Reforming the role of the African Commission on Human and Peoples’ Rights in Advancing Democratic Principles and Human Rights in African Countries : an examination using the lens of Swaziland/ eSwatini

• Author: Jeremy Sarkin
• Published date: 03 December 2019
• Date: 03 December 2019
• Pages: 1-56
• DOI: 10.25159/2522-6800/3860

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/3860

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 34 | Number 2 | 2019 | #3860 | 56 pages

© Unisa Press 2019

Reforming the Role of the African Commission on

Human and Peoples’ Rights in Advancing Democratic

Principles and Human Rights in African Countries: An

Examination Using the Lens of Swaziland/ eSwatini

Jeremy Sarkin

https://orcid.org/0000-0002-9424-6874

Distinguished Visiting Professor of Law and member of CEDIS at NOVA University

Lisbon, Lisbon, Portugal, Attorney, South Africa and Attorney, New York, United

States, BA LLB LLM LLD, former Chair-Rapporteur, United Nations Working Group

on Enforced or Involuntary Disappearances,

Research Fellow, University of the Free State, South Africa

JSarkin@post.harvard.edu

Abstract

This article explores the role of the African Commission on Human and

Peoples’ Rights and the role it plays regarding human rights in individual

country situations in Africa. It specifically examines the extent to which it has

been able to advance a human rights agenda in countries with long-standing

human rights problems. The article uses Swaziland/ eSwatini as a lens to

examine the matter, because of the longstanding problems that exist in that

country. This is done to indicate how the institution works over time on a

country’s human rights problems. The article examines a range of institutional

structural matters to establish how these issues affect the role of the

Commission in its work. The article examines the way in which the

Commission uses its various tools, including its communications, the state

reporting processes, fact-finding visits, and resolutions, to determine whether

those tools are being used effectively. The article examines how the

Commission’s processes issues also affect it work. Issues examined negatively

affecting the Commission are examined, including problems with the status of

its resolutions and communications, limited compliance with its outcomes, and

inadequate state cooperation. Reforms necessary to enhance to role and

functions of the Commission are surveyed to determine how the institution

could become more effective. The African Union’s (AU) Kagame Report on

AU reform is briefly reviewed to examine the limited view and focus of AU

reform processes and why AU reform ought to focus on enhancing human

rights compliance. The article makes various suggestions on necessary

institutional reforms but also as far as the African Commission’s procedures

and methods of work to allow it to have a far more effective role in the

2

promotion and protection of human rights on the continent. It is noted that

political will by the AU and African states is the largest obstacle to giving the

Commission the necessary independence, support and assistance that it needs

to play the role in Africa that it should.

Throughout Africa, the victims of injustices are waiting; waiting for us to keep

our word. T hey notice when we use words to mask inaction. They notice when

laws that should protect them are not applied. We can do better. We must do

better.

1

Keywords: African Commission on Human and Peoples’ Rights; African Union;

Swaziland/ eSwatini; democratic principles; human rights violations; Africa; Kagame

Report; institutional reform

Introduction

The African human rights situation has improved to some degree over the years but

many problems remain present.

2

While improvement was on a steadily rising trend

until a decade ago

3

, the last decade has seen an erosion of some of the hard fought

gains made before then.

4

The upward trajectory as far as peace and security were

concerned a decade ago, has not continued as between 2007 and 2014

5

the number of

serious internal wars grew from 4 to 11 globally.

6

This trend is also borne out in

Africa.

7

In a range of countries across the region there are tremendous problems.

Many states continue to be undemocratic. Civil and political rights violations continue

1

Opening speech by the then Chairperson of the African Commission on Human and Peoples’ Rights,

Catherine Dupe Atoki, at the 51st ordinary session of the African Commission on Human and

Peoples’ Rights, Banjul, The Gambia, 2012.

2

Shirley de Villiers, ‘An Overview of Conflict in Africa in 2014’ (2015) African Security Review 89–

100.

3

On the decline in peace globally see Therese Pettersson and Peter Wallensteen, ‘Armed Conflicts,

1946–2014’ (2015) 52(4) Journal of Peace Research 536–550; and Lotta Themnér and Peter

Wallensteen, ‘Armed Conflicts, 1946–2013’ (2014) 51(4) Journal of Peace Research 541–554.

4

Sebastian Von Einsiedel, Major Recent Trends in Violent Conflict (United Nations University Centre

for Policy Research 2014).

5

Some argue the war trend in Africa decreased from the 1990s and only began increasing again since

about 2013. See David Burbach and Christopher Fettweis, ‘The Coming Stability? The Decline of

Warfare in Africa and Implications for International Security’ (2014) 35 (3) Contemporary Security

Policy 421–445.

6

Von Einsiedel (n 4) 2.

7

Charles Fombad, ‘The Context of Justice in Africa: Emerging Trends and Prospects’ (2013) 1 in

Evelyn Edroma (ed), The Role of Law and Justice in Africa's Development (UNDP 2013) 3–23.

3

as a matter of course in a range of internal armed conflicts, perpetrated by both the

State as well as non-state actors.

8

To deal with these problems, the African Union (AU) has created a range of

institutions and processes, and adopted a raft of policies including a commitment to

non-indifference instead of respecting principles of sovereignty and non-interference.

9

This has not, however, always entailed action where there are problems. The AU has

been good at establishing policy, institutions and processes but not so good at

following through and implementing the plans that emerge from these activities.

10

To specifically promote peace and stability the AU has created a number of

institutions. One such body, the Peace and Security Council, may be the most

important development to enhance collective security through conflict prevention,

peacekeeping, peace-making and peace-building efforts. Others include the AU

Continental Early Warning System,

11

the Panel of the Wise, the New Partnership for

Africa’s Development (NEPAD) and the African Peer Review Mechanism.

12

In addition to the peace and security architecture that exists in the African Union, it

also has several institutions to protect and promote human rights across the continent.

These include the African Commission on Human and Peoples’ Rights, the African

Court on Justice and Human Rights and the African Committee on the Rights and the

Welfare of the Child.

13

There are also a number of sub-regional systems that do not

fall under the AU but add to the regional protection of human rights because they have

judicial mechanisms to adjudicate on such matters.

14

These include the Court of

Justice of the Economic Community of West African States (ECOWAS), the East

8

Morten Pedersen and David Kinley, Principled Engagement: Negotiating Human Rights in

Repressive States (Routledge 2016).

9

Annemarie Peen Rodt, ‘The African Mission in Burundi: The Successful Management of Violent

Ethno-political Conflicts?’ (2011) Ethnopolitics Paper, No 10, 1–21, 2.

10

See the opening chapter entitled ‘The African Human Rights System and the Implementation Gap’

(2015) in Rachel Murray and Debra Long, The Implementation of the Findings of the African

Commission on Human and Peoples’ Rights (Cambridge University Press 2015).

11

Alexander Noyes and Janette Yarwood, ‘The AU Continental Early Warning System: From

Conceptual to Operational?’ (2013) 20(3) International Peacekeeping 249–262.

12

Porto Joao Gomes and Kapinga Yvette Ngandu, ‘The African Union, Preventive Diplomacy,

Mediation, and the Panel of the Wise: Review and Reflection on the Panel’s First Six Years’ (2014)

African Security Review 181–206.

13

On the interaction between the court and the commission see Annika Rudman, ‘The Commission as

a Party before the Court-Reflections on the Complementarity Arrangement’ (2016) 19(1)

Potchefstroomse Electronic LJ 1–29.

14

See for example James Gathii, ‘Mission Creep or a Search for Relevance: The East African Court of

Justice’s Human Rights Strategy’ (2014) 24 Duke Journal of Comparative and International Law

249.