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Protectors or Pretenders? - Government Human Rights Commissions in Africa, HRW Report 2001



International Standards: The Paris Principles

Important Factors

Examining the Record in Africa

Innovative and Positive Contributions by Commissions

Regional Iniatives

The Role Of The International Community






      State-sponsored national human rights commissions represent a new vogue among governments, and particularly in Africa. The number of state human rights commissions has multiplied across the continent in the past decade, spreading from one country in 1989 to two dozen by 2000. The trend has been nurtured by financial and technical support from donor governments and the United Nations (U.N.), who appear to view the phenomenon as a manifest contribution to human rights protection. The U.N. High Commissioner for Human Rights has made national human rights institutions a major policy priority. The proliferation of national human rights commissions, including many established in highly repressive states, poses a dilemma for human rights activists more accustomed to challenging the state than collaborating with it: Are these state-sponsored human rights bodies to be met with suspicion and distrust or should this development be encouraged and supported?

      At a time when many in the nongovernmental human rights world perceive national human rights commissions with skepticism, the U.N. and donor governments are actively championing the creation of these bodies. Prompted by the divergent views, and the increasingly prominence of national human rights commissions both regionally and for the U.N., Human Rights Watch has compiled this analysis of the activities of the national human rights commissions in Africa over the past decade. This report only concentrates on human rights commissions, and does not look at other bodies such as ombudsmen, task forces, or truth commissions which also play an important role in upholding respect for human rights.

      This report examines how, and whether, the various human rights commissions set up by African governments are contributing towards the protection and promotion of human rights in their countries. Though many of the commissions are young, there is already evidence to indicate both the greatest potentials and failings. The report contains recommendations to African governments to strengthen existing commissions, to the donor community to tailor and condition their aid more carefully to foster more effective commissions, and to the Office of the U.N. High Commissioner for Human Rights to evaluate its wholesale endorsement of these institutions more carefully.

      By the start of 2000, some twenty-four African countries had provisions in their laws for a national human rights commission of some sort: Algeria, Benin, Cameroon, Central African Republic, Chad, Ethiopia, Ghana, Kenya, Liberia, Malawi, Mali, Mauritania, Morocco, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Sudan, Togo, Tunisia, Uganda, and Zambia. Of those, twenty had been created. The exponential growth of these human rights commissions in Africa has been a marked feature of the 1990s, alongside the seemingly intractable civil strife and authoritarian rule that has plagued much of the continent. Virtually all of Africa's human rights commissions have been created in the 1990s, the bulk after 1995. Most are very new creations, and by 2000, four had yet to be established, in Central African Republic, Ethiopia, Mali, and Niger. The proliferation of national human rights commissions is a sign that African governments, including some of the most repressive, appear to be accepting the international human rights discourse and an acknowledgment that human rights protection should be a part of their government portfolio.

      Under international law, the promotion and protection of human rights is a key responsibility of governments. At a national level, rights are protected through, among other things, legislation, an independent judiciary, the enactment and enforcement of individual safeguards, and the establishment of democratic institutions. Another means through which governments can seek to protect human rights is through the establishment of an autonomous national body, such as a human rights commission, that functions independently of other government agencies to work for laws and practices concerning human rights to be effectively applied by the government.

      A set of international standards (the Paris Principles), adopted by the U.N. General Assembly in 1993, provide a framework with the requisite standards to best ensure an effective national human rights institution. The Paris Principles constitute the primary standards applied by the U.N. and are used as measure for national human rights institutions, including human rights commissions. Among other things, the Paris Principles advance the importance of a broad mandate, a constitutional or legislative founding statute, an independent appointments procedure, and adequate funding.

      While the aim of the Paris Principles is to ensure as much autonomy from government, particularly the executive, the truth of the matter is that national human rights commission often find it difficult to operate wholly independently of the government. That is its strength and its weakness. By being a part of government, a national human rights commission may lend legitimacy to human rights, whether or not it is the state's intention. Even in the most repressive regimes, the establishment of an official state body devoted to human rights may, on occasion, create an official space for a human rights discourse and may foster greater, even if limited, activism and awareness. A national human rights commission may have access to restricted information or locations, such as prisons, and demand a higher level of accountability from government agencies than nongovernmental groups. A hard-hitting statement or document issued by a government body constitutes an official acknowledgment of a problem that is much more difficult for the executive branch to dismiss. Human rights commissions can build a bridge between nongovernmental organizations (NGOs) and the government, extending an umbrella of protection to NGO human rights defenders. Finally, sometimes commission members take their job more seriously than ever was intended and turn a human rights commission from window dressing into an agent of change.

      The potential weaknesses of human rights commissions are self-evident: They may be flawed at the inception, hobbled by statute, or controlled through funding or staffing. Certainly, a number of human rights commissions have been created to foster only the appearance of concern and to forestall domestic or international pressure. Others are given limited powers, pressured into silence by the executive branch, or manipulated to serve as a mouthpiece for the government. Control over the selection of members can lead to compliant and beholden commissioners without human rights experience or interest. In more invidious cases, human rights commissions may actually undermine the work of the NGO human rights community either by denouncing their findings or by remaining strategically silent to attacks on human rights defenders.

      As this report demonstrates, the human rights commissions in Africa present a mixed picture. For the most part, they have proved to be a disappointment. Many have indeed been formed by governments with dismal human rights records, weak state institutions, and no history of autonomous state bodies. Some appear largely designed to deflect international criticism of serious human rights abuses. They have been formed with flawed mandates and weak powers that limit their ability to effectively investigate, monitor, or make public statements. Others have been staffed with commissioners who are unwilling or unable to protest abuses because they are either beholden to the executive or fearful of reprisal. The vast majority of commissioners appointed have no prior experience or training in human rights standards or work, and most commissions in Africa are under-funded and urban-based. In some cases, the work of the commission is not public and statements made by the commissions are difficult to obtain. Others have yet to fully carry out their work, due to pending enabling legislation, delays in staff appointments, or inadequate funding.

      Even where the human rights commissions in Africa function well, they may have limitations. For example, some tend to avoid politically sensitive issues and focus on general education and human rights promotional activities. If they report on violations, they appear more inclined to focus on non-political problems, and are less responsive to deliberate politically motivated rights violations. In a number of cases, including Cameroon, Chad, and Togo, commissions have become less outspoken over time in response to government pressure. Although in most cases, a record of inactivity is linked to political repression, there are some examples, as is the case of Benin or even Senegal, where despite a certain degree of democratic openness, the human rights commissions have paradoxically not achieved as strong a record of activity as expected.

      The self-imposed limitations placed by human rights commissioners on their own work are all the more glaring when compared to the activities of many of the nongovernmental human rights groups, often carried out under even more difficult working conditions. A few of the most progressive national commissions, including Ghana, Senegal, and South Africa work closely with the NGO community. But they are still rare. In some cases, commissions have actually sought to downplay the work of nongovernmental human rights groups by publicly attacking them or remaining silent in the face of attacks against human rights defenders as has been the case in Togo, and Kenya.

      Yet the activities of the more promising commissions are proof that these state bodies have the potential to contribute positively to strengthening the human rights culture. The Ghanaian, South African, and Ugandan commissions-a testament to the integrity of those commissions' members-appear to be the most promising in their willingness to actively speak out strongly against government abuses and to exhibit their independence in the interest of protecting the rights of their citizens. Although it is still early, the Malawian and Senegalese commissions also show promise. There also other silver linings among the clouds. Sometimes, in the most unexpected of places, Human Rights Watch found that commissions had made a difference. In Togo, Africa's oldest human rights commission-currently an apologist for government policies-is credited with being the pro-democracy catalyst in the 1990s that led to a national conference, a new constitution, and a relatively more open society. Others have sought ways to overcome the obstacles placed in their way by the government. In Nigeria, even under authoritarian military rule, the human rights commission, which lacked credibility as an independent monitoring body, carried out some useful work in less politically sensitive areas, in particular prison conditions, and provided some measure of protection to national human rights NGOs under severe attack by the military government. In Zambia, despite structural and financial limitations placed on it by the government, the human rights commission has taken its mandate seriously.

      For many years, the NGO human rights community has adopted a pragmatic approach to human rights commissions and has tended to examine them on a case by case basis, celebrating their work when they engage in active promotion of human rights and dismissing them when they serve the ends of a resistant government. Regionally and internationally, the approach has been more embracing in supporting and encouraging their establishment in all countries. International support for these bodies has been an important factor in spurring African governments to create commissions. This makes it all the more important to analyze the role that the international community is playing in this development.

      At the regional level, the African Commission on Human and Peoples' Rights is increasingly encouraging member states to create national human rights institutions, and is setting up rules for government human rights commissions to obtain observer status. Among themselves, national human rights commissions are meeting regionally to coordinate and exchange ideas. While this emerging regional initiative is a positive development that should be encouraged, it could be used more effectively to provide greater advice, support, and even protection to its member groups.

      At the international level, the Office of the U.N. High Commissioner is making the creation and promotion of national commissions a priority. A special advisor is tasked with providing technical advice and material assistance to governments on national human rights institutions. Support and advice from the U.N. is more heavily concentrated at the early stages of the process, encouraging states that are thinking about setting up a human rights commission and providing valuable advice to commissions that are starting up. Critics of the U.N. human rights apparatus have noted a tendency to promote human rights education and "technical cooperation" at the expense of critical reporting. This is the case with regard to human rights commissions. The enthusiasm for their establishment has not been accompanied by a corresponding vigilance by the U.N. for the role that they play following their creation. Pressure and condemnation of compliant and weak human rights commissions by the U.N. High Commissioner for Human Rights is unheard of (even though the High Commissioner does not shy away from publicly condemning governments with similarly weak records on occasion).

      Most human rights commissions in Africa have been subsidized by bilateral funding from donor governments and independent foundations. However, international assistance to existing commissions is often neither based on the record of a commission nor conditioned on the creation of a strong independent commission. Given the post-Cold War priority given to human rights, national human rights institutions have become an acceptable way to give donor support to governments, however bad their human rights record, while ostensibly supporting human rights. Another key donor is the U.N. Development Program (UNDP), an agency that traditionally works closely with governments in promoting sustainable development and which, recently, has begun to fund some human rights commissions as a result of a policy shift to more actively incorporate human rights projects into their work. However, UNDP funding to human rights commissions appears to be somewhat ad hoc, depending on the resident representative in the country, rather than a more comprehensive initiative to strengthen only credible human rights commissions based on their record of activity and to decline support to compliant commissions.

      An examination of the broad variety of human rights commissions and their different experiences in Africa defies any definitive or pat conclusions. It remains to determine whether each case is simply sui generis, defying generalization and comparison, or whether there are useful criteria for evaluating the chances of a human rights commission's success. Some of the variables that emerge are: the relative financial and political independence of the commissions, the legal tools at its disposal, the dynamism of its leadership, pluralism among its members, transparency in its operations, publicity given to its actions, and most importantly, the willingness of the commission to respond to violations. In each country, the different mix of these, and other, factors results in unique situations, that may or may not evolve over time.

      It is our hope that highlighting the positive contributions being made by some human rights commissions in Africa will serve as a catalyst for other less active commissions, and will result in greater international support to those commissions with a proven or promising record. While Human Rights Watch will continue to encourage support for more active and independent commissions, we have not shied away from being critical of commissions that abrogate their responsibilities. The unfortunate truth is that many of the human rights commissions set up by African governments sit by silently in the face of serious abuses against the citizens they are entrusted to protect. These commissions should be exposed for what they are, and should not receive the same international support as the more active and legitimate commissions.

      It is a mistake to equate the creation of a national human rights commission, in and of itself, with greater respect for human rights. Based on the record, it is clear that human rights advocates need to think more carefully about the strengths and limitations of these bodies. For each country, there must be a greater reflection by governments and the international community as to whether a national human rights commission is the most effective means to promote human rights within the specific political or cultural context. Second, greater efforts should be made to push existing human rights commissions that are weak or compliant to take up their responsibilities.

      While there are emerging standards being put into place by the Office of the U.N. High Commissioner for Human Rights and some positive contributions being made by national human rights commissions, this development may be more complex than some enthusiasts would like to believe. If this phenomenon is to have lasting importance to the human rights movement, a more nuanced and advocacy-oriented approach needs to be adopted by governments, regional bodies, the U.N., and donors. Human Rights Watch hopes that this report will prompt proponents to take stock and be more circumspect about their headlong advocacy for these state-sponsored human rights bodies.

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