International Standards: The Paris Principles
Examining the Record in Africa
Innovative and Positive Contributions by Commissions
The Role Of The International Community
The 1990s began as a decade of raised hopes with regard to increased respect for human rights in Africa. Following the end of the Cold War, growing domestic and international pressure created an unprecedented momentum for change. The calls for reform that swept the continent in the early 1990s forced political concessions from many of the one party authoritarian regimes that had been in power for decades. At the time, many African countries were subject to longstanding authoritarian single party or military rule, and in South Africa apartheid policies entrenched state-sponsored repression and racial discrimination.
The regional human rights treaty, the African Charter on Human and Peoples' Rights, that came into effect in October 1986, was a significant event on a continent dominated by single party structures with restrictions on political participation. Article 26 of the African Charter for Human and Peoples' Rights stated that states parties shall "allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter."
The creation of national human rights commissions in Africa was by and large a manifestation of this regional political opening. In Francophone countries, such as Benin, Chad, and Togo, democratization came about through the convening of a National Conference in which government and civil society came together to negotiate the process of political liberalization. In Anglophone countries, such as Ghana, Malawi, Kenya, and Zambia, governments capitulated to the calls for multiparty elections. In South Africa, apartheid came to an end. In one African country after another, political liberalization and greater democratization occurred in varying degrees. For the first time, commitment to human rights began to be part of the political discourse of a broad array of African leaders.
Throughout the 1990s, one African government after another set up its own national human rights commission. Increased U.N. and international donor support for the creation of human rights commissions by the mid-1990s served as a further impetus to African governments. In most countries it was part of some sort of political transition either to a new government or to promises of a more open political system following a history of repressive or authoritarian single party rule. While some of these transitions have brought real change, others have been incomplete. By the end of the 1990s, it was clear that many of these political transitions had stagnated and some governments were backsliding on their previously stated commitments.
In some countries, the creation of a human rights commission appears to be a genuine expression of the government's pledge to bring more transparency and government accountability, such as in Benin, Ghana, Malawi, Senegal, South Africa, and Uganda. Rwanda's human rights commission was established as part of the 1993 Arusha Peace Accord between the government of the time and the Rwandan Patriotic Front, which was then making war against it. In other countries, the creation of the commission seemed to be motivated more by a desire to deflect criticism of the government's recalcitrance to political liberalization, that being the case in Cameroon, Chad, Kenya, Nigeria, Togo, and Zambia. This apparent hypocrisy was not restricted to governments being forced to concede to a multiparty system. Sudan's human rights body was set up in 1994 in the midst of severely repressive policies. Algeria and Tunisia formed commissions to offset criticism after crackdowns against Islamist-based political organizations. In the late 1990s, the post-war governments of Liberia and Sierra Leone created human rights commissions after flawed peace accords that granted amnesty to their fighters, responsible for the killings and torture of thousands of civilians. The question which remains is: can these institutions that are set up by governments with less than pure motives be transformed into independent and effective human rights bodies?
The human rights commissions in Africa come in all shapes and sizes: Some are constitutionally-based (followed by enabling legislation), as in Ethiopia, Ghana, Malawi, Niger, South Africa, Uganda and Zambia. The majority have been created through the legislative national assembly or parliament, such as in Benin, Chad, Liberia, Rwanda, Senegal, Sierra Leone, and Togo (subsequently included in the 1992 constitution). Others have been created through presidential, prime ministerial or council of minister decrees, such as in Algeria, Cameroon, Kenya, Mali, Mauritania, Sudan, and Tunisia. Nigeria holds the dubious distinction of being the only human rights commission formed by military decree, and Morocco's commission has been established by royal decree.
The stated mandates of these commissions all basically vest them with the responsibility to promote and protect human rights, but with differences in the breadth of their mandate and their powers. Within Africa, the range is broad-from the Mauritanian human rights commission which stresses only advisory and promotional activities to the Ugandan human rights commission which has quasi-judicial powers to convene a human rights court to adjudicate complaints. Only Mauritania and South Africa have specific provisions in their founding legislation that formally include responsibility to address economic and social rights, as well as civil and political rights.
The staffing and appointment procedures differ widely. Most commonly, strong executive control has been retained through presidential or prime ministerial appointments. In other cases, commissioners are selected through parliamentary elections or by civil society. In the case of Benin, the government plays no role at all: the commissioners are selected and put forward by the professional associations (judicial and medical) and NGOs. While a more consultative appointments procedure and security of tenure for commissioners are important factors, the record in Africa does not show a direct correlation to greater activity. In some cases, presidential appointees have shown remarkable autonomy. In other cases, a consultative selection procedure or NGO representation on a human rights commission has not resulted in the expected level of activity by a commission.
Among the twenty existing commissions, activities have included both human rights promotion and human rights protection work. Although most human rights commissions in Africa do not have express responsibility for economic and social rights issues, most have mandates that are worded broadly enough to allow them to interpret their duties to include work on economic and social rights issues. However, they have overwhelmingly chosen to concentrate on civil and political rights violations. Almost without exception, Africa's human rights commissions sponsor promotional activities that include public education programs and trainings aimed at public officials and others, through seminars, workshops, and radio shows. Some commissions have made recommendations for the abolition of laws not in conformity with international human rights standards, and contribute to or present country reports to U.N. or regional bodies. The record on human rights protection work, which tends to be more politically sensitive, is varied. While some human rights commissions are completely inactive in responding to individual complaints, the more active and autonomous commissions do take steps, in different ways, to investigate and redress abuses. The human rights violations investigated by human rights commissions in Africa include abuse and torture by police and security forces, prison conditions, prolonged detention without charge or trial, harmful traditional practices against women, discrimination, xenophobia and violence against migrants, and conditions in institutions for the mentally ill and disabled. Some commissions also deal with violations by private (non-state) actors such as employers, landlords or domestic abusers. It should be noted that most of these activities have been undertaken by the same few commissions who boast strong reputations.
By 2000, Africa was host to the largest number of government human rights commissions of any continent. Yet its human rights record, by and large, stands in stark contrast with this fact. Much of the African continent is characterized by sagging economic performance, backsliding on promises of democracy and other human rights reforms, and increasing ethnic, national, and regional tensions, often breaking out into civil strife. In some countries, however, gains have been made and maintained in recent years and progress towards respect for human rights and the rule of law have stayed on course. Within that context, an examination of the record of the human rights commissions in African thus far reveals both the predictable and the unexpected.
1989-1991: Togo, Benin, and Cameroon
The first three countries to form human rights commissions were in West Africa. It is appropriate to begin with the Commission Nationale des Droits de l'Homme [National Human Rights Commission] (CNDH) of Togo. Not only was it the first national commission of its kind in Africa, but it illustrates the spectrum of roles that a commission can play: first as a catalyst for fundamental democratic change, despite significant odds, and later as an apologist for government abuses. Established in 1987, before the emergence of any serious challenge to single-party rule in much of Africa, Togo's CNDH set a precedent for dynamism and initiative that has been hard to maintain anywhere in the world and, least of all, in Togo itself. The CNDH fell victim to its own success. The comparatively long experience of Togo with a national human rights commission demonstrates the great potential, but also the fragility of these government institutions.
Over its decade of existence, the CNDH has gone through three phases. Initially, the CNDH was created by President Gnassingbe Eyadema, on the anniversary of the African Charter for Human and People's Rights, to offset international criticism of his repressive single party rule. Few could have predicted the dynamic role that the CNDH would play when it was first created by close allies to the President. The Togolese commission gave broad interpretation to its mandate - initiating its own investigations and denouncing violations, neither of which was expressly permitted.
From its inception in 1987 until the crackdown on democracy in 1991, the CNDH exhibited remarkable independence in exposing and intervening in politically sensitive abuses, including by the security forces. In 1990, pressure was mounting for free and fair elections, including through anti-government demonstrations. The CNDH's exposure and public denouncement of killings of pro-democracy demonstrators by the army set into motion a process that eventually forced the government to concede to political liberalization. It was probably in connection with the National Conference of 1991, the effective end to single party rule in Togo, that the CNDH played its most significant role. Farsighted and courageous leadership was essential to the movement that led to the National Conference and a new constitution, as well as the emergence of the nongovernmental human rights movement in Togo.
During the second phase, that lasted between 1992 to 1995, the CNDH essentially disappeared from public view. Although President Eyadema had conceded to a multiparty system by that time, he continued to retain power by undermining and eroding the political liberalization that had been achieved. When President Eyadema began his crackdown on the democratic movement in earnest, the CNDH was one of the first victims. Its head was forced into exile and the commission reduced to a passive role with a caretaker directorate. In 1996, when the CNDH was eventually revived through a new law.
The CNDH is now entering its third phase. Relaunched in 1997 after a long period of silence, the commission continues to have substantial formal powers and independence, but behaves little like its activist predecessor. From its current activities, the CNDH appears to many Togolese to be more concerned with defending itself and the national authorities, than protecting and promoting human rights in Togo. Due in part to its past record, the CNDH currently has little or no credibility within Togo or among the foreign community that follows human rights in the country. The promotional activities undertaken by the CNDH, which might be appreciated in other countries, are viewed as largely hollow in the absence of will to engage in protection as well. These activities are further undermined by the CNDH's willingness to virulently defend Togo's flagging human rights record against international human rights investigations. While Togo continues to crack down on human rights activists in the country, and refuses to respond to the claims of the local and international NGOs, the CNDH's credibility remains at an all-time low.
Two years after Togo, the next human rights commission was formed in 1989 in neighboring Benin, following a similar process of democratization which began with a National Conference in 1990 and ultimately led to political liberalization. Benin is probably the most successful of Africa's democratization attempts this decade. Long known for chronic instability, Benin's political institutions have steadily become stronger and more independent over the course of four generally open and transparent general elections. The passage of a new constitution in December 1990, and the fact that it is closely observed and upheld by the Constitutional Court, has resulted in notable improvements to the human rights situation and the ability of citizens to seek redress from human rights abuses. In particular, the constitutional provision allowing individual claims to the Constitutional Court by victims of human rights violations has firmly established the concept of human rights in citizens' popular consciousness.
The Commission Béninoise des Droits de l'Homme [the Benin Human Rights Commission] (CBDH) was created by the legislature in 1989, following seventeen years of socialist military rule in Benin, at the initiative of a group of human rights lawyers. Ten years later, the CBDH's record indicates little or no activity, despite the transition to elected government and significant improvements in the human rights situation as compared to the past. The watchdog of democratic and human rights principles in Benin is seen to be, and is constitutionally vested in, the Constitutional Court. Despite the strongest guarantees of formal and actual independence, the CBDH has one of the poorest records of human rights promotion and protection in the region. Most revealing were the words used by Beninois interviewed by Human Rights Watch, both in government and in the NGO community alike, who described the CBDH as "lethargic," having "a credibility problem," "unknown to the population," and "in paralysis." The CBDH emerged from years of silence in 1999 only to side with the government of neighboring Togo in its campaign against an Amnesty International May 1999 report on political killings in Togo.
The case of Benin poses the question of whether a national human rights commission is necessary for the protection of human rights when this role is being performed by other institutions of the state. The opening of civil liberties in Benin, after almost two decades of military rule, has resulted not in the anticipated increase in activity on the part of the CBDH that one would have expected, but rather, an inactive complacency. The limitations of the Paris Principles are exposed. Benin's human rights commission meets, if not exceeds, the standards set out by the Paris Principles for statutory and actual independence. And yet its record of activities falls far short of its potential given its broad powers and the conducive political climate.
The next West African country to form a human rights commission was Cameroon. The National Commission on Human Rights and Freedoms (NCHRF) in Cameroon was also created by the government in the context of the wave of democratization of African countries through a November 1990 presidential decree. The NCHRF was among the first institutions created by President Paul Biya's decrees in the democratization measures announced in 1990 following protests. However, unlike in Togo, where the national human rights commission played a role in eliciting or accompanying the political claims at the beginning of the democratization movement, in Cameroon the NCHRF played no such role.
The Cameroonian commission's failure to be a catalyst in democratization may be explained by the course this process took. Unlike several of its Francophone neighbors, Cameroon did not enter the process of change through a broad and consultative National Conference or other public debate. It is through unilateral presidential decrees that political concessions were made finally to permit opposition parties to function and to create new institutions. One month after the NCHRF's creation, a presidential decree restored freedom of association, which effectively permitted multi-party activity. Elections were then organized in 1992, again, by the government.
The NCHRF's credibility and autonomy are greatly hindered by the strong presidential control over its appointment and operations. The current NCHRF members were named by the president in 1991 when Cameroon was still a one party state. The original five-year term of the sitting commissioners members expired in 1996. Yet, some three years later, President Biya has neither renewed the sitting members nor appointed new members. Some Cameroonians postulate that this is due to the fact that the president-in accordance with the decree requiring that a representative from each political party represented in the National Assembly sit on the NCHRF-would now have to allow political opposition members on the NCHRF. By law, the membership of the NCHRF is long overdue for renewal, and should have a more balanced political representation. Additionally, the NCHRF possesses weak powers. It can only make recommendations to the government, and its confidential reports were (until recently) submitted only to the president's office.
Since its inception, the NCHRF commissioners have opted for a non-controversial approach to government abuses, and have concentrated on promotional activities, such as seminars, radio programs, and conferences. The silence on some of the major human rights abuses by the government, both because of the mandate as well as reticence on the part of the commissioners, has seriously dented the NCHRF's credibility in Cameroon. After almost ten years of existence, this human rights commission remains largely unknown or irrelevant to the public. The low public interest is symptomatic of the widespread perception that it is a compliant institution serving the executive branch. This perception is exacerbated by the fact that the NCHRF cannot publish reports of its inquiries or interventions, and that the national human rights NGOs play little or no role in the NCHRF's activities.
In order to create a credible and autonomous human rights institution in Cameroon, a number of fundamental steps are required: For starters, the founding presidential decree which grants the president discretionary powers to appoint the commission members and the reporting procedures that prohibit the NCHRF from releasing its findings publicly, should be amended through a law voted by the national assembly. Second, human rights NGOs should be listed among the array of institutions represented in the NCHRF. Lastly, if the commissioners are as concerned about boosting the commission's visibility and credibility in civil society as they profess, they must be willing to take on a more active and outspoken role in order to contribute to a more a transparent debate on human rights in Cameroon.
1990-1992: Morocco, Tunisia, and Algeria
Between 1990 to 1992, the three North African (Maghreb) countries of Morocco, Tunisia and Algeria formed, in close succession, human rights commissions.8 In forming their commissions, these former French colonies looked to the French human rights commission as a credible model to follow. The main impetus to form these commissions in Algeria and Tunisia came largely from internal developments related to the growing strength of Islamist political activity. In the wake of crackdowns against Islamist opposition movements, these commissions were created by the Algerian and Tunisian governments to show a commitment to democracy and human rights. The creation of the commission in Morocco appeared to have been motivated as a response to international public criticism of its human rights record. The Moroccan King's desire to appear to be attentive to human rights in the international arena resulted in the creation of the commission. None of these three commissions has been particularly dynamic; however, of the three, the Moroccan commission has shown a stronger record of activity.
The Conseil Consultatif des Droits de l'Homme [Human Rights Advisory Council] (CCDH) was created in Morocco in 1990 under King Hassan II by royal decree (Dahir 2-4-1990). It was created at a time when the independent human rights community was showing signs of new vigor with the creation of the Moroccan Human Rights Organization and the renewed activism of the Moroccan Human Rights Association. The CCDH's thirty-eight members include five government ministers, representatives of political parties, human rights and civic groups, and prominent individuals. The CCDH was influenced strongly by the French Commission Nationale Consultative des Droits de l'Homme [National Human Rights Advisory Commission].9 The King also subsequently re-established a human rights ministry that he had eliminated in 1997, and the Prime Minister created an inter-ministerial human rights commission.
The CCDH is strictly an advisory body which reports directly to the King. Although officially independent, the CCDH's budget is paid for primarily by the King. On several occasions, King Hassan II directed the CCDH to study a human rights problem, such as political prisoners, prison conditions, and the "disappearances" that occurred in the 1960s and 1970s. The CCDH's resulting recommendations to the King have often been implemented, including some prison reforms and the release of some prisoners. The CCDH has tended to emphasize the positive in Morocco's human rights record, and has shown deference toward authorities on the most politically contentious issues. However, given the diverse composition of its membership and the increasingly open way that human rights issues are discussed in Morocco, the CCDH has cautiously criticized government policies and practices, and added credibility to the causes embraced by the independent human rights organizations.
In July 1999, King Mohamed VI came to power following the death of his father King Hassan II. Since taking the throne, King Mohamed VI has begun implementing pledges of reform and loosening the authoritarian regime he inherited. His first steps included the release some 8,000 prisoners and an invitation to Morocco's prominent political exiles to return. His reform program has promised improvements in education, justice, and women's rights.
In an attempt to heal some of the wounds of the past, the King has sought to address the issue of reparations for the thousands of political opponents who were jailed or "disappeared" in the 1970s under King Hassan II. The main activity which the CCDH has publicly been engaged in since King Mohammed VI took power involves the Arbitration Commission to decide on compensation for material and psychological damage suffered by the victims and their families of "disappearances" and arbitrary detention. This body was established under the auspices of the CCDH following an August 1999 order by the King. The Arbitration Commission began its work on September 1, 1999 and claimants were required to submit their applications for compensation by December 31. At the end of the year, the commission had announced that it had received some 4,000 applications and had been able to examine several dossiers. The results of the commission had not yet been publicized as of February 2000.10
Overall, the CCDH has only taken up issues and made recommendations when it receives official encouragement to do so, rather than on its own initiative. Although it is still too early to tell whether the CCDH will play a stronger role in Morocco under the new King, the signs indicate a more conducive political environment for human rights and greater potential for the CCDH.
Tunisia's Higher Committee for Human Rights and Fundamental Liberties has shown itself to be nothing more than a mouthpiece to defend government abuses. In its public pronouncements and reports, it has steadfastly portrayed Tunisia's poor rights record in a positive light and has minimized or more often ignored glaring violations of Tunisia's international human rights obligations. President Zine el-Abidine Ben Ali created the Higher Committee for Human Rights and Fundamental Liberties in 1991, at a time when he was coming under increasing human rights criticism. After seizing power in 1987 with pledges to respect human rights and enact liberal reforms, President Ben Ali was, by 1991, engaged in an all-out crackdown on Tunisia's Islamist movement. In the decade that followed, human rights conditions deteriorated steadily as the repression was widened to include leftists, liberal democrats, union dissidents, and human rights activists.
In the view of Tunisia's independent human rights community, the Higher Committee has contributed little if anything to redressing or deterring abuses, but rather is one among many government-created entities whose sole purpose is to burnish the government's human rights record. While the Higher Committee may have helped individuals in isolated cases to remedy an arbitrary administrative decision, it has, according to human rights activists, remained silent and passive in the face of systematic abuses. In cases where committee's president Rachid Driss has intervened, it has not been to advance the cause of human rights. For example, when he visited political prisoner Khemais Ksila in 1998, he conducted himself not as a human rights investigator but rather as an informal interlocutor on behalf of the government and later misrepresented the prisoner's situation to the media. Meanwhile, the Higher Committee has not used its privilege to inspect prisons without prior authorization in order to call attention to the exceedingly harsh and punitive conditions that are imposed on Tunisia's political prisoners. In 1996 and 1997, bi-monthly, unannounced prison inspections were conducted by the Committee. However, none of the findings have been made public, other than a declaration by Mr. Driss that prison living conditions and prisoner hygiene were "good and improving."11
The Observatoire National des Droits de l'Homme [National Observatory for Human Rights] (ONDH) was created in Algeria in February 1992, shortly after parliamentary elections were halted, Algeria's president was forced out of office in a military backed coup, a state of emergency was declared, and a crackdown begun against the Islamists who had won the elections. It was thus established by a presidential decree at a moment when authorities were aware that to establish legitimacy after halting the democratic process they had to appear attentive to human rights.
Since its inception, the ONDH, which depends largely on public funds, has actively embraced a public relations role in downplaying brutal abuses committed by the security forces. Mohamed Kamel Rezzag-Bara, ONDH's first and only president, has performed this role in frequent media appearances, at international fora, and in issuing "counter-reports" to attack the credibility of international human rights organizations such as Amnesty International and FIDH when they criticize Algeria. After a 1995 disturbance at Serkadji prison that left 100 dead, authorities denied access to all independent human rights groups seeking to investigate while permitting access to a commission headed by the ONDH, which in its findings whitewashed evidence that many of the casualties were due to the use of excessive force by prison authorities.
However, since in Algeria there exists a margin of freedom in which newspapers, human rights activists, and the public can discuss governmental abuses, the ONDH, to maintain some credibility, has had to acknowledge governmental abuses to some extent and to make recommendations aimed at curtailing them. Thus, the ONDH's annual reports acknowledge patterns of secret detentions by security forces and instances of excessive force by civilian militias. This has served a useful function by nudging closer to reality the semi-official discourse on human rights abuses, and thereby helping to secure and widen the space in which Algerians may criticize human rights violations taking place.
The ONDH, however, has no powers to initiate independent human rights investigations or to summon private citizens or government officials to testify. These weaknesses have been glaring to those who have filed complaints with the ONDH on behalf of relatives thought to have been "disappeared" by the security forces. The ONDH, by its own admission, has done little more than forward the complaints to pertinent government agencies and await responses, which, when forthcoming at all almost invariably shed no light on the whereabouts of the missing person. Not surprisingly, victims of abuses and their relatives have for the most part despaired of obtaining remedies from the ONDH, which is seen as close to the government and unable to impose any measure of accountability when abuses have taken place.
Since it was formed in 1993, the Commission on Human Rights and Administrative Justice (CHRAJ) has positively contributed towards a stronger human rights culture in Ghana. Like its West African neighbors, the CHRAJ came about as part of the 1992 transition from single-party authoritarian rule to a constitutional democracy. A controversial multi-party election in 1992 ended eleven years of authoritarian rule under Flight-Lieutenant Jerry Rawlings, but restored him to power as an elected civilian leader (as it did again in the 1996 elections). As part of the 1992 transition, a broad and consultative process to draft a new constitution was undertaken to establish a democratic system of checks and balances including an independent judiciary, and the establishment of an independent human rights commission, the CHRAJ. The human rights situation in Ghana has improved compared to the repression of the 1980s. Problems in the government's human rights record remain, however, it continues its attempts to address abuses such as police misconduct and corruption, prison conditions, prolonged pre-trial detention, and violence against women.
Established as an autonomous government body under the 1992 Constitution, the CHRAJ possesses a broad mandate, among other things, to investigate complaints of human rights violations and administrative justice by state and non-state actors and allegations of corruption by state officials. It has been given strong enforcement powers which allow it to issue subpoenas for the attendance of a witness or the production of any relevant information, and to bring contempt charges through the courts against any person failing to obey it. The commissioner (there is only one) is appointed directly by the president, which is a weakness, but the commissioner has security of tenure until retirement age.
The CHRAJ is headed by a dynamic commissioner, Emile Short, who has ensured that the CHRAJ enjoys public confidence. Commissioner Short and his large staff have not shied away from taking on some of the more sensitive issues, such as government corruption, and have held their ground in the face of opposition from other government agencies that have sought to silence them. The CHRAJ has also had an impact, particularly in highlighting prison conditions, harmful traditional practices against women and girls, and in providing public education on human rights. Unlike many other government commissions in Africa, the CHRAJ has opened offices throughout the country and boasts a large staff. Additionally, the CHRAJ has fostered a collaborative working relationship with local human rights groups, viewing their work as a genuine partnership to address human rights violations in Ghana.
The CHRAJ is a testament to what a government commission can achieve when it is constitutionally backed, given strong enforcement powers, and headed by an independent commissioner with integrity. Pursuant to its legislated mandate, the CHRAJ has been ambitious both in creating a nationwide network of offices and in taking on a broad array of issues. The heavy workload and relatively low pay has led to high staff turnover and low morale among staff. Although international donors have given financial and other support to the CHRAJ, the fact that it still remains under-staffed, under-salaried, and under-funded is unfortunate. A commission such as this one should be receiving greater government and international support, and serving as a training center for other emerging government commissions.
The National Islamic Front (NIF) in Sudan seized power in a 1989 military coup that overthrew an elected government. The NIF changed its name to the National Congress (NC) when it adopted a constitution in 1999, slightly loosening controls on independent civil society. However, it continues to commit serious human rights abuses including arbitrary arrests and torture, closure of the press, and silencing its critics through a variety of means including politically motivated charges that often carry the death penalty. A civil war in the southern part of the country for more than sixteen years has resulted in government and rebel abuses against civilians including militia and army looting of food supplies, killing or kidnaping (and, by the government and its militia, enslavement) of civilians, burning of homes, and disruption of relief efforts, causing the displacement of thousands and creating major famine. This war has spread to the central and eastern parts of Sudan in the last eleven and five years, respectively.
Given the hostile climate to human rights, it is no surprise that the government of Sudan is subject to concerted international pressure, particularly from a number of U.N. committees to address its egregious human rights record. Among others, the U.N. Commission on Human Rights has assigned a special rapporteur to investigate human rights in Sudan yearly since 1993. Special rapporteurs and investigators have visited Sudan and reported on abuses found there, including the Special Rapporteur on Religious Intolerance, the Secretary General's Special Representative on Children in Armed Conflict, the Special Rapporteur on Freedom of Opinion and Expression, the Secretary General's Representative on the Internally Displaced, the African Commission on Human and Peoples' Rights, and many others, including all major nongovernmental human rights organizations and many single-issue groups, particularly those addressing slavery.
With all this critical international attention paid to human rights abuses in Sudan, it was inevitable that the government would create a human rights entity to mitigate the negative publicity. The Advisory Council for Human Rights, created by presidential decree in 1994, is advisory in nature. Its stated mandate is to provide advice on human rights to the government; to conduct human rights research and reply to human rights queries addressed to the government; to demand information and data on human rights from any state agency; participate in relevant local, regional, and international conferences and committees; organize and prepare for visits by individuals and organizations related to human rights in Sudan.
In reality, the Advisory Council for Human Rights does little more than to coordinate submissions due to the various U.N. agencies and to host (monitor) a variety of human rights investigators whose visit could not be refused for public relations reasons, usually those from U.N. agencies. The Advisory Council for Human Rights is theoretically responsible for granting permission for nongovernmental human rights organizations to visit Sudan but it is clear that this is a political decision taken at higher levels, as even the green light given by the Advisory Council does not, without more, result in a visa for human rights nongovernmental organizations.
The government's work on human rights issues is reactive only, in response to international human rights demands on the government of Sudan. The independence and functioning of the Advisory Council for Human Rights is institutionally limited: it can be dissolved at will by presidential order and replaced by another ad hoc group. It is physically lodged in the Ministry of Justice but does not have any full time staff (aside perhaps from its rapporteur Dr. El Mufti). Its members are representatives of other state agencies. Its head is the also the attorney-general and the minister of justice.
Rather than the Advisory Council for Human Rights, the Department of Human Rights in the Ministry of Justice seems to show more promise as a government body with a possible institutional future for the promotion of human rights. Many of its functions are those entrusted to the Advisory Council for Human Rights. As of 1999, the Justice Ministry's Human Rights Department, with members of the Advisory Council for Human Rights, was running the government's principal human rights program, regarding slavery, which the government calls "abductions and forced labor of women and children."
1995: South Africa and Chad
There could not have been two more diametrically different human rights commissions created in the same year. On the one hand, the South African human rights commission is, as would be expected, has been active, benefitting from a mostly supportive political environment and strong human rights community. On the other hand, the Chadian commission, which quickly capitulated to government pressure after a promising start, is silent on major human rights abuses and viewed with deep distrust by the human rights NGO community in Chad.
The South African Human Rights Commission (SAHRC) is one of the best-funded and most active human rights commissions established in Africa. Based in a country with a history of systematic racial discrimination enforced by state brutality on a large scale, the SAHRC operates under a government that has genuinely pledged itself to undoing the wrongs of the past and to the promotion of respect for human rights. The SAHRC is only one of many national institutions established in South Africa to monitor government compliance with the new constitution, which includes protection for a wide range of rights, including fully justiciable economic and social rights provisions. It also has available partners from the strongest nongovernmental human rights community in Africa and benefits from the sophisticated infrastructure of sub-Saharan Africa's most developed economy.
The commission has investigated systemic problems affecting the criminal justice system, discrimination in education and other government functions, racism, abuse of foreigners, and other issues, as well as numerous complaints of individual human rights violations. It has conducted a wide-ranging survey of the government's implementation of economic and social rights. Often acting in collaboration with national NGOs, the SAHRC has held high-profile public hearings on a range of issues, carried out in-depth studies of particular problems, and issued public reports that have brought often unpopular issues to media and political attention. It played the lead role in the development of a national plan of action on human rights, in line with the recommendations of the 1993 U.N. Wold Conference on Human Rights held in Vienna. Since beginning operations in 1995, the commission has established itself as a key player on human rights issues in South Africa.
Nevertheless, the SAHRC has faced criticism, perhaps due to the high expectations for this commission. By its own admission, when it first started operating, the SAHRC found itself driven more by complaints than by a strategic vision for carrying out its mandate. As it has matured, the commission had developed certain areas of focus, raised the profile of particular issues that might have otherwise have had less attention, and worked closely with civil society groups. The commission has certainly established itself as an important institutional presence and has had the courage to take unpopular stances, for example, in speaking out against xenophobia. It has produced or collaborated in the production of several substantial reports on a wide range of issues, and has successfully resolved many of the complaints referred to it.
Although the interventions of the commission have become more substantial and systematic as it has gained experience, some outside observers still criticize it for a lack of focus and thoroughness in its investigations, and others question the priorities of the commission when so many urgent human rights challenges face South Africa. A weakness of the commission is the lack of clarity as to the action that should be taken on its recommendations. The SAHRC has itself expressed its dismay at the failure of parliament to debate its reports in a timely manner and in depth.
The SAHRC has realized some substantial achievements since it was founded in 1995. Yet given its extensive legal powers, funding, and other resources, superior to those of most similar institutions in Africa, it could have achieved more. There is a need for better coordination of the various constitutionally established bodies handling human rights issues, as well as for the commission itself to ensure more follow-through where it has taken up issues; more effective deployment of funds and human resources; a greater tactical sense in the setting of priorities; and greater accessibility, effectiveness, and public awareness of its role in addressing individual complaints as well as patterns of abuse. The system for appointing commissioners should be addressed to ensure consistently high quality appointments rather than a perceived political balance. Nevertheless, the commission has established itself as an important player on the national scene, and has the potential, especially as it develops regional offices, to make a concrete difference to individual lives as well as to the development of national policy.
After an impressive start in 1995, the Commission Nationale des Droits de l'Homme [National Human Rights Commission] (CNDH) in Chad capitulated to government pressure and has since done little to test the reach of its potentially expansive mandate. While it began in the spirit in which it was launched with collaborative investigations and public positions on important human rights issues, it dramatically changed its tone and method of operation in its second year of operation. Following government pressure, the Chadian commission now avoids public commentary and concentrates on promotional activities. The commission has few resources, does not maintain regular hours, and avoids public declarations. Even the president of the CNDH acknowledges that it has been unable to fill its role as an intermediary between civil society and the government due both to a lack of cooperation by the government and deep mistrust by the NGO community.
Like a number of countries in Francophone Africa, Chad experienced a significant political opening during the early 1990s. Single party rule was formally ended and a national conference held to transition to democracy was created at the initiative of the local human rights NGOs. The law provides for a mixed governmental-nongovernmental body modeled on the French advisory commission for human rights. Technically located in the office of the prime minister, the CNDH has in theory substantial autonomy, secured by its diverse membership (which includes NGO representatives), freedom to determine the subjects of investigation, and obligation to publish results. The current president is originally from a respected human rights NGO.
In its first year of operation in 1995, the CNDH played an active and public role in promoting human rights and responding to human rights violations by security forces in the south of the country and attacks on the independent newspapers. The CNDH participated in a joint investigative mission with human rights NGOs, pointed to the responsibility of government security forces and called on the government to initiate prosecutions. However, the political context in Chad did not remain conducive to transparency and accountability. Idriss Deby, the president of the country since 1990, has consolidated power through fraudulent elections and threats to independent voices in the political opposition and press. Not surprisingly, the government sought to silence the CNDH. After the Chadian commission was publicly critical of extrajudicial executions by government forces in 1996, the government withheld funding.
After encountering hostility and reprisals from the government, in 1997 the CNDH leadership unfortunately made the decision to avoid any further controversy by working only through confidential communications with the government and to concentrate on human rights promotion activities. The activities of the commission currently seem not to fulfill its legal obligations to advise the government on human rights violations, including, sensitive subjects such as torture, secret detention and the activities of political police. The law also requires the commission to ensure public dissemination of its positions. Moreover, the law makes no reference to the role of the commission in human rights education and traditional promotion activities. However, the CNDH's recent activities have been devoted almost entirely to conferences and seminars and a radio program on education and training. The CNDH's silence on important human rights issues is viewed with suspicion and mistrust by the local human rights community who see the CNDH as one more manifestation of the government's lack of good faith in the field of human rights.
1996-1997: Uganda, Senegal, Malawi, Nigeria, Zambia, Kenya
In the two year period between 1996 and 1997, a total of eight human rights commissions were created in Africa. Six of those countries are discussed in this section. Sierra Leone and Liberia, both post-war countries, are dealt with separately in the following section because of the distinct context within which they were both created.
Of the human rights commissions created during this period, the Ugandan commission has been, by far, the most active and autonomous, contributing significantly towards the respect of human rights in Uganda. The Ugandan human rights commission is one of the strongest on the African continent. Despite its daunting mandate and limited resources, the Uganda Human Rights Commission (UHRC) has shown the initiative and courage to make a significant contribution towards a stronger human rights culture in Uganda during its first years of existence. When President Yoweri Museveni and his National Resistance Army/Movement took over the reigns of power in Uganda in 1986, the country was infamous for its widespread human rights abuses and massive loss of civilian life. The UHRC is a permanent independent body with quasi-judicial powers set up under Uganda's 1995 constitution. The UHRC has broad powers that allow it to subpoena information, order the releases of detainees, and order payment of compensation for abuses, but it may not intervene in cases pending before a court. Its commissioners serve six year renewable terms. Under the capable leadership of Margaret Sekaggya, the UHRC has done both protection and human rights education work.
Like most national human rights commissions in Africa, the UHRC is a relatively new institution, still in the process of defining its role in Ugandan society and establishing working procedures to address the many human rights complaints which it receives. Nonetheless, it has had an impact, particularly in highlighting prison conditions and police brutality and arbitrary arrests. To their credit, the commissioners have not shied away from taking on some of the more sensitive issues such as abuses by the security forces and have been willing when necessary to speak out publicly to call on other government agencies to take action in a number of areas including a treason trial, abductions, police brutality, and prison conditions. The UHRC has introduced a new level of oversight into the work of the security agencies of Uganda, a level of oversight which previously did not exist. Although it faces some resistance from some government agencies and is limited by resource constraints, the UHRC has generally not backed away from its responsibilities.
Because of its recent creation and its limited capacity and funding, the UHRC's ability to monitor human rights abuses is hampered somewhat-and while it has done significant work, the UHRC has been silent on some of the most egregious abuses taking place in Uganda. Most noticeable is the relative absence of reporting on human rights abuses in the rebel-destabilized North, Northwest, and West of Uganda, where some of the most serious abuses of human rights are taking place, both at the hands of rebel groups and to a lesser extent by UPDF.
Unlike many other government commissions in Africa, the UHRC has generally fostered a collaborative working relationship with local and international human rights groups, viewing their work as a partnership to address human rights violations in Uganda. The UHRC shows substantial potential as a human rights institution, and its development over the next years will prove crucial in terms of establishing its role within the human rights community in Uganda.
Given its record to date, the UHRC is an institution that can serve as an example and a resource for other commissions in the region.
Although it is still too early to tell, two human rights commissions that show promise are the Senegalese and the Malawian commissions which are only beginning to be fully functional. Both are working in relatively open political environments, are headed by dynamic and committed commissioners, and seem to value interaction with the human rights NGO community. All these factors bode well. However, the real test will come when both these commissions have to confront the authorities on violations. Hopefully, both these commissions will have the continued will to undertake the harder parts of their work while a conducive political climate continues to prevail.
The Comité Senegalais des Droits de l'Homme [the Senegalese Human Rights Committee] (CSDH) was originally created by Senegal by decree in 1970 and remained a relatively uninfluential body until the 1990s. In 1997, the composition and competence of the Committee was radically transformed and its stature raised. A new law was adopted to render the Committee more independent and the membership more diverse. Most of the twenty-four voting members of the new CSDH now come from civil society. The president is a respected jurist who is currently president of the Conseil Constitutionnel [Constitutional Court] and the Coordinator is a high level judge in Dakar.
The CSDH has a broad mandate that includes promotion of human rights, calling attention to violations, and making recommendations on all matters relative to human rights. Thus far, it has served primarily as a relay for concerns raised by NGOs. It has only recently established a permanent office and has yet to put into place an effective infrastructure. As of 1999, the activities of the CSDH were largely limited to promotional events, several publications, and the establishment of an effective dialogue with other government agencies on reported violations of human rights.
Nevertheless, it is well viewed by NGOs and others who see it as an opportunity to compel the Senegalese government-known for its sensitivity to international pressures-to better respond to the concerns of local organizations. At the current time the Committee is characterized by its openness and good relations with NGOs. Its success will largely depend on how well it is able to follow up and respond to the cases that are referred to it and whether it uses its power of recommendation.
The Human Rights Commission in Malawi came about as part of the transition to a multiparty system. Malawi held its first democratic multiparty elections since independence in 1994, following thirty years of authoritarian, one-party rule. President Bakili Muluzi and his United Democratic Front party came into power on a platform that promised to restore the rule of law and uphold human rights. Under the Muluzi government, the human rights situation in Malawi has improved significantly, although problems such as police misconduct, remain. Due to delays in the passage of the enabling legislation and funding, the Malawian commission only began functioning fully in 1999.
Although the 1994 Malawian Constitution mandated a Human Rights Commission, it was not until four years later that the Parliament passed enabling legislation in 1998. The Human Rights Commission did not become fully functional until 1999. The commission is made up of seven commissioners: the two people holding the positions of the law commissioner and the ombudsman, and five others, nominated by the law commissioner and the ombudsman in consultation with civil society groups. The Human Rights Commission has technically been operational since January 1996 with the appointments of the Law Commissioner Justice Elton Singini and ombudsman (then) Hon. James Chirwa to their positions on the commission. However, the lack of an adequate budget and enabling legislation meant that the Human Rights Commission only existed in name. The most notable activity of the two commissioners was the drafting of the Human Rights Commission Act. In 1999, the remaining five commissioners were sworn in and by late 1999 the secretariat staff were hired.
Although it is too early to tell, the Malawian Human Rights Commission shows promise. The enabling legislation is one of the best drafted laws on the African continent, giving the commission broad powers to be effective and autonomous. The two commissioners who drafted the enabling legislation have ensured autonomy, and strong investigative and remedial powers. It is now up to the commissioners to use this legislative license to ensure a greater respect for human rights in Malawi.
The major drawback for the commission is the lack of adequate funding due to structural adjustment budget cuts put into place by the government in response to pressure from the international financial institutions. The budget restrictions are clearly a problem for all Malawian government agencies, not just the Human Rights Commission. However, given the important work of the Human Rights Commission and the legislative provision that mandates adequate funding for its work, the Malawian government should make full funding of the Human Rights Commission a priority.
While the political contexts within which the Nigerian and Zambian human rights commissions function could not be more different, their records in some ways parallel. Both commissions have encountered structural and political restraints on their ability to function autonomously, and have been unable or unwilling to effect change on some of the more serious patterns of government abuse that occur. However, both commissions have taken their mandate seriously. Both commissions have addressed, amid inadequate resources and weak powers, some of the less politically sensitive human rights issues, including labor, marital, employment and tenant complaints and conducted some effective advocacy work on prison conditions.
With the death of General Abacha in June 1998 and his succession by General Abdulsalami Abubakar, the commission was able to take a more active role in the improved political situation that accompanied a fresh transition program, and made representations to government concerning the repeal of military decrees infringing international standards of human rights and other matters. Although its status was not entrenched in the new constitution that took effect with the inauguration of a civilian government under President Olusegun Obasanjo on May 29, 1999, the commission has the potential to become a much more effective body under civilian government. However, its long term success will depend on new legislation to give it the powers it needs, political support and understanding for its role as a guarantor of constitutional rights, adequate funding to achieve its mandate, and its own determination to take effective action. Little progress was made in this direction during the first months of civilian rule.
Although there were serious doubts at first about its autonomy and effectiveness, the Human Rights Commission has shown itself to be a visible presence in Zambia, albeit in a limited manner. It has been particularly active on issues such as labor complaints and advocacy work on prison conditions, although it still remains very cautious and weak about taking on more politically sensitive issues, such as police abuse and the suppression of the independent media. In its relatively short period of existence since 1997, the Zambian commission has gained greater respect by interceding in a more decisive manner on behalf of persons whose rights have are denied by the government and by speaking out publicly through a number of clear-cut press releases on human rights violations by the authorities. Following an October 1997 coup attempt, the Zambian commission showed commendable initiative in publicly condemning the government's use of torture and organizing medical assistance for the torture victims.
Initially, the Zambian commission was viewed with suspicion and distrust by civil society and the political opposition. It was seen to be a cynical move by a government that was at the time backsliding on its promises to uphold human rights, particularly during the lead up to the 1996 elections. Furthermore, the manner in which the Zambian commission was formed further reinforced this perception. Presidential appointments of the commissioners were made hastily without debate or consultation shortly before a 1997 international donor meeting to examine Zambia's progress on human rights as a condition for renewing aid.
The Zambian government's commitment to allow a strong, autonomous human rights body remains in doubt to date. First, the Zambian commission is limited by its legal mandate which lacks any powers, other than to make public its findings. Due to the limit of its mandate, there is evident caution by the commissioners to follow up on initial recommendations or to address more politically sensitive abuses by the government. The fact that the Zambian commission is hamstrung in its ability to protect Zambians from rights violations, including torture, was most evident during the five month state of emergency declared by the government after the failed coup attempt. Questions also remain about the commission's autonomy, especially as its members are appointed directly by the president for three year terms, without any input from civil society.
Second, the executive branch and other government agencies regularly disregard the recommendations made by the Zambian Human Rights Commission, an indication not only of the commission's lack of power, but also the absence of any commitment on the part of the government to follow the edicts of its own human rights agency. Lastly, President Chiluba's government appears to be actively limiting the effectiveness of the Zambian commission through financial control as well as punitive measures. Shortly after the Zambian commission's condemnation of the torture of the 1997 coup detainees, the government summarily withdrew the office space it had assigned the commission. This was widely believed to be a warning to the commission to be more compliant.
While the Zambian Human Rights Commission may be a public relations ploy for the Chiluba government to win donor support, the commissioners themselves have taken their work more seriously and have tried to achieve some good, despite difficult working conditions. However, their impact remains circumscribed by their structural design, a lack of support from the executive branch, and self-imposed political limitations. If the Zambian government is genuinely committed to a strong human rights platform as it claims, it must amend the law to give the commission greater powers, provide adequate funding, and refrain from political interference.
The human rights commissions in Zambia, Kenya, and Malawi were created within a similar context. All three countries experienced a tumultuous end to authoritarian single-party rule, and one after another respectively held multiparty elections in 1991, 1992, and 1994. Zambia and Malawi ushered in new governments that came in on platforms that promised to uphold human rights, whereas in Kenya, President Daniel arap Moi was returned to power, both as a result of election irregularities and in-fighting among the political opposition. The records of these three commissions directly reflect this political reality. The Kenyan commission is the least autonomous of the three, although the Zambian and Malawian governments have also not been averse to placing obstacles in the way of their human rights commissions.
The Human Rights Standing Committee was formed in May 1996 by President Daniel arap Moi shortly before a donor meeting to discuss renewal of Kenya's aid, conditioned on economic and human rights reforms. The Standing Committee on Human Rights is a body formed at the discretion of the President, members are appointed by him, it reports only to him, action is decided by him, and members can be removed by him. It is tightly circumscribed by executive control with questionable legal status since it was not created through the proper parliamentary procedures required by the Kenyan constitution. Aware that the legal base needs to be bettered, in early 1998, a draft bill was prepared by the Standing Committee and submitted to the Attorney General for review pending debate by Parliament.
While there are some well-meaning members on the Standing Committee for Human Rights, as a collective body the Standing Committee's contribution to the protection of human rights in Kenya has been weak, even irrelevant. Since its creation, the ten presidential appointees have generally maintained a low profile, and taken few public stands. The Standing Committee has issued six private reports for the president. Two are special reports that examined outbreaks of political violence prior to the 1997 election. The Standing Committee issued its first public report in December 1998, a general overview of human rights laws and definitions, with only cursory reference to official human rights abuses. Its section on the 1997 political violence in Coast Province was more comprehensive and accurate.
The marginal position of the Standing Committee in addressing human rights issues, is all the more highlighted by the vigorous and large human rights NGO community that exists in Kenya. Kenyan human rights defenders are regularly under attack for speaking out against the worsening political and economic crisis as the government continues to stall on promises of reform that would bring greater democratization. However, the Standing Committee remains a marginal human rights player in Kenya and continues to have an arms length relationship with the national and international human rights NGOs.
The proposed law to expand the powers of the Standing Committee has been drafted, in consultation with the Office of the U.N. High Commissioner for Human Rights. The effort underway to address the poor legal underpinnings is a step in the right direction. Additionally, the Standing Committee is proposing to consult widely with other human rights bodies, the legal community and the political opposition, among others with regard to the draft bill. However, discussions with Kenyans indicate a split within the Standing Committee between some members who are would like to see an opening up to the proper functions of a national human rights commission, and those who still perceive its purpose to be to protect the president from allegations of human rights violations. This tension is likely to continue even after the bill has been enacted, and its outcome remains to be seen. But undoubtedly, even the passage of the proposed law would be a positive and quantum leap forward.
1996-1997: Liberia and Sierra Leone
Liberia and Sierra Leone both set up government human rights commissions in the aftermath of longstanding and brutal civil wars that killed and displaced tens of thousands and destroyed the infrastructure. In both countries, several peace accords as well as the intervention of the international community led to negotiated settlements. Liberia's seven-year war was finally ended through the Cotonou Peace Accord and a U.N.-supervised election that swept former faction leader Charles Taylor and his party into power with 75 percent of the vote. The eight-year civil war in Sierra Leone ended with the July 1999 Lomé Peace Accord, which has since left Sierra Leone in the balance between war and peace. In both countries, regional peacekeepers sent by ECOWAS and U.N. observer missions intervened to restore peace.
In both countries, accountability and justice for crimes against humanity were sacrificed to obtain fragile peace. While an end to the fighting would bring much needed peace and security to both countries, the inclusion of blanket amnesties in both the Cotonou and the Lomé peace accords gives immunity to former Liberian and Sierra Leonean perpetrators of human rights abuses respectively. An amnesty has not led, in fact, to solid peace in either case. Members of the rebel groups in both Liberia and Sierra Leone now form a part of the government and the same combatants who terrorized the population mingle with their victims both inside the government and in the wider society. In these war-torn countries, there is a dire need for a strong human rights commission. At the same time, the ability of human rights commissions to play any effective role in such a situation is difficult to conceive. State institutions and the rule of law have collapsed so completely in both Liberia and Sierra Leone, that the ability of even the most committed national human rights commissioners is greatly limited by the context.
The commission in Sierra Leone, evolved from the National Commission for Democracy (NCD), a commission formed in 1994 under military rule with no explicit human rights mandate. The NCD was created with limited powers by a 1994 military decree passed by the National Provisional Ruling Council (NPRC) regime following pressure to restore the country to democratic rule. In December l996, shortly after elected President Tejan Kabbah was sworn in, some of the NPRC decrees were voted in under an act of parliament. At that time, the NCD's mandate was expanded to cover human rights, becoming the National Commission for Democracy and Human Rights (NCDHR).
Since its inception in 1996, the activities of the NCDHR have been greatly hampered by the difficult, and even dangerous, conditions that they work under. Members of the commission point not only to the lack of funds, but also disruption from the war as being responsible for limiting their work. After only four months in operation, the NCDHR's work was stalled by the May l997 coup which drove the government into exile for close to a year. After returning in March l998, the NCDHR began work on several projects only to be disrupted again by the January 1999 rebel offensive against Freetown.
Nonetheless, even under these conditions, the NCDHR has made an impact with its human rights education programs that are widely praised in Freetown, and has contributed to greater accountability for economic and social rights through its legal aid clinic. The NCDHR also has created a cooperative working relationship with the local NGO human rights community.
However, the dire human rights climate in Sierra Leone necessitates more. The national human rights commission must be able to vigorously investigate and document abuses by all sides, and to push human rights issues to the top of both national and international agendas. For reasons both within and outside of their control, the NCDHR, has been unable to meet this challenge and adequately respond to the extreme nature of Sierra Leone's human rights situation. Lack of adequate funding by the government, disruption due to the war, too wide a mandate, lack of staff, and lack of expertise within the area of human rights all contribute to the absence of a strong human rights protection component. The NCDHR is also widely perceived by the population and local human rights NGOs to be too close to the government and thus unwilling to openly confront controversial issues or directly address human rights abuses committed by the government or its surrogates.
Since the signing of the July 1999 Lomé Peace Accord, Sierra Leone has been in the balance between war and peace. The role of a strong government human rights commission within this context can not be understated. The Lomé Peace Accord calls for the creation of an "autonomous quasi-judicial national Human Rights Commission" as well as other institutions including a truth and reconciliation commission. At the end of 1999, there was continuing debate within governmental and non governmental sectors around the interpretation as to whether the human rights component of the NCDHR should be expanded and given new powers or, if a new commission should be created in fulfilment of the Lomé Peace Accord.
Considerable local and international pressure has been mounting for two separate commissions: one to deal with democracy issues and another devoted to human rights. The peace is fragile and the potential for further violence and retribution is great. A strong independent human rights commission in which Sierra Leoneans from all sides of the conflict can entrust their side of the story, and can rely upon to advocate on their behalf, can contribute towards justice and sustained peace.
One of the first announcements made by former faction leader Charles Taylor after he was elected to power in Liberia was that he would create a human rights commission. The founding of the Human Rights Commission in 1997 caused considerable controversy because of the lack of a consultative process and the passage of founding legislation that limited the commission's investigatory power to future abuses only, restricted its ability to compel testimony, gather evidence or directly petition, and denied it budgetary support. Since its creation in 1997, the Human Rights Commission has been paralyzed by the Taylor government through its flawed legislation, inadequate funding, and political pressure. Only two of the mandated five members were confirmed a year later in 1998. Three subsequent nominees have yet to be confirmed by the senate. In its short time of existence, the Human Rights Commission has taken little or no action other than to set up its offices. The head of the commission has publicly complained that he was unable to take any action due to the lack of funding. The case of Liberia shows the utter impotency of a human rights commission which depends entirely upon a government that is not committed to improving human rights.
Mauritania was the only African country to set up a human rights commission in 1998. Compared to other human rights commissions in Africa, Mauritania's Commissariat aux Droits de l'Homme, à la Lutte contre la Pauvreté et à l'Insertion [the Commission on Human Rights, the Fight Against Poverty and Social Inclusion] has both the broadest and the narrowest mandate. One the one hand, it includes poverty eradication and social and economic rights issues as a key part of its mandate, rather than restricting itself to civil and political rights as most commissions in Africa do. On the other hand, its autonomy and powers are so greatly limited by excessive executive control and a mandate that overly stresses education and promotion work that its ability to redress human rights complaints is heavily circumscribed.
Although the Mauritanian commission's mandate broadly includes responsibility for "the conception, promotion, and implementation of a national policy on human rights, the fight against poverty, and social inclusion" and, in the hands of a dynamic commissioner, could take on more human rights protection activities. However, conversations with the existing staff suggest that the Mauritanian commission may adopt a non-controversial approach without much collaboration with the local human rights NGO community. Although it is too early to make any definitive conclusions about this commission, some of the early signs indicate the emergence of a weak institution without autonomy of action.
The Commission Nationale des Droits de l'Homme [National Human Rights Commisson] was established in Rwanda through National Assembly legislation in March 1999, and several months later seven commissioners were elected. Two of the seven commissioners have prior experience in human rights work.
A national human rights commission was foreseen as far back as August 1992 in a protocol drafted by the Rwandan government and the Rwandan Patriotic Front, which was then making war against it. This protocol and others formed a final peace agreement known as the 1993 Arusha Peace Accord. Following its defeat of the Rwandan government in July 1994, the Rwandan Patriotic Front organized a new government which took the Arusha Accord and the existing Rwandan constitution as the law of the country. Despite the early commitment to a national human rights commission, it took five years for the national assembly to pass enabling legislation in March 1999 for the creation of the human rights commission.
The mandate of the Rwandan commission is extremely broad: "To investigate and follow-up on human rights violations committed by anyone on the Rwandan territory, especially State organs and individuals under the cover of State organs as well as any national organizations working in Rwanda." However, its capacity to get enforcement of its recommendations is weak. It is unclear if the Rwandan commission's mandate is only to inform authorities who will then begin judicial proceedings or if the commission itself may initiate proceedings. The Rwandan commission is unable to summon and interrogate witnesses nor can it compel testimony. It is also unclear whether the commission has access to restricted locations in the course of an investigation. In a work plan presented in October 1999, the Rwandan commission specified that in addition to investigating current abuses, it would be investigating past abuses. Given that the past decade has included the 1994 genocide, as well as a number of massacres by state and non-state actors both before and after, investigating these violations appears to be an overly ambitious reach.
It is too early to tell whether the Rwandan commission will function independently enough to help improve the human rights situation. Given the strong governmental links of the majority of its members, the Rwandan commission may prefer to work through personal contacts behind the scenes rather than through public criticism of abuses. While this may help resolve individual cases, it will do little towards developing an institutional culture of respect for human rights in Rwanda.
Legislated but not founded: Ethiopia, Mali, Niger and Central African Republic
Four more African countries have passed legislation for the creation of a human rights commission, but have yet to form them. The passage of laws for the creation of human rights commissions occurred in Ethiopia in 1995, in Mali in 1996, in Niger in 1998, and the Central African Republic in 1999. At the start of 2000, none had been set up.
Ethiopia has had a constitutional provision for a national human rights commission since 1995, yet some five years later continues to delay its creation pending consultative meetings and public debate. The 1995 Constitution came about as part of a transition to an elected federal system of government in the aftermath of a long and brutal civil war. The National Human Rights Commission is provided for under the 1995 Constitution which stipulates that the Council of People's Representatives "shall establish a Human Rights Commission and shall determine by law its powers and its functions." Article 55-15 of the constitution also provides for the government to establish an ombudsman. However, the constitution does not set a deadline by which either institution should be established.
The Ethiopian parliament appears eager to establish both bodies before elections scheduled for May 2000. A draft document on the establishment of a Human Rights Commission and Office of the Ombudsman was published by the parliamentary legal affairs standing committee in several local languages, and was distributed to the public in mid-1999. Public participation is sought in the definition of the principles, practice, structure, mandate, leadership and status of the two institutions. The chair of the legal affairs committee of the house of representatives, Abdel Aziz Abdi, has said that a law to establish both bodies will be drafted and tabled before Parliament incorporating the feedback from the public debates. The two institutions, according to the chairman, are expected to be functional in 2000.
Large sums of funding to support the consultative process have been forthcoming from a variety of international donors, including the Canadian government which donated 1.5 million birr [approximately U.S.$200,000] to facilitate the public discussions on the document. While a broad consultative process with international support is to be encouraged, the fact that the Ethiopian government has taken over four years to comply with the constitutional provision for a human rights commission, while excluding local and international human rights NGOs from the lengthy consultation process, signals some worrying signs at this early stage of the process. Furthermore, within Ethiopia at this time, serious problems remain in the government's human rights practices, and the government continues to refuse the registration of some NGOs. In 1999, the government denied a Human Rights Watch delegation visas to enter the country. These factors combined raise serious questions about the government's intent to form an autonomous human rights commission. The international donor community's willingness to unconditionally provide huge sums of money to the Ethiopian government, without raising concerns about the exclusion of local and international human rights activists in the process, is also of concern.
In 1996, the Prime Minister in Mali issued Decree no. 96-149/P-RM for the creation of a Commission Nationale Consultative des Droits de l'Homme [National Human Rights Advisory Commission]. The legislation calls for the commissioners to be appointed from different sectors of society, among others, human rights NGOs, unions, religious communities, legal organizations, medical organizations, and human rights experts. Under Article 2 of the Decree, the commission is responsible for promoting human rights through the preparation of the government reports prepared for submission to international organizations; for ensuring that national legislation is compliant with international human rights standards; for human rights education on international human rights standards, including in the schools and universities; and for making recommendations to the government on all human rights matters. As of February 2000, the Malian human rights commission had still not been created, three years after the decree.
In Niger, article 33(2) of the constitution calls for the creation of a national human rights commission.12 The national assembly passed enabling legislation no. 98-55 in December 29, 1998, with the terms of reference for the Commission Nationale des Droits de l'Homme et des Libertés Fondamentales [National Commission on Human Rights and Fundamental Liberties]. This law was promulgated by the former president of Niger, Ibrahim Mainassara Baré, who was killed three months later in a coup that threw the country into institutional paralysis. As of February 2000, the Niger human rights commission had still not been founded.
In 1999, President Ange Felix Patasse of the Central African Republic passed a decree setting up the Haut-Commissariat chargé des Droits de l'Homme et de la Promotion de la Culture Démocratique [High Commission for Human Rights and the Promotion of Democratic Culture].13 Since an army mutiny in 1996-1997, a U.N. peace-keeping force of some 1,000 troops was deployed to the Central African Republic in 1998 to assist the government in maintaining law and order and strengthening the national reconciliation process. In December 1999, the U.N. began to withdraw its forces over a three month period. The government's human rights record remains poor, including extra-judicial killings by the security forces, police torture, harsh prison conditions, and limits on judicial independence. Political opposition figures, human rights activists, and the independent media are periodically harassed by the government.14
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