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The Role Of The African Union In Promoting Human Rights – Kim Lamont Mbawuli

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African Union Building (Source: Quartz)

Amid the global Covid-19 pandemic, 2020 has been a turbulent year for Africa. During this time of crisis and uncertainty there has been over a dozen countries that have held general elections, many of which have been married with violence. The toll of the crisis has had a ripple effect on the human rights crises across the continent, including the ongoing conflict in Ethiopia’s Tigray region. According to Human Rights Watch, areas such as Burkina Faso, Cameroon, the Central African Republic, the Democratic Republic of Congo, Mali, Mozambique, Niger, Nigeria,
Somalia, and South Sudan armed conflicts persists.

Unfortunately, non-state armed groups and government forces were implicated in massacres, targeted killings, rapes, the burning and looting of villages. As well as kidnappings, forced recruitment, attacks on students and teachers, and the illegal occupation of schools. If regard is given for the sort of Human rights violations exhibited it’s time to place the African Union into a spotlight to determine whether the correct framework is in place to protect the plight the African people.

The Transition From OAU To AU

The transformation of the Organisation of African Unity (OAU) into the African Union (AU) in 2001 was placed in to central focus. The need to endow continental structures with the powers to make binding rules and regulations for the enhancement of Africa’s integrative efforts. The AU has 53 member states of which this supranational aspiration is espoused through the legal and institutional framework of the organisation. Of which two important developments extended and deepened Africa’s commitment to human rights, democracy, governance and development as cited in the Claiming Human Rights website.

The first was the adoption of the African Union’s Constitutive Act, which endows the AU with the powers to coordinate the activities of the regional economic communities, intervene in member states, and determine and monitor the implementation of common policies, it reaffirms Africa’s commitment to promote and protect human rights. It solemnises a promise made by African leaders to uphold unity, solidarity, cohesion and co-operation among the people of Africa. The second was the New Partnership for Africa’s Development (NEPAD), which also places human rights at the centre of development of which both frameworks are to provide an opportunity to put human rights firmly on the African agenda.

Notwithstanding, the strong central drive towards the promulgation of human rights, African countries still lack a degree of transparency which is easily demonstrated through the response to the Covid-19 pandemic, many African
governments introduced severe restrictions on movement and the freedom of assembly. In some cases, implementing full lockdowns. On the one hand these measures helped curb the spread of the virus in some contexts. On the other hand people were disproportionately impacted, particularly those that live in poverty. Many governments did not provide adequate assistance to cushion the impact of the economic downturn, which has exacerbated existing poverty and inequality across Africa. Furthermore there was little transparency around how government funds were being spent, to support the Covid-19 responses, triggering allegations of corruption. The pandemic has also exposed serious systemic gaps in health care services and social safety nets, thereby drawing attention to the need for African governments to make meaningful investments to improve access to quality healthcare, water, and sanitation. Bearing this in mind it brings to question how basic human needs have not been catered and how this has had an effect on the right to human dignity.

Co-Ordinating Common Purpose

The AU offers a broad dynamism through the use of non-indifference which includes the right of the AU to intervene in any member state’s affairs particularly around the recognition of human rights and the Promotion of social, economic and cultural development through the use of human rights instruments such as the; African Charter on Human and People’s Rights (ACHPR), the African Charter on the Rights and Welfare of the Child (ACRWC), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the Protocol on the Establishment of the African Court on Human and People’s Rights, and the Charter on Democracy, Governance and Election. To enforce these instruments, bodies were established and were provided with an express human rights mandate such as the African Commission on the Charter on Human and Peoples’ Rights (the African Commission), the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), and the African Court.

Bience Gawanas cites the AU as utilising a more interventionist approach to end war crimes and crimes against humanity, human rights violations, and unconstitutional changes of government, through the mechanism of employing sanctions. It represents a higher form of unity and integration for the African continent. It has also continued to develop legal frameworks and establish relevant institutions and in so doing, it has paved the way towards creating a culture of non-indifference towards war crimes and crimes against humanity in Africa.

Legislative Mechanisms To Pursue Human Rights

The Africa renewal magazine states that the pursuit of African human rights requires and enabling environment to pursue the promotion and protection of such rights. The Pan-African Parliament (PAP), Economic, Social and Cultural Council (ECOSOCC), the Peace and Security Council (PSC), the African Peer Review Mechanism (APRM) and the African Court are all structures and legislative frameworks to ensure that such rights are upheld for all.1

The Role Of The African Court

The African court (hereinafter- the court) was established by the 1998 protocol in respect of the Africa Charter on Human and Peoples rights which endows many African governments, acting nationally and also collectively through the AU, are serious about solidification and protection of human rights. In the Journal of Administration and article written by Antigegn G.K. avers that the jurisdiction of the court extends from the determination of disputes related to the interpretation and application of the Charter, the Protocol and other instruments ratified by state parties, to provide an advisory opinion to the AU or any African organization recognized by the AU on legal matters. For many a key judicial issue, lies between the question of an independent judicial system and the question of impunity. The court can put pressure on states to lessen their hold on the courts, which they use to massively violate human rights throughout the region as cited in the Journal of Public administration.

Courts Response To Human Right Violations

According to UNESCO Director-General’s Report on the Safety of Journalists and the Danger of Impunity between 2006 to 2020, 174 journalists have been killed in Africa, and unfortunately only 10.3% of the cases that were reported have been judicially resolved. The above paints a grim picture albeit there are a few landmark decisions made
by the court on Human and Peoples’ Rights directly contributed to strengthening freedom of expression and to fight impunity for crimes committed against journalists on the African continent.

End Impunity: Promote Free Speech

In the case of Norbert Zongo, the Court has undoubtedly made a direct contribution to ending impunity for crimes against journalists wherein the Court found that the delay in prosecuting the assassination in 1998 of investigative
journalist Norbert Zongo and his companions constituted a violation of their rights to a fair trial, namely to have their cause heard within a reasonable time. In what is known to be one of its overall landmark judgment on the merits, the Court found that the Respondent, the State, failed to uphold its duty to due diligence as no trial was conducted in more than 15 years in a case where Zongo was allegedly about to release a report on investigations involving officials including the brother to the then President of Burkina Faso.

In its judgment on reparations, the Court also awarded a quantum of 1 million USD compensation to the beneficiaries for material and moral damages suffered as a consequence of the violations established.

Similarly, in the case of Lohe Issa Konate exemplifies the contribution of the Court to the protection of journalists in Africa. The issues at hand were strongly focused on the freedom of expression rather than an attempt to the applicant’s life. In its ruling on the merits, the Court found that the one-year imprisonment against Konaté for publishing newspaper articles that were critical to the prosecutor constituted a breach of his freedom of expression as it was disproportionate.

Further to this the Court held that authorities who discharge public functions should be prone to a higher level of criticism and prison sentences would therefore deter journalists from performing the very critical duty of exposing shortfalls in public governance. As a result of the violations found, the Court ordered the Respondent, the State, to amend its laws accordingly and reinstate the Applicant’s banned newspapers, and pay compensation.

Finally, it is worth referring to the judgment rendered by the Court in the matter of Ingabire Victoire Umuhoza regarding freedom of speech in a political setting. The matter relates to statements made by opposition leader Umuhoza which were found by domestic courts to constitute denial of the Tutsi genocide. The findings of the court were that the remarks made by the Applicant did not constitute minimisation of the genocide against the Tutsi and therefore found her conviction to violate her freedom of expression. Although the case did not involve a journalist, it provides an interpretative position to understanding limitations to freedom of expression in instances such as genocide where states may use the restriction to silence critics, including media professionals. In the Umuhoza case, the Court ordered the Respondent State to restore the Applicant’s rights and pay her compensation for material and moral loss suffered by herself and her family members.

Therefore, the effect of such outcomes is the greatly wedged against the domestic systems of each country involved and must be evaluated from a normative, regulatory and judicial perspectives. Human rights are not just a construct based on ideals. They have deep roots in the traditions of all peoples. The primary focus for the promotion and protection of human rights is at the national level, an African level and an international level, it is the primary responsibility of Africa and all its people to ensure that human rights are promoted, protected and fulfilled.

“Our experience over the last 20 years has shown that indeed people must themselves become their own liberators. You cannot wait for somebody else to come and rescue you.” Thabo Mbeki

 

Written by: Dr. Kim Lamont-Mbawuli

 

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Church Economics: will this develop Africa?

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Church Planting (Image: Africa Inland Mission, Europe)

Africa is a continent that is blessed with an abundance of the world’s natural resources compared to other continents and with these, one is at pains to explain why Africa is not the most prosperous developed continent but instead, it houses poverty, unemployment and diverse underdevelopment. Africa happens to be one of the most religious continents with its people believing that God is the giver of all things. For Christians, the bible contains many verses that speak to how the people should prosper but one wonders why Africa continues to lag behind in various development aspects and the people living in misery. The question that begs an answer is, are church principles of success failing?

Prayer alone is not enough

Prayer is no substitute for hard work. It seems most of the African population has been made to believe that attaining success can be acquired miraculously through prayer and church dedication other than mixing that with hard work. It is against this background that Africans can buy a business building, break it down in order to build a church and spend most of their time praying for jobs. While it is good to have faith that when one prays, their requests could be accepted, the same bible says “faith without works is dead” which implies that one ought to put efforts beyond faith.

The bible does not support laziness and this can be seen from Proverb 6 vs 6-8, where the bible asks one to learn from the Ant to be wise and hard working. It reads “Go to the ant, you sluggard; consider its ways and be wise!, It has no commander, no overseer or ruler,  yet it stores its provisions in summer  and gathers its food at harvest.” The verse illustrates that an Ant will prepare for the winter while it is still summer in order to ensure that, when times are tough and work is not possible, they have enough to eat. The bible further tells Christians to work for 6 days and rest on the seventh day but it seems that hard work has been replaced by only prayer with people spending most of the time praying than working.

The bible also says in 1 Timothy 5:8 that ‘But if any provide not for his own and especially for those of his own house, he has denied the faith and is worse than an infidel. This verse tells us that even the bible does not favour poverty. In the actual sense, Christians are supposed to be the richest people in the world, to show the world how rich their God is but instead it is the other way round. We see a lot of people going to churches to pray for success and wealth which they don’t work hard for but want it to come on a silver plate. It is important to run to God for wealth and all, but also, people ought to pray for wisdom on how to work hard and see opportunities because prayer alone will not bring food on the table, it will not give clothes to wear or other things that need finances. If Jesus worked as a carpenter, Paul worked as tent marker and other Christians of old, why should abandon work, education, commitment and believe in miracles only? 

Church as solution provider

A church is a gathering of people with similar religious beliefs who meet in a common place to worship. As the people gather, each one comes with their own problems that they hope to present before their God in prayer with a hope that it gets answered. The bible has several references where God worked through other people to address the needs of his people.  In these days, however, when one presents their challenge before fellow congregants, the most common responses would be ‘God bless you’, ‘it shall be well’ or ‘we shall pray for you’ with no practical help given. Sadly, some solutions could be with the fellow church members.

The church houses so many unemployed people and many employers, it houses the rich and the poor, it houses the skilled and the unskilled. Financial challenges could be addressed by members sharing their income, unemployment could be provided by those that have opportunities to offer and other solutions could be within and do not necessary depend on prayer alone. If church members put resources to start businesses, to create employment, provide school fees, brainstorm solutions to national problems among other things, the improvement in the lives of the people would be so great that the nation would benefit. However, the status quo rarely considers the needs of their people but rather focus on lessons that may not even be applicable and relevant to meet the needs of the people.

Actually, the bible has in several instances referred to the fact that religious people neglect the needs of their people. It would be important that solutions that need prayer alone are separated from the solutions that can come from among the people. Other than just preaching the gospels, identifying the needs of the people and finding solutions would help people be solution providers for others also.

It is sad that some religious leaders have taken advantage of their members by swindling them of their hard earned income in the name that they would pray for them if only they brought money. If religion is to work for Africa, it would be important to get all the principles of success, apply them correctly and work to ensure that they work for the people. We cannot pray ourselves out of poverty, unemployment or under development.  Now is the time to think beyond church economics but rather pick the principles and apply them correctly for our prosperity.

By: Nchimunya Muvwende An Economist

 

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Transitional Justice: Evaluating the Importance of Reparation, Reconciliation and Rehabilitation- A South African Perspective

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Image source: Days Of The Year website

According to Benyera, the Truth and Reconciliation Commission (TRC) was a court-like body assembled in South Africa after the end of Apartheid. Anybody who felt they had been a victim of violence and injustice during this time could come forward and be heard at the TRC. Further to this the perpetrators of violence would give testimony and request amnesty from prosecution.

The TRC hearings made international news and many sessions were broadcast. The TRC played a crucial role in the transition to full and free democracy in South Africa and, despite some flaws, is generally regarded as very successful.

The mandate that the TRC was given was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, reparation and rehabilitation. The TRC  had several members which included; Archbishop Desmond Tutu (chairperson), Dr Alex Boraine (Deputy Chairperson), Mary Burton, Advocate Chris de Jager, Bongani Finca, Sisi Khampepe, Richard Lyster, Wynand Malan, Reverend Khoza Mgojo, Hlengiwe Mkhize, Dumisa Ntsebeza (head of the Investigative Unit), Wendy Orr, Advocate Denzil Potgieter, Mapule Ramashala, Dr Faizel Randera, Yasmin Sooka and Glenda Wildschut.

TRC AND RECONCILIATION ACT

TRC was set up by an Act of Parliament, the Promotion of National Unity and Reconciliation Act. This Act gives effect to the aim of TRC which is to:

  • make proposals for measures that will give reparation to victims of human rights violations; and
  • rehabilitate and give back the human and civil dignity of people who suffered human rights violations.

Further to this the Act also says that the Committee on Reparation and Rehabilitation must endorse and provide recommendation to the President in terms of ways of assisting victims. It is the President and Parliament, and not this Committee, who will decide what to do and how to do it. The recommendations from the Committee will be in the Final Report sent to the President after the Commission has completed its work.

Therefore the role of the Committee is to make recommendations which deal with interim reparation which is for those that require immediate assistance because of the gross human rights violations they suffered.

The Act requires the President and the Ministers of Justice and Finance to establish a President’s Fund. Victims who qualify for assistance will be paid from this Fund.

The importance of reparation, reconciliation and rehabilitation can be described as  what can be done to assist victims overcome the damage that they suffered and to make sure that these human rights violations or  abuses never happen again. Although this could include money, a financial payment is not the only form of reparation and rehabilitation that the Committee recommends. The Committee looked at individuals, communities and the nation as a whole when making recommendations to achieve reparation and rehabilitation.

REPARATION

In terms of Compensation section 1 of the Promotion of National Unity Act 34 of 1995 defines reparation as any kind compensation, ex gratia payment (payment in favour of), restitution, rehabilitation or recognition which would mean that government is responsible for the payment of reparations. The (TRC report vol. 5, 1998. Ch. 5) stipulates the following five elements of the reparation and rehabilitation policy:

1. Urgent interim reparation: These reparations are more focused on individuals with urgent financial or services need and there was a small budget to facilitate it. The urgent interim reparation was the first form of monetary reparations and it was meant for approximately 17 000 victims who were in dire need of help (Daly 2003: 378).

2. Individual reparation grants: These kinds of grants were those paid to Individual victims of human rights violations for a period of six years would receive monetary reparations. These reparation grants needed to promote three goals, namely,

According to Daly 2003, it was of paramount importance to recognise the victims’ suffering and restore the victims’ individual dignity, facilitate service delivery and subsidise daily living costs.

MECHANISMS FOR RECONCILIATION

According to the Justice site, the committee on TRC had come up with guiding principles which then aided with proposals that prompt and promote reconciliation these included the following;

Development centred: A development-centred approach means that individuals and communities are helped to take control back. To take control of their own lives through the dissemination of information and the use of knowledge particularly with regard to available resources and to help them use these resources in the way that benefits them most.

Simple, Efficient and Fair: All the available resources were used in a way that would give the most benefit to the people who receive them.

Culturally Appropriate: The process of rehabilitation needed to be sensitive to the religious and cultural beliefs of the community.

Community-based: Community-based services and delivery should be strengthened and expanded. For the people by the people.

Capacity Development: Local capacity building as well as the delivery of services were addressed as part of addressing the imbalances of the past.

Promoting Healing and Reconciliation: The aim of TRC was to bring people together and to promote understanding and reconciliation.

LAND REFORM

The TRC land reform programme consisted of three components that were adopted: According to an article by Diale the components were as follows; first, the restitution of land to those that were dispossessed of land after 1913; second, redistribution to rectify the racially skewed distribution of land which was resultant of colonial and apartheid policies, and; third, tenure reform for those whose tenure was insecure because of past discriminatory laws and practices.

The Restitution of Land Rights Act, No 22 of 1994, geared the Chief Land Claims Commissioner which would oversee the Regional Land Claims Commissions, which subsequently investigate cases and take them to the Land Claims Court for settlement. Because of the slow initial rate of delivery, the Restitution Act was amended in 1999 to provide for administrative settlements of claims: the Land Claims Court which would be used only in those cases where agreement could not be reached – as in the Dukuduku land claim.

Dukuduku Land Claim case

The Dukuduku forest in KwaZulu-Natal, South Africa is subject to one such claim to land restitution, which remains unsettled for over 10 years. The Dukuduku forest was supposed to be incorporated into the wetland park as an World Heritage Site. The forest houses many subsistence farmers, of which some form part of the group of land claimants. There is an interplay of community and authority and in so doing setting the pace of  where claims for historical redress materialises both in processes of land restitution and in the acquisition of land through ‘illegal squatting’.

Knut G, suggests that  Dukuduku forest encompasses and explores the strongly desired and well deserved restoration of lost rights to land and resources and the formalisation of these rights which then draws on both our past and the present to form a caveat with its intricately woven complexity it  defies such straightforward processes. The land claim process feeds into existing struggles and creates new ones, and in this way, the larger cause of the land claimants – to obtain recognition of property claims and land belonging – is infused by conflicts external and internal to the community of claimants.

In closing, redressing the imbalances and injustices of the past require countries to find ways of emerging from conflict and repression by addressing human rights violations. Transitional justice is entrenched in accountability and redress for victims. Ignoring massive abuses is an easy way out but it destroys the values on which any decent society can be built. Therefore the toughest balancing act must be engaged by finding a balance between the law and politics of the past and in doing so putting victims and their dignity first, it signals the way forward for a renewed commitment to make sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others.

Written by: Dr. Kim Lamont-Mbawuli

 

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Sunsets and Waterfalls Book Launch: Restoring Hearts for a Better South Africa

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Sunsets and Waterfalls Founders, Cindy Jacobs and Toni Erasmus (Source: Toni Erasmus)

Being plunged straight into an unprecedented global pandemic and having been challenged with the devastating realities of our country, Sunsets and Waterfalls (S&W) saw an opportunity in realising that South Africans hold the answers to their own generational outcry. With that being said, straight out of a pandemic, Sunsets and Waterfalls (S&W) was birthed. Founded by Cindy Jacobs and Toni Erasmus, S&W is a platform for  South African women, children and families – empowering all to share their raw and real stories.

These two women have a shared vision to drive change at both grassroots and government level, where they aim to develop and impact South Africa and her leaders to restore the soul of our nation by tackling the core issues of our nation- one story and one heart at a time.

On the 1st and 2nd of May 2021, Jacobs and Erasmus launched their poetry book “Sunsets and Waterfalls”, a poetry book designed to connect and empower all people to own their raw and real stories. The book is a compilation of over 300 poetry pieces and 300 impactful line art illustrations by Carter Constant, depicting the raw and real-life events and stories of two women who have bravely overcome the traumatic experiences and enlightenment of their broken hearts.

“We need young leaders with new ideas, new approaches and empathy to effect meaningful change.” This was the view of Melene Rossouw, co-founder and director of the Women Lead Movement, speaking at Gallery South, situated in Muizenberg on Sunday, 2 May 2021 – one of the events of their weekend launch.

Young as they are, they recognise that this is not an exclusively personal and individual journey. They know that the soul of the nation, South Africa, is deeply wounded, and they seek to enable people in local communities to become active change drivers who can pursue social change at both grassroots and government levels.

“I’m really honoured to be sharing this day with both Toni and Cindy,” said Rossouw. “In my brief but deeply insightful engagement with these two exceptional leaders, I was transcended in both mind and soul,” she said. When she met them, Rossouw was immediately struck by the young women’s authenticity born of their ability to consciously explore their own wounded histories, personal and political.

“We want the entire South Africa to join in as we believe: When hearts unite, mountains move!”

Sunsets and Waterfalls is available for R295 and can be ordered online at Sunsets and Waterfalls OR email: info@sunsetsandwaterfalls.com

 

 

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