COMMENT Cecilia Ngaiza 30 August 2020
Reading through the preamble to the African Charter on Human and Peoples’ Rights, 1981 (hereinafter referred to as the “Charter”) one may gather an opinion that, peoples’ rights entrenched in the Charter were primarily designed to emphasise on total independence and development of the then colonised African societies. Such rights are basically reflected in Articles 19 to 24 of the Charter, to wit the right against domination, rights to self determination, free disposal of wealth and natural resources, development, peace, security and satisfactory environment. Notably, the inclusion of people’s rights in the Charter is not an implication that such rights were not relevant in the pre-colonial Africa; rather, the same were timely and purposely formalised in urgent times of liberating the continent from colonial effects.
It may now sound odd for particular groups in African states enforcing peoples’ rights in front of the relevant regional human rights institutions against such independent states; for instance, the right to self determination or free disposal of natural resources. Viewing the Katangese Case (Katangese People’s Congress versus Zaire, Communication No. 75 of 1992 before the African Commission on Human and Peoples’ Rights ), the Katangese people represented by the Katangese People’s Congress in enforcing their right to self determination sought the assistance of the Commission to vacate Zaire (now the Democratic republic of Congo) from Katanga which was one of the provinces in the said independent Zaire. If this was not enough, the right to freely dispose of wealth and natural resources was sought by the Ogieks of the Mau forest against the independent Republic of Kenya in the ground breaking Ogiek’s Case (African Commission on Human and Peoples’ Rights versus Kenya, Application No.006 of 2012) before the African Court on Human and Peoples’ Rights. The Ogieks of the Mau forest in Kenya reached out to the Court via the Commission claiming among other things the right to disposal of wealth and natural resources found within the Mau forest against the Republic of Kenya. This claim was interpreted by the Kenyan government as an act encroaching the exclusive sovereignty of Kenya over her/its own wealth and natural resources vis-a-vis her/its own subjects.
In this contemporary era, far away from the colonial period, for a particular community or group suing an independent African state before the regional human rights enforcement body reflects a “back-firing effect” to African states that adopted the so called “people’s rights” among other things as a confrontational move against colonialism in the continent. The rights sought to protect the interests, dignity and identity of the peoples of the African continent. Ironically, the peoples of the independent African states now enforce peoples’ rights against the independent African states to protect their interests, dignity and identity as exemplified in the Katangese and the Ogiek’s cases above.
Nevertheless, responding to the question as to whether peoples’ rights as conceived in the African human rights system in the early 1980’s hold any relevancy today, the answer is likely to obtain an affirmative response. This is due to the fact that, as long as peoples are involved in their struggle to survive and develop autonomously, their rights in a collectivity become relevant regardless of the changing hands of their guarantors i.e. pre-colonial, colonial or independent governments.
Cecilia Ngaiza is a research assistant at the University of Bayreuth.