1 Introduction
Discussions on the struggle for democratic governance and human rights in Africa are like the proverbial old wine in new bottle. Indeed the post-World War II independence struggles in Africa were largely premised on a desire for self-governance (self-determination) and human rights. Particularly, the language of human rights provided “a powerful mobilizing rhetoric” for the anti-colonial movement.1 The leaders of the independence movements “freely invoked affirmations of human rights in international as well as national thinking”.2 This was partly influenced by the adoption of the United Nations (UN) Charter in 1945, which contained provisions on the respect for human rights; the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, which provided an elaborate yardstick for human rights and was “a powerful source of inspiration for the founding pattern of African nations”; and the adoption of the European Convention of Human Rights in 1950, which for the first time in the international system “translated human rights into precise [binding] legal rights”.3 These were further reinforced by the political and constitutional ideas of the colonial powers,4 who in their bid to seek a “dignified retreat from the empire”, ensured that the independence constitutions they negotiated with the nationalist movements made provision for the “protection [of] opposition parties, individual rights, independent courts and some measure regional or local autonomy”.5
Additionally, indigenous African processes were not alien to the concept of human rights. Gluckman asserts that indigenous African systems had well-developed notions of natural justice and legality.6 For instance, the concept of due process of law was well respected in indigenous African systems; arbitrary deprivation of liberty or property was treated cautiously; the security of person protected ; and meticulous decision-making procedures were followed when the liberty of the individual was at stake.7 Asante notes further that the “African conception of human rights was an essential aspect of African humanism sustained by religious doctrine and the principle of accountability to the ancestral spirits”.8 Indigenous African governance usually revolved around the family or clan, which served as limitation on the sovereign power of the chief, who could be deposed for violating community norms, including human rights.9
These circumstances therefore, made it “virtually automatic” that the constitutions of the newly independent African nations would contain entrenched human rights. Human rights principles were thus, in varying degrees included in the constitutions of almost all the newly independent African states .10 In most parts of Africa today, most people enjoy human rights and democratic freedoms more than ever before but these did not come as a natural progression of the governance and human rights ideals touted by anti-colonial struggle leaders just before independence. As history bears witness, most African states soon after independence abandoned the democracy and human rights ideals they espoused in opposition to colonialism in favor of one party autocratic systems that were abhorrent of political dissent and largely disapproving of human rights, deeming such institutions to be the antithesis to progress.11
It was around this time of increasing negation of the ideals of democracy and human rights by the postindependence African leaders that the Organisation of African Unity (OAU) was formed. It therefore came as no surprise that the Charter of the OAU did not pay much attention to the issue of human rights, save for brief references to the UDHR in the preamble and article 2(1)(e), which required member states to have “due regard” to the human rights provided in the UDHR.12 The only human right that seemed important to the OAU was the right to self-determination, which was an important tool in its continued struggle against colonialism.13 This fixation with the right to self-determination bolstered by its policy on “noninterference” (perhaps as a consequence of its opposition to the interference of the colonial powers), led the OAU to ignore allegations of human rights violations reported in its member states.14 The only other human rights issue that the OAU appeared to be concerned about, mainly out of the necessity of the increasing number of refugees following the numerous conflicts that arose at the time, was the right of refugees, leading to the adoption of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa .15
This period of despotic one party regimes were associated with various rights violations which were not taken kindly by the citizens of most African states. In many states, this led to military takeovers, usually premised on the need to curb the abuses, but which themselves soon became very characteristic of the very abuses they claimed to want to stop and in many instances even worse.16 In other instances, the closing political space occasioned by the despotic one party system and military dictatorships forced opposition elements to resort to violence and civil wars to seek a restoration of governance and human rights that would ensure the equal participation of everyone in the economic, social and political affairs of the state.17
In the midst of this political turmoil and gross human rights violations , the OAU had to review its policy of noninterference. Viljoen notes that most commentators ascribe the adoption of the African Charter on Human and Peoples’ Rights (African Charter) in 1981 as the OAU’s response to the human rights abuses that occurred in the period immediately preceding its adoption.18 The drafting and adoption of the African Charter was by no means a swift process, as some states while not prepared to openly show their opposition to the African Charter, tried to silently stifle the process through nonparticipation in governmental expert meetings that were convened to draft the Charter.19 The adoption of the African Charter did not only mark a first of its kind in Africa, but also the first time in international human rights law that a legally binding human rights treaty combined civil and political and economic, social and cultural rights , including the right to development, in the same document. The African Charter also established a supervisory body, the African Commission on Human and Peoples’ Rights (African Commission), which was established in 1987, one year after the Charter came into force. However, the African Commission only became operation in 1989.20 The Commission’s mandate was to promote and protect human rights , including through the instrument of state reporting and receiving complaints from member states, individuals and nongovernmental organizations.
The establishment of the African Commission came at an opportune time—in the midst of the third wave of democratization that swept through Africa in the late 1980s and early 1990s.21 This wave of democratization was occasioned by increasing political pressure from within the African populace due to economic hardships coupled with the pressure from the Bretton Woods institutions, which coerced African governments to adopt “good governance” in exchange for financial assistance.22 Within this period, multi-party elections were organized all over the continent including in South Africa , marking the end of apartheid .23 This wave of democratization brought with it new constitutions that provided generous stipulations of mostly civil and political rights and some economic, social and cultural rights, with South Africa standing out as the only country that included a br...