A call to shift the seat: The Gambia is not a suitable seat for the African Commission on Human and Peoples’ Rights

frans_viljoen_newAuthor: Frans Viljoen
Director, Centre for Human Rights, University of Pretoria; Professor of Human Rights Law

In 1986, the African Charter on Human and Peoples’ Rights (African Charter) entered into force. Under the African Charter, the African Commission on Human and Peoples’ Rights (African Commission) is established to monitor state compliance with the Charter. The Assembly of Heads of State and Government of the Organization of African Unity (OAU) in 1987 decided that the Commission’s Secretariat should be based in Banjul, The Gambia. It has been located in Banjul ever since.

The initial rationale for the choice of seat has since fallen away

At the time this decision was taken, the choice of Banjul made much sense. Much of the drafting of the African Charter took place in Banjul, to the extent that the African Charter is often referred to as the ‘Banjul Charter’. In fact, The Gambia was one of the few states in Africa that, at the time, had any claim to democratic credentials. The head of state at the time, President Jawara, strongly supported the drafting process of the Charter, and assisted in overcoming political difficulties that arose in the drafting process.

However, this situation has changed dramatically. Since Jawara’s removal from power through a coup d’état in 1994, The Gambia has lost its claim to democratic legitimacy. The 1994 coup leader and current President, Jammeh, has now been in power for almost 20 years. While elections have subsequently been held, they are widely regarded as not meeting the standard of “free and fair”. In 2011, the Economic Community of West African States (ECOWAS) decided not to send an electoral observer mission to The Gambia for the presidential election because the political environment was not conducive to free and fair elections (http://thinkafricapress.com/gambia/jammeh-win-extend-rule). The Gambia is now generally regarded as the “odd country out”, in an ever-democratising Africa, and counts among the most undemocratic and authoritarian states on the continent.

At the first session after the unconstitutional change of government had taken place, the Commission adopted a resolution condemning the coup as a “flagrant and grave violation of the right of The Gambian people to freely choose their government”, and called on the military government to observe international human rights standards (Resolution on The Gambia, adopted at the Commission’s 17th session, 22 March 1995, Eighth Annual Activity Report, Annex VIII). However, short of finding a violation of the Charter in a communication submitted by the Former President Jawara (communications 147/95, 149/95 (joined), Jawara v The Gambia (2000)), the Commission seemed initially to have settled comfortably into life under the new regime.

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South Sudan, uti possidetis rule and the future of statehood in Africa

Author: Dr Babatunde Fagbayibo
Senior Lecturer in the Department of Public, Constitutional and International law at the University of South Africa

The emergence of South Sudan has once again brought sharp focus on inherited colonial boundaries and the quest for redrawing them.The process that led to the independence of South Sudan,including the immense challenges it is currently facing in building a new state, has raised questions on whether new states will emerge and the viability of such entities. As an expedient politico-legal move, the Organisation of African Unity (OAU) in 1964 adopted the principle of uti possidetis (Latin for “as you possess, so you may possess”). Primarily aimed at maintaining the sanctity of colonial boundaries, the adoption of this principle was underlined by two interrelated motives. The first was to prevent violent conflicts between African nations over disputed territories and the second was to stem the tide of secessionist movements within national boundaries. The independence of Eritrea in 1993, South Sudan in 2011 and a number of dormant and active secessionist movements across the continent strongly indicate the problematic nature of colonial boundaries and the structure of statehood in post-colonial Africa. Since the 1960s, there have been secessionist movements in places like Nigeria (Biafra), Congo (Katanga), Angola (Cabinda), Senegal (Casmance), Mali (Azawad), Somalia (Somaliland), Ethiopia (Ogaden, Eriterea and Oromo), Sudan (South Sudan), Zambia (Barotse), Tanzania (Zanzibar), and Coromos (Anjouan) – see www.sscnet.uncla.edu/polisci/wgape/papers/4_Engelbert.doc.

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