Mr Chair of the African Commission on Human and Peoples rights
Your Excellencies
Distinguished guests
All other Protocols duly observed,
I feel greatly honoured by your invitation Mr. Chair of the African Commission to attend and deliver statement at this 73rd Ordinary Session of the African Commission on the trajectory of the Commission which is also marking and celebrating the 35th anniversary of its operationalization. I join the Hon. Attorney General and Minister of Justice and others in welcoming you, the members of the commission and all our foreign guests to The Gambia, the country that has for the past 35 years been the seat and host for the Commission, one of the continents premier institutions supporting working towards the development of our continent on the basis of good governance and respect for human rights and the rule of law.
When at the OAU Summit in Monrovia Liberia in July 1979, the respected President of Senegal H.E Leopold Sedar Senghor, with the support of his colleagues the President of the Gambia Sir Dawda Kairaba Jawara and the leaders of Mauritania, Nigeria and Uganda tabled a resolution for the drafting of a charter to establish a Human Rights Commission for Africa, perhaps not many could foresee it resulting in perhaps the most fundamental and sustained development in African Union affairs which would come to make a difference in the lives of ordinary Africans and in governance on the continent.
OAU Resolution AHG/Dec.115 (XVI) adopted by that Summit requested the Secretary General of the OAU to ″organize as soon as possible in an African capital a restricted meeting of highly qualified experts to prepare a preliminary draft of an African Charter on Human and Peoples Rights providing inter alia for the establishment of bodies to promote and protect Human and Peoples Rights.″
Secretary General Edem Kodjo was quick to execute his mandate. For he convened a meeting of experts in Dakar, Senegal from the 28th of November to the 8th of December 1979, barely six months later to undertake the drafting of the charter. So it was that we met in Dakar, Senegal under the chairmanship of the distinguished Senegalese jurist Judge Kebba Mbaye – with Madam Angie Brooks Randolph of Liberia, John Moli of Uganda, Laki Ould Sidi of Mauritania, Mariam Ndiaye Coulibaly of Mali, Ibou Diakhite of Senegal, Mamadi Diawara of Guinea, Ousman Tanor Dieng of Senegal, Ibrahim Fall of Senegal, Maitre Mbake of Senegal, Semimega Fulgence of Rwanda, George Lamptey of Ghana, Peter Matanjuki and Amos Wako of Kenya, Maurice Glele of Benin, Elikunda Mtango of Tanzania, Abdullah Said Ousman of Somalia, Allexander Soikon from Nigeria, Guy Rajaonson and Honore Rakotomanana from Madagascar and my humble self from the Gambia.
Inspired and guided by the opening address of President Senghor in which he urged us inter alia to draw fro; Africa′s ″ beautiful and positive traditions’’ and to keep constantly in mind our values of civilization and the real needs of Africa ‘’amongst which that’’ Africans need a consistent system to promote and protect their rights and freedoms;’’ guided by the wisdom and experience of our distinguished Chair Judge Keba Mbaye as well as the weight and urgency of the mandate placed on us, the experts were able within ten days to present the Secretary General with a draft charter as requested by the Assembly of Heads of State and Government.
Ours had been essentially a technical process. Approval or adoption of the draft by the political organs and institutions of the OAU was essential. And so OAU Ministers of Justice convened in Banjul The Gambia from the 9th to 15th of June 1980 to consider the draft charter prepared by the group of experts. In his opening statement Sir Dawda Jawara President of the Gambia emphasized the historic responsibility on the gathering, the nee of provide for both civil and political rights as well as economic, social and cultural rights with the proper balance, above all the necessity of a workable mechanism to promote and protect all such rights throughout the continent. Absent such a mechanism, he emphasized, the mere re-statement of rights would not meet the needs and aspirations of the African leaders and of the African peoples. His statement was adopted as a working document of the conference. As was that of Edem Kodjo the OAU Secretary General.
I was privileged to be a member of the Gambian delegation to the conference as an expert adviser led by the then Attorney General and Minister of Justice Mr. M.L. Saho of blessed memory.
I recall this first session of the meeting of the OAU Ministers of Justice – for there had eventually to be a second one – as a difficult and very slow process. Factors ranging from ideological divergence, difference in legal traditions, ongoing interstate conflicts all seemed to converge to make the session an extremely difficult one. What seemed to me sometimes long, acrimonious and unnecessary debate on settled international legal concepts, such as the principle of self-determination, the right to private property etc clouded the atmosphere and clogged the proceedings. At the end of the session the conference had adopted only 11 of the 68 proposed articles of the draft Charter. There had been much expectation that the entire draft would be adopted at this meeting. A perhaps unreasonable expectation, given the very political nature of the process and the limited time available. However even the Heads of State felt there was room and a need for greater expedition in the work of the conference. For after their consideration of the report of the first Session the Assembly of Heads of State and Government meeting in Freetown Sierra-Leone in July 1980 urge:
″The Second Banjul Session of the Ministerial conference on Human and Peoples Rights to deploy every effort to complete the examination of the draft charter and to ensure that the final draft is submitted to the eighteenth Assembly of Heads of State and government.″
A deadline was thus set by the Heads of State for the conference.
The Second Session which convened in Banjul from the 7th to the 27th of June 1981 proceeded more expeditiously and was able to conclude the examination of the draft charter and to submit it to the Assembly. The decision of Freetown Summit, by limiting the role of the OAU Council of Foreign Ministers to merely making observations on the draft charter before forwarding it to the Assembly rather than reversing it, cut out a potential bottleneck and expedited the process. Thus the Council of Foreign Ministers transmitted the draft Charter without amendment with the report of the Ministers of Justice to Assembly meeting in Nairobi. The Assembly, following observations and comments by various delegates adopted the charter as presented by the Ministers of Justice without amendment on the 28th of June 1981. In recognition of the vigorous role of The Gambia in the elaboration of the Charter the Assembly adopted the recommendation of the Ministers to officially call the charter ″The Banjul Charter.″ This is a great honour to the Gambia, to its former Head of State Sir Dawda Kairaba Jawara and to the people of the country.
But it was a truly collective continental effort and a remarkable achievement. Tributes are due to the experts, the Ministers, the Heads of State who saw the need and the urgency for putting in place a continental system for the promotion of human rights and they asked vigorously to meet the need.
I have written more extensively elsewhere about the process and its challenges and how these were resolved.
In my book titled ″The Law pf the Banjul Charter on Human and Peoples Rights″. The challenges should not overshadow the fact that the drafting and adoption of the Banjul Charter was truly a revolutionary achievement. And an achievement attained in record time, unparalleled anywhere. From July 1979 to June 1981 – in just two years – the project had moved from proposal to actual adoption of the Charter on Human and Peoples Rights. And its entry into force effectively on 21st of October 1986.
But the Gambia Charter is even more remarkable in its features, than in the timeline of its evolution. Many of its features are, or were novel and even revolutionary. Novel and revolutionary in its concept of duties of the individual as accompanying individuals rights; in its coverage of both individual and collective Peoples rights; in its combination in one instrument as one and indivisible both civil and political rights as well as economic, social and culture rights; in its creation of a single system of promotion, protection and enforcement of both sets of rights; in its elaboration of a new generation of rights such as the right to peace, the right to a healthy and satisfactory environment, the right to development. A truly remarkable instrument, to this day.
The critical question of course is has the Banjul Charter made a difference to the lives of Africans?
I have no hesitation to say that in the thirty five years of its life it has indeed made a difference. The human rights and governance situation in Africa, despite current challenges, is a cry from the situation that obtained prior to the Banjul Charter and has indeed improved progressively.
The Charter has provided a mechanism through the commission for complaints on human rights and governance condition in Africa. And the mechanism has been working effectively, thanks to the indefatigable efforts of the commissioners and the individual citizens and civil society as attested to by the numerous cases dealt with by the Commission, its declarations as well as several other instruments adopted by African regional and sub regional bodies.
But the struggle for good governance and the protection of human rights is a continuous one. Some old challenges have been disposed of, others remain; new ones have arisen. We must be ready for that continuous struggle.
The primary responsibility for ensuring good governance and respect for human rights lies with the States Parties to the Charter. The first step in ensuring that compliance with the charter by governments and others must be through the domestication of the charter, the integration of its provisions into the municipal law of each State. This will ensure that national judicial and Law enforcement agencies have the requisite authority to enforce at the national level the international legal obligations undertaken by the State under the Charter. So long as there is a failure in this respect, the somewhat distant international process such as the Commission may remain the only available effective remedy for complainants.
States parties should also ensure full compliance with the decisions and recommendations of the Commission. They are obliged to do so under the Charter and must live up to their obligations. Civil Society should not hesitate to put pressure on those states which flout such decisions and recommendations. The political organs of the African Union should also be seen to take concrete measures against such erring states. There’s little or no point in having a mechanism if its decisions are respected more in the breach than the observance. The phenomenon of unconditional governments which undermines the very foundation of good governance and human rights is again rearing its ugly head, particularly in the West Africa sub region. Firm and resolute measures must be taken to stamps it out and to restore sovereignty to the people to enable them enjoy the full plenitude of the rights guaranteed to them by the Charter.
The promise of a better life held out by the Charters guarantees of economic, social and cultural rights such as education, health employment remain a distant dream for many of our citizens, particularly the young.
This despite progress made over the years. There is no greater manifestation of this despair than the tragic loss of hundreds, if not thousands, of our young able-bodied citizens the future of our continent, who perish in their desperate journeys to find better lives elsewhere. We have to make real the charter’s promise of a better quality of life for our people and make our countries more attractive for our population, especially the young with better prospects for education, health, employment and business amongst others.
We should strengthen the capacity of the Commission with adequate resources for it to more effectively discharge its important mandate.
Furthermore we should encourage all African Union member States to become full parties to the African Court on Human and Peoples Rights with acceptance of the Jurisdiction of that court to entertain individual complaints. A well-functioning Commission and a Human Rights Court with such competence and continental coverage will, together, 0020 greatly enhance the implementation of the Banjul Charter as well as the other African regional human rights instruments.
In the years following the adoption and entry into force of the Banjul Charter, indeed of the operationalization of the African Commission, the African continent has been the scene of several mass atrocities-genocide, crimes against humanity as well as war crimes. Rwanda in 1994. Sudan. The Democratic Republic of Congo (DRC). Liberia. All have been the stages for the most egregious of human rights violations in modern times. Ensuring justice for victims and the accountability of perpetrator has been largely by the interaction of the interventional community through ad hoc tribunals, hybrid tribunals and extraordinary chambers or extraordinary jurisdictions within national legal systems.
Whilst the mechanism of the Banjul Human Rights Charter can play a useful role in monitoring such violations and providing justice to victims, it is not equipped to secure the accountability of the perpetrators of mass atrocities. Yet such accountability is an important and indispensable element of the process of justice and of reconciliation in post conflict situations.
The international Criminal Court (ICC) to which the majority of African States are party has a limited mandate as a court of last resort, focusing in the prosecution of leaders whom national systems are unable or unwilling to bring to account. National systems at the best of times are overloaded and at worst damaged by conflicts. Rwanda has been a notable exception, rebuilding its national legal system and empowering both its traditional court system in the Gaccaca and its conventional Courts to play an effective role in securing the accountability of perpetrators of the 1994 genocide. It seems the time is ripe once more for Africa to rise and devise, as, it did between 1979 and 1981, a system for addressing a pressing human rights issue i.e. ensuring effective local regional accountability for perpetrators of mass crimes. We must not allow the distance of the international criminal courts and the weakness of our national legal systems to create an impunity gap through which perpetrators work freely the expansion of the jurisdiction of already existing African sub regional courts such as the ECOWAS COURT OF JUSTICE, the East African Court of Justice and the SADEC court to empower them to try perpetrators of such crimes can contribute significantly to closure or reduction of impunity and promote justice and effective accountability at the local level for egregious human rights violations.
So as we mark the 35th Anniversary of the establishment of the African Commission on Human and Peoples Rights, Africa has cause to celebrate: Celebrate the remarkable achievement of the adoption of the Banjul Charter on Human and Human Rights; celebrate the outstanding work, despite numerous challenges, of the work of the African Commission in promoting and protecting Human rights in Africa as well as of civil society and of supportive states parties.
Challenges of course do remain and new ones are arising. We must face up to those as well, with the predecessors demonstrated in the decades of the 70s and the 80s.
I thank you for your attention.
