4 The Charter in Practice: Analysis of States’ Implementation and Compliance with Human
4.3 Analysis of NGO Statements
As explained in the methodology section, the Commission works closely with a number of NGOs to whom it grants observer statuses. This status entitles the NGOs to participate in periodic sessions and issue statements and reports. In September 2015, the Commission’s website displayed about 19 NGO statements issued on the human rights situation in 11 countries and covering the periods between 2008-2015.6 These NGO statements cover five broad areas namely harassment of human rights defenders (HRDs), restriction of NGOs, the state of socio-economic rights, restrictions on freedom of expression (including press/media freedom) and restrictions on freedom of association and assembly. Following from the analysis of the previous chapter, these would engage the following rights: right to life; freedom from torture, inhuman and degrading treatment; right to personal liberty; right to fair trial; right to receive information and freedom of expression; freedom of assembly; right to health, and protection of vulnerable groups.
An examination of the contents of these NGO reports will, therefore, give an insight into the practice and observance of negative civil and political rights by African states, as well as a glimpse into the state of positive socio-economic rights in some communities. A closer examination of these reports, under the relevant headings, is undertaken below.
5 Obinna Okere, 'The Protection of Human Rights in Africa and the African Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems' (1984) 2 HRQ 141, 144.
6 The countries are Eritrea, Somalia, Ethiopia, Malawi, Swaziland, Algeria, Swaziland, Angola, Uganda, Zimbabwe and Democratic Republic of Congo.
104 4.3.1 Harassment of HRDs
The harassment and ill-treatment of HRDs dominate most of the NGO statements. These statements set out challenges faced by HRDs in mostly North and Southern African countries such as Algeria, Egypt, and Malawi. Some of these are reviewed below.
Algeria
This report mainly covers violations of the rights to liberty and assembly of HRDs. At the Commission’s 51st Session, the Cairo Institute for Human Rights Studies (CIHRS) called the Commission’s attention to the ‘worrying situation’ of HRDs in Algeria. It stated that HRDs continually suffered police and judicial harassment in the form of arrests, interrogations, and malicious prosecutions. For instance, in November 2011, the police arrested a member of the Algerian League for the Defence of Human Rights after she had announced a hunger strike and sit-in protesting human rights violations in Algeria.
Also, in 2012, two members of the National Committee for the Defence of the Rights of the Unemployed were convicted for participating in ‘unauthorised’ demonstrations and sentenced to one year in prison.7 Other similar arrests had been subsequently made.8
Egypt
As with Algeria above, this report highlights the deprivation of the right to liberty of HRDs through arbitrary arrests. CIHRS pointed out that there has been a crackdown on independent civil societies and HRDs. For instance, within just a few months, over 17 NGO offices had been raided by security forces. There was also a government-led smear campaign aimed at defaming these groups before the Egyptian public as foreign agents whose objective was to cause public instability and division within Egypt.9
7 This sentence was overturned on appeal.
8 Address of the Cairo Institute for Human Rights Study at the 51st Ordinary Session of the African Commission on Human and Peoples’ Rights 2012’ (2012) http://www.achpr.org/sessions/51st/ngo-statements/11/ accessed 9 September 2015.
9 Ibid.
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Democratic Republic of Congo, Malawi, Senegal, Swaziland, Uganda and Zimbabwe At the Commission’s 51st Session the International Commission of Jurists reported that HRDs in the mentioned countries had suffered the following human rights violations:
· Harassment by government authorities and/or security forces
· Arbitrary arrests
· Cruel and degrading treatment whilst in detention
· Physical assaults
· Enactment and use of repressive laws,
· Torching of homes
· Death threats
· Extra-judicial executions.10
These persistent violations, the body noted, often arose in the context of elections and were perpetrated by state actors who were hardly ever held to account.11
4.3.2 Restrictions on NGOs
Closely related to the harsh treatment of HRDs are the restrictions on the operation of NGOs. The reports note that certain states have adopted laws and policies that limit or frustrate the operation of human rights NGOs. Such restrictions, it was noted, generally infringed on the freedom of conscience and association. Two states identified with such infringements were Algeria and Ethiopia.
Algeria
CIHRS pointed out that the new Algerian law No 12-06 of January 2012 increased governmental restrictions on human rights NGOs. For instance, Article 39 gave the
10 ICJ Oral Intervention on the Human Rights Violations Affecting Human Rights Defenders (HRDs) in Africa http://www.achpr.org/sessions/51st/ngo-statements/14/, accessed 14 October 2015.
11 Ibid.
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government broad discretion to refuse to register associations 12 and failed to provide these associations with an adequate remedy to appeal a rejection of their registration request. The new law also tightened governmental control over funding by providing a short list of authorised national funding sources with international funding requiring prior authorisation and forbidden to Algerian associations without officially established relationships of cooperation with the Ministry of Interior.13 Due to difficulties occasioned by the new law, some organisations were forced to close down.14
Ethiopia
At the Commission’s 51st Ordinary Session, Amnesty International called attention to Ethiopia’s Charities and Societies Proclamation of 2009 which placed ‘excessive restrictions’ on the work of human rights organisations. Top of these was the restriction on such organisations from receiving more than 10% of their funding from foreign sources which resulted in at least 17 organisations changing their mandate from human rights. In a retroactive application of the law, two organisations had their assets frozen, amounting to over $500,000 each.15
The report pointed out the excessive powers of interference and surveillance granted to the Charities and Societies Agencies such as the power to suspend licences16 and confiscate and transfer the assets of any organisation.17 Also, the Agency had the power to demand any document in an organisation’s possession18 invariably including the testimonies of victims of violations thereby contravening principles of confidentiality
12 Under this article, the government can refuse to register an association whose purpose or goals are deemed contrary to basic national values and to law and order, public morality and the provisions of existing laws and regulations.
13 African Commission (n 8).
14The International Centre for Not-For-Profit Law, ‘NGO Law Monitor: Algeria’
http://www.icnl.org/research/monitor/algeria.html accessed 10 September, 2015.
15 Amnesty International, ‘Oral Statement at the 51st Ordinary Session of the Commission’
https://www.amnesty.org/download/Documents/16000/afr250032012en.pdf accessed 10 September 2015.
16 Art 92.
17 Art 94.
18 Art 85.
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and further endangering the victims. Furthermore, the report alleged that some organisations were forced to remove certain areas of work from their mandates such as election monitoring and even change their names before they could be registered under the new law.19 Amnesty International claimed that the intended effect of this law was to restrict and effectively stifle critical voices as well as limit the level of scrutiny of the government thereby limiting civil and political rights such as freedom of association, freedom of speech and the right to participate in government.
4.3.3 Freedom of Expression – Press and Media Rights (Article 9)
This set of reports addresses the freedom of expression from the perspective of restriction of the press and news media.
Eritrea, Ethiopia, Somalia and Uganda
The East and Horn of Africa Human Rights Defenders Network (EHARD-Net) drew attention to the political oppression of press and media people on the continent. In Somalia, five journalists were victims of targeted assassinations within five months while
‘numerous’ journalists had been injured or beaten by police while covering the opposition demonstrations. In Ethiopia, journalists were put on trial for ‘supporting’
terrorist groups. One such accused had written an article online shortly before his arrest criticising the government’s use of the anti-terrorism law to suppress dissent. The report stated that up to 32 journalists were in detention in Eritrea with one of them needing serious medical attention and not allowed access to visitors.20
Swaziland, Uganda, and Zimbabwe
The Eastern Africa Journalists Association (EAJA) and International Trade Union Conference-Africa Regional Organisation (ITUC-Africa) reported violations of press
19 Amnesty International (n 15).
20 Oral Intervention on the report of Special Rapporteur on Freedom of Expression and Access to Information’ <http://www.achpr.org/sessions/51st/ngo-statements/15/> accessed 11 September 2015.
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freedom in the mentioned countries. These were mostly in the form of ‘obnoxious, vague and sometimes secretive’ terrorist, security and criminal laws, which were employed to persecute media practitioners and citizens.21 For instance, the Lawyers for Human Rights reported that while Swaziland’s 2005 Constitution contained the full list of the Bill of Rights including freedom of association, assembly, expression and the right to information, it took away most of these rights through ‘excessive’ clawback clauses.
One of the effects of these clawback clauses was that political parties were banned and had no right to participate in elections. Also, HRDs and activists had no access to state-owned print and electronic media houses.22
4.3.4 Freedom of Association and Assembly (Articles 10 & 11)
These are the next sets of rights addressed by NGO statements and cover nearly a dozen countries. It should be recalled from Chapter 3 that the Commission, in 1992, adopted a resolution further expatiating on this right. The NGO statements are addressed below.
Nigeria, Ghana, Botswana, Guinea, Ethiopia, Zimbabwe, Mali, Guinea-Bissau, Swaziland, Benin, Tunisia
EAJA and ITUC-Africa reported that there was systemic state abuse, denial and erosion of workers’ right to freely, independently and democratically join and form trade unions of their choice—these infractions took place despite constitutional and legal mechanisms provisions at the national, continental and international arenas.23 Where state parties were not outrightly refusing to allow workers to organise, they were making attempts to amend certain aspects of national legislation to deny the exercise
21 Statement by Eastern Africa Journalists Association (EAJA) in conjunction with International Trade
Union Conference-Africa Regional Organisation (ITUC-Africa)
http://www.achpr.org/sessions/51st/ngo-statements/25/ accessed 11 September 2015.
22 Presentation by the Lawyers for Human Rights at the 51st Session of the African Commission
<http://www.achpr.org/sessions/51st/ngo-statements/24/> accessed 11 September 2015.
23 Statement by Eastern Africa Journalists Association (EAJA) in conjunction with International Trade Union Conference-Africa Regional Organisation (ITUC-Africa), ‘State of human rights situations in Africa-Africa Trade Union Movement perspectives’ (2012) http://www.achpr.org/sessions/51st/ngo-statements/25/
accessed 27 July 2016.
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of those rights. The report points to the Nigerian example where workers were denied the right to organise and when they had moved to assert this right by forming trade unions, the Nigerian government (their employer) refused to recognise them. More recently, in 2014, the Nigerian government sacked nearly 16,000 striking doctors;24 a similar approach had been adopted the previous year for striking university lecturers.25
The report also pointed to cases of ‘direct and forceful attempts’ by governments to seize and control trade union organisations including cases where NGOs were indirectly shut out of existence through legislative restrictions on funding. A most disturbing example of the attempt to silence trade unions was that played out in Swaziland where a recently merged trade union, Trade Union Congress of Swaziland, was deregistered by the country’s Labour Commissioner on the advice of the Attorney-General. The interpretation of the Industrial Labour Act by the Attorney-General also led to de-registration of the Swaziland Employers’ Federation. Several trade union leaders were later arrested, detained and given movement restrictions.26 In a similar vein, the government of Botswana, in 2011, sacked over 2000 public service workers who took part in a strike action. In 2012, teachers in Benin Republic went on strike after negotiations with the government for better working conditions collapsed. In response, the state declared the strike illegal, threatened the workers and declared their jobs vacant. The government even enlisted military personnel to take up the responsibilities classroom teachers. This sort of action, it was argued, encroached on the right to assemble and protest.27
4.3.5 Socio-economic and Peoples’ Rights
While the NGO statements generally do not cover a lot of ground here, there was one report on the lack of implementation of these rights in Angola.
24 ‘FG sacks 16,000 Resident Doctors’ Punch Newspaper (Nigeria, 15 August 2014)
<http://www.punchng.com/news/fg-sacks-16000-resident-doctors> accessed 13 November 2014.
25 Ibid.
26 See n 21.
27 Ibid.
110 Angola
In its statement, the International Work Group for Indigenous Affairs (IWGIA) expressed concern on the socio-economic situation of a number of the San Communities in Huila, Kunene and Kuando Kubango provinces of Angola. From contact with the San Communities in Huila between 1998 and 2011, IWGIA identified cases of ‘serious privations’, high mortality rates and social fragmentation during the 27 years of civil war as well as open exploitation and discrimination by Bantu groups who had more socio-economic and political power.
A needs assessment commissioned in 2003 identified the San as a small, vulnerable ethnic minority group, living in extreme poverty often in areas riddled with landmines.
The assessment also identified ‘very high’ illiteracy and mortality rates, lack of infrastructure and access to health care facilities. A summary of the problems faced by these communities included:
Lack of access to basic services such as education, health because of remoteness and exclusion/discrimination leading to high level of illiteracy, disease, death of pregnant women / children, etc.
Lack of access to water
Insecurity due to violent conflicts or harmful practices
Land rights and natural resources: lack of access to land, problematic of evictions of indigenous populations for different reasons such as conservancy, development projects, mining. etc.
High level of poverty, no access to employment
Poor representation in decision-making institutions such as local authorities, national government.28
28 IWGIA Statement at the 51st Session of the African Commission,
<http://www.achpr.org/sessions/51st/ngo-statements/19/> accessed 10 September 2015.
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The above deprivations engage socio-economic and peoples’ rights such as the right to health, right to work, right to education, right to economic, social and cultural development, right to free disposal of wealth and natural resources, and right to a general satisfactory environment all of which have been briefly examined in Chapter 3.
4.3.6 Conclusions on the Contents of NGO Statements
NGO statements focus mainly on civil and political rights especially the freedom of expression, freedom of assembly and association and the treatment of HRDs and NGOs.
This comes as no surprise given that human rights NGOs in fledgeling democracies (and, as is the case in some African states, military governments/dictatorships) tend to focus more on basic civil and political rights. The cases of violations recorded show a degree of high-handedness and undemocratic tendencies on the part of the identified states.
The harassment of HRDs also signals a low commitment to the ideals of the Charter.
While the NGO statements are by no means comprehensive they call attention to the challenges facing NGOs and HRDs in many African states that tend to be intolerant towards any form of opposition or dissent. These reports also paint a picture of the general disposition of some African states towards the observance of basic democratic and human rights values.