The promises and limitations of law in guaranteeing freedom in Africa: The right to a Revolution

Author: Eduardo Kapapelo
Centre for Human Rights, University of Pretoria

One of the main objectives of international and regional law is to maintain peace and security. It has been reasoned that where there is peace and security, humanity stands a better chance to protect individual rights and freedoms. On account of the importance of peace and security at national, regional and international level, States agreed to criminalize those who engage in violent conduct or seek to change governments through the use of violent force. Yet, is it a coincidence that in many dictatorial governments with atrocious human rights records, opposition leaders are often charged of attempting to unconstitutionally change the government of the day? This contribution seeks to discuss the right to a just-revolution and how existing laws promise freedoms but is limited in delivery when it comes to dictatorial governments. In this contribution, a just-revolution is defined as a revolution to overthrow a government of the day whose rule is characterised by gross human rights violations or international crimes such as crimes against humanity and genocide. Do citizens have a right to a just-revolution?

The Lome Declaration against unconstitutional changes of government seek to preserve democratic order and constitutional change of government through free and fair elections. In practice, it never asks whether governments are democratic, and retain power through legitimate means. This insulates authoritarian incumbents against legitimate, popular revolt. In addition, many African countries have followed through and criminalized unconstitutional change of governments. It could be said that the promises of these laws are to maintain peace and security so that individual rights and freedoms can be better protected.

However, there are limitations to this promise of the law. The very nature of the international and regional systems, despite attempting to enforce normative values of peace and security, is to assume that governments in charge of States are always willing to act in the best interest of the people. It is also premised on the assumption that once elected, leaders will continue to execute their mandate in terms of their election promises. It is also to make an assumption that the elections that ushered a particular leader into power was free and fair in the first place.

In this regard, one can observe that international and regional law in its attempt to preserve peace and security at all costs tend to negate that the main source of oppression and suppression of freedoms can be the government of the day. The coldness of the law – so to say, is that it is not only stagnant but to a large degree allows the violence of States to continue.  It allows for the violence of State institutions to continue to oppress, dominate and in extreme cases kill its citizens. In countries like Angola, Togo, Uganda and Kenya with already questionable human rights records, violence against citizens has been justified by the need to curb the ongoing COVID-19 pandemic.

As a result, it is critical to discuss the phenomenon and need for just-revolutions in Africa because in recent years, peaceful and undisputed political transitions on the continent have been very few. It is also important to understand the nature of political violence in Africa and the quest for freedom before conceptualizing just-revolutions as a human right. Conflict and violence that characterize political contestation in Africa have been over-simplified as the nature of African politics, or rather the lack of political systems and institutions which allow for smooth transfer of powers. Nevertheless, perhaps a more nuanced discussion is required here.

The idea that political constitutions are grounded on a social contract amongst the members of society is both a recurring and accepted feature of modern political thought. It is the idea that individuals give up complete autonomy in order to live together within the confines of a State while abiding by certain rules which would protect not only individuals against each other but also individuals from the State and its institutions.

Yet, within the African context the social contract is demarcated not necessarily on this give and take paradigm, but tends to lean more towards the idea of State domination and control over its citizens. Such domination and control is one enforced by post-independence political parties wherein they have re-interpreted the social contract not one based on freedom, justice and the equality of the individual but rather one in which the hierarchical nature of the African State creates limits on individual rights and freedoms.

Violence is increasing on the continent. Africa is the sole continent in which political violence arose relative to 2020. In Ethiopia and Uganda governments have focused more on safeguarding their regimes through violence – thereby forcing people further to the fringes of desperation.  By looking at the construct of the social contract, domination continues to emerge and by doing so is then arguably taken as the foundation upon which the post-colonial African State was built, and as a result the basis under which people must adapt and survive. So one might ask, where are the institutions of the State?

While State ‘institutions’ are present, to a large extent they serve only the purpose of maintaining the domination of political elites. States like Angola, Uganda and Egypt have gone as far as creating democratic façades through the creation of Parallel institutions.  Life in this state of nature continues to be mired by this domination and the constant struggle for survival against the indignities of the State through its institutions and the political party which holds power.

As a result, one of the main reasons for people to support or engage in a just-revolution is the oppression people of the people by the government of the day to an extent that they have nothing to lose. Events in Angola, Egypt and Zimbabwe, Mali, Uganda and others are a testament of the kind of re-awakening of Africa’s people. Their demands for better standards of living seem to highlight a change and a contestation of the command structure which characterizes the so called atypical African State.

The dissatisfaction in those countries and others on the continent has been seen in multiple forms, but perhaps more clearly through the denial of rights, high levels of unemployment, corruption, and the State centralisation. This dissatisfaction also seems to be causing a re-awakening, a statement that oppressive and brutal regimes will no longer be tolerated, that individual rights are not only important, but their promotion and protection must not only be at the center of government policy making but the raison de’etre of the State.

The late Professor Christof Heyns, a former Dean of Law at the University of Pretoria, UN Special Rapporteur on extrajudicial, summary or arbitrary executions and member of the UN Human Rights Committee who coined the struggle approach to human rights argued that one way of looking at human rights is to see it as the ‘flipside of the coin of legitimate resistance’. He added that behind every ‘human rights claim there is the possibility, if there are no reasonable alternatives, of resorting to self-help, and conversely, that for self-help to be legitimate, it must be the only option to protect human rights.’

Indeed, and while it is important to note that protests which can be regarded as self-help have in the past brought down violent and brutal governments such as those in Algeria, Sudan and even the so called butcher of the Balkans, Slobodan Milosevic, it must also be understood that such protests have not necessarily changed the political system of those countries.

The African Charter is revolutionary as it seems to create avenues for self-help. It not only confers rights to individuals, but also attributes duties to such individuals – essentially establishing that individuals have the duty to not only take direct action in safeguarding those rights but creating the conditions for which such rights are respected, safeguarded and within the African context never again abused. Such attribution of rights then implies that in the absence of such rights – or rather in the event in which individual rights are not protected and or guaranteed by the State, individuals have both the duty and responsibility to take action to ensure that such rights are restored and eventually protected.

While it is important to note that violence is certainly not a desired outcome, nor should it ever be, the polar opposite is also true – State violence cannot in any way be tolerated. It is simply unacceptable and hypocritical that international law continues to simply point a disapproving finger at States that use extreme violence against their people while those who are the recipients of such violence are expected to use non-violence resistance as their only form of recourse.

About the Author:

Dr. Eduardo Kapapelo is a Programme Manager at the Centre for Human Rights and researcher in the field of political sciences, international law and human rights. He is working towards better understanding how governments can design institutions and mechanism for violence prevention. His expertise includes project design and management, policy analysis and implementation. He is currently researching new and emerging technologies such as artificial intelligence, autonomous weapons systems and their relationship to human rights. Specific fields of interest include policy analysis, human rights and structured vulnerabilities and post conflict justice and reconciliation.