication of protocols. In August of this year, an important voice was added to these efforts. Botswana’s President, Festus Mogae, on taking over the chair of SADC, undertook as one of his five priorities to put in place a monitoring mechanism for protocol implementation in relation to the twenty-three or so protocols that SADC has produced to date.
Yet the problem is deeper than could be resolved by the good intentions of the SADC Chair and other policy actors. It is about the reality of political contestation in the Parliaments of some countries, a factor which may hamper effective bipartisan collaboration for domestication of regional treaty law.
Also, some national leaders hide human rights abuses or democratic shortcomings behind the convenient cover of national sovereignty, law and custom. Lack of skills and resources for national domestication processes is also a problem. Sometimes, there is no real national-level political commitment to absorb the full protective possibilities of international and regional norms and standards.
In some cases, SADC and African norms and standards are in any case framed in such a hide-and-seek way that countries could claim to have domesticated them without doing anything meaningful to change the restrictions in their own laws, policies or practice.
Take, for instance, the SADC Principles and Guidelines Governing Democratic Elections, agreed in August 2004 at Grand Baie, in Mauritius. How is it that a country with an electoral system as creatively defective as Zimbabwe’s could have been passed by the “official” SADC observer team as having complied with these principles?
Depending on which way up each of the SADC leaders reads the document on SADC election principles, vastly different permutations of democratic growth in SADC countries may be the result.
A year after the Mauritius principles on elections took effect, could the elections that have been held in the last several months in Botswana, Namibia, Mauritius, Mozambique and Zimbabwe be said to have been illuminated by the Principles? As the “official” SADC Observer delegation, for instance, concluded that the March 2005 Zimbabwe elections reflected the will of the people, and complied with these new SADC Principles, while on the other hand SADC’s Parliamentary Forum was barred from observing the same elections because it was feared they would return a dissenting verdict – consistent with their position in Zimbabwe’s 2002 Presidential elections – could it indeed have been possible that the Parliamentarians and the SADC “official” observers were singing from the same hymn sheet?
On sitting up and reading the fine print in this document, one notices that the principles are in fact subordinated to national processes, laws and constitutions, whatever state all these things are in. SADC observation of elections in a member country occurs, under the principles, “in the event a member state decides to extend an invitation to SADC to observe its elections”. The principles include acceptance of election results by political parties when these have been “proclaimed to have been free and fair by the competent National Electoral Authorities in accordance with the law of the land”. There is no caveat about how those authorities are to be chosen in the first place, nor what norms and standards ought to constitute the democratic minima of the “law of the land”. Thus a Zimbabwe could assert, as it did, that its March 2005 elections pass the SADC test by dint of their having been held under Zimbabwean laws, including laws hurriedly put together a month before the elections.
Ideally, the principles should have framed a clear and inviolable set of norms to be elevated as the electoral standard for the region, with the imperative that national constitutions, laws and processes must be aligned with this yardstick.
With such a normative base, auditing national constitutions and legislation for compliance becomes imperative. Such an exercise would easily show significant shortfalls in Zambia’s public security legislation; Zimbabwe’s repressive media legislation; and so on. It could also show positive models such as the law enacted in Mozambique in June 2004, regulating the use of State resources during electoral campaigning. Otherwise the present positivistic approach results in the SADC Principles meaning everything to every member country. Even the Hitlerist draftsman of that infamous 24 March 1933 Enabling Act would be envious.
Yet another problem with SADC and African norms and standards is that not all of them are framed as binding treaty law. Again the SADC Principles and Guidelines governing democratic elections, for instance, occupy, in the community of SADC regional legal instruments, the poor cousin’s place of being no more than a set of “principles and guidelines”, and not a full-fledged protocol.
With all these problems, a particularly African schizophrenia between talk and action is often the result. It even becomes difficult for Africans of good will to decide how to feel about the numerous transnational initiatives that often come up within the continent. In southern Africa, should it not matter, for instance, that, about five years into the New Partnership for Africa’s Development (Nepad), annual economic growth figures are – with the exception of Mozambique’s and Angola’s – nowhere near the six percent annual target on which the very accomplishment of Nepad goals is predicated, and that an economy such as Zimbabwe’s is actually shrinking at the alarming rate of about eight per cent per year?
Again, what is to be the most constructive Africanist attitude that one should have on finding that, three months after the signing by SADC leaders of a protocol facilitating the movement of persons in SADC, a Zimbabwean citizen who travels to the US on a ten-year multiple-entry visa is now required to have a one-off transit visa whenever she passes through neighbouring South Africa? And that the same citizen has to use one or two full visa pages every time she enters neighbouring Mozambique notwithstanding the mutual sacrifices of Zimbabweans and Mozambicans in a shared nationalist liberation history, not to mention the obvious flow-charts of consanguinity?
This credibility gap – the distance between policy rhetoric and action – remains the Achilles’ heel of African policy-making, particularly in relation to progressive policies such as those that would improve access to human rights. What could be done?
Article 144 of the Namibian Constitution says that, “unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia”. It would immensely assist the cause of human rights in the countries of SADC if a provision of this nature were to be secured in SADC’s different national constitutions, particularly with respect to SADC and regional treaty law relating to human rights, as opposed to say, one on fisheries.
Ideally, I would personally vote for an “article 144 approach” myself. However, to avoid the geo-political sensitivities that some of the current national political leaders in SADC purport to have about international issues, this provision could at least be modified to make democracy and human rights-related African treaties and protocols a part of national law in African countries that sign up to them, unless otherwise provided by national law. In the event, the burden would shift to those countries that except to SADC and African treaty law, or sections of this law, to enact specific legislation ousting such regional laws in their countries. That could be politically more revealing.
Incorporating this principle could more easily avail to SADC peoples the benefits of progressive norms and standards emerging on the continent. To satisfy some state lawyers’ and policy-makers’ appetite for long-windedness, one might tactically concede that, perhaps domestication of international treaties could go on in the usual peristaltic ways. Yet what is agreed by African countries should surely be immediately available for the protection of African citizens in their countries or through African institutions.
Tawanda Mutasah
is a Zimbabwean human rights lawyer
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