With Egypt taking over the chairmanship of the African Union, the African Union’s reform process has been back in the news, with continued speculation about what a change in leadership could mean for the process. Whilst the reform process has far reaching ramifications for all Africans across many sectors, including most notably trade, and the military industrial complex, not as much attention is necessarily being given to what the reforms could mean for women’s and sexual rights work on the continent, and it is important that activists, and angry citizens alike have a working understanding of the AU reform process.
What are the Kagame reforms?
The AU is currently undergoing a process of reform that has been enunciated at a political level by the executive branches of African member states. The Kagame reforms are a series of institutional reforms of the African Union, apparently designed to reconfigure it into a more efficient and effective institution. The reforms are named after outgoing AU Chair, and president of Rwanda, Paul Kagame, who prior to taking up the chairmanship was tasked with preparing a report on increasing the organisation’s effectiveness. He shared his recommendations in a 30-odd-page document named The Imperative to Strengthen our Union: Report on the Proposed Recommendations.
What are they meant to do?
From President Kagame’s vantage point, in order for the AU to be strengthened, member states need to do the following four things:
- Focus on key priorities with continental scope
- Realign AU institutions to deliver against those priorities
- Manage the AU efficiently at both political and operational levels
- Finance the AU [themselves] and sustainably
Amongst proposed reforms for the alignment of AU institutions, are those for reforming the regional African Human rights system, made up of the African Commission on Human and People’s Rights and the African Court. The African Commission was created by the African Charter on Human and Peoples’ rights and works or should work as a treaty monitoring body. Its mandate is the promotion and protection of human and peoples’ rights in Africa on the basis of the charter. It can receive communications from states and from NGOs, make reports and general comments on key jurisprudential issues emanating from the charter, and also undertakes a periodic review of State reporting. The African Commission’s ability to elucidate jurisprudence relating to the charter is known as its interpretive mandate – which practically means, its ability to set legal standards and create soft law around the application of the charter and the rights therein.
In order for the Commission to work effectively as a treaty monitoring body on human rights, it must be seen to operate free from the interference of States as they are often the perpetrators of the human rights abuses brought before the commission
The interpretive mandate of the commission seems to currently be at risk from the AU – the latest form of institutional tinkering, following a period of state interference in the substantive work of the commission, compromising the commission’s independence and therefore its legitimacy. In order for the Commission to work effectively as a treaty monitoring body on human rights, it must be seen to operate free from the interference of States as they are often the perpetrators of the human rights abuses brought before the commission. If the Commission is perceived to be swayed by State power, there are concerns about its ability to discharge its duties to protect and interpret Human and Peoples rights on the continent. One notable case of this interference is the experience of the Coalition of African Lesbians in attempting to attain and retain its observer status at the Commission. Having observer status at the African Commission means being recognised as an NGO that is working to advance human and peoples’ rights on the continent. This recognition means the ability to fully engage and lobby in public sessions at the Commission, including through the ability to make statements in your own name.
CALs observer status was unceremoniously withdrawn following the decision of the African court on CAL’s legal standing – or its right to start legal processes as a valid legal actor, and the AU Executive council decision 1015 that followed it. Whilst CAL has been working on its Independence Campaign for a few years now, there has been a reluctance within the commission to acknowledge that there is a culture of state interference that if left unchecked would hamper the institutions efficacy.
Following the official notification of the revocation of CAL’s observer status at the African Commission, CAL convened a collective of organisations, primarily those working in Southern Africa, to begin to organise a broad-based coalition focussing on the independence of the Commission. When the collective attended the 63rd Ordinary session of the African Commission in Banjul, it became aware of other regional collectives and organisation working on the need to defend civil society space at the Commission and the need to lobby for its independence. A decision was made not only to coordinate efforts but to attempt to merge them into an Africa-wide coalition. This iteration of the Independence Campaign is now made up of about 13 national and regional organisations, and supplements CALs own work and strategizing around the Independence of the African Commission and the organisation’s observer status.
As the momentum for organising around the Commission’s independence built amongst CSOs at the 63rd session of the ACHPR in Banjul, commissioners remained dismissive. They received a rude awakening upon the publishing of the Report on the Joint Retreat of the Permanent Representatives’ Committee and the African Commission, which requested that “State Parties to conduct an analytical review of the interpretative mandate of the Commission in the light of a similar mandate exercised by the African Court and the potential for conflicting jurisprudence”. Put simply, there is a proposal to strip the African Commission of its interpretive and protective mandate – making it solely an organ of promotion, and not of norm setting in the area of human rights in Africa. The interpretive mandate would then be solely vested in the African Court. The Commission responded to this proposal by passing the Resolution on the interpretive and protective mandates of the African Commission on Human and Peoples’ Rights – ACHPR/Res. 402 (LXIII) 2018 which some read as throwing down the gauntlet, but which seemed to me to still be a rather reactionary and ineffective response.
The proposal to vest the interpretive mandate in the court seems innocuous enough until you consider the difficulties surrounding access to the court, exacerbated by the inability for NGOs and individuals – even those with observer status at the African Commission, to access advisory opinions as set by the SERAP precedent. In the SERAP case, the African Court ruled that in order for an organisation to be able to approach the court for an advisory opinion, they needed to have ECOSOCC status and an MOU with the African Union, as having observer status with the African Commission was insufficient to meet the requirement under article 4 of the Protocol that the organisation be recognised by the OAU (now AU). The only possible exception to this is for those NGOs registered in countries where states have submitted a voluntary declaration to the effect that their citizens and CSOs shall have direct access to the court under article 34(6) of the Protocol. There are precious few countries that have done this, namely Tunisia, Tanzania, Malawi, Burkina Faso, Benin, Cote d’Ivoire, Ghana and Mali..
Further, the African Court on Human and People’s rights is a bit of an odd institution, as it should no longer exist as a standalone court. It was created by the Protocol to the African Charter on the establishment of an African Court on Human and People’s Rights, and is currently an institution awaiting incorporation into African Court of Justice and Human rights. We are essentially currently interacting with a sort of place holder that’s been waiting to be replaced for over a decade as part of an arguably failed reform agenda, although the court has appeared to apply the provisions of the merger protocol in at least one decision – the SERAP case, to decide who could have access to the court.
The African Court of Justice and its protocol can only enter into effect when 15 member states of the AU have ratified (meaning to sign or give formal consent to a treaty, contract or agreement making it officially valid) and deposited the instrument. This is arguably a very low threshold for an organisation of 54 members and as it stands, of the 32 countries which are signatories to the statute, only 7 have ratified the protocol which was signed in 2008. This lag in ratification has led President Kagame to query the continent’s commitment to having a judicial and legislative arm.
We need an independent human rights mechanism on the continent – and we need to make sure that our governments build it for us.
In his discussion off AU institutions, particularly the judicial and legislative organs, Kagame spoke about the failures of the attempts to reform the court (discussed above) and chastised his fellow heads of states, saying that the lack of ratifications suggested ‘a lack of commitment to the organ.’ In his discussions about a possible way forward he emphasised the need to review and clarify the purposes of these organs, and make clear each institution’s remits. His analysis saw the ineffectiveness and stagnation of the ACHPR (both court and commission), the African Court of Justice and the Pan African Parliament as interlinked and he essentially wanted an enquiry into them, as well as an assessment of progress. He was also clearly interested in having a viable legal system, saying that ‘it is time to look for a different mechanism that formally and legally binds us to act without delay, and holds us accountable for outcomes.’ Whilst this could be read as a vote for the establishment of the African Court of Justice whose remit extends beyond international human rights law, it would appear that the speed of dismantling current institutions is faster than that of building the new ones, and of building sufficient collective political will for an effective judicial arm of the AU. Indeed, Rwanda itself the lead for almost two years on this reform process has neither signed nor ratified the protocol of the Statute of the African Court of Justice. It is difficult to not be guarded about the process without clear commitments for an African Court of Justice that is fit for purpose, especially as Africa continues to make the argument for divesting from international institutions. We need an independent human rights mechanism on the continent – and we need to make sure that our governments build it for us.
Whilst the issues of treaty monitoring bodies under international law may seem far removed from the day to day work of national level activism, it is important that the women’s right and sexual rights movement be cognisant and up to date on the developments in different parts of Africa’s regional mechanisms, particularly the AU as these help shape the regional and international policy, and inform how our nation states are going to interact with externalised accountability mechanisms, beyond domestic oversight. Regional and international spaces are used for norm setting, for political arguing and posturing – for trade deals and alliances. ALL states take these spaces – certainly the AU, very seriously, and as people living under these Stats we must be aware of what’s happening even if we ourselves are not sending delegations. We must form effective solidarities for lobbying. the dissemination of information and mobilisation at different levels.
Given that these AU reforms are meant to provide institutionalised reforms of the law, judicial, and justice components of the African Union and African Human Rights system, which are the primary means through which we access state oversight, accountability, and jurisprudential development, these developments are directly related to our ability to participate in public life, to enjoy our freedoms of expression, association and to meaningfully contribute to the Africa we want.
We need to engage with and be cognisant of our state’s foreign policy objectives in order to have a complete picture of their policy on key issues. We must lobby our states on the full spectrum of their actions and policy decisions, and compare the positions they take in international spaces to their responsibilities not only under regional and international law, but under domestic legislation – including constitutions as well. A recent example of a state in Africa having a foreign policy decision challenged by a domestic court application under the Constitutional court was in South Africa, following the decision to withdraw from the International Criminal Court (ICC). We need to push against sexist and misogynistic rhetoric in all fora. In the push to rescind CAL’s observer status an argument about traditions, culture, and African values was utilised and endorsed that could greatly curtail activism for women’s rights and sexual rights at all levels, it would be interesting to see this decision challenged in a domestic sphere were there are constitutional protections against discrimination on the basis of sex or gender, and where there is a protection against harmful cultural practices – for example in Zimbabwe.
We must be able to meet the arguments where they are crafted: our states must not be permitted to believe that they are the sole custodians of decolonisation, liberation, and Pan-Africanism
It is also important for us to be able to engage with the reasoning and ideologies that our nation states are engaging around their “development” actions, we need to know, understand, and track their language in a number of different spaces sometimes to make a comparison between the kinds of commitments they’re making in international spaces vs domestic space. Also there is a need to acknowledge that despite people feeling frustrated with these spaces and naming them ineffective they are important to monitor for an understanding for normative developments. We need to be conversant in statehood and statecraft. We must be able to meet the arguments where they are crafted: our states must not be permitted to believe that they are the sole custodians of decolonisation, liberation, and Pan-Africanism, we must force them to engage, and to evolve their political thinking by having the range for serious and intensive [geo]political conversations and lobbying, as their thinking has grown complacent.
As we continue to monitor the reforms and campaign for the Independence of the Commission, now seems like a good time to be making the argument about having institutions that are fit for purpose as a component of enacting decolonisation by divesting from reliance on the white supremacist West. The AU has entered a new period of largescale reform led by President Kagame that follows up on the Kigali decision on financing the AU which presented a blueprint for limiting the power of the EU, the World Bank and other global institutions in the AU, through Member States financing the operations of the organisation. There is a very clear sense that this AU reform process is considered an important component of shrugging off of neo-colonialism. We need to shape that discourse so that reforms are for the benefit of African peoples and protect women’s and sexual rights. A key component of ensuring this protection is by setting up mechanisms that are not subject to the partisan whims of governments. What we need is an independent African Human Rights system and we must campaign relentlessly for it.
Outside of state-centric work, we must invest in our consciousness raising and political growth. We need some serious conversation on, amongst other things, black states and community obligations in a context of relentless exploitation. We also need to have conversations about our relationships with States and different forms of law, and begin to think more fully about designing redress mechanisms that work for us, whilst in the interim navigating rage, trauma, inefficiency, and ineffectiveness in our current experiences of State institutions.