Human Rights in Africa: Enhancing Human Rights Through the African Regional Human Rights System

Mugwana, George William. Human Rights in Africa: Enhancing Human Rights Through the African Regional Human Rights System. Ardsley, New York: Transnational Publishers, Inc., 2003. 504 pp.

This book shows that the struggle for human rights on the African continent is far from over or complete. The African human rights regional system was initiated under the auspices of the Organization of African Unity (OAU) that was transformed in 2002 to the African Union (AU). While the OAU Charter of 1963 made only a passing reference to the concept of human rights as it was aimed at the abolition of colonialism and apartheid, the Constitutive Act of the AU of 2001, firmly placed human rights as one of its objectives.

The central foundation document of the African human rights regional system is the 1981 African Charter on Human and People's Rights, that has been ratified by all fifty-three member states of the OAU/AU, and entered into force in 1986. Under the African Charter, the sole supervisory body was the African Commission on Human and People's Rights (African Commission) which met for the first time in 1987, and adopted its own Rules of Procedure (amended in 1995), and Guidelines for State Reporting in 1988 (amended in 1998). The Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights (African Human Rights Court Protocol) was adopted in 1998, and entered into force on January 25, 2004, on receiving the necessary fifteenth ratification by the Union of Comores on December 26, 2003.

Although the primary emphasis of the study is on the African human rights system, in a sense, it is also comparative in the author's analysis as he looks at the other regional human rights systems and the global human rights system. He draws on the experiences of South Africa and Uganda as representative of how some countries dealt with the African regional human rights system in the past, and how domestic institutions handled human rights problems. Throughout the study, the author successfully meshes both theory and practice by reference to the jurisprudence of the African Commission. His study not only appraises the human rights system on the African continent, how Uganda and South African reacted to their own human rights situations but also to how human rights protections have fared in other global and regional inter-governmental human rights institutions. One of the invaluable assets of the book is that Dr. Mugwanya points to the various controversies that hamper the effectiveness of all existing human rights systems, with major emphasis of course on those that impact the African system.

The framework or criteria followed in this study is finally to examine the standards that have been adopted, normative understanding, and analysis of the human rights institutions with mandates to monitor states' compliance with human rights treaties in the given system. Second, there is an examination of whether human rights are adequately promoted so that the public are aware of their rights. Third, one follows the domestication of human rights, whether there has been adequate institution building at the national level so as to be responsive to everyone's needs. Fourth, there are observations on whether the human rights system networks with other inter-governmental human rights systems and with non-governmental organizations (NGO's). Finally, attention is devoted to the adequacy of the system in providing for accountability as the protective functions are multifaceted.

Although the emphasis by Dr. Mugwanya is on the legal human rights protection of individuals and peoples on the African continent, he takes a holistic approach and considers non-legal factors such as political, social, economic, geographic and demographic realities. There is a concise but good backdrop on how the human rights movement began within the United Nations context, the European system based on the initiative of the Council of Europe, the Inter-American human rights system within the framework of the Organization of American States, the African system undertaken by the OAU, and the current status of human rights movements in the Middle East and Asia.

There is a good overview of the human rights problems on the African continent in general, and the particular poor records of Uganda and South Africa. The author sets out the various factors that have brought about the problems, and unfortunately many of the so-called "early warning" reasons behind the human rights problems remain in place or reoccur. Dr. Mugwanya provides a critical analysis of the role and contribution that the United Nations institutions have made and continue to make in response to the African violations of human rights. In a word, it is "weak." He elaborately alerts us to the positive measures taken to dismantle apartheid in South Africa, and the inadequacies demonstrated with respect to Uganda in the Amin era of 1971-79. He briefly reviews other United Nations responses towards other African state violations, and provides an accounting of how the treaty monitoring bodies have performed under the six major United Nations human rights treaties, while keeping sight of the factors that undercut greater progress.

A relatively short assessment is made of the OAU's human rights activities before the African Charter was adopted in 1981. In sum, this period saw the Organization's failure to redress gross violations of human rights on the continent while it did achieve successes in relation to colonialism, self-determination, diplomatic efforts involving apartheid in South Africa, initiatives on refugees and conflict resolution. As a prelude to examining the history and content of the African Charter, the author raises the question whether the "Africanist" philosophy of the Charter undermines the universalism in favor of "African culturalism" or "cultural relativism." He compares the substantive provisions of the African Charter with those found in global human rights instruments, to show that the Charter's norms do not conflict with the universally recognized norms. He aptly shows the innovations on group or solidarity rights found in Articles 19-24 of the African Charter.

It will be recalled that the African Commission was inaugurated on November 2, 1987, as the primary institution to supervise state parties' compliance with the African Charter. The author examines the workings of the institution between 1987 and 1999, its jurisprudence activism relations with NGOs, how it has clarified various controversies, its role in the appointment of special rapporteurs and conduct of on-site missions to state parties, and adopted resolutions based on its own initiative. Readers will find the African Commission's jurisprudence to be thoroughly treated, and the author's personal assessment on the achievements and shortcomings. When looking at the various rights in the African Charter, as for example, the right to freedom of movement and residence, his approach is to first explain what the concepts mean, what constitutes a violation with examples, the African Commission's jurisprudence on the topic, the Uganda and South Africa practices, various debates about the content of the concept, and whether the Commission has been more expansive in its approach in relation to the concept as found in other treaties.

Coverage of the African Court on Human and People's Rights should be recognized as being diagnosed by Dr. Mugwanya before the Protocol came into force. He is critical in his discussion and evaluation of the Protocol. All facets of the Protocol are explored; this includes the future Court's interaction with the African Commission, the complementary and reinforcing functions necessary for the latter institution to realize its full potential. He is atune to the need to enhance the African Charter's normative, institutional and procedural dimensions. He points to new rights that need to be addressed, perhaps through future protocols. These include rights to freedom from hunger, to social security, an adequate standard of living, to create trade unions, to pay special attention to African women, children and the disabled. He leaves the reader with a substantial list of recommendations, that include steps that the African Union should take to enhance the African regional human rights system.

I do not see any shortcomings in this erudite and thoughtful study. It is a work that successfully adds to the growing literature on regional human rights generally, and to Africa, in particular. The final list of presented recommendations is certain to stimulate spirited dialogue. An appendix of the human rights treaties acceded to or ratified by South Africa and Uganda is included, along with a list of primary and secondary source materials referred to in the work, tables of cases, legislation, treaties and other international documents plus a manageable index to retrace one's tracks.

Daniel C. Turack Capital University Law School

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