Human rights images of my continent over the years and particularly since the 1990s have only sometimes been encouraging. And yet this period should have represented a golden age in the political and human rights evolution on the continent. The Charter of the Organization of African Unity ushered in a period where the focus was on eradicating colonial rule in much of the continent. This process was to take 31 years and concluded with the advent of self-determination to South Africa in April 1994.

The emergence on the scene in the 1970s of the political leadership of leaders like Jean Bedel Bokassa, Marcias Nguema, Idi Amin Dada accelerated the search for an African Human Rights Charter responsible for the protection and promotion of the rights of the Africans. These are the rights Africans had been talking about since the conference on the Rule of Law held in Lagos in 1961. The adoption of the African Charter on Human and Peoples’ Rights at Nairobi, Kenya on the 21st June 1981 and its subsequent entry into force on the 26th October 1986 marked a milestone in the realisation of human rights for the African people on the continent.

This euphoria was to be dampened by the invocation of the provision of non-interference in the internal affairs contained in the Charter creating the Organisation of African Unity. The benefits anticipated to flow following the requisite ratification of the Charter were to be outweighed by the lack of independence and autonomy of the Commission created to enforce the promotion and protection of rights under the Charter. Reluctance by member states in complying with the provisions of the Charter including those requiring lodging of reports by member states as to the measures undertaken by each one of them in ensuring that their respective states assure to their own people the rights set out in the Charter.

Non-compliance with the decision of the Commission has weakened the authority of the Commission. In 1995 after the late Ken Saro-Wiwa and 8 other minority rights activists in Ogoniland were convicted of murder and sentenced to hang by a military tribunal, the Commission asked the government of General Sani Abacha to stay the execution of the sentence. The Commission was hearing an application for the sentences to be set aside and the convictions to be quashed made to it by the Constitutional Rights Project (CRP), a non governmental human rights organisation in Nigeria. General Abacha, instead of complying with the order of the Commission, ignored it and went ahead to carry out the executions.

Lack of funding and the rising cases of violation of rights of citizens by member states. Zimbabwe, Zambia, Malawi, Kenya, Swaziland, Democratic Republic of the Congo, Ivory Coast, Sierra Leone, Liberia, Ethiopia, Eritrea, The Sudan, Angola, Rwanda and Burundi are examples. Unfortunately, this is happening at a time when the OAU turned into an economic union is scouting for funds from the international community to meet the demands of its economic recovery initiative. It must be agonizing for the few relatively democratic states on the continent like Nigeria, Ghana, Senegal, Mali, Burkina Faso, South Africa, Mozambique, Tanzania, Uganda, Namibia and Botswana.

Some African States have complained that the image of Africa as presented by the Western European press is biased against them. They have argued that some of this criticism borders on racism. There would appear to be some truth in this. However, Africa has her own hand in this.

The so called quiet diplomatic approach characterized by failure to speak out when an African colleague is clearly in the wrong does not redound to the credit of the few democratic African states. African leaders must learn to be open with each other. They must realise that in political leadership they are dealing with lives of people. These must be protected against abuses from fellow political leaders. This will only take place if the behaviour of the leader concerned is condemned publicly. This will also provide the inspired leadership we are seeking for the continent.

In addition to political instability resulting from violation of rights, is the prevalence of civil wars on the continent. These are both cause and result of the abrogation of the international human rights norms. These are taking place in the Democratic Republic of the Congo, Angola, The Sudan, Rwanda and Burundi, Somalia, Ethiopia, Eritrea, Sierra Leone, Liberia and Malagasy.

On the brighter side for our continent must be the signing of the Protocol for the creation of a Court of Human Rights. Although only three states have so far ratified the Protocol and for the Protocol to enter into force 15 ratifications are necessary, this is a step in the right direction. We were lucky that the ratification of the Human Rights Charter only took 5 years after the adoption of the Charter. Experience with the two International Covenants of the United Nations, though not anything to emulate, is nonetheless illustrative of the length of time requisite ratification could take. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Culture Rights, although adopted by the General Assembly of the United Nations Organisation in January 1966, did not receive requisite ratification numbers till ten years later and only entered into force in March 1976.

It is however hoped that African leaders will soon realise the continent is lagging behind others in the field of protection of rights of their fellow citizens. The Protocol creating an African Human Rights Court is unduly restrictive for individual communications. This aspect of the Protocol differs considerably from the provisions of the Protocol creating the European Court of Human Rights and the Optional Protocol creating the United Nations Human Rights Committee.

There are more individuals that are victims of violations of rights on the continent than states. It is hoped that this sin of omission would be remedied before ratification of the Protocol. It is hoped also that enough African leaders are serious and committed to ensure the successful operation of the Court once it becomes operational. The Court will need adequate resources to be supplied to it by the Organisation of African Unity. It is after all an African Human Rights Court. It is not, I hope, a Court that is being created merely as a façade. Our serious commitment to the protection of human rights in Africa will be judged by the amount of support given to the new court.

*Rodger Masauso Alivas Chongwe is a former Minister of Legal Affairs and a former Minister of Local Government and Housing in the Government of the Republic of Zambia. He is also a former Member of Parliament. A lawyer by profession, he was the owner of the Law Firm, R.M.A. Chongwe and Company, which he established in 1977 till January 2001. In addition to running a general practice, Rodger Chongwe has written extensively on legal issues, human rights and democracy. He has held the post of President of the Commonwealth Lawyers’ Association (1990-1993), President of the African Bar Association (1985-1991), Chairman of the Law Association of Zambia (1981-1986) and Honorary Secretary of the Commonwealth Lawyers’ Association (1986-1990). He is presently an Executive Member of the Commonwealth Lawyers’ Association and Trustee of the International Legal Assistance Consortium (ILAC).