1. The world and Africa are celebrating International Human Rights Defenders’ Day on 9 December 2023. It is an opportunity to refresh, with a fresh coat of paint, the ageing walls of the noble enterprise of defending human rights on the continent. For once again, 2023 will have been an annus horibilis in this area.
2. First of all, several African governments have not hesitated to violate Article 5 of the African Charter on Human and Peoples' Rights by bloodily repressing the work of human rights defenders. From North to South, through the Centre, from East to West, lives have been cut short, careers shattered and families mourned. Against this background, lawyer Thulani Maseko paid the price. So did another lawyer, Cherubin Okende, including others. The anticipated investigations have not yet been completed. Responsibilities have not been established. Impunity still prevails in every country.
3. In my capacity as Special Rapporteur on Human Rights Defenders, entrusted with this mandate by the African Commission on Human and Peoples' Rights, I condemn in the strongest terms these attacks, which contravene the United Nations Declaration on the Protection of Human Rights Defenders, adopted in 1998 by all the States of the world.
4. In doing so, even if they are not legally obliged to do so, they have made a moral commitment to respect, protect and fulfil the work of human rights defenders, particularly those in Africa. The theory of the closed or strange loop [This doctrine was designed by the Special Rapporteur himself in his academic paper presentations at the University of Kinshasa.] provides useful lessons on this subject, making it possible to maintain the cohesion of all the players in public international law over the long term and ensure its viability: "it is the international organisations that proclaim human rights with the aim of protecting individuals against the States that created the said International Organisations". Human rights therefore belong to individuals and must be defended when States fail to put them into practice.
5.The impunity that reigns in this sector, and the rise of State delinquency in this area, can only arouse indignation. The intolerance of States towards the work of defenders is in itself an indication of their inability to manage the Res Publica in a transparent manner, even though they have been given the task of leading it to better destinations (in this case Agenda 2063). It is incomprehensible that governments are still inclined to think that human rights defenders are institutional troublemakers, supporters of opposition or foreign forces, enemies of law and order, and so on.
6.The Rapporteur would like to point out in this regard that the State as a whole, in its institutions, is made up of public defenders of human rights. Otherwise, it would be breaking the social contract on which its legitimacy is founded. There are no members of the executive who are not first and foremost defenders of rights. There are no members of parliament or senators who are not primarily defenders of rights. Similarly, there is no magistrate (sitting or standing) who is not fundamentally a defender of rights. The same can be said for public administrations (and the civil servants who run them) who are tasked on a daily basis and paid to defend fundamental rights. Without complaining about it, and for the work they do, their lives are rarely put in danger, just by the presumption that being from the public sector, they are by principle, defenders of public interests that they cannot betray.
7.Conversely, when the same work is carried out by non-State actors who are not in the service of the State, their lives are threatened, reprisals organised and attacks carried out against them. The Special Rapporteur is doing his duty by denouncing this approach, which is discriminatory to say the least. For him, a State that defends human rights is a State that respects, achieves and protects these rights. All it takes is a non-existence of one of these three (3) functions for it to find itself in a different position of Defender when it has to do with individual Human Rights Defenders.
8.It is with good reason that an essential tool, the Model Law on the Protection of Human Rights Defenders, has already been made available to States, in pursuance of the aforementioned United Nations Declaration, to enable them to adopt a legislative or regulatory framework for the protection of human rights defenders. In West Africa, in the ECOWAS zone, the business model proposed in this way soon met with a favourable response. This is an opportunity to congratulate Côte d'Ivoire, Burkina Faso, Mali and Niger, which have already put in place protective legislative frameworks. In Central Africa, in the ECCAS zone, the Democratic Republic of Congo has recently (second half of 2023) paved the way. While congratulating these two zones, I would like to take the opportunity of this Anniversary to encourage the other zones to do the same.
9.It was also with good reason, and in order to speed up this process, that I requested the Commission which agreed and adopted a resolution on the need to adopt an African Declaration on the Protection of Human Rights Defenders, trying to make the aforementioned United Nations Declaration more concrete and alive, taking into account common African values, cultures and traditions. The comments of the stakeholders consulted (States, National Human Rights Institutions, Non-Governmental Organisations and plural civil society, African citizens, etc.) will lead to an agreed text which will be submitted for final validation by the Commission in the next few days.
10.The African Charter on Human and Peoples' Rights, the Maputo Protocol and the Kampala Protocol cannot be self-executing without the work of Human Rights Defenders in all sectors. The same will be applicable if the Protocol on Older Persons and the Protocol on Persons with Disabilities come into force in the next few years. The numerous decision-making or recommended standards formulated by the Commission are not asking for much. And so does the Commission's impressive body of case law covering 40 years of protection work.
I would like to wish all the Human Rights Defenders in Africa a happy birthday. I hope that 2024 will be an annus mirabilis for them all.
Rémy Ngoy Lumbu
Special Rapporteur on Human Rights Defenders
Focal Point on Reprisals in Africa
Focal Point on Judicial Independence in Africa