ANALYSIS
Although the Constitutive Act of the African Union (AU) emphasises the importance of protecting human rights, the organisation's efforts in this regard were historically demonstrated in adopting documents, rather than taking concrete steps.
In the past two years, however, the issue of human rights has increasingly translated into action on the ground. At the end of 2013, for example, the AU mandated a commission to investigate human rights abuses in South Sudan.
The theme of the 26th ordinary session of the Assembly of the AU, to be held in Addis Ababa from 30 to 31 January, is 'Human rights with a focus on the rights of women'.
This is a shift from the days of the Organization of African Unity, which followed a principle of non-interference and displayed a limited interest in the rights of vulnerable groups. Deploying human rights observers has become a tool to prevent conflict from escalating. The AU's growing responsiveness to human rights violations is also visible in the way it dealt with recent conflict situations at various stages of crisis: before and during the conflict (Burundi), after full-scale war had broken out (South Sudan) and after the signing of a peace deal (Mali). These missions still need to be clearly defined, however.
The issue of human rights has increasingly translated into AU action on the ground
The deployment of human rights observers in Burundi deserves a closer look. Unlike in Mali, the Burundi observers marked the AU's first step in taking preventative action to stop the situation from deteriorating. Although it might be too early to assess the impact of human rights observers in Burundi, their deployment and subsequent report allowed the Peace and Security Council (PSC) to discern the gravity of the situation.
According to Yolande Bouka, a senior researcher at the Institute for Security Studies, the more severe stance seen in the PSC's decision of 17 October is likely a result of the observers' reports. On 17 December, in a landmark decision, the PSC also decided to deploy a peacekeeping force to the crisis-torn country. Bouka added, however, that the absence of a memorandum of understanding - which is currently being negotiated by the AU and the Burundian government - blocks the full countrywide deployment of observers.
The AU's commitment to the protection of human rights is hampered when there is no consent from the host state. The AU must, therefore, find the right balance between the necessity to intervene, as advocated by its Constitutive Act, and respect for the sovereignty of states - which is defended by the same document.
Human rights observers face three main challenges. The first is the need to involve all relevant AU bodies. In Mali, a member of the African Commission on Human and Peoples' Rights (ACHPR) chaired the observers, and their deployment showed effective cooperation between the PSC and the ACHPR.
This collaboration has not, however, been repeated in Burundi. In this case, the human rights observers are separate from the ACHPR's investigation of violations of human rights, requested by the PSC at its 17 October meeting. Given the limited resources of the AU, an efficient operation would require these initiatives to merge.
Observers sent to Burundi was the AU's first step in taking preventative action
The second challenge is assessing the effectiveness of the human rights observers. While the PSC broadly defines their mandate, no document sets out either the expected outcomes of their deployment or the benchmarks by which to measure their progress.
Finally, such missions should also have a long-term goal: to define substantial governance reforms. In this way, the missions of human rights observers could be an important link between the African Peace and Security Architecture and the African Governance Architecture.
Beyond the deployment of observers and action taken on the ground, the ratification of existing legal instruments is another yardstick to measure the AU's commitment towards human rights. Seen from this perspective, the picture seems more nuanced.
Only the AU's Constitutive Act has been ratified by all 54 member states. The African Charter on Human Rights has been ratified by 53 states, and 36 states have ratified the Maputo Protocol on the Rights of Women. The number is lower for the African Charter on Democracy, Elections and Governance, which has been ratified by 23 states - although 46 have signed it. To date, the protocol creating the African Court on Human and Peoples' Rights has been ratified by 29 member states.
This low ratification rate limits the ability of the AU to respond effectively to crises. The AU Commission of Inquiry in South Sudan, for example, proposed a hybrid court; an ad hoc mechanism to try those responsible for crimes against humanity and war crimes. This was because the new African Court of Justice and Human Rights is not yet operational due to the lack of ratification, and South Sudan is not part of any AU instrument related specifically to human rights.
The AU must balance the need to intervene with respect for the sovereignty of states
The AU must create incentive mechanisms to encourage states to ratify legal instruments. Any state wishing to be a member of the PSC, for example, could be required to have ratified at least two-thirds of the legal instruments relating to human rights. Such a requirement would give the AU legal leverage in managing crises.
Another challenge is the collective ability to deter violations of human rights. This means, among other issues, fighting impunity; notably among state officials. The AU might be at loggerheads with the International Criminal Court, but it still does not have an effective mechanism to try the perpetrators of violations of human rights, including state officials.
Human rights are a core issue across various AU positions and bodies. These include the Department of Political Affairs; the Department of Social Affairs; the Directorate of Women, Gender and Development; the newly created Special Envoy for Women, Peace and Security; and the Special Rapporteur on the Rights of Women in the ACHPR. Streamlining these mechanisms would make it easier for member states to respond to their reporting obligations. It would also provide a focal point for the AU's external partners.
The AU should consider three options. The first is creating the position of a Special Advisor on Human Rights, reporting to the AU Committee chairperson. Its mandate would include drafting a comprehensive strategy on human rights to be implemented by the existing actors and bodies.+
In the same vein, the Commissioner of Political Affairs could be empowered to be in charge of all issues related to human rights, and the department renamed the Department of Political Affairs and Human Rights. This would reinforce an existing department that is already in charge of drafting a strategy on human rights.
Lastly, a new position - Commissioner for Human Rights - could be created, with an extended portfolio encompassing political and social rights, and the rights of women and children. The commissioner could define the AU strategy for human rights and be in charge of its implementation. - PSC Report
A longer version of this article was originally published by the PSC Report
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