15 November 2021
His Excellency, Moussa Faki Mahamat, Chairperson of the African Union Commission ably represented by His Excellency Ambassador Bankole Adeoye, AU Commissioner for Political Affairs, Peace and Security;
Excellencies Representatives of States Parties to the African Charter and African Union Member States;
Her Excellency, Michele Bachelet, United Nations High Commissioner for Human Rights;
Distinguished President of the African Court on Human and Peoples’ Rights;
Mr. Eamon Gilmore, European Union Special Representative for Human Rights;
Deputy President of the Network of African National Human Rights Institutions;
Mrs. Hannah Forster, Representative of the NGO Steering Committee;
Representatives of National Human Rights Institutions;
Representatives of International and National Civil Society Organisations;
Distinguished invited Guests;
Ladies and Gentlemen;
May I start by wishing you all a very good morning or good afternoon from wherever you have joined us today.
It is my pleasure to welcome you all to this 69th Ordinary Session of the African Commission on Human and Peoples’ Rights.
Excellencies, distinguished participants
The commencement of this 69th ordinary session of the Commission standing at the end of 2021 represents an important occasion in terms of both the state of human and peoples’ rights in Africa and that of our own Commission and the African human rights system in general. As you all know this year marks the 40th year since the adoption of the African Charter on Human and Peoples’ Rights (African Charter), the founding treaty on which the edifice of the African Commission and indeed the African human rights system in general is installed. As the year 2021 also comes to a close, we need to review how the human rights situation of the continent fared during the year.
We also stand on the eve of the 20th anniversary of the African Union (AU). As you all know the AU came into operation in 2002. Given that the establishment of the AU led to paradigmatic normative changes, the review of its two decades of operation in 2022 would among others require an assessment of the gap between the human and peoples’ rights commitment of the continental body and its practice.
Personally, for me, this session marks the end of both my first term as a member of the African Commission and my two year’s term as Chairperson of the Commission. It is only appropriate that I briefly report back on the work that has been accomplished vis-à-vis the schematic plan that I set out upon my election two years ago in November 2019.
Excellencies, comrades, dear sisters and brothers
When opening the NGOs forum last week, I pointed out that we are in a time of one of the worst recessions in terms of respect for and protection of human and peoples’ rights on our continent. There is little dispute that we are indeed in such state of regression. Developments that substantiate this abound. They range from violations that may be considered inevitable in any state such as those violations of the liberty and due process rights of citizens on account of faults or inadequacies of institutions of law enforcement and administration of justice to violations that result from the deliberate acts or omissions of state institutions.
The shrinking civic space continues to be worrisome in many parts of the continent. At one level this is a product of the misuse and misapplication of certain laws and the politicized use of security institutions for intimidating, assaulting, jailing and silencing of opposition political actors, human rights defenders and activists and the media and journalists. This has been in the making during the past decade. But, the sweeping restrictions introduced in response to the COVID19 pandemic and the abusive application of such restrictions have made the already shrinking civic space worse. The propensity of social media to give prominence to hardliners that advance extreme views and hence to fuel polarization has confounded the situation further by enabling those propagating populist nationalism, bigotry, xenophobia to dominate the space and the narrative and thereby by crowding out moderate views. Accordingly, the threat for the civic space in Africa comes both vertically from the state and horizontally from the way communication technology is designed, deployed and used.
Relating to the shrinking civic space and the major factor behind this situation is the growing democratic deficit on the continent. Despite some good examples, the overall trend on the continent in terms of democratization is one of regression. Like other parts of the world, democratization in Africa has continued to deteriorate. According to the 2021 report of Freedom House, the number of countries in Africa that are ‘not free’ has increased from 14 in 2006-08 to 20 in 2021 and only seven countries, mostly small island countries, on the continent are ranked ‘free’, the lowest figure since 1991. The 2020 Mo Ibrahim African Governance Index, finds that over the past decade, 20 countries, home to 41.9% of Africa’s population, have experienced declines in indicators that measure security & rule of law (-0.7) and participation, rights & inclusion (-1.4).
Authoritarianism is on the rise. However, today’s authoritarians have become adept at using the façade of elections and using the language of human rights and good governance while manipulating popular sentiments and instrumentalizing the fears, grievances and insecurities of various sectors of society to deflect criticism for their appalling human rights record. They are good at externalizing their failures and ineptitude. At the same time, elections are increasingly being held in an environment characterized by insecurity, fear and violence, often orchestrated by the incumbent as a means of winning elections.
This year has also witnessed the resurgence of military seizure of power. In 2019 and 2020 , only one successful military seizure of power in Sudan and Mali respectively. 2021 was marked by four successful cases of military seizure of power (Chad, Mali, Guinea and Sudan), leading to the suspension of constitutional processes and the dissolution of the legislative and executive branches of government. It was in this context that Nigeria’s vice president warned that ‘We are sliding back to the infamous 1960s.’
I wish to reiterate the concern that the Commission expressed in respect of each of these conditions that military coups are contrary to fundamental rights and democratic principles including Articles 13 and 20 of the African Charter. We reject and condemn the overthrow the civilian government in Sudan and join the AU and others in the international community in calling the reinstatement of the civilian government and restoration the transitional constitutional declaration.
Also of significant concern for us at the African Commission are the use of excessive force by security forces. These have been witnessed, among others, in Chad, eSwatini and Sudan.
We strongly condemn the use of lethal force by security forces in violation of the standards of the African Charter and reiterate our calls for the authorities in eSwatini to fully respect the right to peaceful protest and investigate reports of deaths and injuries resulting from excessive use of force. We look forward to the opportunity that the presentation of the periodic report of eSwatini presents us during this 69th ordinary session to engage the delegation of eSwatini on these issues.
As the African Commission, we also once again express our grave alarm about the increasing frequency, spread and brutality of terrorism related violence on the continent and kidnappings for ransom. Apart from the violations that terrorist attacks produce including indiscriminate killings and forced displacements, counter terrorism operations are also leading to deliberate or mistaken killing and the perpetration of rape and sexual assault targeting civilian.
We strongly condemn the recent terrorist attack in Niger earlier during this month that led to the death of at least 61 people. We reiterate our profound concern about the recurrence of kidnappings for ransom in Nigeria which affected more than a thousand people since the beginning of the years. We also condemn the deliberate or negligent killings of civilians during counter terrorism operations in the Sahel involving the security forces of countries such as Burkina Faso, Mali, Chad, Cameroon and Niger and the French operation Barkhan, while welcoming the work of national human rights institutions in Burkina Faso and Chad in investigating and reporting on these incidents of violations. We also urge that other national human rights institutions emulate the work of these institutions for investigating and reporting on such issues in countries such as Mozambique.
It is also disheartening that apart from terrorism related violence there has been increase in other conflicts-based violence in many parts of the continent with disastrous consequences to the lives and wellbeing of many people. We reiterate our continued concern about the conflict situations in Cameroon, the Democratic Republic of Congo, Ethiopia, Mali, Niger, Nigeria, South Sudan and Sudan.
Excellencies, distinguished participants
The foregoing cases represent only a sample of the worrying trends in the state of human rights on our continent. The situation is much bleaker than what these cases exemplify. As I pointed out in my opening address to the Forum of National Human Rights Institutions last week, we are also at a time when we are witnessing unconscionable acts of violence that paint stains on our collective conscious. We are witnessing examples of such atrocious violations in the ongoing war in Ethiopia, whose intensity and geographic spread continues to put the lives, bodily integrity, peace and security and livelihood of millions of people in grave peril. As the situation spirals out of control – in the face of the collective failure of national, continental and international actors to muster the will, courage or imaginative capacity for ending the war –, the worsening polarization, irresponsible propagation of hate and ethnic profiling as well as the recent spike in ethnic based arrests have made the risk of mass atrocities alarmingly imminent.
We therefore call for urgent actions to be taken to reverse the course of these developments to avoid these grave risks of mass atrocities from materializing and hence pushing the people of the country into further calamity. We join the call of the AU and the international community for urgent cessation of hostilities. In this respect, the African Commission wishes to remind conflict parties that they have obligations under the African Charter to take appropriate measures for peace and security under Article 23 of the African Charter, including, among others, by collaborating fully to initiatives for mediation and peace-making.
Our Commission also continues to be concerned by the consequences of the COVID19 pandemic, including its socio-economic and humanitarian impacts. The structural weaknesses that the COVID19 pandemic exposed highlight the need for urgently rectifying the neglect by the social and economic policies of our societies as well as by the human rights system of the centrality of socio-economic rights.
Ladies and gentlemen
As we mark the 40 years anniversary of the African Charter, we are reminded that the African Charter was also a response to, as one historical study on the political background of the African Charter put it, ‘the shame and embarrassment’ that some African leaders felt about the activities of some governments, in particular those of Amin, Bokassa and Nguema. This is best illustrated by what the Chairperson of the OAU President Tolbert said in 1979 in his opening address to the AOU summit - ‘the principle of non-interference had become 'an excuse for our silence over inhuman actions committed by Africans against Africans...The provisions concerning human rights must be made explicit.’ That this shame and embarrassment was a factor behind the OAU decision for the elaboration of a ‘Charter on Human and Peoples’ Rights’ was buttressed by the late Adem Kojo, then the Secretary-General of the OAU. He said the African Charter ‘came about as the result of the ordeals which certain African peoples had suffered at the hands of their governments.’
The nature of the challenges that we face today are not ordinary. I actually believe that the human rights issues we face in our time actually threaten the very core of human and peoples’ rights. The growing gap that these human rights issues have created between the promise of the Africa Charter based human rights system and the realties on the ground are rendering human rights hollow, creating very serious legitimacy crisis.
This is why I wish to reiterate the point I made during this year’s Africa Human Rights Day celebration that we should feel the same ‘shame and embarrassment’ that prompted our predecessors into rejecting the indignities facing the people of the continent by adopting the African Charter 40 years ago or the transformation of the OAU to the AU two decades ago. This outrage should lead us to insist that Article 4 of the Constitutive Act is fully implemented so that the AU avoids the risk of totally betraying the rairson d’etre for its very existence as enunciated in the objectives and principles of its Constitutive Act.
These issues put a spotlight on the role and effectiveness of human rights institutions at both the national and continental levels. They challenge the will, courage and capacity of each of these institutions. They highlight the limits of the leadership and skills of these institutions individually and collectively. We are at another inflection point.
We cannot therefore deal with these issues in a business-as-usual fashion. The extraordinary nature of the situations necessitates extraordinary approaches. Nothing less than revisiting the assumptions on which the human rights system is premised, the approach of human rights protection and promotion and the agility, set of skills and leadership qualities of our institutions will suffice.
Ladies and gentlemen, distinguished participants
At the time of my election as the Chairperson of the African Commission, there have been quite various strategic, institutional and operational challenges facing the African Commission that we as the African Commission had to rise to the occasion to address. At the strategic level, the challenges we face include:
a) those of the prevalence of serious human rights challenges arising from both the democratic governance deficit leading to perpetration of violations and structural conditions (such as pervasive poverty, patriarchy and the gender oppression it engenders, violent conflicts etc) that inhibit access to wide range of human and peoples’ rights;
b) the need for the development of a strategic plan of the Commission;
c) mending the trust deficit that brought the relationship of the Commission with States Parties to a breaking point and the related challenges of upholding its independence from all sources of influence irrespective of their sources whether state or non-state actors; and
d) enhancing the public profile of both the Commission and its work for enhancing the impact of its human rights promotion and protection work.
e) At the institutional and operational level, the Commission has for long suffered from governance issues and chronic staffing shortage seriously impeding its effective functioning, partly open account of lack of legal capacity to recruit its staff on its own and needed to leadership change at the Secretariat level. Operationally, another concern is the backlog of cases and the slow pace of the processing and adjudication of such cases, which has seriously affected the protection mandate of the Commission.
When assuming the role of Chairing the Commission and as outlined in my concluding statement of the 65th Ordinary Session of the Commission in November 2019, I set out specific plans for positioning the Commission to have the standing to work towards addressing these challenges. With respect to the first strategic challenge, we worked very hard to respond promptly through public statements, letters of urgent appeals, resolutions and the adoption of provisional measures condemning reported acts of violations and calling for corrective measures to reports of violations of human rights on the continent. We have strengthened our engagement in these respects both in terms of quality and approach of our engagements and the rigor of the substance of issues that we address through such engagements. It is worth noting that these engagements cover nearly all situations on the continent ranging from such issues as the closure of the civic space via the misuse of certain laws such as anti-terrorism and cyber security laws or the abuse of use of state security forces affecting journalists, civil society actors, human rights defenders, opposition politicians and people with dissenting voices to electoral violence and illegal and unconstitutional attempts at staying in power to the condemnation of horrendous acts of violations in conflict situations. A review of the statements, urgent letters of appeal, resolutions etc attest to this fact.
These engagements may not have completely solved the challenges but I am heartened by the fact that they lend political and legal support and affirm the legitimacy of the voice of individuals and communities affected by such violations. These engagements also help in amplifying and supporting the work of national human rights institutions and civil society organizations for getting redress against violations and for achieving legal, policy and institutional changes.
I have also led the effort towards the development and adoption of the strategic plan of the African Commission. After a sustained work involving assessments of the work of the Commission and the context in which it operates and consultations with stakeholders through the support of the GIZ, the Commission adopted a five-year strategic plan 2021-2025. This has helped us in organizing and mobilizing our capacities and resources towards meeting the priorities set in the strategic plan.
Within the framework of the Strategic Plan, I led the effort of the Commission for mending the trust deficit that brought the relationship of the Commission with States Parties to a breaking point. This is done both through enhancing the Commission’s engagement with states, explaining the mandate of the Commission as set out in the African Commission and how the Commission goes about working towards the fulfillment of its mandate and through showing the contribution of the work of the Commission to the development and democratic governance agenda of the African Union. I am very clear and said in my address to states that often there may not be convergence between the Commission’s legal and technical position on the state of human rights and the political view of states on those human rights issues. Such divergence may lead to disagreement. It has been and remains my view that the fact that the Commission’s position is at variance with the politically expedient position of member states should not lead to breakdown of relationship with states. The way for preventing such breakdown is to ensure that the Commission’s position is informed by the terms of the African Charter on Human and Peoples’ Rights and evidence-based analysis of the human rights issues that our Commission is seized with.
I have to say that our efforts are showing results. We are slowly regaining the confidence of States in the work of the Commission despite continuing differences between the Commission and States Parties. This is critical considering that States are the principal obligation bearers under the African Charter as under any human rights system and maintaining a healthy level of relationship of trust with member states without compromising the impartial execution of our mandate without fear and bias is critical for ensuring we work with them to ensure that they live unto their obligations under the African Charter.
Partly on account of the poor visibility and public knowledge and awareness about the African Commission and its work, the impact of some of the headline making work and activities of the Commission have been weak. I also set out to enhance the public profile of the Commission through consolidating its engagement with existing stakeholders, building new relationships and establishing and expanding the social, print and broadcast media footprint of the Commission. Through publicizing our work and expanding our engagements on these platforms, we have enormously expanded the public profile of the Commission and thereby increased the impact of our work.
Among others, it was during the past two years that the engagement of our Commission with the Peace and Security Council of the African Union has been institutionalized, thereby giving our Commission enhanced avenue for mainstreaming human rights into the various policy platforms of the AU, most notably peace and security.
During these past two years we have also established and expanded our collaboration with various other AU bodies including the AU Youth Special Envoy, the African Committee of Experts on the Rights and Welfare of the Child, the African Court on Human and Peoples’ Rights, the AU Board against Corruption and the Office of the UN High Commissioner for Human Rights as well as UNAIDS. Our engagement with these entities led to various collaborative outcomes including joint activities involving the launching of joint studies, the convening of public forums and the issuance of joint statements on various human rights issues.
It was also during these past two years that we established a high-level event on the Africa Human Rights Day as a signature event during which we have a presidential key note address, attracting wide public participation. I wish to take the opportunity to thank our inaugural keynote speaker President of Botswana H.E. Mokgwetsi Masisi and the 2021 speaker President of Senegal H.E Macky Sall who graced this year’s Africa Human Rights Day through the State Minister for Justice.
During these two years, the media coverage of our Commission also expanded tremendously including through interviews SABC, Mail and Guardian, the BBC and Aljazeera’s Public Liberties on various human rights issues and a number of press briefings I gave on the state of human rights in Africa. It was also during these two years more than at any other time, our work has found coverage through opinion editorials in various publications including, among others, the Nation in Kenya, mail and guardian in South Africa, and The Elephant.
As the Chairperson of African Commission in a time of emergency, I wish to recognize our Commission collectively and its individual members for being at the forefront of providing leadership on addressing the challenges of COVID19 and the human rights issues arising from it through advancing a human rights-based approach to COVID19. As Amnesty International reported, Our Commission is the first human rights body in the world to issue prescriptive guidance to states on a human rights-based response to COVID19. Accordingly, long before the WHO declared the COVID19 as a global pandemic in March, our Commission issued the first such guidance on 28 February 2020. Since then, it has continued to issue a number of them by way of addressing specific thematic issues or through a comprehensive resolution. Our resolution 449 has become an authoritative framework for guiding the actions of states, the AU and various sectors of society for implementing a human rights-based response to the pandemic.
To address the institutional challenges, we succeeded in having change of leadership at the level of the Secretariat of the Commission in Banjul and launched new initiatives for the building of the headquarters of the Commission. Importantly, we made deliberate effort for prioritizing the processing of cases, although in this respect, our delivery, to my disappointment including as Chairperson of the Commission, remains underwhelming and worrisome. In terms of addressing the chronic staffing challenges, I am pleased that we secured the legal authorization of the Executive Council of the AU for our Commission to have the legal capacity for recruiting its own staff, thereby removing one of the structural impediments for enhancing the staff complement of the Commission, critical to addressing the limitations in the effective delivery of its mandate.
While I am generally satisfied with the progress we have made and effectively delivering on the objectives that I have set out when becoming the Chairperson of the Commission, I feel deeply concerned, as pointed out earlier, about the overall state of human and people rights on our continent. As I observed on many occasions, we are also at a time when COVID19 has exposed the human rights issues of our time involving the intersecting challenges of the worsening of the democratic governance deficit exacerbated by nationalism and populism, resurgence of armed conflicts and violence, massive poverty and deepening inequality accentuated by weak institutional and policy response capacity, pervasiveness of gender oppression, and the human rights dimensions of the climate emergency.
On the climate emergency, one fully agrees with UNSG Guterres warning that we have a code red for humanity. Indeed, the only house in which we live have caught fire, endangering all of humanity with particularly devastating consequences to the most vulnerable and developing world. For the most vulnerable and developing world, climate action has to be founded on climate justice that both fully recognizes the level of responsibilities of various parts of the world for putting our house on fire and affirm the right to development of Africa and other parts of the developing world.
Your Excellencies, ladies and gentlemen
As I conclude my opening remark and end my tenure as Chairperson of the Commission, it will be remiss of me if I don’t take the opportunity for expressing my deep gratitude for the collaboration, counsel and comradeship that many of you present extended to me during the past two years. I wish to thank the members of the Commission for the trust they bestowed on myself and the vice chairperson Remy Ngoy Lumbu as a Bureau to lead this commission during the past two years. I also wish to thank the members of the Secretariat under the leadership of the Acting STC madame Lindiwe Khumalo for affording us their constant technical support. I wish to in particular recognize the legal officers who supported me over these years, in particular the sterling job carried out by Abiola Idowu-Ojo and Elsabe Boshoff which made the implementation of my mandate rewarding. I am also greatly indebted to the collaboration and support that I received from States Parties during the past two years which contributed towards commencing the journey of rebuilding trust with the Commission. I cannot emphasize enough the indispensability of the support and collaboration of NHRIs and CSOs in pursuit of the agenda of the Commission during the past two years.
At this point, kindly allow me to warmly welcome the newly elected members of the Commission and wish them successful and productive time during their tenure at the African Commission. Similarly, I wish to extend our gratitude to the outgoing Commissioners including Commissioner Kayitesi and Commissioner King who ended their term and Commissioner Amesbury who could not continue to be with us due to health reasons. I wish to express our gratitude for their distinguished service in the promotion and protection of human rights on our continent.
I also extend my best wishes for the next bureau of the Commission which I hope will take the work of the Commission to another height and urge all of you to extend your full collaboration to the new leadership of the Commission that we will elect today.
I thank you for your kind attention.