Africa and the Right to Development A Presentation

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Africa and the Right to Development A Presentation to Conference Experts invited by the
United Nations Special Rapporteur on the Right to Development Under the Theme:
Regional consultation on the Practical Implementation of the Right to Development: Identifying and Promoting good practices
Addis-Ababa 27, (27-29) March 2018 Prof. Raymond A. Atuguba
University of Ghana School of Law ratuguba@ug.edu.gh/atugubaatuguba@yahoo.com
+233 24 4354572

Roadmap The Conceptualisation of Human Rights in Africa has always been about development

The Practice of Human Rights in Africa has also always been about development

Africa has no choice other than have a developmentalist approach to Human Rights

Some good things Africa is doing relating to the Right to Development

Some not so good things Africa is doing relating to the Right to Development

What must Africa do to Realise the Right to Development?

The Conceptualisation of Human Rights in Africa has always been about development The content of the first known Human Rights Charter in Africa was developmentalist.

The Charter of Kouroukan Fouga in Ancient Mali, 1235 was divided into 4 key parts:
Social Organization (edicts 1-30),
Property Rights (edicts 31-36),
Environmental Protection (edicts 37-39) and
Personal Responsibilities (edicts 40-44).

The evolutions of other systems of Human Rights began with Political rather than developmental agendas:

The ICRC, the League of Nations and even the United Nations, for instance, set their focus initially on Conventions on War! and then ICCPR

In 1946! and (forty years later!) in 1986, the United Nations General Assembly passed the Declaration of Human Rights and the Declaration of the Right to Development respectively.

Both documents being Declarations, and not Conventions, are – strictly speaking – not legally binding.

It would be over 20 years after the creation of the United Nations before there would be significant advances into development issues in the form of:
International Covenant on Economic, Social and Cultural Rights – adopted 1966

Convention on the Elimination of all forms of Discrimination Against Women – adopted 1979

Convention on the Rights of the Child – adopted 1989

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families – adopted 1990

The Convention on the Rights of Persons with Disabilities-2007!!!

It is not only in 1235 that Africans had a developmentalist orientation to Human Rights.

The African Charter on Human and Peoples’ Rights, unlike others, has had a focus on development from its very inception.

It was adopted in Nairobi June 27, 1981 – five years before the United Nations Declaration on the Right to Development.

The very acknowledgement of Peoples’ Rights was a forward looking addition that indicates the developmentalist focus of the document.

In the Preamble, the framers are explicit in their conviction that “it is henceforth essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights”.

Article 22 (1) states boldly that “All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.”

Article 24 - “All peoples shall have the right to a general satisfactory environment favourable to their development”.

The Practice of Human Rights in Africa has also always been about development “I call on gold, it does not answer…it is (wo)man that matters”
Akan wise saying.

Ubuntu:
“Archbishop Desmond Tutu famously described ubuntu as meaning 'My humanity is caught up, is inextricably bound up, in what is yours’”.

Fast forward to today, decisions of the African Commission and the African Court contain a lot on developmentalist Human Rights:

Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001)

Allegations that the military government of Nigeria had been directly involved in oil production through the state oil company, and that the operations caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people.

Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2003)
Allegations of grave and massive violations of human and peoples' rights committed by the armed forces of the Republics of Burundi, Rwanda and Uganda in the Congolese provinces where there had been rebel activities since 2 August 1998

Centre for Minority Rights Development and Others v Kenya (2009) AHRLR 75 (ACHPR 2009)
alleged violations resulting from the displacement of the Endorois community, an indigenous community, from their ancestral lands, the failure to adequately compensate them for the loss of their property, the disruption of the community's pastoral enterprise and violations of the right to practise their religion and culture, as well as the overall process of development of the Endorois people.

Sudan Human Rights Organisation and Another v Sudan (2009) AHRLR 153 (ACHPR 2009)
Alleged gross, massive and systematic violations of human rights by the Republic of Sudan against the indigenous black African tribes in the Darfur region (Western Sudan); in particular, members of the Fur, Marsalit and Zaghawa tribes.

Centre for Housing Rights and Evictions v The Sudan (the COHRE case)
Complainant that that in February 2003 fighting intensified in the Darfur region following the emergence of two armed groups, the Sudan Liberation Army (SLA) and the Justice Equality Movement (JEM), which came primarily from the Fur, Zaghawa and Masaalit tribes.

The two armed groups’ political demand essentially was for the respondent state to address the marginalisation and underdevelopment of the region.

Africa has no choice other than have a developmentalist approach to Human Rights Given our circumstances, sustained focus on development is Africa’s only option:

Africa sits at the bottom of most major development indices

The Human Development Index rankings and values in the 2016 Human Development Report place the vast majority of African countries below 150

The 2017 Gender Equality Index ranks Algeria at 63rd, and Botswana, the next highest ranked African country is 108th!

Poverty is radical, visible, and excruciating in this part of the world.

In 2008 it was reported that half of the people in sub-Saharan Africa were living below the poverty line in 2005:
the percentage was the same as that of 1981!

In 2012 it was reported that 61% of Nigerians were living below the poverty line:
one of our most oil-rich nations

According to the CIA World Fact book, there are no continental African countries with less than 10% of their population living below the poverty line, there are, however, 15 countries with 50% or more of their populations living below the poverty line!!!

Africa is not a central player in world economic affairs.

We are marginalized both economically and developmentally, despite the fact that we produce most of the “wealth of nations”:

Ghana, Ethiopia, Côte d’Ivoire, Djibouti and 4 of the 5 fastest growing economies in the world.

The western world pays us no regard because since aid began in the 1960s, donors have given an estimated $502 billion to sub-Saharan Africa, which is worth about $866 billion in today's prices.

In return, almost $60 Billion a year is “looted” from Africa on our blind side:
it only takes 15 years to get to $866 billion (a 100% return on “investment”)
this system has been ongoing for almost 60 years!

Some good things Africa is doing relating to the Right to Development Across the Continent we can observe that:
African economies are some of the fatest growing in the world

Africa sports the New Gulf

Africa is catching up fast with ICT, so that electronic fraud in elections is as much an issue in Africa as it is the US (Sierra Leone)

Last week the Continental Free Trade Area Agreement was signed in Kigali, Rwanda

Hopefully we will soon say a permanent goodbye to the horrible EPAs.

“Policy makers in Africa have set the continent on a path toward renewed resilience in pursuing endogenous development strategies denoted by…”

a common resolve,
a common vision (2063), and
a common purpose.

And regional and subregional bodies such as the AU and ECOWAS are central to this movement.

An NGOs have kept governments and international bodies on their toes, and also accompany them in the forward march.

Some not so good things Africa is doing relating to the Right to Development We see from the last slides that Africa’s potential is ever increasing.

We know that the world powers are now so focused on:
Tweets and Building walls
The Arms Race, Polonium-210, and Novichok
Brexit
Trade wars
to notice Africa and prevent her from wielding her potential for sustainable growth.

This is the time for Africa to become a super power, quietly, Wakanda style, Black Panther style, BUT WE ARE NOT TAKING THE TIDE.

The second not so good thing we do is to focus on the wrong things.

“Over the past decade, Africa has seen significant economic growth and improvement in human development. However, challenges for development remain as rapid economic growth has been accompanied by greater inequality often times instigated by corruption, violence, ‘institutional inertia,’ and the polarizing global political order. Are these challenges insurmountable?”.

These things, except inequality, are not challenges that need to be surmounted in Africa.

They are opportunities that need to be embraced and nurtured.

Corruption is good:

Corruption could create accumulation for investment; create local economic development; create local economic leaders; force redistribution; be a social safety-net for many; etc.

When we say we want to reduce or eliminate corruption in order to reduce the cost of doing business…

Who does this benefit?

It benefits companies that already take 95% of our mineral resources and 87% of our oil resources.

Eliminating corruption just ensures that more is extracted away without the bribe money being paid.

For corruption to be “good”, Africans should not then allow these companies to pay such bribe monies in swiss banks, but in African banks.

And regulations should ensure that such monies are used for productive investments and not wasteful consumption.

Until we are able to get a just share of our natural resources and trade, it is foolishness to give away everything and additionally refuse to take the 10% bribe money and use it productively.

Violence is good…
Economic violence against marauding opportunists, for example, is very good.

Institutional inertia is good…
When it prevents terrorist attacks on African policy spaces.
And when it prevents remote control of elections in Africa

A polarized global political order is good…
As they fight amongst themselves and keep tweeting and brexiting and polonium 210ing,and Novichoking…
And forget us, whilst we become a super-power, Wakanda and Black Panther-style.

What must Africa do to Realise the Right to Development We are moving forward developmentally BUT:

Without enough BURNING DESIRE (we need to move like a lion is chasing us)

Without enough strategy (objective and outcome are separated by STRATEGY

Too slowly (we need to move like we will die tomorrow)

Too cautiously (Nigeria)

CONSTITUTIONALISM CAN DIRECTLY PROMOTE DEVELOPMENT-MY SUGGESTIONS

FIRST PROPOSAL: Since the Vienna Convention on the Law of Treaties allows deviations from International Agreements that are contrary to the Basic/Fundamental laws of a State, African countries can start by putting into our Constitutions, not just political provisions, but provisions on:
Economic Management
Natural Resource Management
International Trade and Investment Dispute Resolution
Domestic approvals for International Agreements, say by Parliament
ETC
We then raise these against any marauding companies that try to sell us short…
As inderogable provisions both in Domestic Law and at International Law…
Foroe Atlantic, Balkan Energy, AstroInvest line of cases by Ghana’s Supreme Court.

FOR THOSE IN DOUBT SEE… Article 46 (1) of the Vienna Convention on the Law of Treatise says: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treatise as invalidating its consent, unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”

WE NEED TO CONSTRUCT AN AGREED DOMESTIC DEVELOPMENT SPACE THAT IS INSULATED FROM ATTACK BY DOMESTIC LAW OF FUNDAMENTAL IMPORTANCE, AND THEREFORE, BY INTERNATIONAL LAW.

AND BEFORE YOU DISMISS THIS POINT WITH YOUR SUPERIOR KNOWLEDGE OF INTERNATIONAL LAW, THINK THAT YOU SHOULD ACTUALLY BE USING THAT SUPERIOR KNOWLEDGE TO PROTECT THIS ARGUMENT IN THE DOMAIN OF INTERNATIONAL LAW, FOR THE SAKE OF AFRICA.

SECOND PROPOSAL: Let constitutionality and constitutionalism guard our policy space from continuing and increasing attacks from terrorists.

I read a few days ago the terms of a horrible military cooperation agreement between Ghana and the US.

Ghanaians are up in arms, saying the agreement allows the US to set up a military base in Ghana and Ghana benefits minimally, if at all.

Yet, yesterday, after the Minority walked out of Parliament, the Agreement was approved by the Majority.

The Agreement was signed recently, approved by Cabinet 2 weeks ago and has already been ratified by Parliament.

Meanwhile, other urgent laws, including a Right to Information Bill, have been pending for about 20 years.

This establishes that Ghana’s policy space, as with all African countries, is under terrorist attack.

And the policy terrorists on Africa’s policy space appear to almost always succeed.

WHAT WILL HAPPEN WHEN WE TAKE CONTROL OF OUR POLICY SPACES IN AFRICA The empty concepts of “Rule of Law” and “Constitutionalism” will for the first time be filled with Content and Process that work for the good of Africa:

We will fill these concepts with Developmental and not Political constitutions

Embed in the constitutions, content that help us to get ahead developmentally against global forces: Faroe Atlantic line of cases

Use the Constitutions to further protect against terrorist attacks on African Policy spaces – military agreement with USA, e.g

We will “be ourselves”, because we will “know ourselves”, and achieve the part of Agenda 2063 which wants:
“An Africa with a strong cultural identity, common heritage, shared values and ethics”

We will win in the fourth and extant form of domination.

Resources will abound, as we begin to get more than 5% of minerals and 13% of Oil (or is it -50%).

More resources will abound as be stop transfer pricing, tax evasion, illicit financial outflows from Africa, etc.

We will have trillions of dollars here to develop our continent and the rest of the world.

Africa and the Right to Development A Presentation

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