Bringing the African human rights system into classrooms: Some lessons drawn from a lecture delivered at the Université Libre des Pays des Grands Lacs (DR Congo)

Author: Dr Kihangi Bindu Kennedy
Professor of international law at the Université Libre des Pays des Grands Lacs

Author: Trésor Makunya
Doctoral candidate & Academic Associate, Centre for Human Rights, University of Pretoria

Ever since the establishment of the Organisation of African Unity (1963), and later, the African Union (2002), their efforts to maintain peace and stability, uphold the constitutional order and ensure the respect and the promotion of fundamental rights and freedoms in the Democratic Republic of Congo (DRC)[1] have yielded unsatisfactory outcomes. Although major reasons for such a debacle have been underscored or echoed by prominent scholarship,[2] bringing these debates into law classrooms when training ‘society-conscious lawyers’ is one of the ways to contribute to the ongoing debate over the relevance of the African Union (AU) to Africans.[3] In this article, we highlights some lessons learnt from the discussions that followed a lecture we delivered at the Université Libre des Pays des Grands Lacs (ULPGL-Goma) on Wednesday 16 January 2019 to undergraduate law students. The lecture provided theoretical knowledge, analytical and practical skills on the AU and its human rights system which tend to be overlooked, the focus usually placed on the United Nations (UN) and the European human rights systems.

The first lesson drawn from the lecture was that DRC as a case study offers the opportunity to assess and reaffirm the ability of the AU to respond to both military and security threats and the crisis of democratic legitimacy of institutions. Many students thought, in fact, that the UN has been the unique intergovernmental organisation that had sufficiently contributed to preserve the territorial integrity of DRC, for example, when the Katanga province seceded after independence (1960-1963).[4] Furthermore, during the continued intractable conflicts that started in 1990s, the expectation of Congolese in general was that the establishment of the United Nations Mission in the Democratic Republic of Congo (MONUC)[5] that was renamed United Nations Mission for Stabilization in the Democratic Republic of Congo (MONUSCO),[6] would contribute to bring peace and stability within the country. Unfortunately, the persistence of armed groups across some provinces and the continuing killings of civilian population in Beni is evidence of the serious limitations of the UN as a whole in bringing peace and stability in a war-torn region.

Overlooking any role played by the AU in the establishment of peace and security, students also credit the UN for its successful involvement in the resolution of armed conflicts that followed the demise of Mobutu regime in 1997[7] while the AU had, alongside the UN, openly and sometimes in the shadow, played significant role during the Inter-Congolese Dialogue,[8] governmental negotiations with the National Congress for the Defense of the People (CNDP) rebels and most importantly, the signing of the Peace, Security and Cooperation Framework for DRC and the region in Addis Ababa in 2013.  Even though students should not be entirely blamed for this, partly because they are the “victims” of a curriculum that prioritises the teaching of the UN and some other western intergovernmental organisations considered as models/successes of regional integration and cooperation, the remarkable presence of the AU in the day-to-day DRC politics and crises makes it a perfect study target.[9] What should also be part of continuous discussions and reflections are the support that the AU provided during the 2006 and 2011 presidential elections through its long-term and short-term observers and its mediation of the political and constitutional crisis, one of which led to the formation of a government of national unity in 2016.[10] Although it is beyond the scope of this article to appraise the efficacy of AU contributions to DRC, it is submitted that allowing/inciting students to ponder over such themes through academic works might be one of the ways towards the revitalisation of the continental organisation. The quest for “African solutions to African problems” and the “decolonization of the African academic curriculum” should consequently, be brought into classrooms and the younger generation of Africans should be given the opportunity to contribute to political and security debates, which should be added human rights concerns.

The second lesson drawn from the lecture was the fact that the African human rights system has thus far acquired a robust normative and institutional framework which, if properly understood by the emerging generation of Congolese lawyers, will enhance the protection of fundamental rights in the DRC. Though students might criticise the country’s level of compliance with recommendations from the African Commission on Human and Peoples’ Rights (African Commission), its relevance in setting standards remains unquestionable. One would remember the Commission’s landmark decision in matters of self-determination as it relates to DRC as an illustration. The findings by the African Commission in the Katangese Peoples’ Congress v. Zaire case, for instance, should be popularised in our classrooms. This may particularly help students understand whether since 1995, conditions on the ground have evolved or the extent to which the Commission’s findings had contributed to deter such claims. From this case study, one could also examine human rights issues that arise from the Anglophone Cameroon crises and secession claims.[11]

Coming back to the situation of DRC and building on the African Commission’s findings and human rights standards, exposing law students to the African human rights system may contribute to enhancing the quality and the quantity of DRC state reports submitted to human rights monitoring bodies and probably enthusiasm towards ratifying some other human rights instruments ensuring greater human rights protection in the country. This may be enhanced by the fact that government institutions may benefit from the expertise of graduates who are exposed to the normative and institutional frameworks of the system. This article does not suggest that the study of the European or Inter-American human rights systems ought not form part of the human rights curriculum in African universities. It rather emphasises the relevance of the continental mechanisms, which are directly involved in setting standards that apply to the country on the basis of peoples’ realities, African philosophy of existence[12] and African fundamental values. [13] It is our hope that bringing the African human rights system into our classrooms would be fruitful and will foster critical discussions on human rights norms and standards for the well-being of all Africans.

[1]               Article 3(b); (f); (g); (h)of the African Union Constitutive Act

[2]               Including the fact that African states have opposing interests over the exploitation of natural resources in the country or the lack of adequate financial and human resources to support peace operations in the country.

[3]               On some of these debates, L Louw-Vaudran ‘Keeping the AU relevant to Africa’s citizens’ 25 May 2018 in Daily Maverick <https://www.dailymaverick.co.za/article/2018-05-25-keeping-the-au-relevant-to-africas-citizens/> (last accessed 17 January 2019).

[4]               The secession had both exogenous and endogenous roots. See D van Reybrouck Congo: Une histoire (2014) 363-424; M Larmer & E Kennes ‘Rethinking the Katangese secession’ < https://repository.up.ac.za/bitstream/handle/2263/49135/Larmer_Rethinking_2014.pdf?sequence=1 > (last accessed 18 January 2019).

[5]               UN Security Council Resolution 1234, 9 April 1999

[6]               UN Security Council Resolution 1925, 28 May 2010

[7]               HP Pokam ‘L’ONU dans le processus de preservation de l’indépendance de la République Démocratique du Congo’ in Pole Institute Repenser l’indépendance : la RD Congo 50 ans plus tard (2010) 133-161.

[8]               Inter-Congolese Political Negotiations, The Final Act, April, 2002.

[9]               On the legal consequence of the recent AU Chairperson declaration on 2018 DRC general elections, see EB Bope & T Makunya ‘Les conséquences juridiques de la déclaration de l’Union africaine sur les élections en République démocratique du Congo : un simple avis ou une mesure contraignante’ 19 January 2019 Club des Amis du Droit < http://www.cad-congo.org/?p=284> (accessed 20 January 2019).

[10]             T Kibangula ‘RDC: Comment Kabila a dispersé l’opposition en 3 temps, 4 mouvements’ 12 May 2017 in Jeune Afrique < https://www.jeuneafrique.com/433231/politique/rdc-kabila-a-disperse-lopposition-3-temps-4-mouvements/&gt; (last accessed 18 January 2019) ; Radio Okapi ‘Controverse autour de la publication du gouvernement Badibanga’ 20 December 2016 in Radio Okapi < https://www.radiookapi.net/2016/12/20/actualite/politique/controverse-autour-de-la-publication-du-gouvernement-badibanga> (last accessed 18 January 2019).

[11]             See  (2009) AHRLR 9 (ACHPR 2009) (Southern Cameroon case) for the African Commission on Human and Peoples’ Rights positions on the matter.

[12]             A Evelyn The African Commission on Human and Peoples’ Rights : Practice and procedures (1996) 159.

[13]             KK Bindu ‘Environmental and developmental rights in the Southern African Development Community with specific reference to the Democratic Republic of Congo and the Republic of South Africa’ (2010) Unpublished Doctoral Thesis, University of South Africa 95-96.

About the Authors:
Dr Kihangi Bindu Kennedy is Professor of International Law at the Université Libre des Pays des Grands Lacs and Director of the Research Centre on Democracy and Development in Africa. His areas of research cover international human rights law in Africa, public international law, constitutionalism and international criminal law.

Trésor Makunya is a doctoral candidate and Academic Associate at the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa. His doctoral thesis is titled Legal traditions and constitutional interpretations of bills of rights in Africa. His areas of research cover international human rights law in Africa, comparative constitutional law and democratisation in Africa.