The African Charter on Human and Peoples’ Rights Volume 2: The Political Process 1847013546, 9781847013545

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The African Charter on Human and Peoples’ Rights Volume 2: The Political Process

Related James Currey and University of Rochester Press titles The African Charter on Human and Peoples’ Rights: Volume 1: Political, Intellectual and Cultural Origins Nat Rubner Disability Rights and Inclusiveness in Africa: The Convention on the Rights of Persons with Disabilities, challenges and change Edited by Jeff D. Grischow and Magnus Mfoafo-M’Carthy Decolonizing African Studies: Knowledge Production, Agency, and Voice Toyin Falola The African Garrison State: Human Rights & Political Development in Eritrea Kjetil Tronvoll and Daniel R. Mekonnen Disability in Africa: Incluison, Care, and the Ethics of Humanity Edited by Nic Hamel and Toyin Falola General Labour History of Africa: Workers, Employers and Governments, 20th–21st Centuries Edited by Stefano Bellucci and Andreas Eckert Approaching African History Michael Brett

The African Charter on Human and Peoples’ Rights Volume 2: The Political Process

Nat Rubner

JAMES CURREY

© Nat Rubner 2023 The right of Nat Rubner to be identified as the author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 All Rights Reserved. Except as permitted under current legislation no part of this work may be photocopied, stored in a retrieval system, published, performed in public, adapted, broadcast, transmitted, recorded or reproduced in any form or by any means, without the prior permission of the copyright owner First published 2023 James Currey Vol 1 ISBN 978-1-84701-353-8 (hardcover) Vol 2 ISBN 978-1-84701-354-5 (hardcover) Set ISBN 978-1-84701-380-4 (hardcover) Vol 1 ISBN 978-1-80543-003-2 (ePDF) Vol 1 ISBN 978-1-80543-004-9 (ePUB) Vol 2 ISBN 978-1-80543-001-8 (ePDF) Vol 2 ISBN 978-1-80543-002-5(ePUB) James Currey is an imprint of Boydell & Brewer Ltd PO Box 9, Woodbridge Suffolk IP12 3DF (GB) www.jamescurrey.com and of Boydell & Brewer Inc. 668 Mt Hope Avenue Rochester, NY 14620-2731 (US) www.boydellandbrewer.com British Library Cataloguing in Publication Data A CIP record for this book is available from the British Library The publisher has no responsibility for the continued existence or accuracy of URLs for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate

Contents Illustrationsvii Abbreviationsviii Timelinex Introduction1 Part Three: The Influence of the Outsiders 1 The Outsiders – Western Governments, the UN and NGOs Western governments

7 9

The United Nations

131

Non-governmental organisations

157

The International Commission of Jurists

168

Part Four: The Political Process 2 The Insiders – the Political Process of the ACHPR

191

The Commonwealth human rights initiative

192

The gestation and birth of Decision 115

207

The 1979 UN Monrovia Seminar

237

The drafting process

249

Postscript: Ratification, implementation and compliance

276

3 The Text

287

Title292 Preamble299 Part I Rights and Duties

311

Part II Measures of Safeguard

351

Part III General Provisions

371

Conclusion374

v

Contents

vi Appendix 1: The OAU Charter

385

Appendix 2: The ACHPR

393

Select Bibliography

409

Index503 Contents of Volume 1: Political, Intellectual and Cultural Origins may be found at the back of this volume

Illustrations Figure 1. Theo van Boven, United Nations Division of Human Rights Director (1977–1982), and Kéba M’baye, Chief Justice of the Supreme Court of Senegal (1964–1982) and President of the International Commission of Jurists (1977–1985)

145

Figure 2. Niall MacDermot, Secretary-General of the International Commission of Jurists (1970–1990)

180

Figure 3. Kéba M’baye, Chief Justice of the Supreme Court of Senegal (1964–1982) and President of the International Commission of Jurists (1977–1985) 182 Figure 4. President Senghor of Senegal (1960–1980) and Kéba M’baye with their wives.

212

Figure 5. Edem Kodjo, Secretary General of the Organisation of African Unity (1978–1983)

218

Full credit details are provided in the captions to the images in the text. The author and publisher are grateful to all the institutions and individuals for permission to reproduce the materials in which they hold copyright. Every effort has been made to trace the copy­ right holders; apologies are offered for any omission, and the publisher will be pleased to add any necessary acknowledgement in subsequent editions.

vii

Abbreviations AACC ABA ACHPR ACHR ACOMHPR AHSG AI CHOGM CHR CIAS CO CoM Decision 115 ECA ECHR ECOSOC EEC FCO/FO H.M.G. HRC IAUL ICJ ICOJ ICCPR ICESCR NCNC NGO NIEO OAU

All Africa Conference of Churches African Bar Association 1981 African Charter on Human and Peoples’ Rights 1969 American Convention on Human Rights African Commission on Human and Peoples’ Rights OAU Annual Heads of State and Government Meeting Amnesty International Commonwealth Heads of Government Meeting UN Commission on Human Rights Conference of Independent African States UK Colonial Office OAU Council of Ministers Decision of the 1979 Monrovia AHSG to prepare draft of the ACHPR Economic Commission for Africa 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms UN Economic and Social Council European Economic Community UK Foreign and Commonwealth Office/Foreign Office UK His/Her Majesty’s Government UN Human Rights Committee Inter-African Union of Lawyers International Commission of Jurists International Court of Justice 1966 International Covenant on Civil and Political Rights 1966 International Covenant on Economic, Social and Cultural Rights (together with the next above, ‘International Covenants’) National Council of Nigeria and the Cameroons Non-governmental organisation New international economic order Organisation of African Unity

viii

Abbreviations OAU Charter UDHR UN UN Charter UNDHR UNESCO UNGA WCC

ix

1963 Charter of the Organisation of African Unity 1948 UN Universal Declaration of Human Rights United Nations 1945 Charter of the United Nations United Nations Division of Human Rights United Nations Educational, Scientific and Cultural Organization United Nations General Assembly World Council of Churches

Abbreviations for archive sources cited in footnotes CSLA ICJ MPP NA OAU OAU (L) UN (G) UN UNESCO WJB

Commonwealth Secretariat Library and Archives, London International Commission of Jurists, Geneva Office and Archive Kéba M’baye Private Papers, Dakar and Fondation Kéba Mbaye, Dakar UK National Archives, London AU Archive Centre, Addis Ababa AU Legal and Secretariat Department Archive, Addis Ababa UN Archives and Library, Geneva UNBISNET online archives and UN Depository Libraries, London, New York UNESCO online document centre and Paris Archive Library Papers of William J. Butler, Robert S. Marx Law Library, College of Law, University of Cincinnati.

References to ‘quoted by’ are to secondary sources. All other sources are direct. In the case of ‘reference from’, the source is direct but identified from a secondary source.

Timeline 1961 January

International Commission of Jurists (ICJ) ‘African Conference on the Rule of Law’, Lagos

1976 September

ICJ Conference ‘Human Rights in a One-Party State’, Dar es Salaam

1978 September

ICJ Colloquium ‘Development and Human Rights’, Dakar

1979 July

Decision 115, OAU Monrovia Annual Heads of State and Government Meeting (AHSG)

September

1979 UN Monrovia Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa

November/ December

OAU Meeting of Experts, Dakar

1980 March

OAU Inquorate Ministerial draft review meeting, Addis Ababa

June

OAU First Banjul Ministerial Meeting

1981 January

OAU Second Banjul Ministerial Meeting

June

Adoption of ACHPR, OAU Nairobi AHSG

x

Timeline

1985 December

ICJ Conference ‘Human and Peoples’ Rights in Africa and the African Charter’, Nairobi

1986 October

ACHPR comes into effect

xi

Introduction In Volume 1 of The African Charter on Human and Peoples’ Rights, the political, intellectual and cultural context in which the ideas underlying the African Charter on Human and Peoples’ Rights (ACHPR) were conceived and nurtured, and the principles and politics upon which the Organisation of African Unity (OAU) was founded and functioned, were delineated. Without an appreciation of that context and of the nature of the OAU polity, it would be hardly possible to make sense of the political account of the ACHPR process or to grasp how the ACHPR should be understood. The essential, dominating, core of that context was a deep existential resentment against Western universalism and accordingly an attendant desire for a hitherto disregarded African perspective to be projected across the spectrum of the commanding heights of that Western universalism. It was a desire that would be symbiotically asserted not only in intellectual and cultural spheres of activity but also in the praxis of African political leaders in national, regional and international forums and declarations. Most especially at the UN and its agencies in opposition to the international post-war settlement, which, it was argued, had to be recalibrated so as to incorporate, for the first time, African interests and priorities. Volume 1 also looked at the African states’ engagement with human rights domestically and on the international stage. Domestically, it was clear that the human rights declarations and commitments incorporated into African independence constitutions had evoked little enthusiasm at the time or any great expectation that they would prove effective, and, unsurprisingly, post-­ independence, they were therefore either ignored or simply removed. Indeed, African political leaders made little secret of their contempt for human rights, which, they argued, had little relevance to the circumstances of the newly independent African states or the traditional African way of life. They therefore not only refused to contemplate any constraint on their almost unrestrained authority but also, in most cases, amended constitutions so as to augment further that authority. It was also clear that, with few exceptions, a ‘modern’ civil society that might serve to temper or blunt the political power of African leaders or demand a human rights regime was as yet still in the process of formation. Internationally, the 1948 UN Universal Declaration of Human Rights (UDHR) and the panoply of international human rights declarations, other than those directed at the remaining colonial regimes, were considered by African political leaders and educated African opinion alike to be the offspring of the 1

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The African Charter on Human and Peoples’ Rights: Volume 2

international post-war settlement and Western universalism from which Africa had hitherto been excluded. They therefore demanded not only that the canons of international human rights be reinterpreted and enhanced so as to incorporate African interests and priorities, and African social mores more generally, but also that the priorities as between human rights categories be reordered. Moreover, it was made clear in blunt terms that the African states were not prepared to accept outside interference in African affairs or tolerate the imposition of external human rights standards. Against this background, it is not immediately apparent who or what was likely to initiate the first steps towards an African human rights system that would almost certainly fail to secure a sufficient consensus in the OAU Annual Heads of State and Government Meeting (AHSG), the only forum with the authority to speak for Africa. Nor was it obvious, in the event that such a proposal was accepted, what form an African human rights system might take or with what powers of enforcement, if any, it would be endowed. The main aim of Volume 2 is therefore to answer those questions and its corollary, how therefore should the ACHPR that emerged be understood. Regrettably, the answer has necessarily to begin with a negative. Part Three: The Influence of the Outsiders (Chapter 1) therefore looks to debunk the frequently alleged outside influence over the ACHPR process by, respectively, Western governments, the UN and NGOs (with the significant exception of the International Commission of Jurists). It demonstrates that the African states were hardly the weak party in their dealings with Western governments who were therefore not only powerless to restrain flagrant human rights abuses in Africa but were also only too aware that any attempt at promoting an African human rights system would be bound to fail. Indeed, they were aware that any such intervention would be totally counter-productive. Moreover at the UN and in their relations with NGOs, it was the African states that were in the majority and therefore the NGOs that were on the defensive. The African states were everywhere on their guard against Western universalism and interference, and were determined to resist at all costs. At the UN Commission on Human Rights (CHR) and towards NGOs, the African states would therefore not only insist on the principle of non-interference but actively campaign for a revanchist formulation of human rights to be incorporated into the corpus of international human rights scripture. Human rights were therefore linked to and made dependent on economic development, as exemplified by the Proclamation of the 1968 Tehran International Conference on Human Rights and the formulation of the ‘Right to Development’. These formulations would, in due course, find their way into the content of the ACHPR. At the same time, as is evident from the reports of African participants at UN pedagogic conferences on human rights, even the educated African elite were not prepared to contemplate a human rights mechanism that did not emerge out of Africa, that failed to include the rights that the African states were now pur-

Introduction

3

suing and that was not purged of the rights in the UDHR that were considered inappropriate to the African condition and way of life. African leaders were not alone in their condemnation of the UDHR. If, therefore, the ACHPR was not the result of outside pressure, what was it then that prompted the tabling and adoption of Decision 115 of the 1979 Monrovia AHSG to prepare the draft of the ACHPR? This is explained in Part Four: The Political Process (Chapters 2 and 3) which looks into the political process and content of the ACHPR itself. The decisive intervention, a detailed account of which is presented in Chapter 2 was the role played by a small group of African political leaders and the ICJ. They identified that an African human rights system would only be acceptable if it was put before the OAU AHSG and presented not as a Western concept but as a charter for Africa, drafted by Africa and, importantly, as a statement of the African perspective on human rights. Even then, it was not clear that the proposed ACHPR would survive unless its powers were so watered down that it was effectively neutered as a means of constraining human rights abuses by African political leaders. That would emerge unmistakably in the drafting process and the final text but also, as described in the Postscript to Chapter 2, after adoption in 1981 and ratification in 1986, and in the subsequent failure of implementation and compliance. The drafting went through several primary stages. First a draft prepared by M’baye for the meeting of experts, then the draft prepared by the meeting of experts and, finally, the draft that followed the political review by a Ministerial meeting. Unfortunately, commentary and sources on the drafting debates are sparse. In so far as is possible, therefore, Chapter 3 looks at how the content of the ACHPR evolved based on a textual analysis of the drafts, the limited reports of the drafting meetings and interviews with participants. Finally, the Conclusion weaves together the findings and suggests that the ACHPR should rather be understood not only on its own terms as an African document but also as a reproach to the concept of universal human rights.

Part Three

The Influence of the Outsiders

Chapter 1 The Outsiders – Western Governments, the UN and NGOs Whereas the outlook of the OAU polity was unfailingly hostile towards a concept of human rights based on the UDHR, by the mid-1970s public opinion in the developed world had become equally and oppositely convinced of the moral imperative of human rights. Such was the ardour that Moyn would characterise this period as one in which ‘the moral world of Westerners shifted’ and Henkin would refer to ‘The Age of Rights’. The supreme validation would come with the award in 1977 of the Nobel Peace Prize to Amnesty International (AI).1 One measure of this ‘shift’ was the dramatic increase in the number of NGOs so that, by the end of the 1970s, it was estimated that in the United States and United Kingdom alone there were more than 200 human rights NGOs, fifty of which maintained a lobbying presence in Washington. Moreover, alongside this rise in the number of NGOs there was also an explosion in membership.2 The US section of AI, for example, saw its membership surge over the period 1970 to 1976 from around 3,000–6,000 to 35,000–50,000 members.3 As for the UN, as 1 2

3

S. Moyn, The Last Utopia: Human Rights in History (Cambridge, 2010), 1 and L. Henkin, The Age of Rights (New York, 1990). K. Cmiel, ‘The Emergence of Human Rights Politics in the United States’, Journal of American History, 86/3 (1999), 1231–1250, L.S. Wiseberg/H.M. Scoble, ‘Recent Trends in the Expanding Universe of NGOs Dedicated to the Protection of Human Rights’, V.P. Nanda/J.R. Scarritt/G.W. Shepherd, Jr. (eds), Global Human Rights: Public Policies, Comparative Measures, and NGO Strategies (Boulder, 1981), 230–235 and D. Ottaway, ‘The Growing Lobby for Human Rights’, Washington Post, 12 December 1976, 31 (reference from L.S. Wiseberg/H.M. Scoble, ‘The International League for Human Rights: The Strategy of a Human Rights NGO’, Georgia Journal of International and Comparative Law, Supplement Issue 7 (1977), 290). S.B. Snyder, ‘Exporting Amnesty International to the United States: Transatlantic Human Rights Activism in the 1960s’, Human Rights Quarterly, 34/3 (2012), 779–799 and J. Eckel, ‘The International League for the Rights of Man, Amnesty International, and the Changing Fate of Human Rights Activism from the 1940s through the 1970s’, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 4/2 (2013), 183–214.

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of 1979, the Economic and Social Council (ECOSOC) had granted consultative status to more than 700 NGOs.4 As only a few NGOs had the capability to intercede directly with the governments they sought to accuse, the main recourse for NGOs was to apply such political pressure on Western governments as would compel them to accommodate a higher priority for human rights in their foreign policies than they had hitherto been minded to do. To that end, NGOs began to form coordinated lobby groups to direct that pressure: In the US, the Coalition for a New Foreign and Military Policy, which set up the Human Rights Working Group as its first task force, and in the UK, the Human Rights Network. Responding to these pressures, governments in the UK (the Labour Party) and US (President Carter) were elected in 1974 and 1976 on a manifesto pledge committing them to a human-rights-based foreign policy. Even France, now with few remaining colonial territories, ratified the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in 1974. Some of the smaller European states, notably the Netherlands and the Scandinavian countries, also began to take an active interest in human rights and development issues and to advertise these issues as matters central to their foreign policy identities. The other recourse open to NGOs (and Western governments) was pressure exerted through the UN. However, as has earlier been described, by the late 1970s, it was clear that little satisfaction was to be gained from the CHR as all efforts to condemn the gross violations of human rights by African states had essentially failed. Attempts to skirt around the CHR by way of a Human Rights Commissioner or the UN Human Rights Committee (HRC) compliance procedures had similarly failed. Moreover, if at all, far from being able to exert pressure, it was the NGOs themselves who were coming under pressure at the UN. One other possibility, though, was the creation of an African regional human rights regime by the African states themselves. Western Europe had adopted the ECHR in 1950 and the Americas would adopt the American Convention on Human Rights (ACHR) in 1969, although it had been in the making since (at least) 1959, and it therefore seemed an obvious next step to encourage Africa to establish its own regional human rights regime. Indeed, this was a matter on which, it was felt, the UN and NGOs could assist. From the 1960s on, therefore, the UN and international human rights NGOs began to arrange a series of African human rights conferences at which the idea and content of an African human rights regime was discussed. It was hoped that, through an exchange of 4

List of non-governmental organizations in consultative status with the Economic and Social Council in 1979, UN E/1980/INF/2 23 January 1980 and Graph, NGOs with ECOSOC consultative status from 1946 to 1995, P. Willetts, ‘Consultative Status for NGOs at the United Nations’, P. Willetts (ed.), The Conscience of the World: The Influence of Non-Governmental Organisations in the UN System (London, 1996), 38.

The Outsiders – Western Governments, the UN and NGOs

9

information – Baricako would describe this process as ‘the long journey’ – a milieu might be fostered in which African governments would be persuaded to adopt some form of regional human rights machinery.5 This heightened profile for human rights and pressure applied by Western public opinion and governments alike, directly and through the UN, feature in almost all African human rights commentary as significant explanations of how the ACHPR process was brought about; although, as usual, the details of how precisely they prompted President Senghor’s proposal in 1979 and adoption of the ACHPR in 1981 are rarely identified. In fact, when such explanations are looked at in detail, it becomes clear that, in the main, such explanations cannot be sustained. The African states were neither susceptible to outside pressure nor likely to succumb to the attractiveness or righteousness of Western human rights universalism.

Western governments The United States Human rights emerged into the political arena in the 1970s largely as a result of a campaign by a new generation of liberal Democratic Party representatives in the US Congress (Congress) with the support of the growing number of human rights NGOs. It was fomented by a deep elemental dissatisfaction with the conduct of the Vietnam War and increasing disclosures of the extent of US complicity with military dictatorships in South America. The Watergate affair, which broke in June 1972 and ended with President Nixon’s resignation in August 1974, added to the sense of a cynicism at the heart of government and therefore of a corresponding necessity to reaffirm basic political values both at home and in the shaping of US foreign policy. It had hitherto been the practice that foreign policy was set by the President, executed by the State Department and deferentially overseen by Congress. However, the new younger generation of Democratic Party representatives was not minded to adopt so deferential a mindset. In 1971, therefore, the Senate Foreign Relations Committee held a series of hearings on torture in Brazil which led, discreetly, to a major reduction in aid. Although a parallel attempt to also reduce appropriations for the Vietnam War was unsuccessful, it nonetheless demonstrated the extent to which this younger generation was willing to go to impose 5

G. Baricako, ‘Introductory Preface: The African Charter and African Commission on Human and Peoples’ Rights’, M. Evans/R. Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006 2nd edn (Cambridge, 2008), 2; The origins of the ACHR are described in R.K. Goldman, ‘History and Action: The Inter-American Human Rights System and the Role of the Inter-­ American Commission on Human Rights’, Human Rights Quarterly, 31/4 (2009), 856–887.

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The African Charter on Human and Peoples’ Rights: Volume 2

greater Congressional oversight over US foreign policy. It was therefore fortuitous for their purpose that, at this moment, following recent Congressional rule changes, they were able to assume the Chair of several subcommittees of the Foreign Affairs Committee of the House of Representatives (House). This opened up the possibility of a far greater degree of control over the oversight of US foreign policy and the hiring of Congressional staff with a background in the peace movement less inclined to defer to official views over foreign policy.6 It was against this background that in 1973 Fraser, a Democrat from Minnesota, as the new Chairman of the House Subcommittee on International Organizations and Movements (subsequently Subcommittee on Human Rights and International Organizations), began a series of hearings to consider the extent to which human rights should carry a far greater weight in the determination of US foreign policy.7 Between August and December 1973 Congressman Fraser’s subcommittee held an initial round of fifteen hearings on ‘International Protection of Human Rights: The Work of International Organizations and the Role of U.S. Foreign Policy’ in the process taking testimony from forty-five witnesses, including NGO representatives, academics, former officials of the United Nations Division of Human Rights (UNDHR), US representatives past and present to UN human rights bodies and Congressional representatives. All witnesses were encouraged to make suggestions as to how human rights might be more closely woven into the fabric of US foreign policy. The lead witness was MacDermot, ICJ Secretary-General, who would later play a key role in the process of the ACHPR.8 By the time the subcommittee had run its course it had held more than 150 hearings with over 500 witnesses including State Department officials invited to testify on a range of issues of concern to the subcommittee.9 6

7

8

9

R.D. Johnson, Congress and the Cold War (New York, 2006), 179–181, B. Keys, Reclaiming American Virtue: The Human Rights Revolution of the 1970s (Cambridge, 2014), 76–84, 142 and R.A. Pastor, Congress and the Politics of U.S. Foreign Economic Policy, 1929–1976 (Berkeley, 1980), 302–303. K. Sikkink, U.S. Human Rights Policy and Latin America (Ithaca, 2004), 48–49, 68–69; see also D.M. Fraser, ‘Human Rights and U.S. Foreign Policy: Some Basic Questions Regarding Principles and Practice’, International Studies Quarterly, 23/2 (1979), 174–185. Testimony of Niall MacDermot, Secretary General of the ICJ, International Protection of Human Rights: The Work of International Organizations and the Role of U.S. Foreign Policy, Hearings before the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs, House of Representatives, 93rd Congress, 1st Session (1973), 2–29 (1 August 1973). J. Salzberg/D.D. Young, ‘The Parliamentary Role in Implementing International Human Rights: A U.S. Example’, Texas International Law Journal, 12/2–3 (1977), 251–252 and J.P. Salzberg, ‘A View from the Hill: U.S. Legislation and Human Rights’, D.D. Newsom (ed.), The Diplomacy of Human Rights (London, 1986), 15–16.

The Outsiders – Western Governments, the UN and NGOs

11

Among the issues considered by the subcommittee were the 1972 massacres in Burundi. In his testimony on the apparent failure of the UN and US foreign policy to respond effectively to these massacres, Cohen, Director of the Office of Central African Affairs sought to explain that: Dramatic actions and public declarations from outside Africa could only have served to inflame African sensitivities to great power interference and rally African opinion in support of the Burundi government … Our political efforts to galvanize collective action among the African leaders did not bear fruit in 1972 because of the tremendous weight given in the OAU context to the principle of noninterference … to have raised the question … in the United Nations would not have been helpful and might very possibly have resulted in a build-up of African counter-reaction which would have made a serious discussion of the situation impossible.10

In fact, in quiet diplomacy, the State Department had approached African leaders, but its efforts were largely unsuccessful. President Nyerere and President Mobutu were requested to raise US human rights concerns with President Micombero (Burundi) but both had other more pressing considerations that weighed against any undue pressure. President Kenyatta would also refuse to pass on US concerns to other African leaders.11 The bottom line was an insipid resolution at the 1972 Rabat AHSG expressing ‘support for the efforts of the President, Government and people of Burundi towards peace reconciliation, unity and progress’.12 Following its initial round of hearings, the subcommittee issued a report: Human Rights in the World Community: A call for U.S. leadership. Its primary finding, which it illustrated by naming several governments (none African), was that: ‘The human rights factor is not accorded the high priority it deserves in our country’s foreign policy … the prevailing attitude has led the United States 10

11

12

Testimony of H.J. Cohen, Director, Office of Central African Affairs, Department of State, International Protection of Human Rights: The Work of International Organizations and the Role of U.S. Foreign Policy, Hearings before the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs, House of Representatives, 93rd Congress, 1st Session (1973), 71–72 (19 September 1973). FRUS 1969–1976 Vol. E-5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Document 225: Memorandum From the Executive Secretary of the Department of State (Eliot) to the President’s Assistant for National Security Affairs (Kissinger), 24 September 1972: The U.S. Response to the Burundi Tragedy, FRUS 1969–1976 Vol. E-3 Documents on Global Issues, 1973–1976, Document 232: Letter From the Assistant Secretary for Congressional Relations, Department of State 7 December 1973 and M. Bowen/G. Freeman/K. Miller, Passing by: The United States and Genocide in Burundi, 1972 (Washington, undated probably 1973), 9–10. Resolution ‘Recent events in Burundi’, 1972 Rabat AHSG, OAU OAU Special 9th Summit September 1972 (Addis Ababa, 1972), 36.

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into embracing governments which practice torture and unabashedly violate every human rights guarantee pronounced by the world community’. It went on to assert that ‘consideration for human rights in foreign policy is both morally imperative and practically necessary’. The report also made twenty-nine recommendations ‘in the two areas of primary concern of the hearings – raising the priority given to human rights in U.S. foreign policy and strengthening the capacity of international organizations to insure protection of human rights’. It was a landmark report that marked the start of a more active involvement by Congress in foreign policy in that, thereafter, Congress began to convene regular hearings on the human rights status of countries receiving US economic or security assistance. More significantly, Congress also began to enact legislation aimed at restricting US support to countries deemed to be violating human rights.13 The report put the subcommittee on a collision course with President Nixon and, after August 1974, President Ford. Most directly, it confronted Kissinger, the architect of their foreign policy. At the 1973 confirmation hearings for his proposed appointment as Secretary of State, Kissinger advised the Senate Committee on Foreign Relations that ‘it is dangerous for us to make the domestic policy of countries around the world a direct objective of American foreign policy’. Moreover, at the very time when Congressman Fraser’s subcommittee was holding its hearings, he put down their arguments although without direct mention of human rights: The policymaker … must strike a balance between what is desirable and what is possible … When policy becomes excessively moralistic, it may turn quixotic or dangerous. A presumed monopoly on truth obstructs negotiation and accommodation. Good results may be given up in the quest for ever elusive ideal solutions. Policy may fall prey to intellectual posturing or adventuristic crusades.14

Two of the key recommendations in the subcommittee’s report under the heading ‘Organization of the State Department’ derived from a sense that the Human Rights in the World Community: A Call for U.S. leadership, Report of the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs House of Representatives, (1974), 2, 9. 14 Nomination of Henry A. Kissinger, Hearings before the Committee on Foreign Relations, United States Senate 93rd Congress, 1st Session Part 1 (1973), 117 (reference from S.B. Cohen, ‘Conditioning U.S. Security Assistance on Human Rights Practices’, American Journal of International Law, 76/2 (1982), 250) and FRUS 1969–1976 Vol. XXXVIII Part 1 Foundations of Foreign Policy, 1973–1976, Document 19: Address by Secretary of State Kissinger, 8 October 1973 to Third Pacem in Terris Conference, sponsored by the Center for the Study of Democratic Institutions (reference from S. Vogelgesang, ‘Diplomacy of Human Rights’, International Studies Quarterly, 23/2 (1979), 233). 13

The Outsiders – Western Governments, the UN and NGOs

13

State Department ‘should strengthen its organization in the human rights field’. In 1971, the State Department had assigned responsibility for human rights to a lone official in the newly created Directorate of Human Rights within the Bureau of International Organization Affairs. His duties were, in effect, little more than drafting US positions on human rights issues arising at the UN. Reflecting the testimony of the heads of the State Department’s Bureaux of the Legal Adviser and International Organization Affairs, the subcommittee reported that: ‘The structure of the bureaucracy in the Department of State is not adequate for giving weight to human rights considerations.’ It therefore recommended that an Office for Human Rights should be created within the Bureau of International Organization Affairs with an increase in staff; an Officer for Human Rights Affairs assigned to each of the State Department’s regional bureaux with responsibility for analysing human rights practices in the countries of the region and developing policy recommendations; and the appointment of an Assistant Legal Adviser on Human Rights in the State Department’s Legal Adviser’s Office. It also, rather optimistically, proposed an Advisory Committee on Human Rights that would include NGO and academic experts and human rights practitioners.15 As the Democrats controlled Congress, Secretary of State Kissinger recognised the need to placate Congress by implementing many of the subcommittee’s recommendations. The State Department therefore appointed an Assistant Legal Adviser for Human Rights, assigned an extra official to human rights in the Bureau of International Organization Affairs and inflated the title of the official in charge of human rights issues to Deputy Director for Human Rights Affairs. However, Congressional oversight was not so easily appeased. Following further talks with Congressman Fraser, a new position of Coordinator for Humanitarian Affairs, reporting to the Deputy Secretary of State, was created in 1975. Human rights officials were also assigned to the State Department’s regional bureaux and State Department officials and diplomats advised of the new human rights paradigm demanded by Congress. A year later, a further reorganisation led to the creation of the Office of Coordinator for Human Rights and Humanitarian Affairs with specific responsibility for preparation of the human rights reports that Congress was increasingly demanding.16 15 16

Human Rights in the World Community: A Call for U.S. leadership, 3–4, 12–13. FRUS 1969–1976 Vol. E-3 Documents on Global Issues, 1973–1976, Documents 241: Briefing Memorandum From the Deputy Undersecretary for Management (Brown) to Secretary of State Kissinger, 8 August 1974 and 250: Letter From the Deputy Secretary of State (Ingersoll) to the Chairman of the Senate Judiciary Committee (Eastland), 18 April 1975, B. Keys, ‘Congress, Kissinger, and the Origins of Human Rights Diplomacy’, Diplomatic History, 34/5, 823–851, J. Salzberg/D. D. Young, ‘The Parliamentary Role in Implementing International Human Rights: A U.S. Example’, 274–278, H. Warshawsky, ‘The Department of State and Human Rights Policy: A

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In practice, though, these changes were largely cosmetic in that human rights input was ignored by Secretary of State Kissinger. This emerges most clearly at a State Department Staff Meeting in which human rights policy in the context of pressure from Congressman Fraser’s subcommittee was discussed. Buffum, Deputy Assistant Secretary for International Organization Affairs, explained that: ‘The only reason I suggested it for the agenda is … that human rights are getting a lot more attention, and we are under increasing criticism on the Hill … for not taking enough of a lead and not taking a forthcoming enough approach.’ In response, Jenkins, Deputy Assistant Secretary for Congressional Relations, replied that: ‘I think if we could do a little more on the organizational side, we will preserve a lot more of our substantive position … a lot of the problem is imagery.’17 A more visible expression of Secretary of State Kissinger’s continuing refusal to respond to Congress’ concerns emerged in September 1974 when it was reported that he had rebuked the US Ambassador to Chile – ‘Tell Popper to cut out the political science lectures’ –for raising the issue of human rights with the military junta in the context of discussions over military aid with the Chilean Minister of Defence.18 Angered, therefore, by such blatant intransigence, Congress determined to follow through with legislation. As Congressman Fraser would later explain, it was felt that military aid was the most appropriate starting point as it was invariably through the use of military supplies that regimes were able to abuse due process and maintain themselves in power.19 The first warning shot, in that it was not legally binding, was fired in 1973 by an amendment to the 1961 Foreign Assistance Act declaring that: ‘It is the sense of Congress that the President should deny any economic or military assistance to the government of any foreign country which practices the internment or imprisonment of that country’s citizens for political purposes.’ Six months later, Case Study of the Human Rights Bureau’, World Affairs, 142/3 (1980), 191–192, D. Heaps (commissioned by the AAICJ), Human Rights and U.S. Foreign Policy: The First Decade 1973–1983 (New York, 1984), 10 and R. Cohen, ‘Human Rights Decision-Making in the Executive Branch: Some Proposals for a Coordinated Strategy’, D.P. Kommers/G.D. Loescher (eds), Human Rights and American Foreign Policy (Notre Dame, 1979), 217–219. 17 FRUS 1969–1976 Vol. E-3 Documents on Global Issues, 1973–1976, Document 236: Minutes of the Acting Secretary’s Functional Staff Meeting, 12 June 1974. 18 Human Rights in Chile: Hearing before the Subcommittees on International Organizations and Movements and on Inter-American Affairs of the Committee on Foreign Affairs, House of Representatives, 93rd Congress, 2nd Session Part 2, November 19 1974 (1975), 25–32 (Appendix IV: Documentation concerning U.S. Government response to the human rights situation in Chile) and R.A. Pastor, Congress and the Politics of U.S. Foreign Economic Policy, 1929–1976, 308. 19 D.M. Fraser, ‘Human Rights and U.S. Foreign Policy: Some Basic Questions Regarding Principles and Practice’, 179.

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when it emerged that the amendment was being ignored by the State Department on the basis that it was neither an effective nor an appropriate tool for foreign policy, Congress was prompted to adopt a further amendment: ‘It is the sense of the Congress that, except in extraordinary circumstances, the President shall substantially reduce or terminate security assistance to any government which engages in a consistent pattern of gross violations of internationally recognized human rights.’ Thus, if security assistance was still being proposed, the President was required to report to Congress on the ‘extraordinary circumstances necessitating the assistance’. As to the definition of ‘gross violations’, this was to be determined by reference to the definition set out in ECOSOC’s 1503 Resolution. In 1975, legislation on economic and other non-military assistance was also adopted by Congress whereby no assistance might be provided to countries engaged in a ‘consistent pattern of gross violations’ albeit with the proviso ‘unless such assistance will directly benefit the needy people in such country’; however, in that event, a ‘detailed explanation on how such assistance will directly benefit the needy people’ had to be provided. Moreover, the President was also now obliged to submit ‘in the annual presentation on economic development assistance programs, a full and complete report regarding the steps he has taken to carry out the provisions of this section’. Despite the obligation to submit human rights reports, Secretary of State Kissinger continued to hold out and had to be reminded of his obligations. Finally, in November 1975, he submitted a superficial report. It indicated that in view of the conflict between US security interests and human rights factors, the State Department was largely ignoring the latter. Furthermore, while internal reports had been prepared on individual countries, he was not prepared to release them as ‘neither the U.S. security interest nor the human rights cause would be properly served by the public obloquy and impaired relations … that would follow the making of inherently subjective … determinations that “gross” violations do or do not exist or that a “consistent” pattern of such violations does or does not exist in such countries’. As a result of this ‘unsatisfactory’ report, in 1976, Congress adopted a further amendment to tighten up assistance procedures and move from a ‘sense of Congress’ to mandatory reporting. It was initially vetoed by President Ford, but eventually a compromise arrangement was reached: Firstly, it was directed that: ‘The United States shall … promote and encourage increased respect for human rights and fundamental freedoms throughout the world … Accordingly a principal goal of the foreign policy of the United States shall be to promote the increased observance of internationally recognized human rights by all countries.’ Secondly, the President was directed ‘to formulate and conduct international security assistance programs of the United States in a manner which will promote and advance human rights and avoid identification of the United States through such programs with governments which deny to their people internationally recognized human rights’. Finally, the Secretary of State was to submit

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an annual report to Congress ‘regarding the observance of and respect for internationally recognized human rights in each country proposed as a recipient of security assistance’. The human rights reports were therefore now legally binding. Moreover, Congress also began to legislate restrictions on specific countries. Other legislation addressed lending decisions in multilateral financial institutions. In 1976 the US Executive Directors of the Inter-American and African Development Banks were instructed to oppose any loan or extension of financial assistance ‘to any country which engages in a consistent pattern of gross violations of internationally recognized human rights’, followed in 1977 by a parallel amendment to the International Bank for Reconstruction and Development (World Bank) Act requiring that: ‘The United States Government in connection with its voice and Vote … shall advance the cause of human rights, including by seeking to channel assistance toward countries other than those whose governments engage in … a consistent pattern of gross violations of internationally recognized human rights.’ In 1978, a further directive was also adopted obliging US representatives to pursue amendments to the charter of multilateral financial institutions that would oblige human rights considerations to be applied automatically to loan applications.20 As a result of this new legislation, beginning with opposition to a proposed 1976 Inter-American Development Bank loan to Chile, by the end of 1978, as Schneider reported, ‘the U.S. had opposed 52 loans to 16 countries on human rights grounds. In several other instances, countries were advised that human 20 D. Weissbrodt, ‘Human Rights Legislation and U.S. Foreign Policy’, Georgia Journal of International and Comparative Law, Supplement Issue 7 (1977), 231–288, R.D. Carter/F.D. Brogan, ‘United States Human Rights Policy: Effect on Exports’, Georgia Journal of International and Comparative Law, 9/2 (1979), 287–332, S.B. Cohen, ‘Conditioning U.S. Security Assistance on Human Rights Practices’, 246–279, R.B. Lillich, U.S. Legislation Relating Human Rights to U.S. Foreign Policy, prepared for the International Human Rights Law Group (Washington, 1979), D. Heaps (commissioned by the AAICJ), Human Rights and U.S. Foreign Policy: The First Decade 1973–1983, 11–12, S. Vogelgesang, American Dream Global Nightmare: The Dilemma of US Human Rights Policy (New York, 1980), 218–219, G.D. Loescher, ‘Carter’s Human Rights Policy and the 95th Congress’, The World Today, 35/4 (1979), 150–151 and L.P. Bloomfield, ‘From Ideology to Program to Policy: Tracking the Carter Human Rights Policy’, Journal of Policy Analysis and Management, 2/1 (1982), 4; see also D.D. Newsom (ed.), The Diplomacy of Human Rights, 223–235 Appendix D: Pertinent US Legislation and ‘Correspondence from Lister to ARA Office Directors, July 15, 1975 on “Human Rights Reports for Congress” with attached memoranda from Morton Holbrook and James Wilson outlining State Department strategy for human rights reports’, The George Lister Papers, https://law.utexas. edu/humanrights/lister/assets/pdf/Human%20Rights%20Bureau/bureau%20 declassifiedlistertoarajuly151975.pdf, last accessed 14 May 2016, University of Texas Law LLILAS Benson Digital Collections.

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rights concerns … would result in a negative vote’.21 In total, the US would abstain or vote against some 118 loans (the number varies not only between commentaries but also in evidence presented to Congress). Loans were opposed in the case of only five African countries: Benin (1977, 1982), Central African Republic (CAR)/Central African Empire (CAE) (1977, 1979), Equatorial Guinea (1978), Ethiopia (1977–78) and Guinea (1977).22 Nonetheless, as Forsythe and Maynard point out: ‘US opposition … had no direct effect; not one loan was stopped because of US opposition.’23 This opposition, as Secretaries of State Kissinger and Vance both recognised, was therefore essentially a blunt instrument that induced considerable antipathy towards the US. For example, in the case of a proposed World Bank loan to Benin, it was determined that abstention might prove a sobering impact on the Benin government’s attitude towards human rights. Following the vote, as was often the custom, the US sought to justify its vote by explaining that although it was concerned about the human rights situation in Benin it was merely abstaining rather than opposing the loan because the loan was a clear case of granting aid to the 21

M.L. Schneider, ‘A New Administration’s New Policy: The Rise to Power of Human Rights’, P.G. Brown/D. MacLean (eds), Human Rights and U.S. Foreign Policy: Principles and Applications (Massachusetts, 1979), 10 (the chapter was written prior to taking up his position in the administration). 22 Testimony of M. Schneider, ‘U.S. votes of opposition in MDB’s for human rights reasons’, Foreign Assistance Legislation for Fiscal Years 1980–81 (Part 7), Hearing before the Subcommittee on International Organizations of the Committee on Foreign Affairs 96th Congress 1st Session, Human Rights Reports and U.S. Policy, U.S. Voluntary Contributions to International Organizations, 28 February 1979, 14–15, C. Rossiter assisted by A-M. Smith, Human Rights: The Carter Record, the Reagan Reaction (Washington, 1984), 14–17 (Table: Human rights votes in the multilateral development banks, US ‘No’ votes or abstensions on MDB loans to Select Countries July 1976–September 1983) and L. Schoultz, Human Rights and United States Policy Toward Latin America (Princeton, 1981), 296–298 (Office of Multilateral Development Banks, Department of the Treasury: Table of ‘No’ or abstention votes by the USA). Slightly different numbers are given in M.L. Schneider, ‘Human Rights and United States Foreign Policy: A Review of the Administration’s Record’, Hearing before the Subcommittee on International Organizations 25 October 1977, 14, 18 and FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Documents 132: Memorandum From Secretary of State Vance and the Deputy Secretary of State (Christopher) to President Carter 27 March 1978 and 139: Report of the Interagency Group on Human Rights and Foreign Assistance concerning the effectiveness of U.S. human rights actions in the international financial institutions, Washington, 30 April 1978. 23 D.P. Forsythe, ‘Congress and Human Rights in U.S. Foreign Policy: The Fate of General Legislation’, Human Rights Quarterly, 9/3 (1987), 391 and E.S. Maynard, ‘The Bureaucracy and Implementation of US Human Rights Policy’, Human Rights Quarterly, 11/2 (1989), 205–211.

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neediest. Angered by this explanation, several African representatives argued that not only was this clearly a loan to the neediest but also that the World Bank’s charter specified that only economic criteria should be used in reaching loan decisions. They pointed out that Benin was sufficiently creditworthy for this loan and in any event was proposing an economically sound project aimed at promoting its development. Political issues, it was suggested, were best left to the United Nations General Assembly (UNGA). Most damningly, the African representatives observed that human rights are subjective and therefore cannot be measured universally by any one country’s yardstick.24 At US domestic level, however, Congress was not so inclined to utilize the government-owned Export-Import Bank (Exim) in its arsenal of human rights sticks for the simple reason that in a weak economy it was politically foolhardy to jeopardise jobs by refusing credits for US exports. Even as regards Uganda, it seems that Exim had to be pushed by Congress into imposing a coffee embargo. The justification for the distinction in approach was that Exim was involved in trade not aid. While therefore initial legislation in 1977 imposed a requirement that human rights practices had to be taken into account when considering export credit support, by 1978 this restriction was gradually removed so that credits could only be denied ‘in cases where the President determines that such action would be in the national interest where such action would clearly and importantly advance United States policy in such areas as … human rights’. For political reasons, therefore, even under President Carter, any negative action taken against a proposed Exim credit was to be referred for final decision to the President alone. As a result, President Carter denied or delayed credits to only four countries: Argentina, Chile, South Africa and Uruguay.25 If, therefore, on Secretary of State Kissinger’s watch, African states would seem to have had little to fear, when President Carter took office, expectations were raised of a significant shift in US foreign policy. In his election campaign, President Carter had indicated that: ‘We should begin by having it understood that if any nation, whatever its political system, deprives its own people of basic human rights, that fact will help shape our own people’s attitude towards that nation’s repressive government.’ He also made a commitment to ratification of UN human rights treaties: 24 G.D. Loescher, ‘US Human Rights Policy and International Financial Institutions’, The World Today, 33/12 (1977), 459. 25 D.P. Forsythe, ‘Congress and Human Rights in U.S. Foreign Policy: The Fate of General Legislation’, 403, Human Rights and U.S. Foreign Assistance: Experiences and Issues in Policy Implementation (1977–1978), A Report prepared for the Committee on Foreign Relations United States Senate by the Foreign Affairs and National Defense Division, Congressional Research Service, Library of Congress, November 1979, 21–24 and R.D. Carter/F.D. Brogan, ‘United States Human Rights Policy: Effect on Exports’, 296–297, 314–316.

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Insofar as they comply with our own Constitution and laws, we should move toward Senate ratification of several important treaties drafted in the United Nations for the protection of human rights. These include … the convention against racial discrimination … and the covenants on political and civil rights, and on economic and social rights. Until we ratify these covenants we cannot participate with other nations in international discussions of specific cases involving freedom and human rights.26

This was reiterated in his inaugural address which advised that: ‘Our commitment to human rights must be absolute’; and repeated four months later: ‘We have reaffirmed America’s commitment to human rights as a fundamental tenet of our foreign policy … Our policy is rooted in our moral values, which never change.’ 27 In his maiden UNGA speech he also asserted that: ‘All the signatories of the U.N. Charter have pledged themselves to observe and to respect basic human rights … We in the United States accept this responsibility in the fullest and the most constructive sense.’ He also restated his commitment to ratification of the International Convention for the Elimination of All Forms of Racial Discrimination and the International Covenants and, in a speech before the Permanent Council of the Organization of American States, to ratification of the ACHR.28 In the event, although President Carter signed these international conventions, Congress would not ratify them; the International Covenant on Civil and Political Rights (ICCPR) alone would be ratified but only in 1992. As the first step in the new post-Kissinger human-rights-based foreign policy, Congress with President Carter’s support strengthened the human rights framework of the State Department. The Office of Coordinator for Human Rights and Humanitarian Affairs was upgraded to the Bureau of Human Rights and Humanitarian Affairs and its head correspondingly upgraded to Assistant Secretary of State for Human Rights and Humanitarian Affairs. Derian, a member of the Executive Committee of the American Civil Liberties Union, was appointed as head of, first, the Office and, then, the Bureau. She, in turn, appointed Schneider, a former Peace Corps volunteer and international human rights assistant 26 FRUS 1977–1980 Vol. I Foundations of Foreign Policy, Document 9: Address to B’nai B’rith Convention 8 September 1976. 27 Inaugural Address, Washington 20 January 1977, Public Papers of the Presidents of the United States: Jimmy Carter, Book 1 1977 (Washington, 1977), 2 and Commencement Address, University of Notre Dame 22 May 1977, The American Presidency Project https://www.presidency.ucsb.edu/documents/address-commencement-exercises-the-university-notre-dame, last accessed 29 May 2023. 28 Address to UNGA 17 March 1977, The American Presidency Project https://20092017.state.gov/p/io/potusunga/207272.htm, last accessed 29 May 2023 and FRUS 1977–1980 Vol. I Foundations of Foreign Policy, Document 33: Address by President Carter Before the Permanent Council of the Organization of American States 14 April 1977.

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to Senator Kennedy, as her assistant, notwithstanding advice that she would be better placed to appoint a State Department insider. To reflect the importance about to be attached to human rights considerations, most particularly preparation of the human rights country reports required by Congress, additional staff were also brought in. From 1977 to 1979, staffing levels at the Bureau rose from two to twenty-nine most of whom were outsiders chosen on the basis of their commitment to a human-rights-based foreign policy.29 President Carter also created an Inter-Agency Group on Human Rights and Foreign Assistance to apply human rights considerations to economic assistance applications. The Bureau of Human Rights and Humanitarian Affairs participated in the panel and working group which formulated the initial recommendation but, in practice, Deputy Secretary of State Christopher was the final arbiter.30 In addition, several departments and agencies were permitted to extricate themselves from the Inter-Agency Group’s oversight. For example, Under Secretary of State for Security Assistance, Science and Technology Benson was able to establish a separate Arms Export Control Board to oversee military and security assistance, while the Treasury Department was able to remove oversight of the IMF, and the Agricultural Department certain food programmes and export credits. The Agency for International Development (AID), an independent agency albeit closely related to the State Department, was also permitted a wide operational latitude in that its mandate was perceived as meeting the exempt category of ‘basic human needs’. In effect, therefore, the Inter-Agency Group was essentially limited to the role of reviewing loan application votes at the multilateral financial institutions.31 29 J. Muravchik, The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights Policy (Lanham, 1986), 9–14. Among the staff taken on at the Bureau of Human Rights and Humanitarian Affairs and at the National Security Council to deal with human rights who subsequently commented on their experiences were Mark Schneider, Stephen Cohen, Roberta Cohen, Robert Pastor and Lincoln Bloomfield; their responsibilities are described in FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Persons. 30 H. Warshawsky, ‘The Department of State and Human Rights Policy: A Case Study of the Human Rights Bureau’, 191–194, E.S. Maynard, ‘The Bureaucracy and Implementation of US Human Rights Policy’, 179–181, 205–211, R. Cohen, ‘Human Rights Decision-Making in the Executive Branch: Some Proposals for a Coordinated Strategy’, 233–235, C. Rossiter assisted by A-M. Smith, Human Rights: The Carter Record, the Reagan Reaction, 5–7 and R.D. Carter/F.D. Brogan, ‘United States Human Rights Policy: Effect on Exports’, 307–311. 31 C. Rossiter assisted by A-M. Smith, Human Rights: The Carter Record, The Reagan Reaction, 7–10, S. Kaufman, Plans Unravelled: The Foreign Policy of the Carter Administration (DeKalb, 2008), 30–32, H. Hartmann, ‘US Human Rights Policy under Carter and Reagan, 1977–1981’, Human Rights Quarterly, 23/2 (2001), 416–417 and H. Warshawsky, ‘The Department of State and Human Rights Policy’, 204–208.

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However, despite the rhetoric, a human rights policy took some time to formulate as there were a range of opinions and host of issues to be taken into account. The most immediate problems were those relating to South and Central America and therefore in January 1977 a ‘Review of U.S. policy towards Latin America’ sought answers to the question: ‘What options are available for U.S. foreign policy to reflect a higher and more effective level of concern for fundamental human rights in all nations?’ It also asked whether the US should ratify human rights conventions and how the government might best assess what standard should be applied in determining whether a country was guilty of ‘gross violations of human rights’.32 The Latin American review request was followed by instructions to the State Department’s regional bureaux also ‘to prepare papers which propose human rights strategies appropriate in their regions’. What was expected is not really clear in that the State Department itself lacked an overall strategy as a Policy Planning Staff Paper had noted a few days earlier: The Administration’s strong interest in human rights is clear. The President’s statements on this subject reflect … the belief that there is a connection between what we believe at home and what we do abroad. How to act on the President’s statements is, of course, less clear. Implementation depends on our designing an overall strategy – with a coherent set of goals, sense of priorities, and assessment of US leverage. The State Department now lacks such a strategy.33

It was therefore only after prolonged angst as to how its terms of reference should be framed that it proved possible in May 1977 for a human rights policy review to be finally set in motion. Its brief indicated that the review should take up no more than thirty pages. In the event, no conclusion could be agreed and all that proved possible was an eighty-five page draft in July 1977 which served more as tour d’horizon than a recommendation for policy action.34 It would take FRUS 1977–1980 Vol. XXIV South America; Latin America Region, Document 1: Presidential Review Memorandum/NSC–171 Washington, January 26, 1977 and L.P. Bloomfield, ‘From Ideology to Program to Policy: Tracking the Carter Human Rights Policy’, 6. 33 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Documents 9: Action Memorandum From the Director of the Policy Planning Staff (Lake) to Secretary of State Vance 4 February 1977: Human Rights and 15: Memorandum From the Executive Secretary of the Department of State (Borg) to All Regional Assistant Secretaries of State 15 February 1977: Guidelines for Preparation of Regional Strategy Papers for the Promotion of Human Rights. 34 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 46: Presidential Review Memorandum PRM/NSC-28 20 May 1977 (see also Document 50: Memorandum for the Record 24 May 1977, Initial Meeting of Interagency Working Group for PRM–28 (Human Rights), 24 May 1977), Draft PRM review from Deputy Secretary of State Christopher in response to PRM/NSC-28 8 July 32

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until February 1978, one year into the administration’s term of office, before a Presidential Directive setting out the guidelines of his human rights policy was finally issued by President Carter. It laid down that: It shall be a major objective of U.S. foreign policy to promote the observance of human rights throughout the world. The policy shall be applied globally, but with due consideration to the cultural, political and historical characteristics of each nation, and to other fundamental U.S. interests with respect to the nation in question … 1. It shall be the objective of the U.S. human rights policy to reduce worldwide governmental violations of the integrity of the person … and, to enhance civil and political liberties … It will also be a continuing U.S. objective to promote basic economic and social rights… 2. In promoting human rights, the United States shall use the full range of its diplomatic tools, including direct diplomatic contacts, public statements, symbolic acts, consultations with allies, cooperation with nongovernmental organizations, and work with international organizations.35

The directive was an attempt to position the priority of human rights issues between the ‘absolute’ human rights policy of the inaugural address and the security interests of the State Department, between civil and political rights and economic and social rights and between means to desirable ends. However, it did not address what constituted ‘gross violations of human rights’. While this was a major lacuna, it also, perhaps deliberately, opened up a gaping hole of policy discretion. Irrespective, though, the end result, as Warshawsky noted, ‘was so compromised and watered down that it was meaningless as a guide to policy and operations’.36 Despite these difficulties, exuding confidence in his human-rights-based foreign policy, President Carter felt able to claim in his January 1978 State of the Union Address that: ‘We have restored a moral basis for our foreign policy. The very heart of our identity as a nation is our firm commitment to human rights … This is true in our domestic and in our foreign policy. The world must know that in support of human rights the United States will stand firm.’ Ominously, though, he added that: ‘Our first and prime concern is and will remain the security of our country.’37 https://irp.fas.org/offdocs/prm/prm28.pdf, last accessed 29 May 2023 and L.P. Bloomfield, ‘From Ideology to Program to Policy: Tracking the Carter Human Rights Policy’, 6. 35 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 119: Presidential Directive/NSC–30 17 February 1978. 36 H. Warshawsky, ‘The Department of State and Human Rights Policy: A Case Study of the Human Rights Bureau’, 205–206. 37 State of the Union Address 19 January 1978 https://www.presidency.ucsb.edu/

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No doubt it is with such rhetoric in mind that many African human rights commentators are inclined to attribute great significance to the US human rights policy as a factor prompting the process of the ACHPR. By comparison, though, US political commentators have largely reached a quite contrary view. There is general agreement that, however well-intentioned President Carter might have been, his human rights policy was deeply flawed and largely ineffective. At best, its success is measured in macro terms as having brought the human rights debate to the forefront of international relations and in micro terms as aiding the release of some political prisoners. As a 1977 CIA (Central Intelligence Agency) memorandum on the ‘Impact of the US stand on human rights’ noted: ‘Togo recently released some political prisoners partly out of a desire to improve relations with the US, but another group of persons was arrested for political reasons shortly thereafter.’38 Hoffmann famously described the policy dilemma as: ‘The hell of good intentions’.39 It is therefore difficult to imagine what influence President Carter’s human rights foreign policy might possibly have brought to bear on African political leaders to prompt them to initiate the ACHPR process and conversely three major reasons as to why President Carter’s human rights policy played little part in the ACHPR process. Firstly, the policy was flawed and compromised, which limited the deterrent factor and prompted resentment in those who felt they were victims of unfair discrimination; secondly, Africa was unimportant to the US and therefore fell outside of the main thrust of US human rights policy; and, thirdly, there is the attitude of the African states themselves, they were not prepared to be bullied by the US.

The flaws and compromises An early sign of the compromises that would arise emerged one month into President Carter’s term of office. In off-the-cuff remarks to the press, he denounced the murder of Archbishop Luwum and two government ministers: ‘In Uganda, the actions there have disgusted the entire civilized world.’ President Amin responded by announcing that the 200 Americans in Uganda, mainly church missionaries, would be held hostage and summoned to appear before him and advising President Carter to put his own house in order before criticising others. It was only by frantic representations communicated through African leaders, including President Bokassa, that President Amin was persuaded to rescind his arrests but as part of the deal President Carter

38 39

documents/the-state-the-union-address-delivered-before-joint-session-thecongress-1, last accessed 29 May 2023. FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 42: Memorandum Prepared in the Central Intelligence Agency 11 May 1977, Impact of the US stand on human rights. S. Hoffmann, ‘The Hell of Good Intentions’, Foreign Policy, 29 (1977–78), 3–26.

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was obliged to thank President Amin publicly for his assurances that US citizens in Uganda would be protected.40 In another delightful vignette, Quainton, the former US Ambassador to the CAR/CAE, explained how President Bokassa was keen to associate himself with President Carter’s human rights policy: In 1977, every ambassador … was instructed to deliver the President’s declaration on Human Rights Day. Thinking that it was a waste of time … I sent it under cover of a diplomatic note to the foreign minister … on Christmas Eve, the minister of information arrived at my front door. He said that Bokassa had read Jimmy Carter’s declaration and wished to associate himself with it and to declare publicly that the American policy on human rights was his government’s policy … The day after Christmas, the minister sent his secretary general … The official explained that … Bokassa had decided that that evening I would speak to the nation on human rights … and, sure enough, after the evening news, they announced their support for the Carter Declaration and I was put on camera to talk about the importance of human rights to the people of the Central African Empire.41

Other early warning signs can also be gleaned in the statements and speeches of President Carter, Secretary of State Vance and senior State Department officials. Although they continued to stress their commitment to human rights, they also dropped in warnings of the difficulties in applying a rigid ‘absolute’ commitment. In his confirmation hearings, Secretary of State Vance had cautioned that: ‘Matters of human rights will be given a greater emphasis with respect to those decisions. But I think it is important to make the point … that there are cases in which the security aspects are of overriding importance.’ Already by February 1977, such cases came to the fore and he had to explain to the Senate Foreign Relations Committee why assistance was being curtailed to some countries but not others guilty of comparable human rights violations. Vance advised that: ‘In an imperfect world, the objectives we pose for our foreign policy are not always President Carter News Conference 23 February 1977, The American Presidency Project, https://www.presidency.ucsb.edu/documents/the-presidents-news-conference119, last accessed 29 May 2023 and ‘Secretary Vance’s News Conference of March 4’, Department of State Bulletin 76/1970 (1977), 280 (references from J. Muravchik, The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights Policy, 27–28), FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 42: Memorandum Prepared in the Central Intelligence Agency, 11 May 1977: Impact of the US stand on human rights and D. Heaps (commissioned by the AAICJ), Human Rights and U.S. Foreign Policy: The First Decade 1973–1983, 20. 41 Interview with Ambassador A. Quainton (Ambassador CAR/CAE, 1976–1978), The Foreign Affairs Oral History Collection of the Association for Diplomatic Studies and Training (henceforth ‘Foreign Affairs Oral History Project’), https://adst.org/ oral-history, accessed 24 May 2023. 40

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consistent … In concrete instances we face a series of difficult choices … In each case we must balance a political concern for human rights against economic and security goals.’42 It could have been Secretary of State Kissinger speaking. Ironically, just as the human rights policy review was finally set in train, in major set-piece speeches, both Secretary of State Vance and President Carter further acknowledged the limitations of the possible. While Secretary of State Vance nominally reconfirmed the commitment to human rights – ‘I speak today about the resolve of this Administration to make the advancement of human rights a central part of our foreign policy’ – he also recognised that: we must always keep in mind the limits of our power and of our wisdom. A sure formula for defeat of our goals would be a rigid, hubristic attempt to impose our values on others … Our country can only achieve our objectives if we shape what we do to the case at hand … In the end, a decision whether and how to act in the cause of human rights is a matter for informed and careful judgment.43

In a 1998 interview, Derian would describe this speech as a pre-emptive backing away by the State Department: ‘They were trying to reassure people that State didn’t want it, that diplomats didn’t really do stuff like this and that [it] was going to offend our allies … It was almost like: don’t blame us, we don’t know what’s going to happen but we’re going to try our best.’ But in 1978 even Derian had been forced to concede that: ‘We candidly recognize that diversity of cultures and interests and different stages of economic and political maturity make it essential to treat each country on the merits of its own situation. It would be impossible to pursue our human rights objectives in precisely the same way for all countries, and silly to try.’44 Such concessions would eventually 42 FRUS 1977–1980 Vol. I Foundations of Foreign Policy, Documents 14: Editorial quoting testimony of Secretary of State-designate Cyrus R. Vance on 11 January 1977, before the Senate Foreign Relations Committee and 22: Statement by Secretary of State Vance Before the Senate Committee on Appropriations Subcommittee on Foreign Operations 24 February 1977; the context was the seeming inconsistency between the indictment of Argentina, Ethiopia and Uruguay but not of South Korea, Iran, Indonesia and Zaire. 43 C. Vance, ‘Human Rights and Foreign Policy’, Law Day Address, Lumpkin School of Law, University of Georgia, 30 April 1977, Georgia Journal of International and Comparative Law, Supplement Issue 7 (1977), 223–230. 44 Interview Patricia Derian 28 April 1998, quoted by H. Hartmann, ‘US Human Rights Policy under Carter and Reagan, 1977–1981’, 405–412, and P. Derian, ‘The Carter Administration and Human Rights Part II - A Commitment Sustained’ http://worldview.carnegiecouncil.org/archive/worldview/1978/07/3066.html/_ res/id=sa _File1/v21_i007-008_a004.pdf, last accessed 7 June 2016 (reference from A. Schlesinger Jr., ‘Human Rights and the American Tradition’, Foreign Affairs, 57/3 (1978), 518).

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find expression in the introduction to the 1979 Country Reports which advised that the instruments of American human rights policy ‘are applied in a manner that takes into account a country’s history, culture, and current political environment and recognizes that human rights concerns must be balanced with other fundamental interests.’45 President Carter’s speech at this time similarly explained that although human rights were now a fundamental tenet of US policy: This does not mean that we can conduct our foreign policy by rigid moral maxims. We live in a world that is imperfect and which will always be imperfect – a world that is complex and confused and which will always be complex and confused. I understand fully the limits of moral suasion. We have no illusion that changes will come easily or soon.46

The biggest problem was the clash between the regional bureaux, Ambassadors and the Defense Department, on the one side, and the Bureau of Human Rights and Humanitarian Affairs on the other side. The main issue was the perception within the State Department that Assistant Secretary of State Derian and her team were outsiders fixated on a single idea with little awareness of the multiplicity of considerations and factors involved in the decision-making process. They were therefore considered uncompromising and confrontational. Even worse, as political appointees, they had no long-term career expectations that might have induced a willingness to compromise. In a later interview, Derian described the Bureau as a ‘watchdog’ over the State Department’s institutional bias towards ‘regional clientism’. Yet, despite State Department perceptions that Assistant Secretary of State Derian enjoyed direct access to President Carter, the reality was completely different. As Derian pointed out to Hartmann, although it was assumed that she enjoyed privileged access, in fact, President Carter declined to meet with her in November 1977.47 It was only in December 1978, through the intercession of National Security Adviser Brzezinski, that she finally met President Carter at which time he rejected her request for regular direct access.48 Country Reports on Human Rights Practices for 1979 Report submitted to the Committee on Foreign Affairs U.S. House of Representatives and Committee on Foreign Relations U.S. Senate by the Department of State in accordance with Sections 116(d) and 502(b) of the Foreign Assistance Act of 1961, as amended 4 February 1980 (1979), 4. 46 President Carter, Commencement Address, University of Notre Dame 22 May 1977. 47 E.S. Maynard, ‘The Bureaucracy and Implementation of US Human Rights Policy’, 185–188 and Interview Patricia Derian 28 April 1998, quoted by H. Hartmann, ‘US Human Rights Policy under Carter and Reagan, 1977–1981’, 416. 48 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 175: Memorandum of Conversation 6 December 1978, 10:32–10:58 a.m.: Summary of the President’s Meeting on Human Rights Policy. 45

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The bureaucratic tensions were most fraught when it came to the human rights country reports that after 1976 became a permanent feature of the State Department’s legislative obligations.49 In 1975, eighteen countries had been reviewed by the State Department although Secretary of State Kissinger had refused to release the reports. As, in response, Congress tightened the noose around the State Department, in September/October 1976 reports on six and seventeen countries, respectively, were requested by the House Committee on International Relations and the Senate Committee on Foreign Relations Subcommittee on Foreign Assistance; together their requests covered nineteen countries. (Included in the Senate’s request were Ethiopia, Mozambique, Nigeria and Zaire.) By the time of the 1976 (1977) human rights report, information was being sought on eighty-two countries and by the 1980 (1981) human rights report that had increased to 157 countries.50 Whereas the 1976 (1977) report had been prepared by the State Department under Secretary of State Kissinger’s supervision, all subsequent reports were supervised by the Bureau of Human Rights and Humanitarian Affairs. Initially, individual reports were compiled by US Embassies on the ground under the direction of the Regional Bureaux. Understandably, they were haphazard and inconsistent in terms of the range of topics covered and the basis on which assessments were reached. However, once responsibility had been assigned to 49 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 17: Telegram From the Department of State to All Diplomatic and Consular Posts, 19 February 1977, 0112Z 38407: Human Rights Reporting to the Congress. 50 Human Rights and U.S. policy: Argentina, Haiti, Indonesia, Iran, Peru, and the Philippines: Reports submitted to the Committee on International Relations, U.S. House of Representatives by the Department of State, pursuant to Section 502B(c) of the International Security Assistance and Arms Export Control Act of 1976 (1976), Human Rights Reports prepared by the Department of State in accordance with Section 502(b) of the Foreign Assistance Act of 1961, as amended submitted to the Subcommittee on Foreign Assistance of the Committee on Foreign Relations United States Senate, March 1977, Human Rights Practices in Countries Receiving U.S. Security Assistance Report submitted to the Committee on International Relations, House of Representatives by the Department of State in accordance with Section 502(b) of the Foreign Assistance Act of 1961, as amended, 25 April 1977 (1976), Country Reports on Human Rights Practices Report submitted to the Committee on Foreign Relations U.S. Senate and Committee on International Relations/Committee on Foreign Affairs U.S. House of Representatives by the Department of State in accordance with Sections 116(d) and 502(b) of the Foreign Assistance Act of 1961, as amended, 3 February 1978 (1977), 4 February 1980 (1979) and 2 February 1981 (1980) and Report on Human Rights Practices in countries receiving U.S. Aid Report submitted to the Committee on Foreign Relations U.S. Senate and Committee on Foreign Affairs U.S. House of Representatives by the Department of State in accordance with Sections 116(d) and 502(b) of the Foreign Assistance Act of 1961, as amended, 8 February 1979 (1978) (hereinafter ‘Country Reports’).

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the Bureau of Human Rights and Humanitarian Affairs, formal guidelines were established and a standardised reporting format introduced which required information to be supplied on a clear set of defined rights.51 Nonetheless, the process itself presented countless problems and, for many of the diplomats, considerable angst. This was also the case at regional bureau and Secretary of State level where there was often a desire to protect what the Bureau of Human Rights and Humanitarian Affairs called ‘clients’ and the State Department described as wider US interests. Ambassador Morin, for example, recalled that: ‘We had big troubles when we started … Drafts were going back and forth.’52 On the one side, there was a concern that a report taken out of context might conflict with other US policy aims for which Ambassadors also carried responsibility. On the other side, there was a genuine difficulty in applying a Western human rights analysis, especially in respect of US preoccupations with the rights of women and religion and denial of public trial, in a one-party state in a developing country lacking basic infrastructure. There was also an in-built bias against negative reports if career prospects and access to project funding might be affected. It was understandable therefore that reports were compiled with ‘minimized or concealed negative aspects’, ‘examples of understatement and caution bordering on being misleading’ and ‘exaggerated positive signs’ often identified on the basis of insubstantial evidence or self-serving official announcements. References that could be interpreted as implying a ‘consistent pattern of gross violations’ were also invariably avoided and US business interests overstated as was the damage that might result from a failure to approve security assistance.53 Where critical comments were made, as Weissbrodt noted, they were therefore often taken from publicly released reports such as those of AI, or Congressional

FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 190: Telegram From the Department of State to All Diplomatic and Consular Posts and the Embassies in Cape Verde, the Republic of Congo, and Uganda 4 August 1979: Annual Country Reports on Human Rights Practices. 52 Interview with Ambassador L.E. Morin (Human Rights 1974–79), Foreign Affairs Oral History Project. 53 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 180: Memorandum From the Global Issues Cluster of the National Security Council Staff to the President’s Assistant for National Security Affairs (Brzezinski) 29 January 1979, Prepared Statement of W. Weinstein, Human Rights in Africa: Hearing before the Subcommittees on Africa and on International Organizations of the Committee on Foreign Affairs, House of Representatives, 96th Congress, First Session, 42, 46–47 (31 October 1979), E. S. Maynard, ‘The Bureaucracy and Implementation of US Human Rights Policy’, 219–224, S.B. Cohen, ‘Conditioning U.S. Security Assistance on Human Rights Practices’, 256–265 and J. Innes de Neufville, ‘Human Rights Reporting as a Policy Tool: An Examination of the State Department Country Reports’, Human Rights Quarterly, 8/4 (1986), 681–699. 51

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testimony, to avoid any suggestion of official authorship.54 Thus, for example, from 1976 to 1981, AI’s reports were quoted in the country reports of twenty-six African countries. Two of the most sensitive country reports were those of Kenya and Zaire, both of which were regarded as essential allies of the US and therefore in receipt of substantial US assistance. The Kenya country reports repeatedly stressed the substantial protection afforded to fundamental rights and liberties in the Kenyan constitution and the independence of the judiciary with only mild reference to growing repression. Kenya’s political system was also described as one of the most ‘open’ in Africa. Yet by the time of the (1980) 1981 country report there was no gainsaying that Kenya had been transformed into a one-party state, although there was still a reluctance to record the extent to which detention laws were being applied and the rights hitherto described in such glowing terms nullified. In expiation and presumably as further proof of President Moi’s support for human rights, it also misleadingly reported that: ‘The Moi government has encouraged the efforts to draft an African human rights charter.’55 In the case of Zaire, there is a clear sense of a difficult balancing act between the need to secure a flow of aid to an important ‘client’ and the reality on the ground. The country reports therefore sought to situate their appraisals in the context of ‘exceptionally difficult political circumstances’, of ‘semi- anarchy’ and of the necessity for central authority to be re-established in the face of internal divisions. They conceded that Zaire was a tightly controlled one-party state in which all power was held by President Mobutu, but balanced that with the assessment that Parliament was free to criticise a wide range of policies –but not the President, which was a criminal offence. It was only the 1980 (1981) country report that finally admitted that such avenues of debate were more theoretical than real and that Parliament, which was ‘quite active during 1979 and early 1980 … has since been reined in by the President’. It was also recognised that institutions to protect individual rights had not been developed and that serious problems remained, but at the same time there was a reluctance to identify much more than minor, although common, cases of human rights violations. President Mobutu’s willingness to engage in a ‘constructive dialogue’ on human rights and the ‘positive steps’ he had taken to ameliorate structural human rights failings was also noted. There is at all times an attempt to put a favourable gloss on developments notably in 1979 (1980) when it was reported that Zaire had ‘responded favourably’ to the 1979 Monrovia AHSG decision to draft an African human rights charter and that it had hosted human rights seminars and welcomed international human rights experts. All the same, Congress 54 D. Weissbrodt, ‘Human Rights Legislation and U.S. Foreign Policy’, 267. 55 1977 (1978)–1980 (1981) Kenya Country Reports. For the situation in Kenya at that time, see K.G. Adar/I. M. Munyae, ‘Human Rights Abuse in Kenya under Daniel Arap Moi, 1978–2001’, African Studies Quarterly, 5/1, 1–17.

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was not always prepared to accept such soft assessments of Zaire’s predicament and therefore on several occasions it placed specific restrictions on Zaire (see page 64 below).56 The tensions were revealingly captured during Congressional testimony by Assistant Secretary of State Cohen on Zaire and the public difference of opinion between the country report and a ‘former political counselor’. In this instance, Assistant Secretary of State Cohen, who was otherwise a human rights supporter, found himself forced to defend the country report and thereby to bear the brunt of the subcommittee Chairman’s displeasure, who admonished him that ‘it does us little good as Members of the Congress, if the report you have submitted is toned down by the Ambassador and things which might prove embarrassing are purposely excluded or deleted’.57 The bottom line, therefore, was that, because of US dependence on their support, neither Zaire nor Kenya felt any urgent need to ratify the ACHPR before it came into force. Almost all of the African country reports for the period 1977–81 were relatively mild but perhaps the most remarkable assessment was that made by the 1977 (1978) and 1978 (1979) country reports for the CAR/CAE. They reported that constitutional rule had returned to the CAR in 1976 after an eleven-year hiatus and that the Bill of Rights in the constitution was patterned on the UDHR. Moreover, that the government was actively keen to improve its human rights record in dialogue with US officials and by decisions and policies to ameliorate the situation on the ground. Rather tragically, in view of subsequent events, reference was made to the government’s development slogan ‘to clothe, to house, to feed, to care for, and to educate’ (see page 129 below). It was left to the 1979 (1980) country report to explain that: ‘The human rights situation … deteriorated sharply in 1979.’58 56 1977 (1978)–1980 (1981) Zaire Country Reports; see also skilful wording of Zaire country report in Human Rights Conditions in Selected Countries and the U.S. Response prepared for the Subcommittee on International Organizations by the Foreign Affairs and National Defense Division, Congressional Research Service, Library of Congress 25 July 1978 (Washington, 1978), 332–340. 57 Human Rights in Africa: Hearing before the Subcommittees on Africa and on International Organizations of the Committee on Foreign Affairs, House of Representatives, 96th Congress, First Session, 18 (31 October 1979). The circumstances are recorded in Interview with Ambassador W.L. Cutler (Zaire 1975–79) and Ambassador A.C. Davis (Zaire 1977–80), Foreign Affairs Oral History Project; see also Statement of Robert Remole, former Political Counselor and Head of the Political Section, U.S. Embassy, Zaire, Foreign Assistance Legislation for Fiscal Year 1981 (Part 7), Hearings and Mark-up before the Subcommittee on Africa of the Committee on Foreign Affairs, House of Representatives, 96th Congress 2nd Session: Economic and Security Assistance Programs in Africa, February/March 1980 (1980), 562–565 (reference from P.J. Schraeder, United States Foreign Policy towards Africa: Incrementalism, Crisis and Change (Cambridge, 1994), 95). 58 1978 (1979)–1980 (1981) CAE Country Reports.

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The mildness of the CAR/CAE country reports seem all the more remarkable in that it is hard to conceive that the US had any interest in the CAE to protect. However, a Congressional Research Report in 1978 seemed to indicate otherwise. Although it felt that the 1977 (1978) country report had been more optimistic than other sources, it nonetheless supported a resumption of aid and the return of the US Ambassador, both having been withdrawn so as to draw attention to human rights concerns. The interests which it identified were Emperor Bokassa’s assistance with President Amin in 1977, his consistent vote with ‘the West’ at the UN, protection for US missionaries and commercial interests and a ‘wish to counter the African perception that the Western reaction to the reporter incident of July 1977 – when US and UK journalists were imprisoned – was a manifestation of racism.’59 Against this background, the inherent unreliability of the country reports was widely recognised. For example, a staff memorandum for National Security Adviser Brzezinski on the 1978 (1979) country reports noted that: There are striking inconsistencies between reports which derive from three main sources: very different amounts of access and knowledge; political importance of the country to the U.S.; and personal interest in a particular country (positive or negative) by a powerful individual somewhere in the process. In the most difficult cases, the problems between competing interests were solved by balancing every negative statement with a positive statement … in order to balance everything HA [Humanitarian Affairs] wanted in.60

Congress was also on notice having commissioned their own report on the human rights policy. In testimony before Congress, its lead author, Heginbotham, advised of ‘continuing problems in human rights reporting’ not least the ‘severe cross-pressures’ on the State Department which: is expected to maintain effective bilateral relations with a wide range of regimes throughout the world, but on the other hand it is expected to write objective and detailed analyses of any human rights violations in many of those countries. In a number of cases, if the latter task is carried out conscientiously, the result is likely to be highly unpalatable to the leadership of foreign regimes and may well complicate the task of maintaining effective bilateral relations.

Human Rights and U.S. Foreign Assistance: Experiences and Issues in Policy Implementation (1977–1978), 111–116. 60 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 180: Memorandum from the Global Issue Cluster of the National Security Council Staff to the President’s Assistant for National Security Affairs (Brzezinski), Evening Report, 29 January 1979. 59

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He also noted that: ‘Certainly reports released in 1977 provoked severe negative reactions from governments of several Latin American nations, resulting in their rejection of U.S. foreign assistance.’61 Equally revealing was the response from the other shore. Following the first 1976 (1977) reports, Argentina, El Salvador, Guatemala and Uruguay rejected the criticisms made against them as an affront to their sovereign dignity and rejected ‘in advance’ further US military assistance. Brazil, which had led the way, dismissed its report as ‘unacceptable and tendentious commentaries’ and responded by not only rejecting military aid ‘in advance’, but also by cancelling a twenty-five-year old military treaty – leading to a conciliatory letter from President Carter. Many African states took much the same line. For example, Ethiopia retorted aggressively that international or other investigations ‘constitute unwarranted interference in its internal affairs’ and that the ‘human rights enjoyed by the Ethiopian masses have improved considerably since the revolution’. It also dismissed ‘individual human rights’ as ‘irrelevant to a revolutionary Government which is building a Marxist society’. Tunisia, too, complained that the reports constituted an interference in its domestic affairs and that the US’s own human rights record did not allow it to pass judgement on others; 62 while Lesotho was so incensed at the author of its country report, who was described as showing ‘abysmal ignorance of the real situation in the country’, that it felt ‘obliged to clarify the issue raised and hopes the record will be put straight’.63 Faced with the hell of its intentions, inexorably, if not from the beginning, it seems evident that President Carter and his foreign policy advisers had resolved that policy should not be constrained by human rights considerations alone and Foreign Assistance Legislation for Fiscal Years 1980–81 (Part 7) Hearings before the Subcommittee on International Organizations of the Committee on Foreign Affairs, House of Representatives 96th Congress 1st Session, Human Rights Reports and U.S. Policy, U.S. Voluntary Contributions to International Organizations 28 February 1979, 162–165 (Appendix 3: Statement of Stanley J. Heginbotham, Assistant Chief, Foreign Affairs and National Defense Division, Congressional Research Service, Library of Congress) (reference from J.M. Howell, ‘Socioeconomic Dilemmas of U.S. Human Rights Policy’, Human Rights Quarterly, 3/1 (1981), 89); the report was published as Human Rights and U.S. Foreign Assistance: Experiences and Issues in Policy Implementation (1977–1978), 97–98. 62 D. Heaps (commissioned by the AAICJ), Human Rights and U.S. Foreign Policy: The First Decade 1973–1983, 21–22, 1978 (1979) Ethiopia Country Report and FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 196: Paper Prepared in the Department of State (undated, possibly November 1980): The impact on U.S. foreign relations of the human rights country reports; in the 1980 (1981) Kenya Country report, it was also noted that Attorney-General Njonjo had questioned the right of NGOs such as AI to pass judgement on the internal policy of sovereign states. 63 Moffatt to Sprague 24 February 1978 enclosing undated, untitled Lesotho government paper seeking to put the record straight, NA FCO 45/2205. 61

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were looking for a way out of the morass of their own rhetoric. It was concluded that the primary solution was for creative assessments to be applied to the legal meaning of ‘a consistent pattern of gross violations of human rights’. In a highlevel policy review meeting to discuss US policy towards Latin America barely three months into the administration, how this was to be done was discussed: ‘Solomon … and Christopher agreed on the need to obtain more discretionary authority and make more relevant distinctions in the application of our policy. If we define gross violations as torture or degrading treatment, instead of denial of due process, then we only single out seven–ten countries rather than 60–80. Then, we can have some impact.’64 As Cohen has therefore argued, although the State Department under President Carter went much further in implementing Congressional legislation, it was, nonetheless, more tentative than may be generally supposed. Not only did it thereby cut across Congressional intent, he suggested, but at some points it may have even violated the law. The desired result, though, was that only a very few countries were deemed to have fallen below the line.65 Looking back, therefore, even supporters of President Carter’s human rights foreign policy find it difficult to claim much more than that he put human rights discourse firmly on the international relations stage. For example, Schneider, reflecting on his time in the Bureau of Human Rights and Humanitarian Affairs, would suggest that ‘it is difficult to define precisely the benefits of the policy’. Expressions of concern might lead to prisoner releases or improved treatment but: ‘In many cases, those acts were cosmetic or token, designed to forestall continued U.S. criticism.’66 At the end of his term of office President Carter, too, reflected on his human rights policy. In a 1981 speech he rather mournfully noted: ‘I have to admit the results of our commitment were often disappointing, and there were always legitimate reasons put forward for us to compromise.’ In his memoirs he added that: ‘I did not fully grasp all the ramifications of our policy. It became clear in the early days … that the problem of human rights was to cut across our relations with … the emerging nations who were struggling to establish stable regions, and even some of our long-term Western allies.’67 Heaps, in his insightful 64 FRUS 1977–1980 Vol. I Foundations of Foreign Policy, Document 30: Minutes of a Policy Review Committee Meeting 24 March 1977; Solomon was Under Secretary of the Treasury. 65 S.B. Cohen, ‘Conditioning U.S. Security Assistance on Human Rights Practices’, 264–275. 66 M.L. Schneider, ‘A New Administration’s New Policy: The Rise to Power of Human Rights’, 12; see also D.M. Fraser, ‘Human Rights and U.S. Foreign Policy: Some Basic Questions Regarding Principles and Practice’, 184. 67 President Carter, Speech to the New York Board of Rabbis 16 May 1981 and J. Carter, Keeping Faith: Memoirs of a President (New York, 1982), 144 (reference from D. Heaps (commissioned by the AAICJ), Human Rights and U.S. Foreign

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commentary, would thereby conclude that: ‘A program which had begun with a rhetorical bang was asserted to have subsided with an embarrassed whimper.’68

The unimportance of Africa to US foreign policy The impact of the human rights foreign policy was further diluted by the lack of importance historically accorded African affairs by foreign policy planners. While there may have been a growing appreciation of Africa’s economic potential, Nigeria in particular, even by the late 1970s US investments in Africa were minimal. In sub-Saharan Africa, South Africa accounted for about two-thirds of investments, with Nigeria, Liberia, Zambia and Ghana largely making up the balance. There were therefore few major interests to take into account other than perhaps specific strategic concerns such as Zaire as the major supplier of cobalt and tantalum.69 Moreover, other priorities and the historic relationships of the former colonial powers meant that the US was largely content to cede primary responsibility for Africa to its European allies. Essentially, the only foreign policy concern for the US arose out of the perception of Africa as the new frontier in the Cold War. The main priority was therefore no more than containment of Communist influence over the newly independent African states. This priority was also signified in the State Department’s chain of command. As of 1949, responsibility for Africa was assigned to the Assistant Secretary of State for Near Eastern, South Asian, and African Affairs. It was only in 1956 that Africa was upgraded in importance and a Deputy Assistant Secretary of State for African Affairs appointed and only in 1958 that the Bureau of African Affairs was finally established with its own Assistant Secretary of State, most likely in anticipation of the imminent independence of large numbers of African colonial territories. In a further reorganisation in 1974, responsibility for the North African states was reassigned to the Bureau of Near Eastern and South Asian Affairs, which had also continued to carry responsibility for Egypt and Ethiopia even after the Bureau of African Affairs had been set up. Africa’s unimportance was also evident, as Clapham describes, in the approach adopted by all Presidents Policy: The First Decade 1973–1983, 24–26). 68 D. Heaps (commissioned by the AAICJ), Human Rights and U.S. Foreign Policy: The First Decade 1973–1983, 26. 69 U.S. Corporate Interests in Africa, Report to the Committee on Foreign Relations United States Senate by Senator Dick Clark January 1978, U.S. Interests in Africa: Hearings before the Subcommittee on Africa of the Committee on Foreign Affairs House of Representatives 96th Congress 1st Session, October/November 1979, 171–172, FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 29: Action Memorandum From Deputy Assistant Secretary of State for African Affairs (Mulcahy) and Director of Policy Planning (Lord) to Secretary of State Kissinger, 27 June 1975 and U.S. Department of State, The Trade Debate (1978), quoted by R.M. Price, U.S. Foreign Policy in Sub-Saharan Africa: National Interest and Global Strategy (Berkeley, 1978), 19.

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from President Kennedy on to delegate decision-making authority on all African issues other than those of wider significance. It was a reality upon which the African states would continually dwell.70 US foreign policy in respect of the emerging states in Africa was first set down in a 1957 National Security Council (NSC) policy paper. In the final discussion, Vice President Nixon ruminated on his three-week trip to Africa based around his attendance at Ghana’s Independence Day celebrations. He returned convinced more attention had to be paid to Africa not so much because of its economic potential but to counter the potential threat of Communist influence. Although his input on the Communist threat was reflected in the final policy paper, at this stage, it was nonetheless determined that US foreign policy should still allow the lead be taken by the colonial powers: The United States is concerned that Africa South of the Sahara develop in an orderly manner towards self-government and independence in cooperation with the European powers … We hope that this transition will take place in a manner which will preserve the essential ties which bind Europe and Africa. The United States, therefore, believes it to be generally desirable that close and mutually advantageous economic relationships between the European powers and Africa should continue … We wish to avoid … a situation where thwarted nationalist and self-determinist aspirations are turned to the advantage of extremist elements, particularly Communists.71

At a further NSC review in 1960, the 1957 analysis was largely reconfirmed: CIA Director Dulles advised that, of the thirty new African states expected within two years, none would have the capability to govern themselves. President 70 FRUS 1969–76 Vol. E-5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Documents 2: Memorandum of Conversation, 17 April 1969, Secretary of State William P. Rogers and Ambassador Nabwera (Kenya) and 10: Memorandum from President Nixon to the President’s Assistants (Haldeman) (Ehrlichman) and (Kissinger) 2 March 1970, FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 18: Telegram 175398 From the Department of State to All African Diplomatic Posts, 11 August 1974 1512Z12, Secretary Kissinger meets OAU Chiefs of Mission 10 August 1974 and C. Clapham, Africa and the International System: The Politics of State Survival (Cambridge, 2005), 136. 71 FRUS 1955–1957 Vol.XVIII Africa, Documents 19: Report by the Vice President 5 April 1957, Report to the President on the Vice President’s visit to Africa (February 28 – March 21, 1957), Detailed Conclusions and Recommendations, 23: Memorandum of Discussion at the 335th Meeting of the National Security Council 22 August 1957 and 24: NSC 5719/1 Note by the Executive Secretary to the National Security Council on U.S. policy towards Africa south of the Sahara prior to calendar year 1960 23 August 1957 (reference from J.H. Meriwether, ‘“A Torrent Overrunning Everything”: Africa and the Eisenhower Administration’, K.C. Statler/A.L. Johns (eds), The Eisenhower Administration, the Third World, and the Globalization of the Cold War (Lanham, 2006), 175–196).

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Eisenhower concurred asserting that ‘these countries would be independent long before they achieved orderly economic development or political progress’. It was also reported that US economic interests were ‘relatively modest’ and therefore little purpose would be served in altering the US position that Africa was largely a European responsibility. The main objective of US policy should therefore be to maintain the ‘Free World orientation of the region’ by means of US support for orderly economic development and political progress towards self-determination in cooperation with the colonial powers. The US would also seek to ensure that it could retain negotiated access to military rights and facilities and strategic resources. As to how this might be achieved, Vice President Nixon suggested that: although we cannot say it publicly … we need the strong men of Africa on our side. It is important to understand that most of Africa will soon be independent and that it would be naive of the U.S. to hope that Africa will be democratic … Some of the peoples of Africa have been out of the trees for only about fifty years. Since we must have the strong men of Africa on our side, perhaps we should in some cases develop military strong men as an offset to Communist development of the labor unions.72

In contrast, President Kennedy adopted a more sympathetic interest in Africa. His interest had been foreshadowed by a speech as Senator in July 1957 in which he publicly criticised France’s stance on Algerian independence arguing that ‘the single most important test of American foreign policy today is how we meet the challenge of imperialism’.73 As a result of this and other speeches, in May 1959 (then) Senate Majority Leader Johnson sought to shunt him out of sight by nominating him as Chairman of the newly established Subcommittee on African Affairs of the Senate Committee on Foreign Relations, a position of no interest to any other Senator. As both Senators Kennedy and Johnson were expecting to compete for the Democratic nomination for President in 1960, according to Caro, Senator Kennedy would enquire ‘will it ever have to meet?’ In the event, it met only once to receive various reports one of which was a 1959 study on US foreign policy towards Africa by Herskovits. His report encouraged further non-military aid to Africa and pleaded for an understanding of the distinction between Communist sympathy and African nationalism, the point that Senator Kennedy had already been stressing for some time.74 72 FRUS 1958–1960 Vol. XIV Africa, Documents 21: Memorandum of Discussion at the 432nd Meeting of the National Security Council 14 January 1960 and 22: National Security Council Report 19 January 1960, NSC 6001 Statement of U.S. policy towards South, Central and East Africa. 73 Congressional Record Vol. 103, Part 8 (JUNE 21, 1957 TO JULY 10, 1957), 10780–10792 (reference from R.J. Nurse, ‘Critic of Colonialism: JFK and Algerian Independence’, The Historian, 39/2 (1977), 307–326). 74 R.A. Caro, The Years of Lyndon Johnson: The Passage of Power (New York, 2013),

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When, therefore, he was elected President, Kennedy would set out his Africa stall by appointing Williams, a civil rights supporter and former Governor of Michigan, as the Assistant Secretary of State for African Affairs. He followed this up with the Foreign Assistance Act, 1961 and the creation of AID. More than any other US President of the next twenty years, President Kennedy would also take the time to establish close personal relations with many African leaders to the extent that he met in the White House with twenty-eight African heads of state. His personal involvement projected an image of sympathy with Africa with the result that, as Muehlenbeck illustrates in some depth, African leaders, including President Touré and President Nkrumah, genuinely mourned his assassination as a significant blow to Africa. However, not for the first time, as Lerner argues, an American President would offer fine rhetoric to Africa but fail, or be unable, to back up his words with effective support. While he may have been personally supportive of the newly independent African states, as with all post-war US Presidents, the Communist threat, of which Africa was fast emerging as the new playground, was the abiding primary concern of President Kennedy’s foreign policy. A key element of this concern, Muehlenbeck suggests, was the speech made by Khrushchev just days before Kennedy’s inauguration. That speech emphasised that it was world communism’s historic mission to assist wars of liberation so as to end colonialism.75 An early policy paper in 1961 on US economic assistance policy to Africa therefore attempted to promote a new approach. It urged that the existing US preoccupations with an aid auction with the Soviet Union ‘as an instrument of political influence’ was ineffective and policy should rather focus on alternative means by which Soviet political impact might be contained: It seems quite clear that the newly independent African states, with few exceptions, are prepared to accept economic aid regardless of the source, provided no strings are attached … We no longer can expect to keep Africa as an almost exclusive Western preserve. Of equal if not greater importance than economic aid in countering bloc influence in Africa … is the need to demonstrate to Africans that the United States is truly a disinterested friend and that we genuinely and fully support their aspirations to run their own affairs free from outside interference.76 32–33 and R.D. Mahoney, JFK: Ordeal in Africa (Oxford, 1983), 22–28. The reference to the 1959 study is to United States Foreign Policy, Africa, A study prepared at the request of the Committee on Foreign Relations United States Senate by Program of African Studies, Northwestern University Washington, 23 October 1959. 75 P.E. Muehlenbeck, Betting on the Africans: John F. Kennedy’s Courting of African Nationalist Leaders (Oxford, 2012), R.D. Mahoney, JFK: Ordeal in Africa, 22–28, K.W. Grundy, ‘The Congressional Image of Africa’, Africa Today, 14/1 (1967), 8–9 and M. Lerner, ‘Climbing off the Back Burner: Lyndon Johnson’s Soft Power Approach to Africa’, Diplomacy and Statecraft, 22/4 (2011), 578–581. 76 FRUS 1961–1963 Vol. XXI Africa, Document 196: Paper Prepared by the Policy

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This proposed approach was timely in that doubts about the benefits of economic assistance, particularly in the context of negative African votes in the UN, were being increasingly voiced in Congress. To counter this scepticism, President Kennedy offered up a highly pragmatic argument that linked aid to defence spending, asserting that ‘we are giving aid to foreign countries in order to increase the security of the United States – not primarily for humanitarian reasons … We must make every effort to keep countries out of the Communist bloc.’77 Prime Minister Houphouet-Boigny would make much the same point in July 1960 when warning of the growing Communist threat and arguing that aid was essential in demonstrating the benefits of cooperation with the West.78 In an effort therefore to protect the aid budget, in December 1962, President Kennedy created an ‘outside group’ to review the US aid programme. This ‘committee of private citizens’ under the chairmanship of General Clay was asked ‘to examine the scope and distribution of U.S. foreign military and economic assistance and to recommend any changes believed desirable for its optimum contribution to strengthening the security of the United States and the Free World’. As its official title, ‘The Committee to Strengthen the Security of The Free World’, and General Clay’s involvement, suggested, the main aim of this political manoeuvre was to provide political cover for the national security rationale for foreign aid. Unhappily, General Clay was less enthused about the advantages than had been hoped: ‘The Committee regards Africa as an area where the Western European countries should logically bear most of the aid burden … In light of its other responsibilities United States cannot undertake to support all of the African countries, especially when their ties with other free world nations are largely elsewhere.’ Accordingly, it proposed that aid should be disbursed on a multilateral basis. At this time almost all African states, thirty-four in all, received aid although three-quarters was allocated to only eight states: Ethiopia, Liberia, Libya, Morocco, Nigeria, Sudan, Tanganyika and Tunisia.79 Planning Council 24 July 1961, PPC 61-7, Selected aspects of U.S. economic aid policy for Africa. 77 Remarks of President Kennedy to the National Security Council meeting on January 22, 1963, 3–4 http://www.jfk library.org/Asset-Viewer/Archives/JFKNSF-314002.aspx, last accessed 24 September 2019. 78 FRUS 1958–1960 Vol. XIV Africa, Document 65: Memorandum From Secretary of State Herter to President Eisenhower 5 August 1960, Aid to the Ivory Coast, Note 1 reporting a conversation on 15 July between Consul General Donald R. Norland and Prime Minister Houphouet-Boigny. 79 Report to the President of the United States from The Committee to Strengthen the Security of The Free World: The Scope and Distribution of United States Military and Economic Assistance 20 March 1963, 9–11; a Summaries of Proceedings of the Clay Committee can be accessed from http://www.jfklibrary.org/Asset-Viewer/

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As a result, as the report was about to emerge, US embassies around the world had to be briefed that the report was essentially the view of, albeit distinguished, American citizens and therefore although it carried some political weight it was not (yet) official US policy. African embassies were specifically briefed that: ‘President, Secretary Rusk, and Governor Williams have voiced deep interest and concern African Affairs and this interest unchanged.’80 Unfortunately, General Clay had also concluded that aid could be as effective at a much lower appropriations level. When, therefore, Congress debated the 1964 aid budget, they took advantage of the report’s reservations and passed it with a significant reduction in the requested appropriation. In signing the bill, President Johnson, who had by then taken office, complained that the lesser amount authorised ‘reflects a dangerous reduction in funds and a consequent dangerous reduction in our security’.81 On assuming office, President Johnson was immediately confronted by the election due in 1964 and management of the Vietnam War and therefore the question of economic aid was naturally relegated in importance. Aid to Africa, in particular, fell victim to the Southern states’ backlash in Congress against the Civil Rights movement and the resulting reluctance of any Senator to take on the Senate Subcommittee on African Affairs. However, after his re-election, President Johnson felt more secure in returning to the question of aid to Africa and therefore requested Assistant Secretary of State Williams ‘to undertake a new and critical look at overall African policy’. In the event, this critical look delivered no new insights as regards practical policy. Indeed the report seemed to recommend little more than ‘a personal association with Africa on the part of the President’ in the form of a speech Archives/JFKNSF-297-013.aspx, last accessed 15 June 2016 – the meeting on 23 January 1963 is an interesting dissection and debunking of the rationale for aid to individual African countries. 80 Outgoing Telegram Circular 1619 Department of State 20 March 1963 http://www. jfklibrary.org/Asset-Viewer/Archives/JFKNSF-297-016.aspx and Outgoing Telegram Circular 1621 Department of State 21 March 1963 http://www.jfklibrary.org/ Asset-Viewer/Archives/JFKNSF-297-016.aspx, both last accessed 15 June 2016. 81 FRUS 1961–1963 Vol. IX Foreign Economic Policy, Documents 159: Memorandum From the Under Secretary of State for Political Affairs (McGhee) to Secretary of State Rusk 15 March 1963, Economic Aid: Diffusion vs Concentration of AID Programs, 166: Memorandum From the Administrator of the Agency for International Development (Bell) to President Kennedy 22 April 1963, Congressional Presentation Strategy on the FY 1964 Aid Bill and its Relation to the Clay Report and 175: Editorial Note, FRUS 1961–1963 Vol. XXI Africa, Document 217: Memorandum From the President’s Special Assistant (Dungan) to President Kennedy, Aid to Africa 6 March 1963 and ‘The Clay Report’ (unattributed), The Harvard Crimson 23 April 1963 http://www.thecrimson.com/article/1963/4/23/the-clay-reportpforeign-aid-administrators, last accessed 15 June 2016.

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on and visit to Africa and an increase in the modest proportion of US aid allocated to Africa based on President Kennedy’s formula that: ‘Relatively modest expenditures now for non-military programs in Africa may well provide an extra dividend in reducing or eliminating the seeds of dissension which otherwise give rise to the need for large security programs.’82 While accepting the report’s findings, President Johnson also made clear his view ‘that the prime determinant of US influence in Africa will be the stance the US takes on those political issues of primary concern to the Africans themselves. US concern for African problems must be demonstrated by actions, and in terms, which will have an immediate appeal to the people of Africa’. As a demonstration of his concern, President Johnson delivered a major speech on Africa at the White House in May 1966, on the third anniversary of the OAU, attended by the ambassadors of the thirty-six OAU member states. In his speech, President Johnson identified the US with the goals of the OAU Charter, supporting the ‘inalienable right of all people to control their destiny’, and his repugnance at ‘the narrow-minded, outmoded policy which in some parts of Africa permits the few to rule at the expense of the many’. He also expressed a willingness to provide economic aid to Africa and to that end announced the creation of a task force under US Ambassador to Ethiopia Korry ‘to review our own development policies and programs in Africa’. The speech was also followed up by the visit in December 1967 of Vice President Humphrey to nine African countries.83 The Korry Report acknowledged the growing significance of Africa, particularly in terms of numbers at the UN, but still concluded that Africa was a relatively low foreign policy priority: ‘Our primary concern with Africa has been, and will continue to be for some time, to prevent events in the continent from complicating a search … for solutions to the problems of war and peace, or from interfering with our central strategic and political preoccupations in other regions.’ It sug82 FRUS 1964–1968 Vol. XXIV Africa, Documents 196: Memorandum From Ulric Haynes of the National Security Council Staff to Robert W. Komer of the National Security Council Staff 18 May 1965, 200: Action Memorandum From the Assistant Secretary of State for African Affairs (Williams) to Secretary of State Rusk 17 September 1965, Strengthened African Program, 201: Memorandum From Secretary of State Rusk to President Johnson 14 October 1965, Strengthened African Program and 202: Memorandum From the President’s Deputy Special Assistant for National Security Affairs (Komer) to President Johnson 23 November 1965. 83 FRUS 1964–1968 Vol. XXIV Africa, Documents 203: Memorandum From President Johnson to Secretary of State Rusk 28 November 1965, Strengthened African Program and 210: Circular Telegram From the Department of State to All African Posts Except Pretoria 25 May 1966 and President Johnson, Remarks at a Reception Marking the Third Anniversary of the Organization of African Unity, 26 May 1966 https://www.presidency.ucsb.edu/documents/remarks-reception-marking-thethird-anniversary-the-organization-african-unity, last accessed 29 May 2023; see also Document 231: Report From Vice President Humphrey to President Johnson 12 January 1968, The Vice President’s trip to Africa December 30, 1967 – January 11, 1968.

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gested that US AID was overwhelmed by the development needs of Africa and that the credibility of that aid was compromised by a ‘scatteration of resources’. The report therefore proposed an annual increase in aid of modest amounts but also a more focused concentration of aid expenditures. Moreover, ‘that the careful selection of specific African countries for a major development effort is sound policy. The U.S. choice should continue to be dictated by a combination of economic and political considerations’; but it was also necessary ‘to distinguish clearly between short-term political and long-term development goals’. Finally, the report proposed that an increasing proportion of US aid should be channelled to Africa through the World Bank rather than by means of bilateral aid.84 Following the Korry Report AID began to reduce the number of African countries receiving bilateral assistance, but, still faced with the financial burden of the Vietnam War, Congress was unwilling to countenance the increase in aid that had also been recommended. Republican Congressman Gross (Iowa) called aid ‘the worst swindle ever perpetrated on the American people’ and referred to ‘those chiselling foreigners’, while Democratic Congressman Passman (Louisiana) suggested that foreign aid ‘is the stupidest program ever conceived by the mind of man’. Other Congressional critics focused on developments in the Congo and the Biafran war and lamented that the reduction in bilateral aid was likely to lead to a diminution in US influence. While some clever accounting and executive orders held the line in 1966, by 1967 Congress would dramatically reduce the aid budget despite the best efforts of President Johnson.85 As the incoming National Security Adviser Kissinger would point out, the aid programme was in crisis: Public support has virtually disappeared and President Johnson’s last two budget requests were cut by 25 and 50 percent. We have fallen behind most other developed countries in the percentage of GNP provided in aid. Our aid objectives are uncertain and have been poorly articulated. The problem cannot be blamed solely on Vietnam and our budgetary stringencies.86 84 FRUS 1964–1968 Vol. XXIV Africa, Document 215: Report of the Task Force on the Review of African Development Policies and Programs 22 July 1966, Policy for development in Africa (Korry Report). 85 FRUS 1964–1968 Vol. IX, International Development and Economic Defense Policy, Document 61: Presidential Determination No. 67–141 5 January 1967, Memorandum for the Administrator Agency for International Development, FRUS 1964–1968 Vol. XXIV Africa, Document 226: Paper Prepared in the Department of State (undated, probably July 1967), African problems, K.W. Grundy, ‘The Congressional Image of Africa’, 8–13 and Congressmen Gross and Passman, quoted by M. Lerner, ‘Climbing off the Back Burner: Lyndon Johnson’s Soft Power Approach to Africa’, 600. 86 FRUS 1969–1976 Vol. IV Foreign Assistance, International Development, Trade Policies, 1969–1972, Document 5: Action Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon, NSC Meeting on Foreign

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With the election of President Nixon, and later President Ford, US foreign policy shifted so that Africa was now regarded with an even greater indifference if not, from behind closed doors, total contempt.87 From the outset, policy was determined by two assessments: Firstly, adoption of Option Two of the 1969 NSSM 39 review on US policy towards Southern Africa which argued that the US should ‘maintain public opposition to racial repression but relax political isolation and economic restrictions on the white states’; in effect, to avoid confrontation with South Africa and permit arms sales to Portugal, a policy that it was understood would be deeply resented by black Africa. It was based on the strategic assumption that: ‘The whites are here to stay and the only way that constructive change can come about is through them. There is no hope for the blacks to gain the political rights they seek through violence, which will only lead to chaos and increased opportunities for the communists.’88 Secondly, and in effect a further justification for the decision to adopt Option Two, the outright unimportance with which Africa was regarded. As President Nixon made clear, for ‘that part of Africa which is not directly related to the Mid-East crisis … I do not want matters submitted to me unless they require Presidential decision and can only be handled at the Presidential level’. Moreover, he insisted that National Security Adviser Kissinger also delegate African affairs. It was therefore laid down that: in Africa and in the UN our policy is essentially defensive … We deal with them because they are there … What we really want from both is no trouble. Our policy is therefore directed at damage limiting, rather than at accomplishing anything in particular … The task then is to put the best possible face upon essentially negative roles, and to try to make them sound more positive … than they actually are.89

Aid (undated but prepared for NSC meeting of 26 March 1969). 87 FRUS 1969–1976 Vol. XXVIII, Southern Africa, Document 57: Conversation Between President Nixon and the President’s Assistant for National Security Affairs (Kissinger) 28 September 1971 (reference arises out of President Nixon’s meeting with President Ould Daddah and other African leaders earlier that day). 88 M.A. El-Khawas/B. Cohen (eds), The Kissinger Study of Southern Africa: National Security Study Memorandum 39 (secret) (Westport, 1976) and FRUS 1969–1976 Vol. XXVIII, Southern Africa, Document 17: Paper Prepared by the National Security Council Interdepartmental Group for Africa 9 December 1969 AF/NSC–IG 69–8 Rev. 89 FRUS 1969–1976 Vol. E–5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Document 10: Memorandum from President Nixon to the President’s Assistants (Haldeman) (Ehrlichman) and (Kissinger) 2 March 1970 and FRUS 1969–1976 Vol. I Foundations of Foreign Policy, 1969–1972, Document 49: Memorandum From Marshall Wright of the National Security Council Staff to the President’s Assistant for National Security Affairs (Kissinger) 10 January 1970.

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In public, therefore, the official US stance proclaimed that: ‘We will not intervene in the internal affairs of African nations. We strongly support their right to be independent, and we will observe their right to deal with their own problems independently.’90 Almost certainly, therefore, but for the Cold War, it seems likely that US foreign policy interest in Africa might have been of even greater insignificance.91 As for aid policy, President Nixon remarked dismissively on ‘the plethora of small U.S. programs in Africa’ and observed that: ‘He was not impressed by the argument that the Communists will pour in aid if we don’t … The question is whether U.S. interests in the particular countries are vital. We must not let other countries shake us down, even though some of our friends are among those who do so … we should not pour money down ratholes.’92 However, within the NSC, there were warnings of the consequences of reducing economic aid to Africa: On a Continent where development is the overriding job, we lack (a) money, (b) a long-run development strategy, and (c) a clear sense of short-run priorities. Again, I am trying to spark some new ideas and a reappraisal of practiced dogma … The President should have his own African policy, but unless we get hold of aid strategy, we’ll miss one-half of our policy stake on the Continent.93

This was subsequently confirmed by Secretary of State Rogers’ report on his discussions with African leaders on his 1970 Africa trip: ‘All evidenced a strong desire for more U.S. assistance preferably bilateral and with as few strings as possible.’94 As with all post-colonial Presidents, in view of his dissatisfaction with US aid policy, President Nixon sought a review of the foreign assistance programme. 90 FRUS 1969–1976 Vol. E–5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Document 7: U.S. Foreign Policy for the 1970s: A New Strategy for Peace: A Report to the Congress by Richard Nixon, President of the United States, 18 February 1970. 91 Reported comments by Secretary of State Kissinger, quoted by Editor’s Introduction, ‘The Cold War in the Third World and the Collapse of Détente in the 1970s’, Cold War International History Project Bulletin, 8–9 (1996/1997), 1. 92 FRUS 1969–1976 Vol. IV Foreign Assistance, International Development and Economic Defense Policy, Documents 109: Letter From President Nixon to Secretary of State Rogers 12 April 1969 and 120: Memorandum of Conversation, San Clemente, 2 September 1969, President’s Task Force on Foreign Aid. 93 FRUS 1969–1976 Vol. E–5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Document 3: Memorandum From Roger Morris of the National Security Council Staff to the President’s Assistant for National Security Affairs (Kissinger), 23 April 1969, Status Report on African Policy. 94 FRUS 1969–1976 Vol. E–5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Document 8: Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon, 24 February 1970, Secretary Rogers’ Report on his African Trip.

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The first was a paper to the NSC prepared by an Ad Hoc Working Group. However, following NSC discussion of that paper, President Nixon decided to commission a formal NSC paper ‘on the objectives of the U.S. economic assistance program and its relationship to overall U.S. foreign policy’ to be undertaken by the same Ad Hoc Working Group. It was also decided that Ambassador Korry, who had written the 1966 report, and US Ambassador to Zambia Troxel should be added to the Working Group.95 Among the conclusions reached by this second Korry Report, which began to emerge in January 1970, were: A rejection of the lingering myth that ‘development assistance provided directly by the U.S. should secure political support for the U.S. on current issues’; that although they ‘see the need for aid to achieve specific political ends … we are persuaded that U.S. resources can be employed most effectively if there is a clear division between political purposes and development activities’; that an increasingly larger proportion of development assistance should be channelled through multilateral institutions; and that therefore new institutions outside the State Department’s control should run the non-political US economic aid programme. Understandably, Secretary of State Rogers took great exception to this last conclusion. After all, the report had been supervised by one of his subordinates on the basis that ‘aid is wholly an arm of U.S. foreign policy, and that foreign policy must therefore be an operational responsibility of the State Department’.96 In parallel with the NSC review, in an effort to propitiate Congress, President Nixon also set up a Presidential Task Force, chaired by Peterson a former CEO and President of Bank of America and made up of outside experts, to review the foreign assistance programme.97 Like the second Korry Report it concluded that there was a national interest in pursuing international development and, for that reason, the ‘downward trend in U.S. development appropriations should be reversed. Additional resources … are needed now’; but they agreed that it was also necessary to adopt the approach along the lines set out by the second Korry Report.98 95 FRUS 1969–1976 Vol. IV Foreign Assistance, International Development and Economic Defense Policy, Documents 1: Editorial Note, 111: National Security Study Memorandum 45, 21 April 1969, U.S. Foreign Aid, 119: Editorial Note and 123: Editorial Note. 96 FRUS 1969–1976 Vol. IV Foreign Assistance, International Development and Economic Defense Policy, Documents 123: Editorial Note and 124: Draft Summary of Korry Report on Foreign Assistance (undated (final report seems to have been lost)). 97 FRUS 1969–1976 Vol. IV Foreign Assistance, International Development and Economic Defense Policy, Documents 1: Editorial Note, 6: Memorandum by the President’s Assistant for National Security Affairs (Kissinger) 3 April 1969, NSC Meeting of March 26, 1969, on Foreign Aid, 119: Editorial Note and 120: Memorandum of Conversation, San Clemente, 2 September 1969, President’s Task Force on Foreign Aid. 98 U.S. Foreign Assistance in the 1970s: A New Approach – Report to the President From

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Remarkably, both President Nixon and National Security Adviser Kissinger endorsed the findings despite resistance from AID Director Hannah and Secretary of State Rogers.99 However, the new approach of phasing out bilateral aid and of excluding aid from foreign policy considerations did not survive for long as President Nixon seems to have had a change of heart. For example, in July 1972, in a meeting with AID Director Hannah, President Nixon reacted to his assumption that policy was aimed at increasing aid multilateralism by remarking that this was no longer his view: our approach to foreign assistance should be concentrated on bilateral arrangements for which the U.S. would receive specific credit and obtain leverage in order to meet its own vital interests. Experience now confirmed that multilateralism frequently deprived us of any credit from the recipient states and in fact frequently found us in an isolated position with other states who were doing less, forcing us to adhere to policy lines which were not consistent with our views … For this reason multilateralism was no longer the policy and a major effort should be concentrated on bilateral arrangements.100

United States African policy was not without reaction from the African states. On his return from the February 1972 special session of the UN Security Council in Addis Ababa, Bush, then US Ambassador to the UN, advised two House subcommittees of the importance for the US of African votes: ‘There the Task Force on International Development (4 March 1970) (see also Department of State Bulletin 62/1606 (1970), 447–467). 99 FRUS 1969–1976 Vol. IV Foreign Assistance, International Development and Economic Defense Policy, Documents 128: Memorandum From President Nixon 5 March 1970, Review of U.S. Foreign Assistance Program, , 133: Memorandum From Secretary of State Rogers to President Nixon 17 April 1970, State Department Position on Foreign Assistance Review, 134: Action Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon 14 July 1970, The New U.S. Foreign Aid Program, 136: National Security Decision Memorandum 761 10 August 1970, The New U.S. Foreign Assistance Program and 137: Editorial Note. 100 FRUS 1969–1976 Vol. IV Foreign Assistance, International Development and Economic Defense Policy, Document 94: Memorandum for President Nixon’s File 25 July 1972, Meeting between the President, AID Director John Hannah, Secretary of Commerce Peter Peterson and General Alexander M. Haig and US Aid, A History of Foreign Assistance (2002), 4 http://pdf.usaid.gov/pdf_docs/PNACP064.pdf, last accessed 6 July 2016. For a bibliography of major studies, reports and investigations pertinent to the U.S. foreign assistance programme and its organisation, management and operations, see The Reorganization of U.S. Development Aid: Comparison and Summary Analysis of some Official and Unofficial Proposals prepared for the Committee on Foreign Affairs by the Foreign Affairs Division, Congressional Research Service, Library of Congress, May 1973 and Love C./AID to Miller DA/ REG 7 September 1990: Identification of Past Major Studies and Reports http:// pdf.usaid.gov/pdf_docs/PDA BI515.pdf, last accessed 5 July 2016.

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are 42 votes in the United Nations there, 42 votes out of 132, and it is terribly important to us from just a plain political standpoint.’101 Assistant Secretary of State for African Affairs Newsom also advised Secretary of State Kissinger in 1973: ‘Our relations with Africa overall are going downhill. The gap between the Africans’ preoccupations and our policy responses is widening … they view US commitments as ineffectual. Our access to their resources and our influence on their votes are at stake.’102 His reward was immediate reassignment as US Ambassador to Indonesia. Easum, his successor, who also inclined towards active US support for majority rule in Southern Africa, would not survive for long before he too was shunted aside as US Ambassador to Nigeria. When, therefore, Foreign Minister Garba (Nigeria) advised Secretary of State Kissinger, with Easum in mind, ‘You have a good man in Lagos’, Secretary of State Kissinger is said to have replied: ‘Good for whom, you or us?’. In turn, Davis, Easum’s successor, whose nomination the OAU had opposed due to his previous posting as US Ambassador to Chile at the time of the coup against President Allende, lasted only four months before he resigned in protest at President Ford’s decision to take covert action in Angola.103 Unsurprisingly, therefore, a 1975 policy review of US African policy would conclude that while US specific interests in Sub-Saharan Africa are modest and will remain so when compared to our interests elsewhere in the world … we expect to see a weakening in our bilateral relations with the black African countries over the next three to five years. Moreover, prospects of winning African support for our positions on many international issues are poor. Continued access to African ports and air space and the use of the few strategic facilities we have in black Africa are no longer assured … As long as we refuse to support or acquiesce in Afro-Asian initiatives to promote political goals they consider important … we should anticipate difficulty in rallying African support for causes that are important to us.

101 Testimony of US Ambassador to the UN Bush, United Nations and Africa: Joint Hearing before the Subcommittee on Africa and the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs, House of Representatives 92nd Congress 2nd Session 1 March 1972, 13. 102 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 11: African Problems, Assistant Secretary of State for African Affairs Newsom to Secretary Kissinger, Department of State Briefing memorandum, 5 October 1973. 103 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 25: Telegram 040694 From the Department of State to All African Diplomatic Posts, 23 February 1975, 0103Z12 Davis Nomination: Message for Syg Eteki, D. Easum, ‘Hard times for the African Bureau, 1974–1976: A diplomatic adventure story’, Foreign Service Life, July 2010 http://americandiplomacy.web.unc.edu/2010/06/hard-times-forthe-africa-bureau-1974-1976, l, last accessed 28 August 2019 and Interview with Ambassador D. Easum, Foreign Affairs Oral History Project.

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However, its substantive recommendation remained: ‘We do not believe that our current Africa policies are in need of such major adjustments.’104 Although, essentially, there was therefore little change in the indifference with which Africa was held, in 1976 in Lusaka, Secretary of State Kissinger tried to mend fences by way of a partial apologia. He rather grudgingly admitted that Africa had not been high up on the list of the United States’ ‘priorities and concerns’. Nevertheless, he looked forward to an improved relationship in which the Africans themselves solved African problems, and reaffirmed US commitment to ‘the convictions of the Lusaka Manifesto’ and to political support for majority rule and independence in Rhodesia and Namibia and economic support to the front-line states. As for South Africa, he promised that the US would ‘continue to encourage and work for peaceful change’.105 Nonetheless, for most African political leaders, suspicions continued to run deep, it was too little too late. Such suspicions had been exacerbated by President Ford’s January 1976 circular letter to OAU leaders ahead of the January 1976 Addis Ababa Extraordinary Summit meeting to discuss Angola in which he posited a linkage between US support for South Africa’s military withdrawal from Angola and the withdrawal of Soviet/Cuban forces. General Muhammed’s address to the meeting responded to this letter in terms shared by most African leaders: ‘This constitutes a most intolerable presumption and a flagrant insult on the intelligence of African rulers.’ Such was the strength of African feeling that, even in the last days of President Ford’s term in office, President Kaunda felt compelled to write to Secretary of State Kissinger, in respect of the negotiations over Rhodesia, warning that ‘threats from whatever quarter make no impression on us. In a way it was good that this letter came through to us at this time because it has revealed that we have, after all, been working at cross purposes in this exercise.’106 African outrage was particularly focused on Secretary of State Kissinger so that in 1975 Nigeria declined three times to receive him and in 1976 104 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 29: Action Memorandum From Deputy Assistant Secretary of State for African Affairs (Mulcahy) and Director of Policy Planning (Lord) to Secretary of State Kissinger, 27 June 1975. 105 H. Kissinger, Lusaka, 27 April 1976, ‘United States Policy on Southern Africa’, Department of State Bulletin 74/1927 (1976), 672–679. 106 Speech by General Muhammed, Federal Military Government News Release No. 88 21 January 1976, quoted by K.K. Eke, Nigeria’s Foreign Policy under Two Military Governments, 1966–1979: An Analysis of the Gowan and Muhammed/Obasanjo Regimes (Lewiston, 1990), 141, B.E. Ate, Decolonization and Dependence: The Development of Nigerian-U.S. Relations, 1960–1984 (Boulder, 1987), 194 and FRUS 1969–1976 Vol. XXVIII, Southern Africa, Documents 168: Telegram From the Department of State to Certain African Diplomatic Posts 3 January 1976 Presidential Message on Angola and 231: Telegram From the Embassy in Zambia to the Department of State Lusaka, 9 December 1976.

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he was also refused permission for a refuelling stop in Ghana.107 When, therefore, President Carter defeated President Ford in the 1976 US Presidential election, it was reported that the news was greeted by the Nigerian Federal Executive Council with applause.108 This strong anti-American sentiment, scarcely supportive of the idea that the US had much leverage with which to ‘pressure’ African leaders, was the legacy inherited by President Carter in 1977. Initially at least, President Carter sought to chart a new foreign policy course. This was to be effected by responding to ‘changes over the past 15 to 20 years in the global distribution of power … This means developing new and wider relationships with … regionally influential nations such as Nigeria’.109 However, the obstacle which such a policy faced with Nigeria was that there was deep resentment and suspicion about US motives. Not only as regards Southern Africa, but also because the US had refused to sell Nigeria weapons at the time of the Nigerian civil war (weapons were therefore purchased from the Soviet Union). Nigeria would also recall that the US’s so-called humanitarian activities had involved contact with the Biafran government and therefore served to prolong the war.110 In order to signal change and a more accommodating approach to Africa’s concerns, President Carter began to condemn South Africa’s apartheid policy more forcefully. He also appointed Young, a colleague of Martin Luther King, US Ambassador to the UN to promote communication with his African coun107 Interviews with Ambassador R.P. Smith (Ghana 1976–79 and Liberia 1979–81) and Ambassador D. Easum, Foreign Affairs Oral History Project, FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Documents 212: Telegram 4100 From the Embassy in Nigeria to the Department of State, 5 April 1976 and 215: Telegram 10549 From the Embassy in Nigeria to the Department of State, 14 September 1976, Major-General Joe Garba (Rtd), Diplomatic Soldiering: Nigerian Foreign Policy, 1975–1979 (Ibadan, 1987), 154, K.K. Eke, Nigeria’s Foreign Policy under two Military Governments, 1966–1979: An Analysis of the Gowan and Muhammed/Obasanjo Regimes, 141 and O. Aluko, ‘Nigeria, the United States and Southern Africa’, African Affairs, 78/310 (1979), 91. 108 C. Okadigbo, Power and Leadership in Nigeria (Enugu, 1987), 55, quoted by J. Iliffe, Obasanjo, Nigeria and the World (Woodbridge, 2011), 75–76. 109 FRUS 1969–76 Vol. I Foundations of Foreign Policy, 1969–1972, Document 78: Memorandum From the President’s Assistant for National Security Affairs (Brzezinski) to the Cabinet. 110 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 200: Paper Prepared in the Bureau of Intelligence and Research, 23 March 1973 Nigerian-US relations: Contrasting styles reinforce Nigerian distrust, O. Aluko, ‘Nigeria, the United States and Southern Africa’, 91 and J.S. Stremlau, ‘The Fundamentals of Nigerian Foreign Policy’, Issue: A Journal of Opinion, 11/1–2 (1981), 48. Documents on the USA’s attempt to negotiate humanitarian aid to Biafra are in FRUS 1969–1976 Vol. E–5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Documents 23–217.

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terparts and a greater degree of trust in US intentions.111 While Ambassador Young made some headway, Foreign Minister Garba expressed disillusion with the expectations he had engendered with the put-down that at heart he was merely another ‘American serving American interests’.112 The US now also openly sought to avoid making decisions on Africa without prior discussions with Nigeria. Ambassador to Nigeria Easum, for example, publicly explained that: ‘We take Nigerian views very seriously, and not just on African issues but on issues of global concern … Nigerian views on these issues are an increasingly important factor in the formulation of US policies.’113 It was against this background that President Carter met with General Obasanjo, first in the US in 1977 and then in Lagos in 1978, the first ever State Visit by a US President to Africa. One of the key themes was the determination of the African states to resist outside interference in African affairs. Even prior to the visit it was a message that Secretary of State Vance had already absorbed as he explained to the National Association for the Advancement of Colored People (NAACP): ‘Having won independence, African nations will defend it against challenges from any source. If we try to impose American solutions for African problems, we may sow divisions … we will not do so.’ From the other shore, Foreign Minister Garba similarly explained that Nigeria’s newly acquired economic strength meant that ‘in the diplomatic endeavour around Southern Africa, Nigeria has dealt with the USA from a position of strength, and if it is to ride the tiger, that is how it must continue’.114 In his 1977 welcome toast President Carter would also advise: ‘There is a common theme that runs through the advice to me of leaders of African nations: “We want to manage our own affairs … We don’t want you or the Soviet Union to inject yourselves into the internal affairs of the nations of our continent.”’ 111 O. Ogunbadejo, ‘A New Turn in US-Nigerian Relations’, The World Today, 35/3 (1979), 117–120 and O. Aluko, ‘Nigeria, the United States and Southern Africa’, 93; see also B.E. Ate, Decolonization and Dependence: The Development of Nigerian-U.S. Relations, 1960–1984, 200–213. 112 Major-General Joe Garba (Rtd), Diplomatic Soldiering: Nigerian Foreign Policy, 1975–1979, 153–155. 113 O. Ogunbadejo, ‘A New Turn in US-Nigerian Relations’, 119. For an interesting analysis of the Anglo-Nigerian relationship at this time, see O. Aluko, ‘Nigeria and Britain after Gowon’, African Affairs, 76/304 (1977), 303–320. 114 FRUS 1977–1980 Vol. I Foundations of Foreign Policy, Document 50: Address by Secretary of State Vance, NAACP Annual Convention St. Louis, Missouri, 1 July 1977, The United States and Africa: Building Positive Relations and Brigadier J.N. Garba, ‘Foreign policy and the problems of development’, Address, University of Ibadan, Ministry of Information, Lagos, 19 February 1977, quoted by O. Abegunrin, Nigeria and the Struggle for the Liberation of Zimbabwe: A Study of Foreign Policy of an Emerging Nation (Washington, 1992), 77.

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Obsequiously, too, President Carter added: ‘It’s also an almost unprecedented thing to know that a group of military leaders love their nation so much and love the principles of human freedom so much that … they’ve laid a firm basis for rapid transfer of authority to the people themselves through free elections and through civilian rule.’ It was an assessment that would not long survive scrutiny as in 1984 after barely five years of civilian rule the Nigerian military returned. General Obasanjo replied that: we are happy to note that for the first time a United States administration is showing signs of recognizing the necessity of placing Africa in its proper position as a major focal point in the quest for international peace and stability. Nowhere in the world is there a greater assault on human rights than in Africa. This is why we welcome with pride the place which you and your administration have given to human rights … you and I have discussed at length the situation in southern Africa … we share the view that nowhere else in the world are the ideas of freedom, justice, and human rights so wantonly and systematically trampled upon than in that unhappy part of our continent.115

In subsequent remarks following General Obasanjo’s departure, President Carter would go even further in revealing the reality of the changed power relationship in which the US was now the suppliant: ‘The respect with which the Nigerian Government and people are held in Africa is obvious to us now … In almost every trouble spot in Africa, the Nigerians are looked upon as a major factor for peace and for the resolution of differences.’116 Six months later, on the return visit to Lagos, President Carter continued to avoid mention of human rights violations by African states. At the welcome speeches, General Obasanjo described how: ‘Your personal commitment to human values, rights, and dignity … have given us some hope in our joint endeavor to eradicate racialism on this continent and to ensure improvement of peace, justice, and fairness on our continent and in the world’, while President Carter applauded the Nigerian military’s decision to hold free elections and expressed the United States’ commitment to ‘self-determination, majority rule,

115 ‘Visit of Lieutenant General Obasanjo of Nigeria Toasts of the President and Lieutenant General Obasanjo at a Dinner Honoring the Nigerian Head of State’, 11 October 1977, The American Presidency Project https://www.presidency.ucsb. edu/documents/toasts-the-president-and-lieutenant-general-obasanjo-dinnerhonoring-the-nigerian-head, last accessed 29 May 2023. 116 ‘Visit of Lieutenant General Obasanjo of Nigeria Remarks to Reporters Follow­ing the Nigerian Head of State’s Departure’, 12 October 1977, The American Presidency Project https://www.presidency.ucsb.edu/documents/visit-lieutenant-generalobasanjo-nigeria-remarks-reporters-following-the-nigerian-head, last accessed 29 May 2023.

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and human rights’.117 During a briefing with the press, President Carter was also asked: ‘Did you discuss human rights and any specifics at all and particularly did you discuss Uganda and Idi Amin in regards to human rights?’ To which President Carter replied: ‘We did not discuss Uganda … We did discuss the question of human rights … also the problems of human rights that accrue because of poverty.’118 At the subsequent State dinner, this dance over what human rights in Africa entailed continued. General Obasanjo said that: Your personal commitment to decent human values and service to mankind is not in doubt … and underlies the understanding of our two Governments on issues affecting the life and dignity of the black man … we cannot remain indifferent while the racists in southern Africa oppress, repress, and subject to inhuman degradation the overwhelming majority of the indigenous people of the area and deny them the most basic human rights and elementary freedoms … It is Africa’s desire to settle her own disputes our own way, if necessary under the auspices of the Organization of African Unity.119

The visit ended with a communiqué which seemed to address General Obasanjo’s conception of human rights rather more than it did President Carter’s in which, yet again, mention of the UDHR was conspicuous by its absence, the UN Charter being the preferred benchmark: The two Heads of State renewed their condemnation of the evil and oppressive system of apartheid in South Africa … and … underscored their commitment to the principles of the United Nations Charter, particularly those concerning the importance of human rights in all societies. To this end they cited the importance of strengthening the human rights machinery of the United Nations.

In the accompanying remarks, which amplified the various references in the communiqué, General Obasanjo made no reference to human rights at all, while President Carter spoke of the ‘theme’ of his visit dancing once again between the two constituencies: The overwhelming single two words that describe this theme is ‘human rights’ in all its aspects. And the hunger for freedom, the hunger for liberty, 117 ‘Lagos, Nigeria Remarks of the President and Lt Gen. Olusegun Obasanjo at the Welcoming Ceremony’, 1 April 1978, The American Presidency Project https://www. presidency.ucsb.edu/documents/lagos-nigeria-remarks-the-president-and-lt-genolusegun-obasanjo-the-welcoming-ceremony, last accessed 29 May 2023. 118 President Carter Questions and Answer Session, State House, 2 April 1978, quoted by S. Grant, Jimmy Carter’s Odyssey to Black Africa, Part One (Miami, 1980), 140– 144. 119 ‘Lagos, Nigeria toasts at the State Dinner’ 2 April 1978, The American Presidency Project https://www.presidency.ucsb.edu/documents/documents/toasts-statedinner-lagos-nigeria, last accessed 24 September 2019.

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The African Charter on Human and Peoples’ Rights: Volume 2 the hunger for individuality, the hunger for a right to be free of oppression, to participate in one’s own government, to shape one’s own destiny, to have something to eat, a place to live, food to drink (sic.), and education for one’s children, are deprivations that are deeply felt.120

Yet, ultimately, despite his overtures, President Carter, too, began to pull back from his non-interventionist stance and to adopt the ‘globalist’ cold war structural policy of his predecessor. The turning point came in 1978 when President Carter was confronted by domestic criticism and opinion polls suggesting he was too soft on the Communists in Southern Africa. The problem had already been addressed by National Security Adviser Brzezinski after little more than two months in office: Current African events can be seen in terms of two broad interpretations, both of them probably right but each yielding a contradictory conclusion. The first is that Africa is in the midst of a social-political upheaval, with post-colonial structures simply collapsing. In that case, it is clearly inadvisable for the U.S. to become involved. On the other hand, events in Africa can also be seen as part of a broad East-West struggle … This dictates resistance to Soviet efforts. In the meantime, the situation remains grave and it is possible that pro-Soviet developments in Ethiopia may soon be matched by a collapse of the pro-Western government in Zaire.121

To the renewed consternation of Africa, President Carter therefore began to move towards the ‘hawkish’ option in which Africa’s status was once again all too obvious. He therefore declined to recognise the Cuban-backed Angola government and in 1978 provided transport support for French and Belgian troops brought in to support Zaire in the Shaba province against an alleged Angolan invasion although in 1977 he had declined to respond to a similar invasion.122 In response to this Western intervention, in a speech warmly applauded at the 1978 120 ‘Lagos, Nigeria Joint Communique Issued at the Conclusion of Meetings Between the President and General Obasanjo’, 2 April 1978, The American Presidency Project https://www.presidency.ucsb.edu/documents/lagos-nigeria-joint-communique-issued-the-conclusion-meetings-between-the-president-and, last accessed 24 September 2019 and ‘Lagos, Nigeria Remarks on Signing the Joint Communique’, 2 April 1978, The American Presidency Project https://www.presidency.ucsb.edu/documents/ lagos-nigeria-remarks-signing-the-joint-communique, last accessed 29 May 2023. 121 FRUS 1977–1980 Vol. I Foundations of Foreign Policy, Document 32: Memorandum From the President’s Assistant for National Security Affairs (Brzezinski) to President Carter 1 April 1977, Weekly National Security Report #7. 122 N. Mitchell, Jimmy Carter in Africa: Race and the Cold War (Washington, 2016), 166–174, 432–445, C. Young, ‘Zaïre: The Unending Crisis’, Foreign Affairs, 57/1 (1978), 169–185 and D. Ottaway, ‘Africa: U.S. Policy Eclipse’, Foreign Affairs, 58/3 (1979), 648.

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Khartoum AHSG, General Obasanjo emphasised the limits of African tolerance. He pointed out that parachute drops in the twentieth century were no more acceptable than gunboats had been in the previous century to their ancestors and made clear that: To the Soviets and their friends, I should like to say that having been invited to Africa in order to assist in the liberation struggle and the consolidation of national independence, they should not over-stay their welcome. Africa is not about to throw off one colonial yoke for another … To the Western powers, I say that they should act in such a way that we are not led to believe they have different concepts of independence and sovereignty for Africa and for Europe.123

The hawkish shift was also evident when President Carter agreed to sell arms to Morocco in support of its claim on the Western Sahara against the Polisario movement that was backed by a majority of OAU member states. Morocco had a poor human rights record but as one of the few Arab friends of the US it was deemed too important to subject to human rights considerations.124 In much the same way, Soviet and Cuban support for Ethiopia was deemed a strategic threat to US interests and therefore economic and military support that could hardly be justified on human rights grounds or non-interference in African affairs was deemed necessary for Somalia. The African perception of this shift in the US approach was summarised by Akinyemi, the Director-General of the Nigerian Institute of International Affairs: at the same time when the United States deny arms to the Liberation Movements in Southern Africa … African and Western corporations supply arms and ammunitions directly or surreptitiously to the oppressors in those countries. When the logic of that situation then drives the Liberation Movements to accept arms and ammunitions from the Soviet Union, socialist countries and African countries, the United States uses the Soviet and Cuban connections … to raise the red herring of communism in order to impede the progress of the liberation struggle.

Obiozor, in his analysis of the ‘uneasy friendship’ between the US and Nigeria, made much the same point. He argued that: ‘President Carter’s administration built unfulfilled hopes, engaged in changes in rhetoric and not in substance and thus, in spite of the noble sentiments expressed all the way from Nigeria to Zambia, and back in Washington, American policy in Africa remained essentially 123 General Obasanjo, Address to 1978 AHSG Khartoum, NA FCO 31/2201, ‘Fifteenth AHSG, 1978 Khartoum’, Africa Research Bulletin, 15 July 1978, 4912–4915 and D. Ottaway, ‘Nigeria Warns Soviets and Cubans on African Role’, Washington Post, 20 July 1978, A1, A18. 124 R. Manning, ‘Alarming Tilt in US African Policy’, New African, 148 December 1979, 19.

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the same.’ This was, he suggested an inevitable consequence of the dual primacy of a cold war fixation and the European primacy of US policy in which Africa was thereby assigned a low priority.125 The low priority assigned to Africa was therefore also reflected in Africa’s low absolute and proportional share of US economic and military assistance. In absolute terms, US economic assistance to Africa had fallen sharply from its peak in 1962, a fall considerably compounded by the high inflation of that period, until the reallocation towards the needy by Congress in 1974 halted the absolute decline. A further increase followed on from the fallout of Secretary of State Kissinger’s Southern Africa policy and the resulting need for a palliative as reflected in his wild aid promises during his 1976 visit to Africa. The following year President Carter also increased African economic assistance in terms of total disbursements and the range of countries receiving that assistance. Nonetheless, by any measure, Africa remained the poor cousin of US economic assistance until well after the ACHPR had been adopted. A 1979 estimate by Bennet (Administrator, AID), for example, concluded that despite a doubling of US economic assistance to Africa from 1975 levels in absolute (not real) terms, it still represented only 9 per cent of US world-wide assistance.126 125 ‘Introduction’, A.B. Akinyemi, L.A. Jinadu, Human Rights and US-African Policy under President Carter, Nigerian Institute of International Affairs Monograph Series No. 5 (Lagos, 1980) and G.A. Obiozor, Unneasy Friendship: Nigerian-­ American Relations (Enugu, 1992), 174–175. 126 U.S. Overseas Loans and Grants and Assistance from International Organizations: Obligations and Loan Authorizations, July 1, 1945 – September 30, 1981 (the ‘Green Book’, 1966–1981 edns), ‘Agency for International Development’, Issue: A Journal of Opinion, 8/2–3 (1978), 28–72, Congressional Research Service, Library of Congress, Reports Nos 85–87, S.J. Heginbotham, An Overview of U.S. Foreign Aid Programs 19 April 1985, 10 (Graph U.S. aid to Africa, 1946–1986), 22 (Table 1 U.S. Foreign Aid 1946–86, by Major Region (2-year averages in billions of constant. 1986 dollars)) http://pdf.usaid.gov/pdf_docs/PCAAA447.pdf, last accessed 2 September 2016, US State Department statistics, US Interests in Africa: Hearings before the Subcommittee on Africa of the Committee on Foreign Affairs House of Representatives 96th Congress 1st Session 1979, 90–93 (Table: Total Official Development Assistance to sub-Saharan Africa) and Speech by D.J. Bennet, Jr., Address to Department of State Regional Foreign Policy Conference on Africa, Detroit, 13 December 1979, Department of State Bulletin 80/2037 (1980), 26. The cost of Secretary of State Kissinger’s 1976 Lusaka and Dakar promises are described in FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Documents 41: Memorandum From Malcolm Butler of the National Security Council Staff to the President’s Assistant for National Security Affairs (Scowcroft), 1 May 1976: Economic Assistance Commitments in Lusaka Speech and 43: Memorandum of Conversation, 10 May 1976 Secretary’s Meeting (Kissinger) with OMB Director Lynn on Future Commitments to Foreign Governments.

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Moreover, as a proportion of total African economic assistance, the US share had also declined from around 20 to 10 per cent. Official figures for 1977 bilateral economic assistance to sub-Saharan Africa show that France, West Germany and Canada all provided a far larger proportion of development assistance. The US was therefore still a major donor but not, in most cases, of critical or significant importance.127 In those cases where, together with military assistance, it was significant, such as Zaire and Ethiopia/Somalia, US aid was essentially not outright development aid but advanced to support specific US interests. It was also significant that, although almost all independent African states had received US aid at one time or another, the greater part of US economic assistance was disbursed to relatively few African countries: Ghana (after the 1966 coup against President Nkrumah), Kenya, Liberia, Libya (until the 1969 coup by Colonel Ghadaffi), Niger (after 1973), Nigeria (until the 1973 oil shock), Sudan (except for the anti-West period of 1969–73), Uganda (until 1973), Morocco, Tanzania, Tunisia and Zaire. Ethiopia was also provided with substantial support until 1977, when it turned to the Soviet Union, after which the greater part of that US economic assistance was effectively diverted to Somalia.128 US military aid was even more focused and its overall size limited by a $40 million ceiling imposed by Congress in 1968, a $25 million ceiling having first been imposed in 1963. As a rule, the US was disinclined to provide military assistance to a continent whose primary concern, it was felt, should rather be economic development. That was formally expressed by Congress in the 1979 International Security Assistance Act (s18): It is the sense of the Congress that the problems of Sub-Saharan Africa are primarily those of economic development and that United States policy should assist in limiting the development of costly military conflict in that region. Therefore, the President shall exercise restraint in selling defense articles and defense services, and in providing financing for sales of defense articles and defense services.129 127 Z. Laidi (trans. P. Baudoin), The Superpowers and Africa: The Constraints of a Rivalry, 1960–1990 (Chicago, 1990), 131–133 and B. Palmer, Jr., ‘U.S. Security Interests and Africa South of the Sahara’, AEI Defense Review, 2/6 (1978), 13–14; see also Y. Agyeman-Badu, ‘Attitude of African Nations towards American Aid: The Case of Ghana and Nigeria’ (unpublished PhD thesis, University of South Carolina 1980). 128 1981 ‘Green Book’ and Foreign Assistance and Related Programs Appropriations for Fiscal Year 1982: Hearings before a Subcommittee of the Committee on Appropriations, United States Senate, 97th Congress, 1st Session Part 2 (1981), 98 (U.S. foreign assistance – fiscal years 1946–80). 129 Foreign Assistance Act of 1963 PL 88-205 (s202) 16 December 1963, Foreign Military Sales Acts of 1968 PL 90-628 (s33) 22 October 1968 and 1971 PL 91-672 (s3) 12 January 1971 and International Security Assistance Act of 1979 PL 96-92 (s18) 29 October 1979.

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Military assistance was therefore limited and a 1974 State Department review concluded: ‘In fact perhaps the most striking aspect of the U.S. military supply in Black Africa has been its quantitative insignificance when considered in the context of our total arms aid abroad.’ However, in certain circumstances, such as the 1973–75 Ethiopian crisis, the President was asked to exercise his waiver right to protect US interests against deemed Soviet security threats. The spread of military assistance was therefore also rather narrow. For the period 1946–73, only Ethiopia, Liberia, Libya, Morocco, Tunisia and Zaire received significant military aid; while for the period 1976–80, more than 60 per cent of the military aid budget was allocated to Morocco and Sudan and a further 10 per cent to Ethiopia, soon to be replaced by Somalia, with Kenya, Nigeria and Zaire being the other main recipients.130 Understandably, therefore, African ambassadors repeatedly complained about the level of US aid. For example, a briefing paper for President Johnson’s meeting with seven African Ambassadors advised: ‘The principal interest in common here is economic development. All are struggling to get their economies off the ground … Each needs more outside help. Each would like to get more aid from us. As most Africans, these seven worry that we give the Continent too low priority and are looking for a way to withdraw from Africa altogether.’131 Seven years later, a report on a meeting between African heads of mission and Secretary of State Kissinger recorded that: ‘Africans have observed that US official development assistance has decreased considerably over the last three years … “More regrettable still” is fact that Africa’s share of total US aid is smallest of all regions.’132 130 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Documents 21: U.S. Military Assistance and Arms Policy in Black Africa: Response to NSSM201, Department of State Memorandum For Lieutenant General Brent Scowcroft, 8 October 1974 and 141: Memorandum From the Deputy Secretary of State (Ingersoll) to President Ford, Washington, 3 May 1975, Waiver of the $10 Million Ceiling on Military Assistance, Credits, and Guarantees for Africa, under Section 33(b) of the Foreign Military Sales Act, as amended, J.G. Liebenow, African Politics: Crises and Challenges (Bloomington, 1986), 277, P. Duignan/L.H. Gann, The United States and Africa: A History (Cambridge, 1984), 295 (Table 1: U.S. arms transfers to Africa, 1966–75 and 1976–80) and L.C. Sarris, ‘Soviet Military Policy and Arms Activity in Sub-Saharan Africa’, W.J. Foltz/H.S. Bienen (eds), Arms and the African: Military Influences on Africa’s International Relations (New Haven, 1985), 38–41 (Table 2.1 and 2.2: World Arms deliveries to Sub-Saharan Africa 1969–76 and 1976–80, Source: ACDA, World Military Expenditures and Arms Transfers 1969–76 (Washington, 1978) and 1976–80 (Washington, 1983)) and B. Palmer, Jr., ‘U.S. Security Interests and Africa South of the Sahara’, 14–15. 131 FRUS 1964–1968 Vol. XXIV Africa, Document: 233: Memorandum From the President’s Special Assistant (Rostow) to President Johnson 22 May 1968, 4:30 p.m, Your Talk with Seven African Ambassadors. 132 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 28: Secretary’s

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Even worse, most of that aid was channelled through AID which was despised by US Ambassadors and African recipients alike on the grounds that too much was spent on analysis and US staff and too little on the ground.133 The other side of this limited aid coin, therefore, was Africa’s relative under-representation in the list of countries whose human rights record attracted Congressional scrutiny. Indeed, in 1977, when Foreign Secretary Owen (UK) asked Assistant Secretary of State Derian ‘which parts of the world were of particular concern at present’, no mention was made of Africa.134 Lake, in an interim assessment of the administration’s human rights policy, explained why that was. He pointed out that the US had taken a harder position on economic and military aid to Latin America than to other areas of the world: ‘There are reasons for this, some better than others: we have a good deal of leverage in Latin America.’ As for Africa: We have refrained from criticism of the human rights problems of frontline states whose support we want in southern Africa (e.g. Tanzania, which has more political prisoners than South Korea). Our criticism of Uganda is not so enthusiastically endorsed by other African governments, but certainly does not hurt us with them; that criticism, moreover, has been somewhat muted because of the American citizens who remain there … Since a number of African leaders either have good human rights records (Gambia, Senegal, Liberia) or are working actively to improve them (Rwanda, the Sudan, Nigeria, Upper Volta), our human rights policy is more often supportive of local efforts there than in Latin America.135

In fact, in quiet diplomacy, representations were made to several African countries in the period leading up to and during the political process of the ACHPR; for example, Ghana, Malawi, Mauritania and Morocco. Action was also taken meeting with the African Chiefs of Mission, Telegram from Department of State to All African Diplomatic Posts, 12 April 1975. 133 Interviews with Ambassador T. Boyatt (Upper Volta 1978–80), Ambassador Katzen (Congo (Brazzaville) 1977–78), Ambassador R.P. Smith (Ghana, 1976–79) and Ambassador W.G. Bradford (Zaire, 1964–66), Foreign Affairs Oral History Project. 134 Record of Meeting held between the Secretary of State and Mrs Patricia Derian, FCO London, 9 December 1977, NA FCO 58/1162; nor was there any mention of African countries in Assistant Secretary of State Derian’s meeting with Under-­ Secretary of State Luard on the same day. There is also a strong implication in S.B. Cohen, ‘Conditioning U.S. Security Assistance on Human Rights Practices’, 269 that Zaire was the only African country on the hit list. 135 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 105: Action Memorandum From the Director of the Policy Planning Staff (Lake) to Secretary of State Vance 20 January 1978, The Human Rights Policy: An Interim Assessment.

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in the multilateral financial institutions and by termination or limitation of bilateral economic or military assistance. Most were initiated by Congress, a few by the State Department. They included Benin, CAR/CAE, Equatorial Guinea, Guinea, Mozambique, Tanzania and Zambia but the more interesting cases were Ethiopia, Zaire and Uganda. Most of these countries would not ratify the ACHPR before it came into effect, suggesting that these representations either had no effect or were counter-productive.136 In Ethiopia, Emperor Haile Selassie was deposed in February 1974 after a ‘creeping revolution’ of some years and replaced by a military directorate. A few months later, sixty former government officials were executed followed in August 1975 by the execution of Emperor Haile Selassie. In that the US enjoyed a long-standing relationship with Ethiopia going back to 1941, despite the accompanying rise in anti-American sentiment and the ouster of the moderate elements in the military directorate, Secretary of State Kissinger was reluctant to end the relationship. For the present, the ruling Derg (Coordinating Committee of the Armed Forces, Police, and Territorial Army) was most anxious for continued military assistance in anticipation of an invasion by Somalia and therefore also interested in maintaining the US relationship. Nonetheless, after the mass execution of the former government officials, military assistance was suspended as the State Department struggled to make sense of what was happening in one of its oldest and most strategic allies and therefore of the conclusions that should be drawn.137 As the Transitional File for President Ford explained, US interests were mainly concerned ‘to prevent control of this strategic area from passing to unfriendly powers, a development which would result in the outflanking of our interests in the Arabian Peninsula’.138 Ethiopia, despite its uncertain regime, would therefore have to be supported to counterbalance Soviet arms supplies to Somalia as long 136 A. Jinadu, Human Rights and US-African Policy under President Carter, 58–60. 137 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Documents 89: National Security Study Memorandum 184, 24 May 1973, 91: Study by the Ad Hoc Inter-­ Departmental Regional Group for Africa, 6 July 1973, Horn of Africa, Study Pursuant to NSSM 184, Prepared and approved by the ad hoc Interdepartmental Group under the chairmanship of the Assistant Secretary of State for African Affairs, 109: Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to Deputy Secretary of State (Rush) and Deputy Secretary of Defense (Clements), 27 April 1974, United States Assistance to Ethiopia, 115: Minutes of the Secretary of State’s Staff Meeting, 16 October 1974 and 119: Telegram 262137 From the Department of State to the Embassy in Ethiopia, 28 November 1974, 2240Z 12 and J.W. Harbeson, The Ethiopian Transformation: The Quest for The Post-Imperial State (Boulder, 1987), 124–125. 138 Policy Paper: The Horn: Ethiopia and Somalia, Gerald R. Ford Presidential Library & Museum https://www.fordlibrarymuseum.gov/library/document/0353/1555881. pdf, last accessed 13 November 2019.

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as some semblance of pro-Western orientation could be identified. In February 1975, US military assistance was therefore reinstated and at the same time overtures made to the Soviet Union to suggest that it was in their mutual interest to maintain peace in the Horn of Africa. Another factor was the MPLA victory in Angola, another country lost to the Soviet Union, and therefore a loss starting to rear its head politically at home. 1976 would therefore be the high point of military equipment sales to Ethiopia. As for the human rights abuses committed by the Derg, Assistant Secretary for African Affairs Schaufele, Jr. advised that, despite tortures, killing and bombings of civilians, there was as yet no ‘consistent pattern of gross violations’ and therefore no reason for cutting off aid.139 Nonetheless, in late 1976, President Ford finally decided to cut US military aid. Ethiopian socialism had been declared at the end of 1974 and expropriations and land reform had followed in 1975, but it was the Derg’s turn to ‘scientific socialism’ that proved to be the final straw.140 That in turn prompted the Derg to consider more actively other more congenial relationships such as the Soviet Union that until then had supported Somalia. When a military aid agreement with the Soviet Union was signed in December 1976 and in February 1977 Colonel Mengistu, head of the Derg, secured his authority by a violent massacre of his colleagues, President Carter, who had himself been elected only a few weeks earlier, finally terminated all US military assistance.141 In reality, although Ethiopia had already been referred to the Sub-­ Commission on Prevention of Discrimination and Protection of Minorities (Sub-Commission), as a NSC meeting one month into President Carter’s term of office disclosed, ‘other considerations as well as human rights influenced the decision on Ethiopia’. As for the US’s human rights rebuke, the Ethiopian response was to point out that: ‘When countries begin the revolutionary process all the West starts talking about violations of human rights, whereas actually they should talk about the restoration of human rights.’142 Ethiopia also held 139 Statement of W.E. Schaufele, Jr., Assistant Secretary for African Affairs, State Department, Ethiopia and the Horn of Africa: Hearings before the Subcommittee on African Affairs of the Committee on Foreign Relations, United States Senate, 94th Congress 2nd Session, 111–138 (4–6 August 1976), 126 and Editor’s Introduction, ‘The Cold War in the Third World and the Collapse of Detente in the 1970’s’, Cold War International History Project Bulletin, 8–9 (1996–1997), 1. 140 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 170: Study Prepared by the Ad Hoc Inter-Departmental Group for Africa, December 1976, Policy towards Ethiopia, Study Pursuant to NSSM 248. 141 N. Mitchell, Jimmy Carter in Africa: Race and the Cold War, 176–202, F. Halliday/M. Molyneux, The Ethiopian Revolution (London, 1981) and S. Sisaye, ‘Human Rights and US Aid to Ethiopia: A Policy Dilemma’, Africa Quarterly, 18/4 (1979), 17–30; see also K. Tadesse, The Generation: Ethiopia Transformation and Conflict – The History of the Ethiopian People’s Revolutionary Party Part 2 (Trenton, 1993–98). 142 FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 7:

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back recognition of the new US Ambassador for three months and warned that if the anti-Ethiopian human rights campaign did not stop, it would break off diplomatic relations.143 Moreover, in response to Ethiopia’s embrace of the Soviet Union, the US would cynically turn to Somalia although its human rights track record was hardly an improvement on that of Ethiopia. Reflecting the cynicism on both sides, when discussing the assistance they sought, Somali Ambassador Addou would express directly to President Carter ‘his admiration for the President’s stand on human rights’ adding that: ‘There is no political oppression in Somalia … Somalia’s people are deeply democratic by nature.’144 Incredibly, too, notwithstanding the withdrawal of military assistance, AID continued its funding (albeit at a reduced level): ‘Despite some differences in philosophy … the Ethiopian Government’s emphasis on self-reliance … benefits for the rural majority … are clearly consistent with AID’s own analysis of development needs … and are consistent with AID’s current legislative emphasis.’145 Assistant Secretary of State Derian also advised that, while no new AID agreements were signed, this was because of ‘Ethiopia’s unwillingness to sign agreements with us. We have been trying to continue bilateral aid programs in order to preserve some links with the country, despite our opposition to its basic human needs loans in the IDA’ (international development agencies). A further US justification for the continuation of aid was that too much pressure on Ethiopia would lead to the expropriation of US investments.146

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Memorandum From Robert Gates, Center for Policy Support, Central Intelligence Agency, to Acting Director of Central Intelligence Knoche, the Deputy Director for Intelligence (Stevens), and the Deputy Director for Operations (Wells) 3 February 1977, Brzezinski Meeting on Human Rights and Mengistu, Chairman of the Derg, 1977 Libreville AHSG, quoted by J. MacManus, ‘Ethiopia Leader Puts His Case’, The Guardian 6 July 1977, 6 (reference from P.H. Brietzke, Law, Development and the Ethiopian Revolution (New Jersey, 1982), 219–220. I. Budakov, Attaché to USSR Embassy to Socialist Ethiopia, ‘Background report on Ethiopia’s Relations with Western Countries’, 14 August 1978, History and Public Policy Program Digital Archive, TsKhSD, f. 5, op. 75, d. 1173, ll., 155–161 http://digitalarchive.wilsoncenter.org/document/111618, accessed 23 May 2023. FRUS 1977–1980 Vol. XVII, Horn of Africa Part 1 Document 20. Memorandum for the Record, Subject: Meeting of Somali Ambassador Addou with President Carter, Oval Office, 2:00–2:20 p.m., 16 June 1977; see also N. Mitchell, Jimmy Carter in Africa: Race and the Cold War, 253–302 and ‘Discussant: Murray Silberman’, H.D. Rosenbaum/A. Ugrinsky (eds), Jimmy Carter: Foreign Policy and Post-presidential Years (Westport, 1994), 291–293. C. Clapham, Africa and the International System, 191 and US AID, Ethiopia, ‘Assistance Strategy FY 1977–78’, Supplement to the Annual Budget Submission for FY 78, Washington 15 October 1978, 1, quoted by S. Sisaye, ‘Human Rights and US Aid to Ethiopia: A Policy Dilemma’, 24. FRUS 1977–1980 Vol. II Human Rights and Humanitarian Affairs, Document 145:

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Zaire was another example of how even substantial US economic and military aid was unable to generate any significant level of human rights compliance. Following nationalist protests in 1959, the Belgian colonial territory of the Congo became independent in June 1960 as the Republic of the Congo (Congo-Léopoldville). Independence was largely unplanned and therefore little thought had been given as to how it might function, particularly as regards the relations of the centre with the regions, notably Katanga. A 1961 US intelligence report summarised prospects: ‘There is no indication that the Congo is developing a national leader, a national party, or a national consciousness. Political instability on a grand scale, probably leading to increased violence and other excesses, both organized and disorganized, appears to be the most likely prospect for the Congo for some time to come.’147 Notwithstanding the 1961 assassination of Prime Minister Lumumba, most likely with the connivance of the CIA, the defeat of Katanga in 1963 (its leader Tshombe fleeing to Rhodesia) and in 1964 an effort to form a unity government, a political resolution of this chaos seemed nowhere in sight. It was against this background that, in November 1965, Mobutu, a former Army Chief of Staff and Prime Minister, stepped in and declared himself President. As an avowed anti-communist, President Mobutu had visited Washington in May 1963 and met briefly with President Kennedy and was able to tap into the substantial economic and military assistance, open and covert, that Presidents Kennedy and Johnson were prepared to provide as a means of establishing the order and stability that might enable Soviet influence to be kept at bay. For the next thirty years, therefore, President Mobutu would continue to hold himself out as the only option for stability in the Congo, now, reflecting his philosophy of ‘Authenticité’, named Zaire, and as an ally of the US within African political circles. By such means, he was able to maintain himself in power until his death in 1997.148 Memorandum From the Assistant Secretary of State for Human Rights and Humanitarian Affairs (Derian) and the Director of the Policy Planning Staff (Lake) to the Deputy Secretary of State (Christopher) 16 May 1978 and Human Rights and U.S. Foreign Assistance: Experiences and Issues in Policy Implementation (1977–1978), 64, 120–121. 147 FRUS 1961–1963 Vol. XX, Congo Crisis, Document 2: Special National Intelligence Estimate 10 January 1961, SNIE 65–61 Main elements in the Congo situation. 148 M.G. Schatzberg, Mobutu or Chaos? The United States and Zaire, 1960–1990 (Lanham, 1991), P.J. Schraeder, United States Foreign Policy towards Africa: Incrementalism, Crisis and Change, 51–113, S.R. Weissman, American Foreign Policy in the Congo, 1960–1964 (Ithaca, 1974) and ‘CIA Covert Action in Zaire and Angola: Patterns and Consequences’, Political Science Quarterly, 94/2 (1979), 263–286 and C. Young, ‘The Zairian Crisis and American Foreign Policy’, G.J. Bender/J.S. Coleman/R.L. Sklar (eds), African Crisis Areas and U.S. Foreign Policy (Berkeley, 1985), 209–224.

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While it might be imagined that reliance on US assistance meant that the US was in a position to pressure Zaire, it was by no means a one-way dependency and not always clear who was the patron and who the suppliant. For example, as his political position improved, President Mobutu began to look at alternative sources of support, visiting China and trading US displeasure for Arab support by breaking off diplomatic relationships with Israel his friend of long-standing. However, when, in the mid-1970s, the world copper price fell sharply, President Mobutu was forced to turn back to the US for economic support. When the US demanded economic reform as the price for its support, President Mobutu flexed his muscles by accusing the CIA of orchestrating a coup against him. He followed this up in July 1975 by ordering the US Ambassador to leave and obliging the US to despatch former Ambassador Vance to Zaire in order to resolve the spat. The US analysis of the relationship concluded that: Our economic interests in Zaire are large: access to Zaire’s enormous energy and mineral wealth; an existing financial stake of some three quarters of a billion dollars in investment, loans and contracts; and our largest market in black Africa after Nigeria. Our political interests in Zaire are equally significant, given the country’s importance to the stability and ideological orientation of all central Africa and its growing influence in African councils and in the Third World.149

Moreover, as within a year the Angolan crisis began to evolve, the political importance within Africa of President Mobutu for the US became even more critical. As for President Mobutu, the State Department concluded that: ‘MOBUTU probably regards his ties with the US as important. But he is ambivalent about the relationship, at one and the same time concerned to reassert his independence and fearful of losing the benefits of close relationship with the US.’150 In a later recollection, Davis, US Deputy Chief of Mission 1977–80, described President Mobutu as: a highly, highly clever person with keen intelligence, almost insatiable greed. He took great delight in playing off French against Belgians against Americans and whoever else might come into the picture. A fabulous politician, 149 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Documents 277: Action Memorandum From the Acting Assistant Secretary of State for African Affairs (Mulcahy) to Secretary of State Kissinger, 20 June 1975 Vance Mission to Zaire: Terms of Reference and 280: Memorandum From Secretary of State Kissinger to President Ford, undated (most probably July 1975), Mr. Lynn’s Memo to the President concerning a Foreign Aid Budget Amendment for Zaire – Add-on. 150 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 29: Action Memorandum From Deputy Assistant Secretary of State for African Affairs (Mulcahy) and Director of Policy Planning (Lord) to Secretary of State Kissinger, 27 June 1975.

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brutal as could be, with scruples that were pretty hard to find … He knew that we needed him. He made us pay dearly for it. And we did pay – dearly, not just in resources, but also in disagreements within our government.151

The two sides eventually reached a rapprochement but only at the cost of an increase in economic and military assistance and acceptance of pay-offs to the Mobutu family that had by now amassed an enormous fortune. When approval was sought for the increased assistance, it was explained to a dubious Senate African Affairs Subcommittee that it was ‘a helping hand to a government which plays an important role in African and third world forums, one which despite temporary aberrations has been a good friend to the United States, and one whose continued political cooperation we would like to encourage’.152 With the election of President Carter, some thought was clearly given as to whether such assistance was appropriate. The response to the first Shaba invasion in 1977 was therefore measured and seemed to indicate that perhaps Zaire was no longer so critical to US interests in Africa. However, by the time of the second 1978 Shaba invasion, President Carter’s thinking had evolved into a more Cold War understanding of Africa affairs. Assistant Secretary of State for African Affairs Moose therefore advised Congress that ‘there is no way for us to walk away … our interests do not permit it’.153 In his memoirs, former Secretary of State Vance would recall that, although US interests were primarily economic: ‘None of us wished to face the uncertain consequences that might flow from the collapse of his regime and the consequent disintegration of Zaire into unstable segments open to radical penetration.’ Nothing, it seems, had changed from the position taken in Secretary of State Kissinger’s time, as recalled by the ‘Africanist’ Assistant Secretary of State for African Affairs Newsom: ‘Despite some reservations about the nature of Mobutu’s rule … a consensus existed … that there simply was no acceptable alternative to Mobutu and that we … needed to support him.’154 Nonetheless, at various times, President Mobutu was warned about his human rights record. In a 1977 meeting with Assistant Secretary of State Seelye, 151 Ambassador A.C. Davis (Deputy Chief of Mission, Zaire 1977–80), Foreign Affairs Oral History Project. 152 ‘Statement of Edward W. Mulcahy, Deputy Assistant Secretary for African Affairs, State Department’, Security Supporting Assistance for Zaire: Hearing before the Subcommittee on African Affairs and the Subcommittee on Foreign Assistance of the Committee on Foreign Relations, United States Senate, 94th Congress, 1st session (1975) (24 October 1975), 3, 42–49. 153 Assistant Secretary of State for African Affairs R.M. Moose, Statement before the Subcommittee on Africa of the House Committee on Foreign Affairs 5 March 1979, ‘U.S. Policy Towards Zaire’, Department of State Bulletin, 79/2026 (1979), 42–43. 154 C. Vance, Hard Choices: Critical Years in America’s Foreign Policy (New York, 1983), 70 and D. Newsom, Interview June 1989, quoted by P.J. Schraeder, United States Foreign Policy towards Africa: Incrementalism, Crisis and Change, 83–89.

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while President Mobutu ‘jokingly said he would keep us away from the hot sun in order to “protect human rights”’, he was advised that: the new administration attaches a great deal of importance to human rights considerations in its relations with countries around the world. Accordingly, programs of bilateral assistance would depend to a certain extent on how recipient governments protect human rights … Congress also is deeply interested in this issue and has asked the administration to submit to it public reports on the status of human rights in many individual countries.

In response, a relaxed President Mobutu expressed confidence in Zaire’s situation. He said the Zairian people were attached to their leader because they knew he was doing his best to lead and develop the country and to improve their lot. So long as there was this attachment by the people there should be no problem regarding human rights’.155

Again, as Schatzberg reports, after the 1978 Shaba crisis had ended, President Carter ‘wrote Mobutu long direct letters detailing the changes he wanted’. The detail was reported by Assistant Secretary of State for African Affairs Moose in 1980 testimony before the House Subcommittee on Africa. He explained that ‘we have pressed for a broad range of political, economic, and military reforms in Zaire. We have spelled out these reforms in detail and they have been endorsed by … President Mobutu himself … there has been discernible progress’; he then went on, together with Deputy Assistant Secretary of State for African Affairs Walker, to detail that progress. He also argued that the critics of aid, who were comparing President Mobutu with the Shah of Iran, were unable to explain the precise chain of events that would lead from US disassociation with President Mobutu to a moderate regime able to protect human rights. A rather sceptical Congress was not so sure though, and expressed its concern that the US was identifying itself with a regime that was ‘repressive, unpopular, and unlikely to survive’.156 On several occasions, therefore, Congress specifically reduced the appropriations requested for Zaire. It was therefore for fear of Congress that the Zaire country reports necessarily down-played the extent of human rights abuses and corruption and were over-optimistic as regards the reforms allegedly being implemented. As these reports show, after 1979, President Mobutu did make a 155 FRUS 1977–1980 Vol. XVII, Part 2 Sub-Saharan Africa, Document 72: Telegram From the Embassy in Zaire to the Department of State 7 March 1977. 156 Statement of the Hon. Richard Moose Assistant Secretary of State for African Affairs and Prepared Statement of Lannon Walker, Deputy Assistant Secretary of State for African Affairs, Foreign Assistance legislation for Fiscal Year 1981 (Part 7), Hearings and Mark-up before the Subcommittee on Africa of the Committee on Foreign Affairs, House of Representatives, 96th Congress 2nd Session: Economic and Security Assistance Programs in Africa, February/March 1980 (1980), 526–561 and M.G. Schatzberg, Mobutu or Chaos? The United States and Zaire, 1960–1990, 67–68, 79.

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show of political reform but within two years, all the more so after President Reagan was elected, it became clear that they lacked substance and were merely intended for external, primarily US, consumption.157 Some further insight into President Mobutu’s mindset can be gained from Ambassador to Zaire Cutler (1975 to 1979). He recalled that, when President Carter was elected, President Mobutu was aware of the comng US focus on human rights. The arrival of the US Ambassador on his doorstep to lecture him therefore came as no surprise: ‘Mobutu, of course, didn’t think it was necessary, and he didn’t think it was well advised … He would say, “Look at all the problems I have out here, what do you expect of me? Why don’t you lean on some other countries, particularly ones that are not so friendly as I am? Why don’t you concentrate on them?”’ As to whether US human rights pressure had an effect: ‘I think so … These things are difficult to measure … you probably would have to measure them in terms of what abuses there might have been, but did not really occur … Certainly, I would like to think that we had an effect when Mobutu arrested, tried, and convicted, and gave the death penalty to his Foreign Minister.’ Yet, at the same time, Ambassador Cutler acknowledged that US assistance was but one part of the picture in which France and Belgium were also major aid donors and that: ‘All the time … we sought to utilize frankly limited (aid) leverage.’158 In Uganda, the US’s initial reaction to the January 1971 coup by General Amin was cautious recognition in the hope that a lead might be given by the OAU at the 1971 Addis Ababa CoM. When that CoM refused to seat General Amin’s delegation in the Ugandan chair, that is to defer recognition of the change in government, it was agreed that US recognition should be low-key and initially effected by means of the signing of bilateral AID agreements. At this time, US interests in Uganda were minimal beyond its assistance programmes and the presence of missionaries and therefore the US was largely prepared to cede the lead to the UK, the former colonial power, in determining the most appropriate response to General Amin.159 Nevertheless, it soon became apparent that the problem could not be so easily contained. Soon after his appointment in mid-1972, US Ambassador 157 S.B. Cohen, ‘Conditioning U.S. Security Assistance on Human Rights Practices’, 256, Committee on Foreign Affairs, Congress and Foreign Policy – 1979 (1980), 92–93, 97–98, 160 and 1977 (1978) – 1980 (1981) Zaire Country Reports. 158 Interview with Ambassador W.L. Cutler (Zaire 1975–79), Foreign Affairs Oral History Project. 159 FRUS 1969–1976 Vol. E–5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Document 248: Memorandum From the Assistant Secretary of State for African Affairs (Newsom) to the Under Secretary of State for Political Affairs ( Johnson), 13 March 1971, Normalization of Relations with The New Ugandan Government – Action Memorandum.

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Melady began to report that threats and arrests had been made by President Amin against the small white community in Uganda and that a telegram to UN Secretary-­General Waldheim endorsing Hitler and the Holocaust fully represented President Amin’s views. In August 1972 it was followed by the outright expulsion of the Asian community. As his telephone conversation with National Security Adviser Kissinger establishes, President Nixon seemed to have grasped quite early on the disturbing volatility of President Amin and of the double standards applied by the West to his actions: Nixon:

… Henry, we have really had a double standard on this thing … In the African Division, you know what I mean, do we care when they kill a poor goddamned Pakistani? Do we care when these damn Africans eat 100,000 people? I mean, it’s really gone too far. What do you think?

Kissinger: I couldn’t agree more. Nixon:

All right … Now Melady’s report (The US Ambassador) saying … “Well, no Americans have been arrested and there are a few UK’s have been killed. Goddamnit, if a Britisher killed – I mean call Melady back for instructions.160

At President Nixon’s insistence, therefore, US Ambassador Melady was recalled, a half-way house to withdrawal. A discreet withdrawal of all US citizens was also ordered and staffing at the embassy reduced. Rather cautiously, at the end of 1972, the decision was also taken to ‘wait and see’ and to maintain the existing minimal aid programmes that were in any event due to conclude in mid1973, lest an unpredictable President Amin respond by retaliating against US citizens still in Uganda. However, hard on his return to Uganda in early December 1972, Ambassador Melady recommended a full withdrawal of all non-essential US personnel as fast as possible. After public insults were again hurled by President Amin at the US’s role in Vietnam, Ambassador Melady was recalled once more and then in July 1973, following President Amin’s continuing accusations, the decision was finally taken that he should not return and announcement of a new ambassador deferred. When, in October 1973, President Amin expelled the US Marines security guards of the Embassy it proved to be the last straw and it was decided to close the US Embassy altogether although diplomatic relations 160 FRUS 1969–1976 Vol. E–5 Part 1 Documents on Sub-Saharan Africa, 1969–1972, Document 256: Conversation Between President Nixon and the President’s Assistant for National Security Affairs (Kissinger), 21 September 1972, Conversation Number: 30–17, (see also Document 258: Conversation Between President Nixon and the President’s Assistant for National Security Affairs (Kissinger), Camp David, 24 September 1972).

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were not formally broken off. Further signs of US disapproval were made clear in 1975 when President Amin came to New York to address the UN and was not given the customary official greeting by President Ford. Moreover, when the assistance programmes expired in 1973, no further assistance was extended. The US Embassy was still closed by the time President Carter came into office in 1977, despite continual efforts by President Amin to persuade the US to re-open it, dangling the prospect of support for US policy towards Angola as a carrot. It would not be re-opened while President Amin was in power. Although President Carter’s first experience of the application of his human rights foreign policy to President Amin had been a rude awakening (see page 23 above), by 1977 the momentum against President Amin was beginning to build up on two key fronts: The CHR and US domestic public opinion. At the UN, the US actively supported the efforts to indict Uganda in the CHR. Domestically, however, the lead was taken by Congress.161 Official policy towards Uganda was described by Deputy Assistant Secretary of State for African Affairs Harrop in Congressional hearings: to work together with other concerned governments to bring pressure to bear on the Ugandan Government to improve the human rights situation. It is our policy consciously to distance the United States from human rights violations in Uganda by denying Uganda U.S. products and facilities which would directly contribute to continued violations, while actively encouraging … appropriate actions by the international community as a whole.

In terms of specific actions taken: US representatives in the multilateral financial institutions were instructed to oppose loans to Uganda (except those which served ‘basic human needs’); access to Exim or Overseas Private Investment Corporation (OPIC) credits was withheld; export licences for military equipment or munitions were declined; and all US entry visas for ‘officially-­ connected Ugandans’ referred for review. However, it was not the view of the State Department that the US should seek to actively abet the overthrow of foreign governments and measures designed to that end were not endorsed. Nor did it support a trade embargo or the closure of the US diplomatic office in Uganda or the Ugandan diplomatic office in the US. In the specific case of a coffee import embargo, although the US was the largest importer of that coffee, it was felt that, in view of the alternatives open to Uganda, an embargo would have no effect; the point was also made that an embargo had been discussed with ‘European allies’ but they had expressed no interest in such a policy. In 161 Statement and Prepared Statement of William C. Harrop, Deputy Assistant Secretary of State for African Affairs, Uganda: The Human Rights Situation: Hearings before the Subcommittee on Foreign Economic Policy of the Committee on Foreign Relations United States Senate Ninety-fifth Congress Second Session, June 1978 (1978), 108–112, 126–129.

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the event, in response to expressions of Congressional disapproval, many coffee importers moved voluntarily to a ban.162 Legislative moves in Congress began to emerge in 1977 fuelled by news of the extent of Uganda’s coffee exports to the US, the sale of communications equipment licensed by the Commerce Department, helicopter training of Ugandan security forces and the servicing of President Amin’s private jet. Eventually, several initiatives were combined into one comprehensive trade embargo. It was ‘the sense of the Congress that the Government of the United States should take steps to disassociate itself from any foreign government which engages in the international crime of genocide’ and at the same time it was affirmed that the Uganda government of President Amin had committed genocide. An import and export ban was therefore imposed against Uganda ‘until the President determines and certifies to the Congress that the Government of Uganda is no longer committing a consistent pattern of gross violations of human rights’. The President was also directed ‘to encourage and support international actions, including economic restrictions, to respond to conditions in the Republic of Uganda’. President Carter attempted to block the proposed embargo but eventually realised that the strength of feeling was too great and his intervention embarrassingly inconsistent with his human rights policy. A few days later, Congress also barred Uganda from any assistance under the 1961 Foreign Assistance Act.163

The attitude of the African states Finally, and more importantly, there is the attitude of the African states themselves which clearly demonstrates the depth of African opposition to any hint of Western interference. The African attitude was probably nowhere more evident than at the UN. As many studies of African voting patterns have found, throughout the 1970s the African states consistently voted against the West. Pilon, for example, suggests the magnitude was of the order of 80 per cent. Assistant Secretary of State for 162 R.D. Nurnberger, ‘The United States and Idi Amin: Congress to the Rescue’, African Studies Review, 25/1 (1982), 49–65, S.J. Fredman, ‘U.S. Trade Sanctions against Uganda: Legality under International Law’, Law and Policy in International Business, 11 (1979), 1149–1192 and S.C. Andrews, ‘The Legitimacy of the United States Embargo of Uganda’, Journal of International Law and Economics, 13/3 (1979), 655–656. 163 PL 95-435 95th Congress An Act To amend the Bretton Woods Agreements Act to authorize the United States to participate in the Supplementary Financing Facility of the International Monetary Fund (s5) 10 October 1978 and PL 95-481 95th Congress An Act Making appropriations for Foreign Assistance and related programs for the fiscal year ending September 30, 1979, and for other purposes 18 October 1978 (s108) and FRUS 1977–1980 Vol. XVII, Part 2 Sub-Saharan Africa, Document 154: Memorandum From the President’s Assistant for National Security Affairs (Brzezinski) to President Carter, Washington, August 7, 1978, Subject: Human Rights in Uganda.

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African Affairs Newsom, already in 1973, would describe the African response to Western démarches at the UN as: ‘Thank you very much but your views are not important to us.’ While Low, the US Ambassador to Nigeria during the ACHPR process, would observe that: ‘To us the relationship with Nigeria was very important but to the Nigerians the relationship was … not very important.’164 When, therefore, in 1975, the West furiously lobbied against the UNGA ‘Zionism is a form of racism’ vote, the underlying African resentment spilled over. Ramphul (Mauritius) refused to accept delivery of his government’s instruction for the vote from the US and in the UNGA debate fulminated that: ‘It seems to me that pressure, coercion, threats, obnoxious language and the arrogant patronizing attitude of the representatives of some big, developed countries have, for quite some time now, ceased to have much effect on the small developing countries, independent and sovereign States, Members of the United Nations.’165 There was, of course, an awareness of the potential for aid to buy influence, but there was a more powerful corresponding determination that such attempts should be resisted. Aid was an African due, not an act of charity. A 1975 State Department African policy paper explained that: Increasingly, the Africans are voting as a bloc … often in opposition to initiatives we are pursuing … More specifically, the Africans have been disappointed with the amount and kind of development assistance they have received … and with our lack of support for (or opposition to) their stepped-up efforts to bring about majority rule throughout Africa. To the extent that alternative sources of assistance and political backing are available – and they are – the US becomes that much less important to the Africans.

The policy recommendation that was therefore proposed was that the US should accept this trend and merely focus support on those African states ‘that possess resources we want, where we have large or significant investment, or which accord us landing rights and use of their ports or provide us with useful strategic facilities’. At the same time: ‘We should … continue to facilitate trade and investment in countries that are critical of US policies. The rationale for such action should be strictly economic, not from any expectation of deriving political advantage.’166 164 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 3: Memorandum of conversation 15 March 1973: US/UK Consultations on Africa 15–16 March 1973, Interview with Ambassador L.S. Low (Zambia 1976–79 and Nigeria 1979–81), Foreign Affairs Oral History Project and J.G. Pilon, ‘Through the Looking Glass: The Culture of the Political U.N.’, http://www.policyarchive.org/handle/10207/11375, last accessed 10 August 2016. 165 Ramphul, UNGA 10 November 1975, UN A/PV.2400 1975, 781. 166 FRUS 1969–76 Vol. E-6 Documents on Africa, 1973–1976, Document 29: Action Memorandum From Deputy Assistant Secretary of State for African Affairs (Mulcahy) and Director of Policy Planning (Lord) to Secretary of State Kissinger, 27 June 1975.

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Indeed, on numerous occasions, African leaders were prepared to see aid cut off rather than accede to demands by Western states. For example, in 1974, when President Kaunda, whether in pique or as a negotiating ploy, expressed the possibility of Zambia turning its back on the West, he explained that ‘we will not purchase economic development at the cost of a new type of colonialism … aid should not exploit our need in order to infringe our sovereignty … which we shall guard jealously’.167 His point was reiterated by Congressman Young at a 1976 Congressional Hearing when asked why aid had been advanced to Zambia when they consistently voted against the US at the UN: ‘They are an independent, proud nation. I would suspect that we have not been looking for friends. We have been looking for clients. They refuse to be client states.’168 President Nyerere, in particular, was sensitive to the idea that Tanzania’s sovereignty could be bought. As Kambona, his Foreign Minister, pointed out: ‘There are certain things President Nyerere is particularly sensitive about – one of them being “aid with strings”.’169 That sensitivity had early on been tested by West Germany. Following the union of Tanganyika and Zanzibar, in a gesture to West Germany, Tanzania had only allowed East Germany to open a Consulate-General rather than permit the transfer of its embassy in Zanzibar to the mainland. When West Germany, nonetheless, expressed displeasure by cutting off all military aid to Tanzania, President Nyerere responded by rejecting all West German development aid.170 President Nyerere also made this point to a 1972 Congressional Study Mission to Africa: We shall not allow any of our friendships to be exclusive; we shall not allow anyone to choose any of our friends or enemies for us … Our desire for friendship with every other nation does not, however, mean that we can be unconcerned with world events, or that we should try to buy that friendship with silence on the great issues of world peace and justice.171 167 President Kaunda, Zambia Daily Mail, 4 July 1974, 1, quoted by T.M. Shaw, ‘The Foreign Policy of Zambia: Ideology and Interests’, Journal of Modern African Studies, 14/1 (1976), 93–94; see also Brief No. 9 Ministerial Meeting of the North Atlantic Council, Brussels 7/8 December 1978, Africa, NA FCO 65/2139, Paragraphs 5–8. 168 Statement of Hon. Andrew Young, a Representative in Congress from the State of Georgia, US policy towards Africa: Hearings before the Subcommittee on African Affairs and the Subcommittee on Arms Control, International Organizations and Security Agreements and the Committee on Foreign Relations, United States Senate 94th Congress 2nd session (1976), 93–94. 169 Foreign Minister Kambona, quoted by Miles to Le Breton 9 October 1963, NA DO 181/57. 170 W. Tordoff, ‘Politics in Tanzania’, The World Today, 21/8 (1965), 356–357. 171 Committee on International Relations, Africa: Report from the Continent: Report of Special Study Missions to Africa, November 14 – December 16, 1972, November 10 – December 8, 1973, and report of Special Study Mission to Oslo, Norway, April 7–14, 1973, 74.

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President Touré also took much the same view. In 1961, although still heavily dependent on Soviet support, he expelled the Soviet Ambassador for interfering in Guinea’s internal affairs when he supported anti-government demonstrations. A high-level Soviet mission had therefore to be despatched to Guinea in an effort to re-establish relations. The US was also prepared to provide aid in competition with the Soviet Union, a relationship cemented by a meeting with President Kennedy in October 1962.172 However, in 1966 this friendship did not deter President Touré from ordering the house arrest of the US Ambassador in Conakry when the US refused to intervene following the detention of a Guinean Ministerial mission during a refuelling stop in Accra. When the US, in response, threatened to withdraw its aid assistance, President Touré publicly declared: ‘In order to remove any equivocation, we ask the government of the United States to cancel, if it so desires, all aid, to withdraw from Guinean soil every material that belongs to it.’ To emphasise the point, he expelled members of the US Peace Corps who were working on Guinean agricultural projects. Like the Soviet Union, the US soon backed down on its threats.173 The essential point is that the foreign policy of most African states was not only pragmatic but they were also not always without a strong negotiating position. Liebenow, for example, argues that: ‘The Africans … have often skilfully manipulated East/West rivalry to their economic, strategic, and other advantage. The players also include the former colonialists, the Chinese, the Japanese, the Israelis, and others.’ Bayart, too, points out that: ‘African countries are not forced into any old diplomatic alignment … The alliance … with the Soviet Union … is pragmatic … The relations that other regimes have initiated with the west are not signs of their subordination.’ Indeed the Cold War in Africa ‘gave the sub-­ Saharan states more room for manoeuvre, not only by increasing the amount of aid at their disposal but also by allowing them to stir up competition amongst the aid donors themselves’. President Houphouet-Boigny, for example, felt no scruple in advertising: ‘We want the competition of the Russians, Chinese and 172 FRUS 1961–1963 Vol. XXI Africa, Documents 257: Memorandum From Secretary of State Rusk to President Kennedy: Latest Developments with Regard to our Guinea Aid Program 1 July 1961, 260: Telegram From the Department of State to the Embassy in Guinea 3 January 1962, 263: Background Paper Prepared in the Agency for International Development, ‘U.S. Economic assistance program in Guinea’ 4 October 1962, 265: Memorandum of Conversation, Problems facing Guinea and Guinean Suggestions with regard to United States Aid 10 October 1962 and 267: Memorandum From Samuel Belk of the National Security Council Staff to the President’s Deputy Special Assistant for National Security Affairs (Kaysen): Next U.S. Moves Toward Guinea 17 May 1963. 173 Keesing’s Contemporary Archives 1966, 21738 and L. Adamolekun, ‘The Political and Social Ideas of Sekou Touré’, O. Otite (ed.), Themes in African Social and Political Thought (Enugu, 1978), 175–176.

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Westerners … We accept aid wherever it may come from. With the single reservation that it must not be tied in with any political conditions.’174 Tanzania, in particular, largely through the force of President Nyerere’s personality, was able to obtain development funding from a well-diversified funding base that included, in addition to the UK, China, Scandinavia, Canada, Italy and the Netherlands. At this time, the proportion of US aid to Tanzania therefore amounted to around 5 per cent, roughly equal to the level of aid provided by Norway. Hardly sufficient to sway Tanzanian minds.175 As human rights were a defining feature of President Carter’s administration, numerous studies have attempted to measure the correlation between US foreign assistance and human rights violations in the recipient states. Carleton and Stohl, for example, concluded that: ‘In many cases there is a positive relationship between aid and human rights violations: the more abusive a state was, the more aid it received … In short, there was a great deal of difference between the rhetoric and the reality of the Carter human rights policy as applied to aid distribution.’ They therefore argue that the major significance of President Carter’s human rights policy was ‘rhetorical’, and its main impact felt in domestic politics. When a comparison is made between the policies of President Carter and President Reagan, they (together with Johnson) deprecate President Reagan’s political claim of a need ‘to redress the “balance” in U.S. aid and human rights policies’ on the basis that the ‘sad’ reality was ‘that Jimmy Carter did not actually usher in a new era of United States foreign policy with respect to the distribution of U.S. foreign assistance’.176 In a later study, Apodaca and Stohl also concluded that, for President Carter, ‘human rights concerns did not play an absolute role in the allocation 174 Interview with President Houphouet-Boigny on Channel TF1, published in Fraternité Matin, Abidjan, 13 May 1977, 20–21, quoted by J.G. Liebenow, African Politics: Crises and Challenges, 271, 277 (also trans. by US Translation Services), and J-F. Bayart (trans. M. Harper, C. and E. Harrison), The State in Africa: The Politics of the Belly (London, 1993), 26–27. 175 G. Arnold, Aid in Africa (New York, 1979), 171–177, Committee on International Relations, Africa: Report from the Continent: Report of Special Study Missions to Africa, November 14 – December 16, 1972, November 10 – December 8, 1973, and report of Special Study Mission to Oslo, Norway, April 7–14, 1973, 74–75 and ‘Subcommittee on Africa Recommendations on International Economic and Security Assistance Programs for Africa for fiscal year 1981’, Foreign Assistance Legislation for Fiscal Year 1981 (Part 7), Hearings and mark-up before the Subcommittee on Africa of the Committee on Foreign Affairs House of Representatives 96th Congress 2nd Session: Economic and Security Assistance Programs in Africa, February–March 1980 (1980), xii. 176 D. Carleton/M. Stohl, ‘The Foreign Policy of Human Rights: Rhetoric and Reality from Jimmy Carter to Ronald Reagan’, Human Rights Quarterly, 7/2 (1985), 215–217, 226 and M. Stohl/D. Carleton/S.E. Johnson, ‘Human Rights and U.S. Foreign Assistance: From Nixon to Carter’, Journal of Peace Research, 21/3 (1984), 222–223.

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of foreign aid … At the gatekeeping stage … human rights concerns did come into play … Higher levels of human rights abuses reduced the odds of receiving economic aid by 47 percent. But human rights concerns are not the only, nor the largest consideration in the determination of economic aid.’ Overall, though, they argued that ‘human rights do play a role in the decision of who receives U.S. bilateral foreign assistance, and how much aid they are allotted. But other national security interests play a more prominent role’.177 Other analyses reached similar conclusions. Muravchik, for example, calculated that the average Freedom House human rights score of the twenty-eight countries penalised by US aid sanctions worsened under President Carter whereas the average score of the other 136 countries improved, although only marginally. In a more regionally specific analysis, Regan looked at a sample of thirty-two Latin American and Asian countries. He warned that, despite ‘some moderately strong findings’ in previous studies, ‘the direction of any causal relationship remains in question, and in fact the empirical evidence can appear to be quite contradictory’. With respect to his own study, he claimed that: ‘The overriding conclusion that can be drawn … is that U.S. economic aid has had little or no impact on the human rights practices of the recipient governments, at least as a manipulable variable controlled by the United States.’178 Schoultz would go further concluding that in fact the ‘correlation between U.S. assistance to Latin America and human rights violations by recipient governments … are strong and positive, indicating that U.S. foreign aid flows disproportionally to Latin American governments which torture their citizens’.179 The voting relationship was also the subject of an interesting study by Menkhaus and Kegley of the specific example of Somalia. Their analysis looked at the voting coincidence of Somalia with the US in the period 1976–80, a time when Somalia was dependent first on Soviet assistance and then US assistance 177 C. Apodaca/M. Stohl, ‘United States Human Rights Policy and Foreign Assistance, International Studies Quarterly, 43/1 (1999), 192–195. The main study to find a more favourable correlation is by D.L. Cingranelli,/T.E. Pasquarello, ‘Human Rights Practices and the Distribution of U.S. Foreign Aid to Latin American Countries’, American Journal of Political Science, 29/3 (1985), 539–563 although their method is criticised by S.C. Poe, ‘Human Rights and US Foreign Aid: A Review of Quantitative Studies and Suggestions for Further Research’, Human Rights Quarterly, 12/4 (1990), 499–512 who, understandably, expresses some scepticism about the statistical methods employed. 178 J. Muravchik, The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights Policy, 176–181 and P.M. Regan, ‘U.S. Economic Aid and Political Repression: An Empirical Evaluation of U.S. Foreign Policy’, Political Research Quarterly, 48/3 (1995), 613–628. 179 L. Schoultz, ‘United States Foreign Aid and Human Rights Violations in Latin America: An Empirical assessment’, June 1977, 5–6, NA FCO 58/1156 and Human Rights and United States Policy toward Latin America, 205.

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as Ethiopian/Somali relationships with the Soviet Union/USA flipped. They found that throughout this period Somali voting coincidence with, respectively, the Soviet Union and the US was barely unchanged and that assistance could therefore hardly be regarded as a predominant factor in voting decisions. However, they went further and argued that ‘competition among wealthy and powerful nations in fact may turn the “diplomatic terms of trade” in favour of the weak, poor nation, giving it latitude to accept transfers of military and financial assistance, while pursuing an independent diplomatic strategy’.180 Against such a background, even a well-informed reporter on Africa such as Ottaway, specifically addressing the possibility of a causal nexus between President Carter’s human rights policy and the ACHPR, had difficulty in suggesting anything more precise than a vague wishful intuition.181 Much the same cautious line was taken by Deputy Assistant Secretary of State Cohen. Following adoption of Decision 115 at the 1979 Monrovia AHSG, in testimony at Congressional hearings on human rights in Africa, he indicated that adoption of this resolution was one of the positive steps he had noted in Africa, but he was also careful not to claim too much credit for the human rights foreign policy of the US. In an assessment that claimed little but implied much, he suggested that it may have ‘contributed to an atmosphere that makes such decisions more likely’. In contrast, his colleague, Deputy Assistant Secretary of State Harrop, was more inclined to take a self-congratulatory line: ‘We do feel that, although it is difficult to point to very many specific results of American human rights foreign policy, it has had a general consciousness-raising, and a general increase in sensitivity in Africa to human rights. I think it has undoubtedly had a bearing on their concerns.’182 In the final analysis, though, as Ambassador de Pree would recall, US economic and military assistance was, effectively, proscribed to only three African countries: Ethiopia, Mozambique and Uganda; and only in the case of Uganda can it be suggested that human rights were a significant factor in the decision. It is therefore difficult to understand where and in what way pressure had been

180 K.J. Menkhaus/C.W. Kegley, ‘The Compliant Foreign Policy of the Dependent State Revisited: Empirical Linkages and Lessons from the Case of Somalia’, Comparative Political Studies, 21/3 (1988), 333–334 (Table 1), 342. 181 D. Ottaway, ‘Africa: U.S. Policy Eclipse’, 637, 652. 182 Prepared Statement of Deputy Assistant Secretary of State for Human Rights and Security Assistance S. Cohen, Human Rights in Africa: Hearing before the Subcommittees on Africa and on International Organizations of the Committee on Foreign Affairs, House of Representatives, 96th Congress, First Session, 6 (31 October 1979) and Deputy Assistant Secretary of State for African Affairs W.C. Harrop, Briefing on OAU Summit at Monrovia: Hearing before the Subcommittee on Africa of the Committee on Foreign Affairs, House of Representatives 96th Congress First Session 27 July 1979, 15.

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applied against the African states.183 All the more so as, in November 1980, several weeks before the January 1981 Banjul Ministerial Meeting had completed the drafting of the ACHPR, Governor Reagan defeated President Carter in the US Presidential election. Governor Reagan had already made it clear in his Presidential campaign that human rights were not a decisive factor in his thinking and therefore well before the drafting of the ACHPR had even been completed, it was clear that US human rights policy was no longer something that the African states needed to take into account.

The United Kingdom In the February and October 1974 General Elections, the Labour Party manifesto committed a prospective Labour government to a human rights approach in its domestic and foreign policies. In February 1974 this was expressed in the domestic commitment to equal status for ‘WOMEN AND GIRLS’, which it proposed should be enforced by powerful anti-discriminatory legislation. By October 1974 this commitment had evolved into a more detailed ‘Charter for Women’ and a further intention to legislate against racial discrimination was also announced. These two commitments would result in the 1975 Sex Discrimination Act and the 1976 Race Relations Act. As to foreign policy, the February 1974 manifesto proposed an approach based on ‘Peace and Justice in a Safer World’ which would be guided by four main principles: A strengthening of international organisations dedicated to the promotion of human rights; ‘a policy of equality at home and abroad which would involve radical changes in aid, trade and development policies’ requiring a substantial increase in the aid programme and ‘a more generous and more liberal world trading pattern for the developing countries’; and opposition to ‘all forms of racial discrimination and colonialism’ and therefore ‘support for the liberation movements of Southern Africa and a disengagement from Britain’s unhealthy involvement with Apartheid’, an intensification of sanctions against Rhodesia and ‘no settlement which does not have the whole-hearted consent of the African majority’. The fourth principle was a reduction in defence spending and multilateral disarmament. These policies were reiterated in the October 1974 manifesto, although it was now a ‘Policy for Peace – International Co-­ operation and Security’ and justified on the basis that: ‘A Labour Government which excluded from its foreign policy the ideals of morality, equality and justice, which are at the heart of our domestic policy, would soon lose such ideals at home.’184 183 Interview with Ambassador W. de Pree (Mozambique 1976–80), Foreign Affairs Oral History Project. 184 February 1974 Labour Party Manifesto ‘Let us work together – Labour’s way out of the crisis’ http://www.labour-party.org.uk/manifestos/1974/feb/1974-feb-labour-

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One of the incoming Labour government’s first steps, as Minister of State for Foreign and Commonwealth Affairs Ennals outlined in the House of Commons, was to give active consideration to the ratification of the International Covenants.185 A working group of civil servants was therefore set up to consider the extent to which the commitments in the International Covenants were compatible with existing UK legislation and government policies. Their report concluded that there were several issues that had to be considered before ratification could be contemplated. In particular, the possible impact on the 1973 Emergency Powers Act (Northern Ireland) and immigration issues in relation to the 1971 Nationality Act. Its main conclusion, though, was that the argument for ratification was largely based on foreign policy considerations in that it was a necessary badge of honour that would elevate the UK above suspicion and enable criticisms to be made of the human rights failings of other countries. This was much the same argument that twenty-five years earlier had induced the Foreign Office to accept the UDHR and in 1950 to sign up to the ECHR. In view of this dubious justification, it was recognised that, ultimately, ratification was a political decision. Ratification was made all the more urgent when in March 1976 entry into force of the ICCPR triggered a May 1976 deadline for nominations to the HRC which was to monitor implementation by signatories. In the event, the UK met the ratification deadline, albeit with extensive reservations, and the UK nominee was elected to the HRC.186 As in the US, the two key players were the UK Foreign and Commonwealth Office (FCO) and the Ministry of Overseas Development, which managed the aid budget. In February 1977, a Ministerial reshuffle, necessitated by the unexpected death of Foreign Secretary Crosland, led to the appointment of Owen as the new Foreign Secretary and returned the considerably more left-wing Hart to the Ministry of Overseas Development where she had previously served in 1969–70 and 1974–75. Both in his speeches and writings, Foreign Secretary Owen described human rights as a ‘major issue’ about which he was ‘passionate’, although, wisely, he also warned of the need to ‘balance morality with reality’ and of the ‘complexities’ manifesto.shtml, last accessed 29 May 2023, October 1974 Labour Party Manifesto ‘Britain Will Win With Labour’ http://labourmanifesto.com/1974/oct/1974-octlabour-manifesto.shtml, last accessed 21 July 2016, Sex Discrimination Act 12 November 1975 and Race Relations Act 22 November 1976. 185 Royle MP, Written Question to Minister of State for Foreign and Commonwealth Affairs Ennals House of Commons 19 March 1974. 186 Report of the Working Group of Officials on the question of the ratification of the International Covenants on Human Rights 1 August 1974, NA FCO 58/1025. The UK’s reservations can be found on the UN Treaty Collection website https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IVchapter=4&clang=_en#EndDec, last accessed 18 November 2019.

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governments faced in dealing with human rights violations in other countries; and further that: ‘I do not believe that the difficult choices in life allow one to be perfectly consistent.’ As to the human rights policy which the British government should adopt, Foreign Secretary Owen argued, more realistically than President Carter, that: The British Government tries to promote greater respect for human rights in its bilateral relations with countries when the situation gives cause for concern … But this is not an ideal or sufficient way of going about things, requiring as it does a balance between the need for a consistent moral position … and … a hard-headed but necessary calculation of national interest.

With respect to Africa, like his US counterpart Secretary of State Vance, Foreign Secretary Owen acknowledged that ‘disputes within Africa are best dealt with by the states of Africa themselves’ and that he respected the ‘accepted principle within the OAU that outside states should refrain from interference in African affairs.’187 In practice, though, with the sheer pressure of work which confronted any Foreign Secretary, at this time such higher priorities as the Soviet Union and Southern Africa/Southern Rhodesia, meant that Foreign Secretary Owen largely assigned day-to-day responsibility for human rights to Under-­ Secretary of State Luard, who even before becoming an MP had also expressed his strong commitment to human rights.188 The Ministry of Overseas Development had been set up as a separate Ministry by the 1964–70 Labour government. Its responsibilities were reassigned by the 1970–74 Conservative government to an Overseas Development Administration within the FCO but with the return of a Labour government in 1974 it again became a separate Ministry with its own Minister although, except for a brief period in 1975–76, without a seat in Cabinet. Other than that brief period, Hart therefore served as the Minister for Overseas Development with the rank of Minister of State at the Foreign and Commonwealth Office with Foreign Secretary Owen representing overseas development in the Cabinet as the Minister of Overseas Development.189 While this chain of command may not have been as 187 D. Owen, Human Rights (London, 1978), 3, 17–18 and Interview LBC/IRN 1977 ‘David Owen on Ugandan Aid’, Speech 1977 ‘David Owen on human rights’, Interview LBC/IRN 1978 ‘David Owen on human rights’ and Speech 1978 ‘David Owen on problems in Africa’, British Universities Film & Video Council, Internet Library, http://bufvc.ac.uk/tvand radio/lbc, last accessed 23 July 2016. The FCO was formed in 1968 as a merger of the Foreign Office and the Commonwealth Office; the Commonwealth Office having been created in 1966 as a merger of the Commonwealth Relations Office and the Colonial Office. 188 E. Luard (ed.), The International Protection of Human Rights (London, 1967); see also E. Luard, Human Rights and Foreign Policy (Oxford, 1981) as, in part, an apologia for the Labour government’s failed human rights policy. 189 O. Barder, Reforming Development Assistance: Lessons from the U.K. Experience,

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ideal for Minister for Overseas Development Hart as direct Cabinet representation, the operational separation of the Ministry of Overseas Development nonetheless suited her combative predisposition to follow an independent line in her bailiwick of international aid against any interference from the FCO. As it was, as former Foreign Secretary Owen reported, despite their political differences they otherwise enjoyed a surprisingly good relationship.190 Her independent line would also be expressed in numerous papers and speeches in which she laid great stress on the importance of the ‘socio-economic bundle of rights’, as in the saying, ‘human rights begin with breakfast’. She also argued that ‘there ought, in any modern Government of an industrialised and rich country, to be an independent voice exercised on behalf of the Third World’ and that one reason why aid is inadequate is a ‘preoccupation with short-term foreign policy objectives’. Her credo was set out in Aid and Liberation: A Socialist Study of Aid Policies written in Opposition at the end of her first term at the Ministry of Overseas Development.191 The Labour government’s approach to overseas aid was spelled out in a 1975 paper overseen by Minister of Overseas Development Hart. It defined the ‘three legs of our new aid strategy’ as: (a) to give an increasing emphasis in our bilateral aid to the poorest countries, especially those in the group most seriously affected by the rise in the price of oil and other commodities; (b) to give a special emphasis to programmes oriented towards the poorest groups within these countries, and especially to rural development; (c) to promote situations in which British concessional aid funds can best serve to stimulate matching contributions from other governments, and to encourage the deployment of such aid through both multilateral and bilateral channels towards the poorest countries.192

Centre for Global Development Working Paper Number 70 (October 2005), 7–9 http://www.cgdev.org/publication/reforming-development-assistance-lessonsuk-experience-working-paper-70, last accessed 23 July 2016. 190 Owen Correspondence. 191 ‘Aid and Human Rights: Mrs Hart’s paper’ UND 4 July 1977, Paragraphs 16–17, NA FCO 58/1152, J. Hart, Aid and Liberation: A Socialist Study of Aid Policies (London, 1973), HMSO, OD Paper No. 3: Administering an Aid Programme in a Year of Change – a Personal Diary, Address to the Royal Commonwealth Society by the Rt Hon. Judith Hart MP, Minister of Overseas Development, London 20 February 1975 (London, 1975) and HMSO, OD Paper No. 12: Realities: Development, Basic Needs and Human Rights, Lecture delivered at the University of Guyana on 10 January 1978 by the Rt Hon. Judith Hart MP, Minister for Overseas Development (London, 1978). 192 HMSO Cmnd. 6720, Overseas Development: The Changing Emphasis in British Aid Policies: More Help for the Poorest (London, 1975), 7, 50.

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This may have looked good on paper but, in reality, as Minister for Overseas Development Hart would be forced to admit, in 1977 almost 80 per cent of UK aid was either fully or partly tied directly to exports and little change was anticipated for 1978.193 In many respects, UK aid policy sought to follow a similar path to that demanded by Congress in that it aimed to direct aid to the needy. Moreover, Minister for Overseas Development Hart was especially passionate in her support for the radical states in Africa and forcefully opposed to most of the Latin American military dictatorships. She was particularly supportive of President Nyerere and President Machel with whom she enjoyed long-standing personal relationships. As she would make clear to fellow Ministers, she was most sympathetic to the African view of the difficulties and incongruities in applying a Western individualistic concept of human rights to under-developed economies in Africa. Within aid circles, she was therefore widely known by the sobriquets ‘La Pasionaria’ and ‘the African Queen’.194 As Africa fell within the UK’s historic sphere of influence, the UK was more concerned with human rights in Africa than was the US, although, as Under-­ Secretary of State Luard pointed out, that concern was, nonetheless, selective: ‘British Governments spoke out less strongly about the policies of Equatorial Guinea, the Central African Republic … because British public opinion and even British human-rights organisations have not expressed themselves as strongly in those cases.’195 The main difficulty for the UK, though, was that criticism of African states was usually met with the retort that the UK was applying double standards. In tolerating UDI for Rhodesia and trading with South Africa, it was in no position to lecture others on human rights. That was typified by the outcome of the public enquiry set up by the Labour government in May–July 1977 to investigate how sanctioned oil supplies had reached Rhodesia. The September 1978 report found that sanctions had been evaded, both directly and indirectly, by the Southern African subsidiaries of two British oil companies, BP, 51 per cent state owned, and Shell. Moreover, that in 1968 this had been brought to the attention of the then Labour government who may therefore have connived in the evasion.196 When the papers were passed to the Director of Public Prosecutions it was determined that there was insufficient evidence to proceed with a prosecution. The problem was one of having to give immunity to some participants, allowing access to Cabinet papers and, worse, of prosecuting private interests but not Labour Ministers. Alternatively, if a further 193 Written answer to Wall MP by Minister for Overseas Development Hart House of Commons 22 January 1979. 194 Africa Confidential, 20/1 3 January 1979, 7–8; see also G. Arnold, Aid in Africa, 38–50. 195 E. Luard, Human Rights and Foreign Policy, 11–12. 196 HMSO, Report on the Supply of Petroleum and Petroleum Products to Rhodesia by T.H. Bingham, QC S.M. Gray, FCA (London, 1978).

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public enquiry was to be held, subsequent prosecutions might be prejudiced. As negotiations with the opposition Conservative Party for a further public enquiry dragged on, the May 1979 election intervened and, following the defeat of the Labour Party, Prime Minister Thatcher allowed the matter to drop quietly.197 In Africa, however, despite Foreign Secretary Owen’s good intentions, the report’s findings were not well received. For example, Nigerian Foreign Minister General Adefope wrote to Foreign Secretary Owen expressing considerable regret and unease about the findings and warning that it ‘undermined the basis of Nigeria’s cooperation with … Britain’.198 The problem for the British government was that, at this time, it was also dealing with the more serious questions of the on-going independence negotiations in respect of Southern Rhodesia and, alongside the US, the growing threat of Soviet influence in Africa generally but particularly in Southern Africa. Foreign Secretary Owen was therefore conscious not only of the accusation of double standards but also of the need to retain good relations with many of the African states and therefore of the need to deal with African political leaders whose human rights record might otherwise have warranted greater distance. As a result, with the exception of Uganda, the UK’s human rights policy was therefore rather more focused on the Soviet Union than on Africa. The two main initiatives pursued by the Labour government at this time, insofar as they related to Africa, were the Human Rights Comparative Assessment and, with Uganda especially in mind, a human rights provision in the successor agreement to the 1975 Lomé Convention.

The Human Rights Comparative Assessment The first steps to consider the means by which human rights might be incorporated into the UK’s foreign policy were initiated by Under-Secretary of State Luard who, in June 1976, commissioned an internal FCO paper to look into the question.199 The resulting paper was discussed in July 1976 at a meeting of FCO Ministers who concluded that it overstated the difficulties in making comparative judgements and therefore commissioned two further papers with a view to developing a practical policy: The FCO would advise on the means by which a comparative assessment might be carried out and the Ministry of Overseas Development on how a decision to take more account of human rights factors

197 CP (78) 90 6 September 1978, Cabinet, The Bingham Enquiry, Memorandum by the Secretary of State for Foreign and Commonwealth Affairs, NA CAB 129/203/15 and Hetherington, DPP to Silkin, Attorney-General 25 September 1978, NA PREM 16/1824. 198 Adefope to Owen 21 September 1978, NA FCO 36/2384. 199 Luard to Secretary of State 21 June 1976 Annex A, NA FCO 49/688.

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could be incorporated into the aid programme. The initial review of these papers was to be carried out by a FCO Steering Committee.200 It is painfully obvious that officials at the FCO and the Overseas Development Administration were opposed to the idea. The FCO paper concluded that, while there were no major technical difficulties in arranging such an exercise, there were a multitude of practical and philosophical difficulties that could not be overcome and therefore that it would merely result in a rather dubious subjective judgement. One of the senior officials involved in managing the process, pleaded that: ‘One would, of course, have preferred to demonstrate anew that the whole undertaking is too riddled with difficulties to be worth pursuing. We cannot do that. But I do not think we should pretend that the suggestions you are making will resolve some of the basic difficulties.’201 The draft paper from the Ministry of Overseas Development was supported by a covering note from Permanent-Under Secretary King which sought ‘to emphasise once again my serious doubts about the feasibility of taking human rights considerations into account in administering the aid programme’. One of his principal objections was that it encouraged more weight to be given to political factors. The draft paper itself, which in its final form went before the FCO Ministers, also included an analysis of the attitude taken by a ‘sample’ of other governments to a link between aid and human rights. It suggested that, while human rights issues provided some input into aid allocations, it was not a priority consideration for most governments. Moreover, that, in some cases, ‘informed sections of public opinion’ opposed aid rather more because of disapproval of the recipient regime than by human rights considerations.202 The conclusions of the FCO Steering Committee could hardly have been more damning. They were set out in a summary by Palliser, the top FCO official, to Under-Secretary of State Luard. It warned that such an exercise ‘could not be based upon accurate information’, ‘that even some device to collectivise a series of subjective opinions would not be valid’, that ‘their partial knowledge of the countries in question would preclude their making proper judgments and … could not really be the basis for any form of supposedly objective table’ and that 200 Ferguson to Cortazzi ‘Meeting of FCO Ministers – discussion of Human Rights’ 28 July 1976 and Luard to Crowe ‘Human Rights’ 28 July 1976, NA FCO 49/688. 201 Maxey to Crowe ‘Human Rights League Table’ 12 August 1976, NA FCO 49/688. 202 ‘Steering Committee: Human Rights’ Crowe 8 September 1976, Annex A: Luard ‘Policy concerning human rights questions’ 21 June 1976, Annex B: Proposed comparative assessment of the human rights performance of foreign governments and Annex C: King ODM ‘Human Rights and Aid’ 25 August 1976 and draft ODM paper on ‘Human Rights and Aid’, NA FCO 49/688 and ‘Human Rights and Aid: Note by the Minister of Overseas Development’ 8 September 1976, NA FCO 49/689.

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‘there would be great practical difficulty in using the paper’. It also warned of the dangers of public disclosure of the existence of the comparative assessment. A further note from Palliser to Foreign Secretary Crosland also advised that ‘hard and fast rules … would be very difficult to apply’ and they would have to proceed on a case-by-case basis. He also cautioned that there was only a limited prospect of reaching an accommodation for joint action with other donor governments or through the political machinery of the European Economic Community (EEC). All that, he said, would be ‘difficult’.203 That would be clearly demonstrated when in 1978 an attempt by the US to discuss concerted action by Western countries at the multilateral financial institutions elicited a less than positive response from Sweden, Canada, the Netherlands, West Germany and Japan. The FCO’s suspicion was that the US knew in advance what the reaction would be and merely sought the meeting so that Congress could be informed of the attitude of its supposed allies as a matter of fact.204 Yet, despite Palliser’s warning, invariably, subsequent FCO and Ministry of Overseas Development papers and FCO Ministerial meetings would nevertheless optimistically imagine some form of concerted action as a realistic policy option. In a last desperate throw of the dice, Palliser sent out one final warning. He quoted with much sympathy a passage from Secretary of State Kissinger’s 1975 ‘Report to the Congress on the Human Rights Situation in Countries Receiving US Security Assistance’: ‘The situation in each country must always be weighed individually and assessed … as to where US interests with respect to security and human rights lie and how they can best be served. In view of the widespread nature of human rights violations in the world, we have found no adequately objective way to make distinctions of degree between nations.’ (Even under President Carter, the 1978 Country Reports would outline the difficulties in preparing these assessments and conclude therefore: ‘These factors make it particularly difficult to attempt to quantify, categorize, or rank countries with respect to their observance of human rights.’205) However, undeterred by the advice of their officials, the political decision was nonetheless taken by Foreign Minister Crosland in October 1976, and reconfirmed by Foreign Minister Owen, to commission a Human Rights Comparative Assessment of all the countries in which the UK was represented.206 203 Palliser to Private Secretary 13 October 1976 and Palliser to Luard Proposed comparative assessment of the human rights performance of foreign governments 13 October 1976, NA FCO 49/689. 204 Kirkness to Jones Human Rights and the IFI’s (sic) 13 December 1978, NA FCO 59/1596. 205 Palliser to Luard Human Rights 27 October 1976, NA FCO 49/689 and US 1979 (1978) Country Reports, 4. 206 Luard Minute 27 October 1976 and Ferguson to Crowe ‘Note of the meeting of

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After further FCO debate on the mechanics and content of the assessment, UK posts were asked to respond to a questionnaire calling for information to be provided and marks awarded under seven headings. As there was widespread FCO disquiet with this exercise, posts were also advised that although ‘this task may seem irksome and time consuming’ it ‘is an exercise to which Ministers attach considerable importance’. Following a further review by the FCO’s geographical departments, preliminary results were then passed on to a small panel of assessors, including Under-Secretary of State Luard, to compute a final points tally for the Human Rights League Table.207 Inevitably, once posts had been informed of their place in the league table, several Ambassadors complained that the nature of the questionnaire cast an unfair shadow on their countries. One of the most vociferous objections was raised by one of the assessors who queried, in the classic style of FCO officials, whether the usually unattainable ‘greater happiness of mankind is a legitimate … goal of policy’ and that even if it was: ‘I am … very sceptical about both the value and the validity of this exercise … I find it very difficult to conceive situations in which it would be useful to apply a special country-by-country human rights index.’ Reflecting on the teething difficulties of this first exercise, he went on to note that the seven headings were not ‘sufficiently precisely defined’ and that ‘it is clear from the answers received … that quite different criteria have been applied in different countries’. Accordingly, the following year, information was sought under ten headings and the criteria for judgements more precisely defined.208 As a result of the overall unease felt by so many posts with the outcome and possible implications of the exercise, it was felt necessary to advise them not only of the ‘high importance that the Secretary of State attaches to the promotion of human rights, and to the weighing of human rights considerations in the formulation of our policies towards individual countries’, but also that: ‘Human rights are only one of many factors bearing on foreign policy’; and that: In the light of experience, we can see that some of our criteria might perhaps have been differently chosen, defined and weighed. Nevertheless, the results are a useful, if rough and ready, indication of relative merit. The table … should be regarded only as a starting point for a more detailed look at each country’s human rights performance.209 Ministers, Wednesday 27 October 1976 – Human Rights’, Luard to Secretary of State ‘Comparative assessment of the human rights performance of foreign governments’ 15 October 1976 and ‘Note of the meeting of Ministers, Wednesday 27 October 1976’, NA FCO 49/689. 207 Crowe to Certain Heads of Chancery 22 November 1976, NA FCO 58/1156. 208 Crowe to Panel Assessors ‘Human Rights and Foreign Policy’ 25 January 1977 and Sutherland to Crowe 25 February 1977, NA FCO 58/1155. 209 Circular ‘O’ 119/77, Palliser Human Rights and Foreign Policy, 20 July 1977, NA FCO 58/1145.

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This official line was also maintained in the December 1977 note advising posts of the 1978 assessment. It acknowledged the misgivings about individual scores ‘and indeed the value of the whole operation’ but that: ‘Everyone here fully recognises that it has its limitations’; specifically, that ‘the table provides us with no more than a starting point for a more detailed look’ and ‘action against particular governments will always have to be considered on a case-by-case basis’.210 Autres temps, autres mœurs. By the time of the May 1979 election, the 1979 country reports had been completed but not reviewed. One month prior to the election, the FCO official in charge of the exercise ruminated that it would be a pity to waste the work undertaken by posts and therefore, as the Conservative party had never expressed opposition to the idea, the panel assessment should perhaps be completed. However, two weeks after the election, that same FCO official expressed the opposite view to the new Foreign Secretary advising instead that the 1979 assessment should not be completed and the 1980 assessment scrapped. In a brutal analysis, he advised that: The difficulties of trying to use a comparative assessment as a basic tool in everyday policy decisions were recognised at the outset. For one thing, various sectors of public opinion tend to be concerned about human rights violations more in some countries than in others. Secondly, policy towards a particular country involves a variety of considerations … of which human rights form only a part … We have continued to feel misgivings about the accuracy of the assessment …We have tried to improve the methodology, but inherent problems exist. The selection of certain rights … in itself influences the results … Several of the assessors have been worried about the superficiality of their judgements … quite apart from their inevitably subjective nature.211

Once the political decision had been taken to accept this recommendation, Palliser wrote once again to advise posts of the decision and its underlying rationale: Ministers have considered the purpose, methodology and work involved in compiling the … Assessment. They have decided that no further effort should be expended on it. Despite the conscientious attempts which were made to produce accurate and consistent assessments, the league table 210 Simpson-Orlebar to Certain Heads of Chancery 14 December 1977, NA FCO 58/1156. 211 Simpson-Orlebar to Leahy ‘Human Rights Comparative Assessment’ 2 April 1979 and Simpson-Orlebar to Leahy/Parsons ‘Human Rights Comparative Assessment’ 14 May 1979, NA FCO 58/1687. The process by which the FCO advises Ministers is described by M. Simpson-Orlebar, ‘Session Three: The Role of Government Departments, UK Foreign and Commonwealth Office; US State Department’, AAICJ, Human Rights in United States and United Kingdom Foreign Policy: A Colloquium (New York, 1979), 12–16.

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proved of limited value in objective decision-taking. With some countries, knowledge of the table’s existence was an irritant in our bilateral relations without helping to promote any compensating improvement in their human rights performance.212

At the same time, whether as a matter of objective analysis or in response to the winds of political change, the incoming Ministerial team was also advised by FCO officials that: ‘Voting in the IFIs is an ineffective means of protesting about human rights’. It was therefore decided that, apart from the most egregious human rights abuses and those countries hostile to the UK, Vietnam being the only country mentioned, the policy would be dropped.213 As between the UK and US country reports, three clear points of difference immediately jump out: Firstly, UK commentary was far more brutal. For example, the 1977 UK country reports described Guinea as ‘a police state’ and the CAR as ‘probably one of the worst countries in Africa for consistent violation of human rights’; it was also suggested that Equatorial Guinea ‘probably competes with Uganda for the position of bottom African country on the list’.214 While British diplomats seemed as unhappy with this exercise as their US counterparts, Ministers were at least aware that, as public disclosure was prejudicial to UK interests, the assessments should never be published. This undoubtedly encouraged posts to be freer with comments than their US counterparts who were all too aware that their assessments would be publicly disclosed. The commitment to non-disclosure was reaffirmed in March 1977, when, as a result of Foreign Secretary Crosland’s indiscretion in October 1976 revealing the existence of the exercise, Foreign Secretary Owen was obliged to respond to a Parliamentary question: I do not intend to publish the list … We had to consider whether the mere existence of such a list would cause problems in relationships between the British Government and other Governments. The decision was taken to have the list as the only way of being serious about human rights, on the strict understanding that we would not publish it.215

Somewhat enviously then, Assistant Secretary of State Derian would admit to Under-Secretary of State Luard that they would ‘never be able to keep such an exercise secret’ in the US.216 212 Circular ‘O’ 104/79 Palliser Human Rights and Foreign Policy 21 June 1979, NA FCO 58/1687. 213 Bayne to Butler 6 June 1979, NA FCO 59/1633 and Beckett, Human Rights and the International Financing Institutions (IFIs) 28 June 1979, NA FCO 93/1838. 214 1977 Country Reports, NA FCO 58/1155. 215 Secretary of State for Foreign and Commonwealth Affairs Owen Answer to Forman MP House of Commons 30 March 1977. 216 Record of a meeting at the State Department 20 June 1977 at 2.00pm, NA FCO 58/1145.

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Secondly, as the UK reports were not to be made public, there was less need for the headings to reflect those human rights issues most subject to NGO lobbying although the 1977 assessment did require information on trade union rights to which the Labour government, naturally, attached a considerable degree of importance – in 1978 it was removed. Rather, as the deliberations preceding the second assessment makes clear, the aim was to focus on political rights and violations of political liberty ‘not the general state of affairs in the country’. Economic rights, whether people have enough to eat or receive adequate education, were largely a question of the level of economic development and would distort the findings.217 Thirdly, the UK country reports were remarkably thin and usually comprised no more than one or two pages as compared to the more extensive information sought by the US country reports. The first 1977 league table ranked the CAR, Guinea, Equatorial Guinea and Uganda at the bottom, with Algeria, Angola, Burundi and Ethiopia close behind; Tanzania and a further six African countries were ranked below South Africa. The highest-ranked African countries were Mauritius, Botswana and The Gambia. No doubt, if South Africa’s placing were to have been made public, it would have created major diplomatic ructions. Tanzania was condemned on the basis that: ‘The declared policy of the government on freedom could hardly be more laudable, but the distinction between national freedom and individual freedom is never drawn by Tanzanian leaders.’ Moreover, that sometimes there was ‘scant regard for the accepted principles of individual human rights’: ‘Imprisonment without trial seems to be a fairly wide-spread practice … Those detained … are held ostensibly under the Preventive Detention Act, but no regard is paid to the formal requirements laid down in the Act.’218 As Tanzania enjoyed most favoured status with Minister for Overseas Development Hart, this ranking, of course, had no effect on the level of UK aid extended to Tanzania. President Nyerere was also a key figure in the Rhodesia negotiations and in the conflict with President Amin and therefore the FCO was equally keen to keep him on-side. In 1978, somehow, although the country report provided no obvious justification, the CAE’s ranking rose above the bottom band and it was replaced by an Ethiopia in the grip of the ‘Red Terror’. South Africa moved down dramatically so that only the CAE and Angola, of those African countries outside of the bottom band, were lower placed. However, even after the favourable adjustments to the points tally of several African countries, Minister for Overseas Development 217 Escritt to Crowe ‘Human Rights and Foreign Policy’ 26 October 1977 and Crowe to Simpson-Orlebar ‘Human Rights and Foreign Policy’ 27 October 1977, NA FCO 58/1156. 218 1977 Country Reports, NA FCO 58/1155 and Simpson-Orlebar to Permanent Secretary/Luard ‘Human Rights and Foreign Policy’ 17 January 1978, NA FCO 58/1414.

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Hart continued to take a more sympathetic line on behalf of her African friends. She wrote to Under-Secretary of State Luard: ‘I do not understand, myself … why Zambia and Grenada fall into Band 4 compared with Brazil; or why GuineaBissau and Tanzania fall into the same Band 4 as Chile, Argentina and Indonesia, nor do I quite understand why Mozambique falls low into Band 5.’219 In terms of the individual reports, the Ethiopia country report recorded that: ‘The Government is sensitive to criticism about the violation of human rights in Ethiopia. They claim that the purpose of the revolution is to improve the human rights of “The Mass” and that, of necessity, some derogation of the individual’s rights is inevitable.’ Amusingly, in 1979, the Guinea country report recorded that President Touré had denounced Amnesty International (AI) as ‘ordure’ and that in November 1978 at an international colloquy ‘he developed further his argument that the rights of man are secondary to the rights of people’ and ‘Western preoccupation with human rights … imperialist aggression’.220 With completion of the exercise in April 1977 the question then turned as to what action should follow, if at all. It was taken up by Under-Secretary of State Luard in a note to Foreign Secretary Owen which lauded the great success and then posed the question ‘what use should we make of it in terms of policy?’ Disagreeing with the views expressed by many posts, he argued that ‘we certainly now have a far more reliable and objective picture of the human rights situation in countries throughout the world … I also think that the method we adopted has proved itself.’ As regards policy action, ‘for the great majority of countries … we shall probably wish to take no direct action’. The UK should, however, continue to be active in international bodies concerned with human rights. More specifically, in terms of the graduated scale of actions which he outlined, ‘we should concentrate our attention … on the most glaring offenders of all, the bottom half dozen or so in our scale’. As it concerned Africa, that meant the CAR, Equatorial Guinea and Uganda.221 In a further contribution to this debate, FCO Minister of State Goronwy-­ Roberts, notwithstanding Palliser’s earlier assessment, stressed his ‘basic’ concern that the UK as a matter of priority should ‘concert our action with that of our friends and allies’ and of ‘the need to emphasise our concern multilaterally rather than bilaterally, leaving specific cases for bilateral action’. Clearly, the risks were far too great for the UK to be seen raising its human rights head above the parapet alone.222 219 Hart to Luard 25 August 1978, NA FCO 58/1397. 220 1978 Country Reports, NA FCO 58/1396 and 1979 Country Reports, NA FCO 58/1686. 221 Luard to Secretary of State ‘Human Rights and Foreign Policy’ 3 May 1977, NA FCO 58/1156; underlining original as in all cases following, unless otherwise noted. 222 Goronwy-Roberts to Secretary of State ‘Human Rights and Foreign Policy’ 13 May

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This preliminary assessment was followed up at Foreign Secretary Owen’s behest with a more substantive policy discussion paper ‘Human Rights and Foreign Policy’ setting out the key questions and the options open to the UK, finally, listing out certain recommendations. It opened with an itemisation of fifteen graduated steps that might be taken where ‘glaring violations of human rights occur’. These ranged from ‘discreet support for human rights organisations in their dealings with the foreign government concerned’ to ‘trading sanctions’. Wisely, it recognised that in considering the action to be taken, ‘other factors’ should be taken into account as there were wider national interests in foreign policy: ‘It would be quixotic for our foreign policy towards a country to be determined exclusively by attempts to apply general rules about human rights.’ Accordingly, it concluded that: ‘We should thus not hope for total consistency in our policies towards individual countries.’ However, it proposed that the annual comparative assessment should be the primary guide in deciding on action to be taken. In terms of the focus, it was recommended that concentrated action should only be taken against the bottom band of countries essentially because of the seriousness of their violations and the potential domestic and external support that might sustain such action. Less gloriously, it was also adduced that ‘we have no substantial national interests at stake in these countries’. On the other hand, it was possible that ‘the fact that we were tackling weak countries in which we had no substantial interests could provoke cynical comment’ and ‘it might put up the backs of fellow Africans/Asians/Arabs to see neighbours singled out’. There was also a review of steps that might be taken to improve human rights action by the UN, but this amounted to little more than a feeble pushing for change without any expectation of success. Finally, there was a review of the potential role to be played by regional commissions of human rights, but at the same time a realistic appreciation ‘that such commissions could be established only on the invitation of the states of the region’. It therefore pondered on the scope for joint initiatives between the CHR and the OAU or League of Arab States. More intriguingly, it wondered whether ‘certain African countries’ might be approached with the suggestion that they might sponsor such an initiative. Africa, it suggested, should be the initial focus of attention as ‘a potential sponsoring organisation (OAU) exists and where some states with good standards might look favourably on the idea’.223 Coincidentally, then, a few weeks prior to this paper, President Senghor, who would shortly serve as such a sponsor, met with Prime Minister Callaghan (UK) but this idea does not seem to have been put to him.224 It was however raised in Minister of State Rowlands’ brief for his visit to The Gambia and 1977, NA FCO 58/1144. 223 Luard ‘Human Rights and Foreign Policy’ 23 May 1977, NA FCO 58/1144. 224 Meadway to Dales 6 April 1977, NA PREM 16/1457.

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Senegal in October 1977. Nonetheless, his meeting records with President Senghor, Prime Minister Diouf and Foreign Minister Seck give no indication that the idea was ever discussed.225 The meeting of FCO Ministers to consider this policy paper and agree conclusions was set for late May 1977. However, due to a prior engagement, Minister for Overseas Development Hart was unable to attend. She therefore sent a note to Foreign Secretary Owen expressing the need for decisions to reflect her input and advising of three points ‘of fundamental concern to me’. These were that in a developing country with overwhelming illiteracy ‘freedom of the press means very little’; that ‘a prior condition for the development of political freedom is economic freedom’; and that a sense of perspective is needed when comparing abuses in a developing country and a country where achieved freedoms are denied – the reference being to Latin America.226 Rather generously, therefore, Foreign Secretary Owen decided that, as aid policy was one of the most important areas for discussion at the meeting, in her absence, no decision on aid should be taken. In the absence of any discussion of action to be taken on aid, the discussion thereby meandered meaninglessly across the range of recommendations proposed in the policy paper. The only significant decision, although not as it turned out, was that requiring the FCO’s geographical departments to submit recommendations on action to be taken against countries in the bottom band, ‘but also on other cases causing concern’. The African countries to be addressed were: Algeria, CAR, Equatorial Guinea, Guinea and Uganda.227 The rearranged meeting finally took place in July 1977. In a brief paper, Minister for Overseas Development Hart set out her thoughts in advance: ‘Few developing countries have a good human rights record.’ It followed that few aid recipients were at the top of the assessment tables. Even so, it begged some questions. For example, in the case of developing countries with a high illiteracy rate, the commercial motivation for a competitive press is absent. Moreover, she pondered: ‘Has there been a careful analysis of the bias or lack of bias in the government-supported paper, compared with that in our own press?’ Also, that the historical importance of the middle-class in achieving political and economic reform was meaningless in an Africa that as yet had no middle-class. She then proposed some considerations which should guide the application of human rights performance criteria to aid policy; such as the benefits of long-term planning that cannot simply be subject to fits and starts on human rights grounds and recognition that ‘only in comparatively few instances would the denial of 225 UND Beattie Brief 7 October 1977, NA FCO 58/1154 and Record of a conversation between Mr Ted Rowlands MP and President Senghor at the Presidential Palace, Dakar on Monday 24 October 1977 (see also notes for meetings on 24 October with Prime Minister Diouf and Foreign Minister Seck), NA FCO 65/1941/1. 226 Hart to Owen 24 May 1977, NA FCO 58/1152. 227 Record of an office meeting held by the Secretary of State 25 May 1977, NA FCO 8/2863.

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British aid be a significant deterrent to a government in its human rights policies’. She also felt that there should be a sympathetic understanding of the connection between economic development and the evolution of democracy and respect for freedoms which we ourselves have only recently come to acknowledge and therefore that we should be rather more severe where ‘achieved freedoms are denied’. In conclusion, therefore, she proposed: ‘a case-by-case approach’; ‘only exceptionally will we cut off aid to a government’; and, while ‘we should use every opportunity for influencing recipients of aid to give greater respect to human rights … in making our judgements, we should bear in mind whether a systematic abuse is occurring over a period, and the state of development in the country concerned’.228 A note was also prepared by the Department of Trade, which, like its US counterpart, was particularly protective of export opportunities and reluctant to contemplate trade restrictions even on such countries as South Africa. The note warned of ‘serious implications’ for the UK if trade sanctions, as Under-Secretary of State Luard’s paper had intimated they might, were to be employed for human rights foreign policy purposes.229 At the meeting itself, Minister for Overseas Development Hart’s proposed case-by-case approach in which aid would be cut off only in exceptional cases such as Chile and Uganda was accepted; as Foreign Secretary Owen declared: ‘We had to be pragmatic.’ The meeting was also forced to consider, in its first test case, a planned Bolivian mining aid project. It was Minister for Overseas Development Hart’s intention to block this aid, on the basis that ‘trade unions were banned in Bolivia and miners in prison or exile’, and to substitute a hospital project in its place. At this point her Department of Trade colleagues stepped in to point out that this would be seen by the Bolivians as a political decision and the UK might thereby lose out on export opportunities.230 However, as she explained in Cabinet, representations against the project had been made by all the major UK trade unions and the Trades Union Congress as well as human rights NGOs. Her argument convinced the Cabinet to consider alternative aid projects in Bolivia.231 As the May 1977 meeting had agreed, the FCO’s geographical departments were to recommend actions that might be taken against the bottom band of countries. In the event, however, far from the imagined human rights promised land, their recommendations merely served to demonstrate the limited scope 228 Hart ‘Aid and Human Rights’ 1 July 1977, NA FCO 58/1152. 229 TRED ‘Human Rights and Trade’ 1 July 1977, NA FCO 58/1152. 230 Record of a meeting held at the Foreign and Commonwealth Office on Tuesday 5 July at 5 pm, 11 July 1977, NA OD 36/359. 231 CP (77) 22 July 1977 Cabinet, ‘The Bolivian Mining Project’, Memorandum by the Minister of State for Overseas Development, NA PREM 16/1787.

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of action that could be taken and thereby the full extent of UK impotence. That impotence was only partly to be explained by the weak economic position of the UK. In late 1976 the Labour government was forced to approach the IMF for a loan of $3.9bn, the largest ever loan requested at that time. It was acceded to but only on condition of heavy cuts in government expenditures. As a result, the 1977–78 aid budget was cut as against a previously envisaged substantial real increase, although this was slightly ameliorated by the redistribution of Ugandan aid.232 In any event, at this time, only Kenya, Malawi, Sudan and Zambia were receiving aid in excess of £10 million and, as Clapham notes, most of the aid budget was ‘essentially a matter of compensating successor African elites for the consequences of white settlement’.233 The analysis and assessments presented in raw form by FCO officials proposed, for example, with regard to Algeria that: no action should be taken … We lack direct and effective means to influence Algeria … the Algerian Government would react very badly to criticism of their internal policies … There is no public interest in the UK which has come to our notice about human rights abuses in Algeria … Any attempt to use … credits to obtain political leverage would risk non-repayment of credits already outstanding … It is also surprising that Algeria should be assessed in the lower band of countries.

With respect to the CAR: ‘We give no bilateral aid, and our exports are minimal … It is unrealistic to expect … that … alone … our disapproval … would lead to any remedial action by Bokassa, or would strike a chord elsewhere in Africa.’ Equatorial Guinea: ‘… we should cease in practice to have diplomatic relations … We have no economic interests. Our exports are minimal. We give no bilateral aid … President Nguema is unlikely … to be much worried if we allow diplomatic relations to lapse.’ Guinea: ‘Our political and economic interests … are minimal … But neither have we any practical means of exerting influence on the régime. We have no aid programme … Action by Britain, while likely to provoke retaliation would in isolation achieve very little … We should, therefore, try to act only in consultation with others (the most important being France; but because she has the most to lose … is likely to be reluctant to act).’ Ethiopia: ‘We should not ourselves initiate further steps … The Derg regard us as hostile and would not be influenced by further moves on our part … neither profitable nor in our interests to undertake new moves’.234 232 Letter of 28 July 1977 from the Permanent Secretary, ODM to Heads of Mission, NA OD 36/359. 233 C. Clapham, Africa and the International System, 86–88. 234 Bottom Band Countries, FCO Assessment Submissions folder, NA FCO 58/1147.

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These brutal assessments were then sanitised for formal presentation to Foreign Secretary Owen. As regards Algeria, it was recommended that no action should be taken and Algeria’s ranking reassessed. (In 1978 its ranking improved by seventeen places.) When President Boumédiène died in December 1978, Foreign Secretary Owen attended his funeral suggesting a shared view of the need for Algeria’s ranking to be reassessed; for the CAR, it was recommended that the UK should take the lead in discussions with ‘our European partners’, although there was the clear hint that this would not lead to any action; for Equatorial Guinea, it was merely noted that action was due under the 1503 procedure at the next CHR session; for Guinea, unilateral action was not recommended beyond statements of concern that would not single out Guinea; and for Ethiopia, that the UK should not initiate action but support calls for action by others – indeed the fear was that the UK would be singled out for retaliatory action and, as with the US, it was thought desirable that a presence should be retained to counter growing Soviet influence and protect remaining UK interests. Uganda was a special case and the recommendation was merely to continue with present policy.235 In response, Under-Secretary of State Luard acquiesced in the recommendations, although he thought that some consideration should be given to referring the CAR and Ethiopia to the Sub-Commission.236 Foreign Secretary Owen, however, was less satisfied and vented his frustration: I am content for action to continue along the lines suggested in the interim, pending further discussions. My general impression is, however, of gutlessness … Maybe this is inevitable, but I cannot endorse this line at this stage; it is far too bland. Above all, I believe we should consider how to coordinate with the Nine and the US; acting alone we can do very little. But surely there ought to be a tougher category of action in each case which we could undertake if there was a multilateral decision.237

These recommendations were not forgotten. In December 1977 a progress report recorded the miserable extent of the follow-up action. It largely consisted of discussions within the EEC and discussions proposed or actual with the US and NGOs such as AI. The hope was also expressed that action against the CAE and Guinea would be possible under Lomé II and it was also noted that Uganda and CAE were in the dock before the CHR. It had also been decided that a representative should not be sent to Emperor Bokassa’s 235 Simpson-Orlebar to Weir ‘Human rights and Foreign Policy’ 11 July 1977, NA FCO 8/2863. 236 Luard to Secretary of State ‘Human Rights and Foreign Policy: Action on the Bottom Band’ 19 July 1977, NA FCO 58/1145. 237 Wall (on behalf of Owen) to Simpson-Orlebar ‘Human Rights and Foreign Policy: Action on the Bottom Band’ 22 August 1977, NA FCO 8/2863. The ‘nine’ are the nine members of the EEC.

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coronation although this was more a protest against his excessive expenditure on the event than a human rights rebuke.238 Other notes also testified to the absence of any serious follow-up. For example, a 1978 note listed ‘cases where Ministers had actually mentioned the human rights situation in the course of a foreign visit’ from June 1977 to January 1978. It recorded that, other than South Africa, concerns had not been expressed to any other African country which rather puts in perspective the claim that ‘private’ representations are one of the most effective means by which concern can be communicated; although former Foreign Secretary Owen advised that from his personal experience this understated the extent to which human rights issues were raised in diplomatic exchanges.239 Another, more specific, note drew attention to the worsening situation in Ethiopia and that concern had been expressed by Foreign Secretary Owen and Minister of State Rowlands to the Ethiopian Ambassador in London. However, it was still recommended that aid should not be cut off due to the ‘great inroads’ of the Soviet Union. Only in the last resort was aid to Ethiopia finally run down.240 Lastly, in February 1978, a Ministry of Overseas Development ‘Policy Guidance Note’ listed the actions taken on human rights grounds at bilateral and multilateral level. Once again, it served to demonstrate that, with few exceptions, the UK was not prepared to act alone to the detriment of its other interests.241

The Lomé II negotiations The five-year term of the 1975 Lomé Convention, essentially a development agreement between the EEC and the African, Caribbean, Pacific (ACP) developing states, was due to expire in March 1980. Its Article 91 provided that: ‘Eighteen months before the end of this period the Contracting Parties shall enter into negotiations in order to examine what provisions shall subsequently govern relations between the Community and its Member States and the ACP States.’ The convention did not mention human rights although it was later suggested that a reference could be inferred from the preamble recital of a ‘common desire to maintain and develop the friendly relations existing between their countries, according to the principles of the United Nations Charter’.242 In reality, as 238 Simpson-Orlebar to Weir/Luard ‘Human Rights and Foreign Policy: Progress Report’ 20 December 1977, NA FCO 58/1146. 239 Simpson-Orlebar to Permanent Secretary/Luard ‘Human Rights and Foreign Policy’ 17 January 1978, NA FCO 58/1414 and Owen Correspondence. 240 Rosling EAD to Beattie ‘Human Rights and Foreign Policy’ 6 January 1977 (sic., should read 1978), NA FCO 58/1414. 241 Ministry of Overseas Development ‘Policy Guidance Note’ AID 201/013 PGN No 10 February 1978, NA FCO 59/1594. 242 ACP-EEC Convention of Lomé of 28 February 1975, Courier, 31 Special Issue, March 1975.

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EEC Development Commissioner Cheysson admitted, no reference had been included as: ‘We did not realize that this issue would become very controversial to public opinion.’243 In early 1978, when introducing the draft EEC negotiating mandate, he added: We failed in the present Convention to make clear enough the chief aim of all economic and social cooperation, which is to serve man. The first requirement, therefore, is to secure recognition of his right to life and to respect for his person. The Commission accordingly feels strongly that these concepts should be included in the preamble to the next Convention … The Commission understands that by proceeding in this way it may be suspected by our partners of trying to interfere unilaterally in the old colonialist manner. But they in turn must understand the importance of these matters to the European public, whose support is vital to the continuation and enhancement of the cooperation policy.244

The controversy arose because the Lomé II negotiations were held in the shadow of the well-publicised human rights violations committed by President Amin and the corresponding public concern, felt most keenly by the UK, of the limited scope permitted by the 1975 Lomé Convention to respond by suspending aid. While Article 92 of the 1975 Lomé Convention allowed that it ‘may be denounced by the Community in respect of each ACP State and by each ACP State in respect of the Community, upon six months’ notice’, a majority of EEC member states, notably France, envisaged the convention as a binding contract and were not prepared to apply denunciation as a mechanism for suspending aid to Uganda. For example, EEC Commissioner Cheysson, in a response to questions on Uganda from Members of the European Parliament (MEPs), asserted that ‘the Convention does not provide for any measures which we could take at the present time against Uganda. We are linked with that country … by an international agreement which has been duly ratified by all the contracting parties, and the Community is proud of the fact that it respects its obligations.’245 243 C. Cheysson, quoted in ‘News Round-Up, The Convention at Work: Human Rights in Lomé II?’ Courier, 46, November–December 1977, I (reference from K. Arts, Integrating Human Rights into Development Cooperation: The Case of the Lomé Convention (The Hague, 2000), 168). 244 European Commission, ‘Negotiations for the renewal of the Lome Convention. Press conference given by Mr. Cheysson’, Information Memo P-18/78, February 1978, 1; see also ‘Lomé II: Cheysson Outlines Commission’s Initial Proposals’, Courier, 48, March–April 1978, VII–VIII (reference from A. Young-Anawaty, ‘Human Rights and the ACP-EEC Lomé II Convention: Business as Usual at the EEC’, New York University Journal of International Law and Politics, 13/1 (1980), 65). 245 Official Journal of the European Communities, Debates of the European Parliament Annex No. 214 March 1977, 1977–1978 Session, Report of Proceedings from 8 to 11 March 1977, M. Cheysson 10 March 1977, 71 (reference from R.J.H. Smits, ‘The

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However, within that limited scope, following the murder of Archbishop Luwum in early 1977, an informal arrangement, at the UK’s behest, was reached with the European Commission that approval for Ugandan aid projects should be slowed, although STABEX (Stabilisation of export earnings) payments to Uganda were automatic and could not be legally suspended or slowed. This seemed to have worked well as EEC Commissioner Cheysson was able to advise MEPS that: ‘Progress in utilizing the European Development Fund in Uganda is … at present at a standstill. Up till now, we have been able to do only two studies and spend only … 0.2 % of the funds available – and there does not appear to be any likelihood of our being able to do more, for reasons outside our control.’ As a result, by mid-1977, European Commission staff in Uganda were being put under extreme pressure to explain away delays in authorising aid projects and fears were starting to be expressed for their safety.246 In this way, Moravscik and Bartels have suggested, only 5 per cent of the aid allocated to Uganda was actually disbursed.247 More emphatically, although no doubt the timely rotation of the UK to the EEC Presidency was a critical factor, a statement, the ‘Uganda Guidelines’, was issued by the Council of the European Communities in June 1977. It declared that: ‘The Council agrees to take steps within the framework of its relationship with Uganda under the Lomé Convention to ensure that any assistance given by the Community to Uganda does not in any way have as its effect a reinforcement or prolongation of the denial of basic human rights to its people.’ That was as far as most EEC member states were prepared to go notwithstanding the April 1977 Joint Declaration by the European Parliament, the Council and the Commission ‘Concerning the protection of fundamental rights and the European Convention for the protection of human rights and fundamental freedoms’ in which they stressed ‘the prime importance they attach to the protection of fundamental Second Lomé Convention an Assessment with Special Reference to Human Rights’, Legal Issues of Economic Integration, 7/2 (1980), 51 Note 23). 246 Official Journal of the European Communities, Debates of the European Parliament Annex No. 214 March 1977, 1977–1978 Session, Report of Proceedings from 8 to 11 March 1977, M. Cheysson 10 March 1977, 71, Brief for Minister’s Discussion with Mr Cheysson: 14 June 1977 ‘EEC aid to Uganda’, Baxter 9 June 1977, NA FCO 58/1176 and Maitland 21 June 1977, NA FCO 31/2167; see also assessment in Ewars to Mansfield ‘Draft letter prepared for Minister of State Rowland’s reply to E. Moonman MP’ 9 February 1977, NA FCO 58/1174. 247 A. Moravscik, ‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’, European Journal of International Relations, 1/2 (1995), 166 and L. Bartels, Paper prepared at the request of the European Parliament’s Subcommittee on Human Rights, ‘Human Rights and Democracy Clauses in the EU’s International Agreements’ (September 2005), 22 Note 13, http://www.europarl.europa. eu/RegData/etudes/etudes/join/2005/363284/EXPO-DROI_ET(2005)363284_ EN.pdf, last accessed 15 November 2019.

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rights’. They were simply reluctant to embark on a public row with Uganda as it was well understood that the ACP states would react in support of the principle of non-interference in Uganda’s internal affairs.248 This was demonstrated most clearly when a UK diplomat in Brussels reported that he had been ‘attacked’ by Ambassador Sy (Senegal) and other Francophone African Ambassadors for the ‘British initiative’ of the Uganda Guidelines which they depicted as a blatant breach of a contractual obligation. Although Ambassador Sy claimed to deplore ‘the Amin regime’, if, in relation to either the 1975 Lomé Convention or Lomé II, human rights would be raised, he threatened that ‘the Africans would have plenty to say about European crimes in Africa, beginning with the slave trade and continuing through the whole colonial period’.249 At various times, the issue arose as to whether aid should also be suspended to other African states. For example, in May 1977, the FCO contemplated lobbying for the CAR, Equatorial Guinea and Guinea to be included on a proposed list of ‘untouchables’ but were warned off by colleagues in Brussels. It was explained that, while EEC Commissioner Cheysson might be personally sympathetic, and therefore the European Commission was ‘respecting our wishes’ to go slowly on aid to Uganda, a request in respect of ‘other beastly ACP countries’ was not advisable as regards non-Commonwealth countries. The concern was that the UK would be in danger of overplaying its hand. The option of invoking the Uganda Guidelines against Ethiopia and Equatorial Guinea was, however, discussed but resisted by the European Commission on the grounds that EEC projects in these countries benefited the people not the regime.250 An effort to suspend aid to the CAE was also attempted in 1978 by MEPs but was similarly rebuffed, this time on the contractual obligation argument. Remarkably, the European Commission was still reluctant to act even after Emperor Bokassa expelled EEC representatives.251 It was only after publication of the 1979 Kigali Committee of Inquiry Report into the Bangui massacres and barely three weeks 248 Official Journal of the European Communities Information and Notices C 103 Vol. 20 27 April 1977, 1, Statement by the Council of the European Communities 21 June 1977, Bulletin of the European Communities 6 (1977), 77–78 and Brief for Minister’s Discussion with Mr Cheysson: 14 June 1977 ‘EEC aid to Uganda’, Baxter 9 June 1977, NA FCO 58/1176. 249 Adams to Arbuthnott ‘Uganda’ 28 June 1977, NA FCO 31/2167. 250 Baxter to Arbuthnott ‘Human Rights’ 25 May 1977 and Adams to Arbuthnott ‘Human Rights’ 26 May 1977, NA FCO 58/1144 and Coles ‘Speaking Note: Human Rights: Difficulties caused by current practice Line to take’ June 1978, NA FCO 98/331. 251 European Parliament, Official Journal Written Questions No. 943/77 Adams 28 March 1978, No. 115/78 Adams 21 August 1978 and No. 421/78 Geurtsen 16 October 1978 (reference from E. Fierro, The EU’s Approach to Human Rights Conditionality in Practice (Hague, 2003), 45–46).

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before French troops facilitated the coup against Emperor Bokassa (see page 130 below) that an EEC anathema was finally pronounced. Finally, too, Guinea (1978) and Equatorial Guinea (1979) but not Ethiopia would be made subject to the Uganda Guidelines disbursement approach.252 Although the opening of formal negotiations would only be announced at the end of July 1978, political manoeuvring over the human rights dimension in the successor agreement began to surface over a year earlier. At the June 1977 Second Meeting of the ACP-EEC Consultative Assembly several EEC representatives spoke out in support of the importance attached by EEC states to respect for human rights within the framework of ACP-EEC cooperation.253 In particular, Prescott (UK), a Labour Party MP, commented that ‘as well as the particular problem of Southern Africa, there was also the question of fundamental human rights in general’. He noted that: There were reliable reports from international organizations of barbaric happenings in some of the Member countries of the ACP-EEC Assembly. It was the duty of the Assembly to condemn these also … While it was true that the colonial powers had been guilty of introducing barbarism to Africa and other parts of the world, that could not justify a refusal to condemn it when practiced in the newly independent countries. Serious consideration should be given to including the obligation to respect fundamental rights and freedoms in the negotiations for the new Convention.

However, ominously, even at this stage, several ACP representatives spoke out vociferously putting forward a range of objections that the ACP states would continue to advance throughout the negotiating process. Adjibadé (Benin), 252 L. Bartels, Paper prepared at the request of the European Parliament’s Subcommittee on Human Rights, ‘Human Rights and Democracy Clauses in the EU’s International Agreements’, 22 and ‘Central African Empire: ACP Cooperation and Human Rights Compliance’, Europe Agènce Internationale d’Information pour la Presse No. 2736 (N.S.) 29 August 1979, 2; see also R.J.H. Smits, ‘The Second Lomé Convention, an Assessment with Special Reference to Human Rights’, 51–52. 253 The ACP-EEC Consultative Assembly was an annual talking shop to review the annual report of the ACP-EEC Council of Ministers and to adopt non-binding resolutions. Its much smaller Joint Committee, comprising of one representative from each ACP state and an equal number of EEC representatives, would meet in advance to consider the Annual Report and prepare a draft resolution. The ACP-EEC Council of Ministers was the primary institution responsible for administering the convention with the power to make decisions binding on contracting parties; see A. Young-Anawaty, ‘Human Rights and the ACP-EEC Lomé II Convention: Business as Usual at the EEC’, 78–79 and CARDOC, Analytical Inventory: Parliamentary Bodies for Development Cooperation (ACP) – The Period before the Conventions to Lomé I (1958–1980) Special edition May 2011.

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for example, said that ‘his country was willing to deal with the problem of human rights in any framework on condition that the Lomé Convention did not become an institution able to interfere in the domestic affairs of its Member States’; while Kanu (Sierra Leone) was even more outspoken against the idea of addressing human rights in such a context: it was an affront to come here and compare so-called ‘barbaric’ regimes in the ACP with the situation in South Africa … The subject of human rights might be discussed at an appropriate time, but he pointed out that some countries in Europe seemed to find it convenient to trade with South Africa … which was an insult to the whole human race. The discussion of such matters was out of place in this Assembly.

Adriko (Uganda) noted that: ‘The problem of human rights was complicated by political interpretation and sometimes biased newspaper reporting, and had now become a weapon in the cold war … The EEC must on no account draw the ACP into a similar conflict … The ACP countries respected the principle of non-interference in each other’s internal affairs.’ Further objections came from delegates of the CAR, Kenya, Madagascar and Upper Volta.254 Yet there were also some (false) sightings of ACP support. The November/ December 1977 Joint Committee meeting in Maseru, Lesotho closed with a Declaration which proposed that ‘the question of respect for human rights and fundamental freedoms must be given adequate expression in the new Convention in accordance with the Universal Declaration on (sic.) human rights, to which all the partners to the Convention have subscribed’. This seems to have been initiated by Senegal’s Ambassador to France Guillabert, the rapporteur. In his initial speech indicating the starting point of his report on the question of the successor agreement, he suggested that cultural cooperation and human rights were both potentially important additions to the new agreement; an idea that can undoubtedly be traced back to President Senghor: One of the weaknesses of the Convention of Lomé was that it neglected cultural matters … Cultural cooperation and human rights were very closely connected. Furthermore, the problem of human rights had now become so acute it could no longer be excluded from relations between the ACP states and the EEC. It was therefore only right and proper for certain fundamental rights which had been laid down and officially recognised throughout the world to be guaranteed in the new Convention by the signatory States to the new Convention as well.

Less surprisingly, the meeting also responded positively to a proposal that a place should also be found for the protection of rights for ACP nationals working in EEC states. 254 ACP-EEC Consultative Assembly, Second Annual Meeting, Summary Report of the Proceedings, June 1977 Luxembourg, CA/4 7/48/49/fin, 23–43.

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Ambassador Guillabert’s thoughts were shot down almost immediately. The December 1977 Lusaka meeting of the ACP Council of Ministers disowned the Maseru Declaration and, implicitly by exclusion, the UDHR. Its resolution reaffirmed ‘the adherence of the ACP States to the principle of the respect of Human Rights as laid down in the United Nations’ Charter while expressing … opposition to any attempt to approach, in the context of the negotiations of the successor arrangement to the Lomé Convention, any issue concerning Human Rights’. Moreover, responding to the Uganda Guidelines statement, they also expressed ‘deep concern … concerning the treatment of Uganda under the Lomé Convention’.255 On the EEC side, formal negotiations were to be handled by the European Commission, more specifically, EEC Commissioner Cheysson. Towards the end of 1977 he therefore began to put together a draft negotiating mandate. Although, when preparing the outline negotiating mandate, there were preliminary conversations between EEC Commissioner Cheysson and European Commission officials with Ministers and officials of EEC member states at several levels, the main forum for discussion was COREPER, the Committee of the EEC member states’ Permanent Representatives in Brussels. If COREPER could not reach agreement, the issue would be pushed up to the EEC Council of Foreign Ministers. In the background, EEC member states would also meet on a bilateral basis to discuss their concerns and there were also active diplomatic exchanges between ACP states and individual EEC member states. On a personal level, it seems likely that EEC Commissioner Cheysson was sympathetic to a human rights dimension. However, whether out of personal inclination or political reality, he envisaged that dimension as no more than a preambular reference and an accompanying unilateral EEC statement and not, as the UK was proposing, an operative mechanism enabling aid to be cut off. To that extent, therefore, he was prepared to express his support publicly: ‘We must protect basic rights, the right not to be tortured, the right to live and the right to seek redress in the courts.’256 In early discussions with UK officials he suggested ‘that in his many contacts with African heads of state or government he had found none who denied that the problem should be discussed. A large majority of ACP Ministers favoured a 255 ACP-EEC Consultative Assembly, Joint Committee, Minutes of the meeting from 28 November to 1 December 1977, Airport Hotel, Maseru (Lesotho) CA/CP/31 27 February 1978, Brief, Third ACP-EEC Council of Ministers, Brussels 13/14 March (1978), Annex II (Maseru Declaration) and III (Lusaka Resolution), NA FCO 98/330, ‘News Round-Up: The Convention at Work’, Courier, 47, January–February 1978, III, V and A. Young-Anawaty, ‘Human Rights and the ACP-EEC Lomé II Convention’, 81–83. 256 M. Hornsby, ‘Commissioner wants EEC aid tied to human rights standard’, The Times 27 January 1978, 7.

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reference in the preamble of the Convention’.257 His optimism, which seemed to take little account of the Lusaka Resolution, found some support in a September 1977 FCO survey on the attitudes of ACP states towards a human rights linkage. That survey concluded that although the main ‘offenders’ were ‘hostile’, and some, such as Nigeria and Liberia, would ‘resent’ a human rights clause, others, such as Botswana, Cameroon, Ivory Coast, Kenya, Liberia and Mauritius, could probably accept a human rights linkage, while Tanzania might support a linkage on a reciprocal basis to the EEC’s acceptance of the economic right of developing countries to a minimum standard of living. However, more realistic voices within the FCO felt that: ‘Cheysson’s assessment of ACP attitudes to the human rights problem may prove optimistic’ and therefore the possibility of agreeing a human rights clause would encounter ‘great difficulties … (and also in applying the provision afterwards if it goes into effect)’.258 A private discussion in early 1978 with Ambassador Asante (Ghana) confirmed such pessimism. As Asante explained, a human rights provision would be ‘very difficult’ as it would be alien to an essentially economic instrument …. He and … his colleagues were deeply concerned about human rights abuses … But when others outside Africa took this question up, the automatic African reaction was to close ranks. The vast majority of ACP states were opposed to any attempt to deal with human rights in … the Lomé Convention and would certainly never join in any condemnation, in that context, of an African regime.

He recognised the problem but ‘could never envisage the ACP agreeing to the withdrawal of aid to an ACP government or a provision that they might so agree. There could perhaps be a preambular reference … but after that the EEC would have to act unilaterally’. As for the idea advanced by Senegal of a cultural dimension, the majority of ACP states were opposed to that too in what was essentially perceived as an economic instrument.259 The first draft of the EEC’s negotiating mandate was released in mid-February 1978. It proposed a preambular reference to the obligation to observe fundamental human rights as ‘one of the guiding principles of the convention’, although this would not include the ‘political aspects of States, such as their system of government, freedom of the press, workers’ economic and social rights, etc.’. The EEC would also unilaterally declare ‘the right to voice publicly its condemnation of infringements of any of the principles or objectives laid down in the 257 Record of Conversation between Sir Donald Maitland and Commissioner Cheysson, Brussels 16 January 1978, NA FCO 98/307. 258 Maitland to Fretwell ‘Renegotiation of Lomé Convention’ 17 January 1978, NA FCO 98/307 and Brief, Third ACP-EEC Council of Ministers, Brussels 13/14 March (1978), Paras 16 and 17, NA FCO 98/330. 259 Coles to Jenkins ‘Lomé Renegotiation’ 18 January 1978, NA FCO 98/330.

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preamble … In the event of such infringement, the Community would not … break off contractual relations … but would adopt … special arrangements for the implementation of its aid to the ACP State concerned’.260 While for the present the UK was content that human rights were now firmly on the negotiating table, it was not yet prepared to concede on an operative mechanism. To that extent it regarded the European Commission’s draft as insufficient. Other EEC member states, however, were reluctant even to raise the question of a human rights preambular reference in view of what they perceived as absolute ACP objections. France, above all, in several meetings with UK officials, expressed strong opposition to an automatic linkage between human rights and aid. It argued that the ACP states were adamantly opposed and France itself was not prepared to contemplate the prospect of submitting to an investigation under a reciprocal arrangement that would have to be included as part of any package. As a compromise, though, France was prepared to accept a preamble reference ‘as a signal to ACP states which would enable the Community to make observations on human rights to the ACP from time to time’.261 In its first run-through of the draft negotiating mandate, COREPER’s ACP working party understandably noted that, given widely opposing views, a final decision on the human rights dimension would have to be decided at Ministerial level. At the ensuing discussion at the March 1978 EEC Foreign Affairs Council, French Foreign Minister de Guiringaud, supported by West Germany and Belgium, but opposed by the Netherlands and the UK, argued that the ACP states were sceptical about a human rights reference and that EEC interests would therefore be best served by not pressing the point. The only point which could be agreed was that there should be no public discussion of the question until an agreed EEC position had been reached. More immediately, it meant that the subject would not be raised by the EEC side at the March 1978 Brussels ACP-EEC Council of Ministers meeting.262 As President of the ACP Council of Ministers, Minister of Foreign Affairs and Foreign Trade Patterson ( Jamaica) therefore pointed out when asked at the post-ACP-EEC Council of Ministers meeting press conference: ‘The question of human rights was never raised … 260 Commission Memorandum on the Future ACP-EEC Negotiations for the renewal of the Lomé Convention, Strasbourg 15 February 1978 Com (78) 47 final, 9–10, NA FCO 98/308. 261 Baxter to Buist ‘Conversation with Mr Cornelis of the Ministère de l’Économie et des Finances’ 21 March 1978 and Summary record of discussion between Mr Fretwell and M. Froment Meurice at the FCO on Thursday, 30 March (1978), NA FCO 98/309 and Jenkins to Fretwell ‘Relations with France in the development field and renegotiation of the Lomé Convention’ 19 January 1978 enclosing Brief for Visit of M. Deniau 23 January 1978, NA FCO 98/307. 262 Maitland to Drace-Francis ‘COREPER lunch: 9 March 1978’ 10 March 1978, NA FCO 98/309.

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From the discussion I have had with individuals and delegations, there is clearly no unanimity of view within the EEC itself … Our position however is very clear … We believe that no extraneous matter should be imported.’263 With the ACP-EEC Council of Ministers meeting out of the way, in April 1978, in an effort to maintain some momentum in its push for an operative mechanism, the UK distributed a draft operative clause to the COREPER meeting: The Community may suspend any or all financial transfers or other measures provided for in the Convention and relating to Community aid in respect of any State where such transfers or other measures might be used to sustain gross and persistent violations of human rights contrary to the Charter of the United Nations and the Universal Declaration of Human Rights.

The contrivance underlying this draft, as it would be with subsequent EEC texts, was to reference existing international human rights agreements, such as the UN Charter and the UDHR, to which it was believed the ACP states had signed up, and therefore to which they could hardly object.264 To support its case, UK Ministers continued to sound out EEC member states on a bilateral basis and also to attempt to keep EEC Commissioner Cheysson on-side. For example, in April 1978, Minister for Overseas Development Hart informed Foreign Secretary Owen that EEC Commissioner Cheysson had advised that the main opposition was still coming from Denmark, France and West Germany and that Belgium too was sceptical; West Germany because it felt vulnerable to reciprocal ACP criticism of its ‘Gastarbeiter’ policy. Nonetheless, he remained hopeful that he could convince a number of ACP countries to accept a human rights provision. To her surprise, she had also been informed directly by Development Minister Østergaard that Denmark was unenthusiastic about an operative clause.265 In bilateral discussions with Chancellor Schmidt (West Germany), Prime Minister Callaghan was also warned that while an operative clause might be desirable, it was unlikely to be acceptable.266 As was to be expected, France again counselled that the nineteen Francophone ACP states were totally opposed and that a number of ACP Ambassadors had lectured them that they could accept no interference in their internal affairs or any mention of human rights; although Foreign Secretary Owen suspected, with considerable 263 ‘Interview, P. J. Patterson, Chairman of the ACP Council of Ministers’, Courier, 49, May–June 1978, 3–7 (reference from K. Arts, Integrating Human Rights into Development Cooperation: The Case of the Lomé Convention, 170). 264 Renegotiation of the Lome Convention: Human Rights Maitland 13 April 1978, NA FCO 98/331 and EEC/ACP Ministerial Conference on Lome renegotiation Brussels 24/25 May 1979, Index of Briefs: Human Rights, 55–60, NA FCO 98/598. 265 Hart to Owen ‘EDF aid to Uganda’ 13 April 1978, NA FCO 98/330. 266 Cartledge to Vereker ‘Prime Minister’s discussions with Chancellor Schmidt 24 April: North/South dialogue and Lomé II’ 25 April 1978, NA FCO 98/310.

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justification, that this was because France was feeding them details of internal EEC disagreements.267 Indeed, at the 1979 Kigali Franco-African Summit meeting, the African states would reiterate their wish for France to represent their concerns to its EEC partners.268 By the end of May 1978, therefore, Foreign Secretary Owen was realistically advising colleagues that, while it might be possible to accept a deal without an operative clause, some sort of catch-all arrangement would still be needed.269 By mid-1978, noises were also emerging out of Nigeria suggesting that it would refuse to sign ‘if the EEC continues to press for human rights provisions’. An insistence on a human rights clause ‘could wreck the Lomé convention’. While the importance of human rights was not in dispute, the Lomé convention was not the place for such a discussion which was in any event neo-colonialism in practice.270 In his briefing meeting with EEC representatives in Khartoum during his visit to Africa, EEC Commissioner Cheysson also warned of difficulties. He explained that, although he intended to use black Africa’s desire for human rights in South Africa as a means of obtaining their acquiescence to a preambular reference, he anticipated grave objections to the possibility of cutting off aid as even President Kenyatta and President Nyerere had called for aid to be restored to Uganda as its withdrawal had had the unfortunate side-effect of opening the door for the Soviet Union to extend its influence in the region.271 However, with the deadline for negotiations with the ACP states looming, some formulation of the EEC’s opening position had to be agreed so that it could be presented to the ACP side. It was therefore suggested by COREPER that the European Commission should prepare a draft preamble for consideration by member states who otherwise remained divided on the issue of an operative

267 Prendergast to Jenkins ‘EEC Foreign Ministers Informal Weekend Lomé – Human Rights’ 26 May 1978, NA FCO 98/331. 268 MFI France Diplomatie ‘Special file about the 24th France-Africa Summit’, http:// www1.rfi.fr/actufr/articles/038/article_20040.asp, last accessed 29 May 2023. 269 Lome Renegotiation and Human Rights Moss EID to Fretwell/Judd 30 May 1978, NA FCO 98/331. 270 Falle, ‘Visit of Select Committee on Overseas Development to Lagos: Human Rights and the Lomé Convention’ 18 May 1978, paragraph 2, NA FCO 98/331 and Nigeria and the Lomé Convention, Falle to Johnson 11 September 1978, NA FCO 98/333; see also Africa Confidential, 19/14 2 July 1978, 8 and C. Clapham, Africa and the International System, 99–101 for Nigerian assessment of the Lomé Convention as disguised French neo-colonialism. 271 Carden to Torry ‘The European Community, its contribution to the Sudan’s development, and its potential vis-à-vis the OAU’ 10 July 1978 enclosing Annex A: Notes by the British Ambassador on a conversation between M. Cheysson, Commissioner for Development in the Commission of the European Communities and the Community States’ representatives in Khartoum on 3 July 1978, NA FCO 65/1980.

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clause.272 The resulting draft broke new ground in that it was more limited in its scope of rights to be referenced than had hitherto been imagined; the UDHR having always been the obvious reference point. It also made references to ‘man’, ‘human dignity’ and ‘aspirations to economic and social well-being’, phrases designed to appeal to the African states not least the Senegalese: CONVINCED that man is the central object of their cooperation; that this cooperation must aim to satisfy the basic needs of the peoples, particularly in their aspirations to economic and social well-being, and contribute towards achieving the full development of all aspects of human potential, with respect for the dignity inherent in all members of the human family; that these objects include in particular adequate opportunities as regards education and health as well as the right to life, liberty and protection against degrading treatment; AFFIRMING that each of them is resolved to respect, and ensure respect on his territory for, the basic human rights listed in Articles 3 and 5 of the United Nations Universal Declaration of Human Rights, and that he accepts the obligations arising therefrom;273

The intention was that alongside this preambular statement a unilateral declaration by the EEC would be annexed to the convention. This would enable the EEC to pronounce publicly on major violations of the principles and aims set out in the preamble and to limit cooperation in such a way as would ensure that those principles and aims would be met.274 However, any hopes that such an arrangement, as France argued, might serve as a disguised operative mechanism enabling aid to be suspended were immediately dispelled by the EEC Council Legal Services. Its officials made it clear that, even if such a statement was unopposed by the ACP states, the EEC could not rely on either the preamble or the unilateral declaration as a legal basis for suspending aid.275 It was at this point that the Dutch National Advisory Council for Development Cooperation published its interim report on the Lomé II negotiations. It recommended that the European Commission’s draft preamble text should be expanded so as to incorporate the UDHR in full. An alternative preambu272 Telegram Maitland ‘Council (Foreign Affairs) (Luxembourg) 6 June Lome renegotiation’ 6 June 1978, NA FCO 98/311. 273 Commission of the European Communities COM (78) 252 final ‘Recommendation for Council Decision’ 9 June 1978, 3, Annex II, NA FCO 98/311 and EEC/ACP Ministerial Conference on Lome renegotiation Brussels 24/25 May 1979, Index of Briefs: Human Rights, 55–60, NA FCO 98/598. 274 Jenkins to Fretwell Lome Renegotiation; 20 June 1978, NA FCO 98/311. 275 European Communities, The Council, The Legal Service, Note: New ACP Convention and Human Rights, Brussels 16 June 1978, NA FCO 98/332 and Telegram Number 3737 Lome Renegotiation: Human Rights 15 June 1978, NA FCO 98/332.

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lar reference was therefore proposed by the Netherlands in which the limiting reference to simply Articles 3 and 5 of the UDHR was removed: ‘Resolved to respect and observe human rights and basic freedoms in accordance with the principles in the UN Charter and the Universal Declaration of Human Rights.’ Moreover, that a jointly administered supervisory mechanism should monitor the observance by all parties of human rights.276 The various options were discussed by COREPER at the end of June. The UK’s option for an operative mechanism was supported by the Netherlands, with some reservations, and to a lesser extent by Belgium, who observed that the European Commission’s preamble text would not have authorised the Uganda Guidelines; Denmark, Italy and Ireland were largely non-committal; West Germany and France were opposed; and Luxembourg strongly doubtful. Summarising the EEC’s consensus at the end of June 1978, COREPER noted agreement on a reference in the preamble to ‘the principles set forth in the United Nations Charter, together with a reference to the Universal Declaration of Human Rights’, although the precise nature of the UDHR reference was not agreed. In terms of an operative mechanism, there were three options still under discussion: No mechanism beyond the preambular reference; a suspension provision as proposed by the UK or variant thereof such as an amended Article 92; and a unilateral declaration by the EEC. With time pressing, it was therefore agreed that given the continuing differences of opinion the focus should be on the negotiating mandate not the precise drafting which could be dealt with later.277 Further discussion of the various options was referred up to the June 1978 EEC Foreign Affairs Council at which the negotiating mandate was finally agreed. In terms of human rights, four options were considered: 1: Preambular reference; 2: Operative clause; 3: An amended Article 92 suspension clause; and 4: Unilateral declaration by the EEC. The UK and Netherlands supported options 2 and 3, the Netherlands taking a hard line that the European Commission’s text was inadequate: ‘A simple reference in the body … or its preamble … seems to be insufficient’; France, West Germany, Italy and Denmark favoured a simple preambular reference; and the Belgians, Irish and the European Commission a unilateral declaration. France, in particular, argued that there should be no operative clause as the ACP countries would cause trouble over the treatment of EEC immigrant workers and the EEC would also have to constitute a bothersome tribunal to handle disputed cases of human rights abuses; while West Germany argued that an operative clause would be so diluted by negotiation as 276 (Dutch) National Advisory Council for Development Cooperation, Interim Recommendation on the Renewal of the Lomé Convention June 1978, 3–4, NA FCO 98/314 and EEC/ACP Ministerial Conference on Lome renegotiation Brussels 24/25 May 1979, Index of Briefs: Human Rights, 55–60, NA FCO 98/598. 277 Telegram Maitland ‘Committee of Permanent Representatives (Ambassadors), 22 June, Lome Renegotiation: Human Rights’ 22 June 1978, NA FCO 98/332.

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to risk becoming meaningless. Without an immediate possibility of a consensus, it was decided that the mandate should simply underline the EEC’s concern over human rights and flag that the issue should be covered during the negotiations.278 Discussion then moved on to the EEC’s opening statement at the launch of the negotiations. There was general agreement that the opening statement should merely reference the significance of public opinion to the issue of human rights. Rather surprisingly, Foreign Minister Owen was the least enthusiastic on the basis that he felt it might be regarded as provocative and unnecessarily premature. He also advised that the UK might finally opt for a unilateral declaration although he doubted too whether even that would be acceptable to the ACP states. Although therefore a form of words was agreed for the negotiating mandate and the opening statement, in reality the EEC had still not made even a semblance of a decision on how a human rights dimension might, if at all, be incorporated into the successor agreement. Or rather that the inevitability of surrender had not yet fully sunk into the consciousness of some of the EEC member states.279 As a result, at the official opening on 24 July 1978, the statement by Foreign Secretary Genscher (West Germany), as President of the EEC Council of Ministers, was rather vague on the question of human rights. He pontificated that ‘relations must be founded on the principles which form the cornerstone of liberty, justice and peace in the world, as incorporated in the United Nations Charter and the Universal Declaration of Human Rights … the Community wishes to emphasise at this juncture the very great importance it attaches to respect for basic human rights’. In contrast, the President of the ACP Council of Ministers, Minister of Foreign Affairs and Foreign Trade Patterson, was very clear on the position of the ACP states. He advised that ‘our concern for human rights is no less than yours. But we have … a unanimous view that this has no place in an agreement that deals with trade and economic cooperation. We are all members of the United Nations. We subscribe to the Charter of that body and to the resolutions which have been passed in a forum which has the necessary legal competence.’ Speaking afterwards to journalists, he reiterated that the ACP states accepted the importance of human rights and as members of the UN had subscribed to both the UN Charter and the UDHR, indeed the UDHR had also found a place in the constitutions of many ACP states, but that the convention was not the place for human rights: it was an ‘unnecessary feature’.280 278 Negotiating Brief in respect of the ACP-EEC Convention, I/183e/78 (ACP28 FIN44) June 1978, NA FCO 98/312 and Telegram Maitland ‘Foreign Affairs Council: 26/27 June (Luxembourg) 27 June 1978, NA FCO 65/1980; see also Arbuthnott to Fitzherbert ‘Lomé Renegotiation’ 29 November 1978, NA FCO 98/316. 279 Coles to Maitland ‘Lome Renegotiation’ 28 June 1978 and Telegram Maitland ‘ACP Working Party, 7 July, Lome renegotiation: Community Opening Statement, Summary’ 11 July 1978, NA FCO 98/312. 280 ‘The Convention at Work: Negotiations Open on New ACP-EEC Convention’,

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Following the summer break, negotiations began in earnest in September 1978 with the EEC still undecided and bilateral discussions between EEC member states and between EEC member states and ACP states now a constant feature of the process. The ACP states in particular, led by Ambassador Asante, made a concerted effort to visit all EEC states. For example, in October 1978, ACP Ambassadors met with the UK. They were primarily interested in the economic side of the negotiations whereas the UK saw it as an opportunity to explain the limited objective of an operative mechanism and the need to carry public opinion in Europe so as to ensure continuing support for development aid. Responding, Ambassador Asante ‘suggested that the UK displayed a double standard when her economic interest so dictated, but agreed that the problem should be faced’. He therefore challenged the UK to produce a draft, no doubt aware that this would be difficult in view of internal EEC disagreements, but also warned that, while the ‘ACP were prepared to talk … it would be very hard to provide an acceptable text’.281 In a further private conversation with Minister of State Judd, Ambassador Asante was more conciliatory but still firm that some ACP states would not welcome any form of discussion of human rights at the forthcoming ACP-EEC December 1978 Ministerial meeting.282 In November 1978, it was the turn of the Dutch to welcome the ACP Ambassadors. Relaying the outcome of this visit, Dutch officials advised their UK counterparts that they had ‘been surprised by the strength of the reaction … on human rights’. The ACP Ambassadors had explained that, sympathetic though they might be to the principle espoused by the Netherlands, it nonetheless ‘smacked of paternalism and harked back to old colonial attitudes’; Ambassador Asante had also threatened that insistence on an operative clause would mean no new convention. Accordingly, notwithstanding his speech of welcome, which had called for a substantive solution to the human rights question to be found, and having talked tough only three weeks earlier in bilateral talks with the UK, Minister for Development Cooperation de Koning was now inclined to a more flexible approach to the question of an operative clause and was contemplating alternative solutions. Dutch officials also reported that ‘the Second Chamber have also expressed their doubts about an operative human rights clause’. The Netherlands therefore advised that it ‘would not be able to maintain their forthright stand for an operative human rights clause’, although ‘they still firmly believe that a preambular reference on its own would not be enough’. For that reason, they were reaching the conclusion that a unilateral declaration would also be needed. They Courier, 51, September–October 1978, I–III and Bureau d’Information Européennes, ‘Dossier: Lome II’, Brussels August 1978, NA FCO 98/313. 281 Record of a meeting between the Minister of State and a delegation of African, Caribbean and Pacific (ACP) Ambassadors from Brussels, held at the Foreign and Commonwealth Office at 10.30 on Friday 20 October 1978, NA FCO 98/326. 282 Coles to Fitzherbert ‘Human Rights’ 21 November 1978, NA FCO 98/334.

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explained that ‘the Dutch had taken a hard line because they had to show that they were being active on human rights (as) The Ministry were about to deliver a substantial report on the Netherlands and human rights … which would no doubt eventually be debated’. The Dutch were also becoming concerned about the potential impact of reciprocity and feared the ACP states could manufacture accusations and suspend other parts of the convention such as investment protection. Moreover, they had now also concluded that mutual discussions before a suspension for gross violations of human rights could be actioned would make it impossible for the EEC to suspend aid.283 Concerned at the withdrawal of, effectively, their only ally, UK officials sought an explanation as to the change of heart. In further discussions, Dutch officials explained that their two Ministers, particularly Minister for Development Cooperation de Koning, were weak and inclined to agree with the last argument put to them. On the one side, they acknowledged the reality of the objections of the ACP states and the practical difficulties that it would raise, as the French were pointing out, but, on the other side, they were also most aware of domestic Parliamentary pressure for a strong human rights clause and the political impact of the forthcoming human rights White Paper. It was therefore likely, as indeed would happen, that the Dutch would return to the fray.284 Fundamental differences between the EEC and the ACP states were further exposed at the May/June 1978 St George’s (Grenada) meeting of the Joint Committee. In his presentation of the draft report and Final Declaration, Guillabert (Senegal), the rapporteur, had proposed that, in respect of human rights, ‘all should be allowed to make a clear commitment, but that delegates should not be influenced by facile propaganda’. This point was taken up by several EEC representatives, not least EEC Commissioner Cheysson who reiterated the EEC view that a human rights dimension should be included. However, although they received some support from the representative of Surinam, it was strongly opposed by several African representatives. For example, the Rwanda represent283 Summary record of discussion of Lome II/Human rights between the Minister of State and the Netherlands Ambassador and officials at the FCO on 9 November 1978 at 10.15, NA FCO 98/333, Fitzgerald to Budd ‘Lomé II Human Rights’ 15 December 1978, NA FCO 98/334 and Fitzgerald to Budd ‘Visit to the Netherlands of ACP Ambassadors’ 1 December 1978 and European Communities, The Council, Brussels 5 December 1978 Note, Negotiation of the new ACP-EEC Convention, NA FCO 98/317. The reference is to Memorandum presented to the Lower House of the States-General of the Kingdom of the Netherlands on 3 May 1979 by the Minister for Foreign Affairs and the Minister for Development Cooperation; for background on this paper, see P.R. Baehr, ‘Concern for Development Aid and Fundamental Human Rights: The Dilemma as Faced by the Netherlands’, Human Rights Quarterly, 4/1 (1982), 39–52. 284 Shepherd to Fitzherbert ‘Lome II: Human Rights’ 9 March 1979, NA FCO 98/614.

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ative expressed his belief in human rights and his regret at frequent violations, but he included ‘the ability to sell products at a fair price’ as a human right. Moreover, he castigated polemical attacks on ACP states and stressed his outright opposition to pressure through sanctions, ‘the ACP states being no more blameworthy than others in this respect’. Similar sentiments were expressed by the Uganda representative, who referenced Uganda’s membership of the CHR as evidence of its support for human rights; the Guinea representative, who believed that the discussion should centre on the rights of people not individuals in that: ‘One particular concept of human rights could not be applied in all regions and in all systems’; and the Senegal representative who ‘stressed that the human rights’ (sic.) question could damage Lomé; social values in each region were different and the ACP countries believed their values to be more profound’. In his summing up, Guillabert emphasised the delicacy of the issue: ‘Europe should not adopt an attitude that would create doubts among ACP states. Neither should Europe give the impression that it wished to set itself up as a judge. ACP countries saw Europe’s present stage of development as socially egotistical.’ Ultimately, although opposed by Ethiopia and Uganda, who wanted to exclude any reference to human rights, the Final Declaration reflected Guillabert’s warning ‘that the question of a reference to human rights in the future Convention should, when the time comes, be approached with great care and a high sense of responsibility; there must be no complacency or prejudice, nor must this matter be used as a veiled pretext for interfering in the internal affairs of the Member States of the Convention.’ Several ACP representatives also spoke out against the cultural dimension proposed by Guillabert and so this idea was eventually dropped. In contrast, the Joint Committee was more than happy to follow up on the December 1977 Maseru Joint Committee meeting’s resolution by appointing a joint ACP-EEC Working party to draft proposals designed to guarantee respect and protection of rights for ACP nationals who regularly resided in EEC states.285 By the time the Joint Committee’s Final Declaration was debated at the September 1978 Third Meeting of the ACP-EEC Consultative Assembly the differences had become even more polarised. President of the ACP Council of Ministers Minister of Finance Tapa (Tonga) began by reiterating that: ‘The ACP countries would not accept any provisions which could be interpreted as compromising the sovereign right of a state to conduct its own affairs as it judged appropriate … Attempts to include provisions on this matter, especially 285 ACP-EEC Consultative Assembly, Joint Committee, Minutes of the Meeting from 29 May to 1 June 1978 St George’s Grenada (West Indies) CA/CP/51 14 July 1978 and ACP-EEC Consultative Assembly, Joint Committee, Final Declaration CA/ CP/51Final 1 June 1978; see also ACP-EEC Consultative Assembly, Joint Committee, Minutes of the meeting from 28 November to 1 December 1977, Airport Hotel, Maseru (Lesotho) CA/CP/31 27 February 1978, Annex 1-b.

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where they could give grounds for selective measures against any one ACP State, would be rejected out of hand.’ The point was also made by Guillabert in his presentation of the Joint Committee’s report and its proposed resolution. He referred back to the 1977 Maseru Declaration’s recommendation that human rights ‘should find expression in the new convention’ but added that while the ACP states ‘attached importance to the respect of human rights, particularly as regards migrant workers … any reference in the Convention to fundamental rights should merely provide the opportunity for all the partners to demonstrate their common determination to guarantee those rights and not provide a pretext for interference in the internal affairs of other members of the Association’. In the speeches that followed, Prescott (UK) returned to his brief of a human rights clause, albeit in the form of a mea culpa that acknowledged British human rights failings of the past: It was not for Europeans to moralize to other parts of the world – especially as Europe’s own history ‘reeked of blood’. Nevertheless the new Lomé Convention should include a clause on human rights. Others argued that human rights should be the preserve of the United Nations or described European interest in them as a form of “moral colonialism”: they maintained that Lomé was essentially economic and commercial.

But, he said, if the ACP states could call the EEC states to account for their treatment of migrant workers or dealings with South Africa, why could the EEC states not question events in Uganda or the CAR; it was not a one-way process. He was opposed by a range of ACP representatives: Ramathan (Uganda) declared that: ‘Any attempt to include a clause on human rights would be tantamount to blackmail of the ACP countries by the EEC’; Kanu (Sierra Leone) that: ‘Attention was being diverted from the fundamental problems by raising emotional political issues. A creative dialogue could not be sustained by indulging in threadbare clichés about human rights … the main cause of violations very often proved to be poverty and greed’; Kombot-Naguemon (CAR), in reply to Prescott’s charges against the CAR, ‘asserted that human rights were respected in his country, and invited Mr Prescott to come and see for himself ’ and that ‘the members of the Assembly were not meeting to lecture each other on human rights, but to work out an agreement on mutual progress that would enable both sides to overcome their problems’; and Wollie (Ethiopia) who suggested that ‘human rights was being used as a lever against the ACP and a way of restricting their freedom to adopt social and economic systems of their own choosing. Given the wide cultural differences which existed between the countries concerned it was impossible to lay down a common definition of human rights’. The ACP representatives had also observed: that philosophies differed fundamentally … and that Europe therefore had no right to seek to impose its views on its partners … the fact cannot be ignored that the individual’s relations with the State authorities also depend

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on the country’s economic development … a distinction should be drawn in the non-observance of human rights between countries such as South Africa, where it was inherent in the State system, and other countries where violations … might occasionally occur as a result of a transient regime, all too often dependent upon a single man.

Summing up the debate, Guillabert argued that: a reference to human rights in the convention would be useful because the right of free movement of persons was not respected in Europe: in France, African workers were expelled while Frenchmen could enter African countries freely … A reference to human rights would be a powerful weapon for the ACP states in showing that the Europeans did not respect the rights of the individual … Mr Prescott’s critical remarks were out of place, since they had dealt more with foreign policy than with the question of human rights.

In view of the vacuity of the reference, despite further attempted amendments aimed at watering down the reference even further, the Joint Committee’s proposed paragraph on human rights was adopted. However, it was evident that it was only approved on the basis that it clearly represented no great threat to the ACP states.286 The ACP-EEC debate was also aired at this time at the 1979 CHR meeting which discussed the UN Secretary-General’s report on the ‘Right to Development’. The report had suggested that there was ‘widespread international interest in the concept of … links between … human rights and … official development assistance’, but this interpretation was virulently contested by the developing states.287 It prompted a resolution denouncing this conclusion and expressing concern that ‘qualitative and human rights conditions are being imposed in bilateral and multilateral trade policies with the intention and effect of perpetuating the existing structure of world trade’.288 The opening of internal EEC negotiations also aroused the interest of the UK House of Commons Select Committee on Overseas Development which in Jan286 ACP-EEC Consultative Assembly, Third Annual Meeting, Summary Report of the Proceedings, September 1978 Luxembourg, CA/63/64/65/fin, 9–42 and European Communities, The Council, Note: Meetings of the Consultative Assembly and its Joint Committee in Luxembourg from 25 to 29 September 1978, ACP-CEE/118/78ACP/553/78, 5–6, NA FCO 98/333. 287 UN E/CN.4/1334 1979 2 January 1979 ‘The International dimensions of the Right to Development as a human right in relation with other human rights based on international co-operation, including the right to peace, taking into account the requirements of the new international economic order and the fundamental human needs’, Report of the Secretary-General, paragraph 279. 288 UN ESCOR 1979 Session Supplement No. 6: CHR Report on the 35th Session, E/1979/36, 108–109 (CHR Resolution 5 (XXXV) 2 March 1979).

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uary 1978 began official hearings. In turn, Minister for Overseas Development Hart, Minister of State Judd and Foreign Secretary Owen, together with their officials, were invited to appear before them. When the issue of an operative mechanism was raised Foreign Secretary Owen and Minister of State Judd were both questioned aggressively, several Select Committee members pointing out, in line with the ACP argument, that it was a hypocrisy and double standard for the UK to trade with South Africa while insisting on human rights aid conditionality in a trade agreement with the ACP countries.289 Indeed, following their ‘fact-finding’ visit to West Africa, Foreign Secretary Owen, was given an especially rough ride when he presented his testimony. In the course of that visit, in meeting with Nigerian officials, they had been told that notwithstanding the importance attached to human rights, ‘in a broad world context’ the Lomé Convention was not the appropriate place for such an issue and that if pressed it was likely to endanger the whole process. This view had apparently been supported by UK High Commissioner Falle, who had pressed his personal views on the visiting Select Committee members in opposition to official government foreign policy, for which he was subsequently strongly rebuked by Foreign Secretary Owen.290 It was a point that the Select Committee had also been prepared to voice directly to the European Commission when they travelled to Brussels to meet with officials to discuss the status of the negotiations. To the astonishment of these officials, in view of the official British government position, all the members of the Select Committee were opposed ‘in varying degrees’ to the idea of a human rights dimension. They noted ‘the delicacy of the issue’; ‘the unacceptability of forcing Western concepts on developing countries’; and ‘the contradiction between threatening sanctions over human rights in Black Africa and refusing to use sanctions in South Africa’.291 The Select Committee’s report, issued in November 1978 together with observations from Foreign Secretary Owen, was not particularly supportive of 289 House of Commons, The Select Committee on Overseas Development, Minutes of Evidence Monday, 10 April 1978 Session 1977–78, The Renegotiation of the Lomé Convention, Mr Frank Judd, MP and Proof, Minutes of Evidence taken before The Select Committee on Overseas Development, Tuesday, 13 June 1978, Evidence heard in Public, Questions 592–673, The Rt Hon. Dr David Owen, MP, NA FCO 98/323. 290 Falle to FCO ‘Visit of Select Committee on Overseas Development to Lagos: Human Rights and the Lome Convention’ 18 May 1978, Jenkins to Hibbert ‘Human Rights and the Lomé Renegotiation’ 23 May 1978 and Telegram 554 Owen To Falle 24 May 1979, NA FCO 98/331 and Falle to Johnson ‘Visit to Lagos of the Select Committee on Overseas Development 13–18 May 1978’ 2 June 1978, NA FCO 98/332. 291 Coles to Jenkins ‘Select Committee on Overseas Development’ 20 March 1978, NA FCO 98/320.

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the British government’s negotiating position. In the main, it accepted the ACP case that mention of human rights was not appropriate in what was an economic convention ‘except to the extent that it may be said to be alluded to by the reference in the Preamble to “the principles of the United Nations Charter”’, and that it was hardly surprising that it should be regarded as neo-colonialist. In reply, Foreign Secretary Owen gratefully accepted the argument that public support for an expanding aid budget would be difficult to sustain if it was not possible to respond to flagrant disregard for human rights as in the case of Uganda. However, he did not accept that this could legitimately be described as neo-colonialist or as amounting to interference in the internal affairs of independent countries. Some mechanism was needed to emphasise the importance attached to civil and political rights.292 The European Parliament’s Committee on Development and Cooperation also took a keen interest in the negotiations. Following their report on the negotiations, in December 1978, they tabled a resolution declaring that the European Parliament: ‘Deems it necessary … to condemn the following violations against the human person: – political assassination or causing political opponents to disappear, – torture, – long periods of imprisonment without trial.’ Picking up on the resolution of the September 1978 Third Meeting of the ACP-EEC Consultative Assembly, of which the primary author of the committee’s report, Broeksz (Netherlands), had been a member, it also endorsed the view that the issue had to be approached ‘with great care and a high sense of responsibility, and that such a reference will undoubtedly apply just as much to the EEC as to the ACP states’. The committee also attached to their resolution the explanation that such references had to be included because aid could only be advanced if European political leaders enjoyed the support of public opinion: ‘For this reason alone some reference to human rights in the new agreement is necessary, desirable and in the interests of both the Member States and the ACP countries.’ However, although it took a firmer line than the Select Committee on Overseas Development, it then laid out the most abject counter-argument that simply demonstrated that there was no real European will to insist on a human rights dimension in the new convention: The concept of human rights is of course a very elastic one and what is found completely normal in one country will fill the inhabitants of another with 292 HMSO Second Report from the Select Committee on Overseas Development Session 1977–78: The Renegotiation of the Lomé Convention Vol. 1 Report (together with the Proceedings of the Committee) 12 July 1978, xiv–xvii and HMSO Cmnd. 7397 Miscellaneous No. 34 (1978), Second Report from the Select Committee on Overseas Development Session 1977–78: The Renegotiation of the Lomé Convention Observations by the Secretary of State for Foreign and Commonwealth Affairs, the Secretary of State for Trade, the Minister of Agriculture, Fisheries and Food, and the Minister for Overseas Development (London, 1978), 4.

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After the first few months of negotiating, it was clear that progress had been slow. The December 1978 ACP-EEC Council of Ministers meeting therefore assumed a greater importance as a forum in which the two sides might assess progress at a senior level and attempt to resolve issues of contention. For the UK, the key goal for this meeting was a discussion of human rights in principle and for the ACP states at least to agree that the issue should be jointly examined with a view to identifying a mutually satisfactory solution. Although the November 1978 EEC Foreign Affairs Council agreed that the EEC would raise the issue at the meeting, this agreement began to unravel as the detail of how it would it be raised was discussed at the next COREPER meeting. As a result, at the December 1978 Foreign Affairs Council, at French pressing but with wide support, a nuanced consensus was reached whereby, insofar as an EEC position had not yet been agreed, reference to human rights would be limited to the EEC speeches; although it could be discussed informally at Presidential contact group level on the basis of the July EEC opening statement, and the views of the ACP states sought. There was to be no plenary discussion. It was also made clear that EEC Commissioner Cheysson was not authorised to go beyond a discussion of principle.294 Accordingly, the EEC opening statement at the December 1978 ACP-EEC Council of Ministers meeting merely reiterated that EEC-ACP relations rested 293 European Parliament, Working Documents 1978–1979, Report drawn up on behalf of the Committee on Development and Cooperation on the negotiations for a new Lomé Convention 487/178 1 December 1978, 6, 17–18 and European Communities 1449/78 (ASS 958) Resolution on the negotiations for the renewal of the Convention of Lomé adopted by the European Parliament at the meeting of 14 December 1978, NA FCO 98/333. 294 Fitzherbert to Fretwell ‘Lome renegotiation: Human Rights’ 28 November 1978, NA FCO 65/1980, Maitland ‘Committee of Permanent Representatives (Ambassadors)’ 14 December 1978, Maitland ‘Foreign Affairs Council: Negotiation of the new ACP-EEC Convention’ 19 December 1978, NA FCO 98/317, European Communities, The Council Note: Extract from the summary of decisions taken by the Council at its 558th meeting on 18 and 19 December 1978, Brussels, 20 December 1978, NA FCO 98/318 and Telegram Owen ‘Lome renegotiation – Human Rights’ 7 December 1978, NA FCO 98/334.

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on the principles of liberty, justice and peace and the UN Charter and UDHR and the importance the EEC attached to a statement in respect of human rights. In contrast, the ACP opening statement made no reference to human rights focusing instead on its dissatisfaction with the level of aid offered and the rules-of-origin restrictions on ACP exports into the EEC.295 Discussion then moved on to the Presidential contact group. The EEC side included Minister of State Judd who attempted to persuade the ACP states that the question of human rights was in their own interest insofar as it impacted on public opinion in the EEC states and that the EEC simply sought a mutual discussion of how it should be handled. The ACP states responded that their position was unchanged and that it was up to the EEC to put forward a proposal – safe in the knowledge that the EEC had still to agree a position. Equally telling was the inclusion of Ambassador Odeke (Uganda) in the ACP Presidential contact team. He was therefore well-placed to respond to Minister of State Judd’s arguments with a strong rebuttal asking whether the EEC would impose similar conditions in its agreement with Israel or in its ‘treaties’ with South Africa. Every country, he suggested, had internal problems, for example, the UK in Northern Ireland, the Netherlands in the Moluccas. Uganda had suffered from delays in the aid programme, whose turn, he asked, would be next? In view of these fixed positions, the meeting concluded with the tired formula that further discussion was needed.296 Over the next three months the EEC was still unable to reach a consensus on human rights so that by the time of the March 1979 ACP-EEC Ministerial Conference there was still no draft to put on the table. In the less formal atmosphere of the Presidential contact group meeting, EEC Commissioner Cheysson once again reiterated the EEC’s desire to seek a mutual solution to the human rights question, although by now, privately, he was not optimistic that a solution beyond a preambular reference would be possible. However, his disclosure that the EEC states had still not reached an agreed position and that he was therefore speaking on behalf not of the EEC but of all quarters of opinion in the EEC could scarcely have encouraged the ACP states to compromise. Unsurprisingly, there was no meeting of minds and the discussion therefore merely churned over much the same ground covered three months earlier. This time, though, 295 Telegram Maitland ‘ACP/EEC Ministerial Conference 21 December: Human Rights’ 22 December 1978, NA FCO 98/334 and ‘The Convention at Work: Negotiations, ACP-EEC Ministerial Meeting in Brussels: Issues “Discussed in Depth”’, Courier, 53, January–February 1979, I–III. 296 Telegram Maitland ‘ACP/EEC Ministerial Conference 21 December: Human Rights’ 22 December 1978, NA FCO 98/334 and ACP-EEC Convention of Lomé ACP-CEE/165/78 Brussels 10 January 1979, Note, Negotiations of the new ACPEEC Convention – Outcome of the proceedings of the Ministerial Conference on 21 December 1978, Annex I and II.

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the ACP Ministers added another twist. It was difficult to talk about form, they said, before a definition could be agreed. As before, it was therefore left open for further discussion – the ACP states and many EEC member states were clearly in no hurry to reach an agreement as every impasse made more likely what everyone must by now have realised would be the inevitable dénouement.297 It was also not possible to agree a final negotiating position at the May 1979 EEC Foreign Affairs Council although the election of the new Conservative Party government was helpful. As the incoming government’s position was not clear, EEC Commissioner Cheysson had called on new Minister of State for Europe Hurd. The message he delivered was that, while he would continue to insist on a preambular reference, it seemed likely that the EEC would have to fall back on a unilateral declaration. Minister of State for Europe Hurd responded that, in the last resort, this would be acceptable to the UK; a position in essence probably little different from that of Foreign Secretary Owen who already in February 1979 had told EEC Commissioner Cheysson that he would probably accept whatever the European Commission thought right.298 However, at this point, the Dutch returned to the fray. The Dutch government had delivered a memorandum on ‘Human Rights and Foreign Policy’ to the Dutch Second Chamber which argued that withdrawal of aid was not intended as a stick to hold over developing countries but that ‘the crux of the matter is that the EEC’s contractual obligations under the convention should end at the point where provision of aid would lead to complicity in grave violations of the human rights’. As to how that was to be managed, it explained that: ‘Various ways of formulating a provision for this purpose can be imagined. The Government is trying to promote the finding of a formulation acceptable to both sides.’299 The Netherlands therefore put forward a new draft human rights preamble: ‘Determined to respect and to observe human rights and fundamental liberties in conformity with the principles of the Charter of the United Nations and the 297 European Communities, The Council, Brussels, 30 April 1979 Extract: Extract from the Draft Summary record of the ACP-EEC Ministerial Conference (Freeport, Bahamas 22 to 24 March 1979), NA FCO 98/596. 298 Buist to Vereker ‘Talks with Mr Cheysson’ 12 February 1979, NA FCO 98/593, Telegram Owen ‘Lome renegotiation: Human Rights’ 3 May 1979, NA FCO 98/614, Telegram Maitland ‘Lome Renegotiation’ 3 May 1979 and ‘Council of Foreign Ministers, 8 May, Lome Renegotiation: Human Rights and Duration’ 8 May 1979, NA FCO 98/615 and Fitzherbert to Budd ‘Lomé Renegotiation, M. Cheysson’s visit, 22 May’ 23 May 1979, NA FCO 98/598. 299 Memorandum presented to the Lower House of the States-General of the Kingdom of the Netherlands on 3 May 1979 by the Minister for Foreign Affairs and the Minister for Development Cooperation, 104–110 (reference from R.J.H. Smits, ‘The Second Lomé Convention, an Assessment with Special Reference to Human Rights’, 53).

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Universal Declaration on Human Rights.’ Alongside this reference, the Dutch also sought a unilateral EEC declaration, rather than the preferred UK option which by now was for an amended Article 92 that allowed for suspension of the treaty, which it also set out in a draft: The Community will take care to see that assistance under the Convention to a state which is a party thereto does not in any way result in the denial of fundamental rights in that state being perpetuated or intensified by virtue of such assistance. The Community therefore reserves the right to suspend its commitments regarding assistance from the EDF in the event of persistent, serious infringements of the human rights and basic liberties described in the preamble to the Convention, unless there are prospects of improvement in the short term in such a human rights situation.

It was not well received at the May 1979 Foreign Affairs Council and therefore no agreement was reached.300 At the May 1979 ACP-EEC Ministerial Conference, therefore, the EEC was just about still in agreement on the need for a preambular reference, but on little else. In response to the ACP request for a draft text, the European Commission put forward a watered-down draft: ‘INSPIRED by the will expressed on numerous occasions by the Member States, in particular in the United Nations, and REAFFIRMING that the present Convention must contribute towards the advancement, fulfilment and dignity of man/human person’. The ACP states were also advised at Presidential contact group level that the EEC would make a unilateral declaration ‘that the resources made available by it for the purpose of co-operation through the Convention in fact serve the aims stated therein. This declaration will be recorded in the Final Act.’301 Finally, at the June 1979 ACP-EEC Ministerial Conference, the ACP states announced their absolute refusal to accept any mention of human rights. Although their opposition was long-standing, their refusal was also fuelled by their considerable anger at what they regarded as the low level of financial assistance on the table from the EEC. In turn, the EEC indicated to its unhappy counterpart that it regarded the negotiations as having been concluded – the 300 Lome Renegotiation Unofficial Translation Dutch Text 8 May 1979 (Source: Dutch Embassy 3 May 1979), NA FCO 98/615, EEC/ACP Ministerial Conference on Lome renegotiation Brussels 24/25 May 1979, Index of Briefs: Human Rights, 55–60, NA FCO 98/598 and Telegram Maitland ‘Council of Foreign Ministers, 8 May, Lome Renegotiation: Human Rights and Duration’ 8 May 1979, NA FCO 98/615. 301 European Communities, The Council, Brussels 8 June 1979 Subject: ACP-EEC Negotiations, Annex VIII, 15 and T188/79 Rev 1 Report by the Council Secretariat circulated to the ACP Working Party 5 June 1979, NA FCO 98/599.

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key being a refusal to increase the financial package. The ACP states response was to break off negotiations. To tie-down the EEC negotiating stance, at the COREPER meeting immediately following the conference, France, which now held, and Ireland, which was due to assume, the Presidency, now insisted that, firstly, acceptance of the EEC offer should be regarded as the official EEC red line position and not open to further negotiations. Secondly, in view, of the general unhappiness of the ACP states at the offer, member states should not ‘make the ACP’s agreement to the package more difficult by unwise reference to this problem’ of human rights. In order, therefore, to push negotiations over the finishing line, the two Presidents of the ACP and EEC Council of Ministers agreed to meet and were finally able to reach a settlement. In matters of economics, trade and subsidies, it seems, the EEC were prepared to take a hard line, but when it came to human rights there was only a desire ‘to avoid unnecessarily upsetting the ACP’.302 That meant that, by the time of the 1979 Monrovia AHSG, all the OAU heads of state would have been aware that the EEC had backed down on a human rights reference – although given the information fed to them by France they had probably been aware of the inevitability of this outcome for some time. There was therefore no need to placate the EEC. Indeed, if at all, ACP anger at the financial package would have done nothing to encourage OAU member states to show willing on human rights. The way was therefore open for Lomé II to be signed on 31 October 1979. All the same, as the ACP states made clear in their signing speeches, they were still unhappy with what they regarded as an unsatisfactory settlement.303 It seems likely that, if the EEC had also insisted on a human rights dimension, the ACP would have been obliged to accept the terms offered although they would probably have also been able to negotiate a largely ineffectual wording. In terms of the human rights question, all that was therefore left for the EEC to decide was how implementation of Lomé II should be handled internally; whether there should be a unilateral declaration and/or some sort of internal decision along the lines of the Uganda Guidelines. This was to be discussed at 302 Telegram Maitland, ‘ACP-EEC Ministerial Negotiating Conference, Brussels, 25 to 27 June: Duration and Human Rights’ 27 June 1979, NA FCO 98/615, Maitland 28 June 1979 ‘Committee of Permanent Representatives (Ambassadors), 28 June: Lome Renegotiations: Follow-up to the ACP-EEC Ministerial Negotiations Conference of 25–27 June’ and Maitland Coreper Ambassadors New ACP/EEC Convention 5 July 1979, NA FCO 98/600, ACP-EEC Lome Convention Lesort EEC to Konate ACP Action to be taken further to the ACP-EEC Ministerial Conference of 25–27 June 1979, NA FCO 98/601 and Foreign Affairs Council, New EEC/ACP Convention Ref 8441/79 18 September 1979, NA FCO 98/602. 303 H.B. St. John, ‘The Groundwork of Our Continued Cooperation in the 1980s’, Courier, 58, November 1979, 4–6.

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the July 1979 EEC Foreign Affairs Council meeting. In advance, the Secretariat of the Foreign Affairs Council prepared a draft for COREPER to consider: The Council, CONSIDERING that the aims and objectives of the ACP-EEC convention contribute towards the promotion, development and dignity of man, DECIDES: When, in the Council’s view, these aims and objectives are consistently denied by a Contracting Party of the convention, the Council will consider the necessary action [to ensure that any assistance given by the Community does not in any way have as its effect a reinforcement or prolongation of that denial] (author square brackets).304

At the COREPER meeting, West Germany, France and Denmark proposed that the text should stop at the square brackets; Belgium preferred the full text, which France and Denmark could accept; alone the Netherlands ‘found it odd that there was no specific reference to human rights’. The UK found the text acceptable but were prepared to support Dutch efforts to insert a mention of human rights. The UK also expressed concern lest the declaration sour ACPEEC relations or provoke a counter-declaration that would serve to expose the differences between the two sides. A decision was therefore referred to the July 1979 EEC Foreign Affairs Council. Again, the UK and the Netherlands opposed West Germany’s proposal to delete the text in square brackets which ‘would omit the essence of the guidelines previously adopted for Uganda’. It was therefore left that, as the principle had been agreed and it was desirable not to adopt the decision until after the signing of the new convention, lest the ACP states learn of its existence, further discussion should be deferred.305 But when it was discussed at the September 1979 EEC Foreign Affairs Council, at the UK’s suggestion, discussion was deferred once again until after the signing of the successor agreement.306 At the September 1979 EEC Foreign Affairs Council, EEC Commissioner Cheysson also advised that as part of the final post-June 1979 negotiations it had been agreed that both sides would make identical references to human rights at the signing ceremony. This idea had emerged when EEC Commissioner Cheysson learned of Decision 115 at the July 1979 Monrovia AHSG. Somewhat breathlessly he had announced to the July 1979 EEC Foreign Affairs Council that ‘there was a new element in the situation’. Senegal had therefore ‘suggested the possibility of identical ACP and EEC declarations quoting the Monrovia resolution’ 304 General Secretariat of the Council, Brussels, 16 July 1979, Note: The New ACPEEC Convention, Annex II: Draft decision of the Council, NA FCO 98/601. 305 Council of Ministers (Foreign Affairs) Brussels 24 July 1979: New EEC/ACP Convention, Brief EID 19 July 1979, NA FCO 98/601 and Telegram Maitland ‘Foreign Affairs Council, 24 July: Lome renegotiation: Human Rights’ 24 July 1979, NA FCO 98/615 306 Telegram Maitland ‘Foreign Affairs Council 18 September New ACP/EEC Convention’ 18 September 1979, NA FCO 98/602.

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and informal discussions with eight African heads of state had encouraged him that this was a real possibility which would complement the internal EEC declaration. However, even this limited nod to human rights would not prove easy to finalise. As EEC Commissioner Cheysson now explained, although the idea had moved on to incorporate human rights references derived from both the July 1979 Monrovia AHSG and the August 1979 Lusaka Commonwealth Heads of Government meeting involving either the UDHR or ‘the dignity of man and basic rights’, ‘the ACP Committee of Ambassadors were still being difficult’. In the event, reference to the UDHR was not acceptable to the ACP states and it was most conspicuous by its absence from the speeches.307 In due course, therefore, at the signing ceremony at the end of October 1979 at Lomé, President of the ACP Council of Ministers Deputy-Prime Minister St. John (Barbados) commented that: as a group, our concern for human rights is no less than yours. Every signatory state here today is a member of the United Nations. All of us subscribe to the charter of that body and to the resolutions which have been passed in a forum which has the necessary legal competence. Those of us who are members of the Organization of African Unity have reaffirmed that intention at the level of heads of State in the now famous resolution in Monrovia in July 1979, and those of us who are members of the Commonwealth … adopted, also at the level of heads of State, a resolution expressing a similar concern in Lusaka in August this year.

In like vein, Foreign Minister O’Kennedy (Ireland), President of the European Council of Foreign Ministers, affirmed that: ‘In the words of the Lusaka Declaration, “We proclaim our faith in the inherent dignity and worth of the human person”, and this Convention, built on the solid foundation of these truths expresses our respect for those principles, which are also reiterated in the Monrovia Declaration (sic), and, indeed, in the Charter of the United Nations’. Finally, EEC Commissioner Cheysson elaborated on their shared concern for human rights but also expressed some regrets: Man, no matter where he may be, is entitled to respect for his dignity and his person … This principle was put forcefully into words in July by the African Heads of State in Monrovia and again in August by the Commonwealth Prime Ministers in Lusaka. They emphasized the importance that the peoples of Africa have always attached to respect for man’s dignity and his fundamental rights, and stressed that human rights cannot be reduced to 307 Telegram Maitland 24 July 1979 ‘Foreign Affairs Council, 24 July: Lome renegotiation: Human Rights’, NA FCO 98/615, Telegram Maitland ‘Committee of Permanent Representatives (Ambassadors), 13 September new ACP/EEC Convention’ 13 September 1979 and Telegram Maitland ‘Foreign Affairs Council 18 September new ACP/EEC Convention’ 18 September 1979, NA FCO 98/602.

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civil and political rights only, but also include economic, social and cultural rights … Perhaps this should have been stated in our Convention.308

Three weeks earlier, at the October 1979 Meeting of the ACP-EEC Consultative Assembly, EEC Commissioner Cheysson had also expressed his view that the EEC’s main regret about Lomé II was the ACP states’ refusal to mark in the preamble ‘our desire to respect human dignity’. He reaffirmed that the EEC had never demanded an operative clause, ‘that you give us the right to judge’, and added with ‘admiration’ and ‘respect’, although wistfully, that ‘the African heads of State meeting in Monrovia, without the presence of anyone from the outside, drew up and adopted a resolution which is in our opinion exactly what we wanted to say and show to our peoples’.309 The last nail in the UK’s human rights coffin was hammered in when, following the signing of Lomé II, the November 1979 EEC Foreign Affairs Council met to approve the text of the internal guideline. Although the UK and the Netherlands had pushed for a strongly worded text, West Germany now renewed its opposition to the clause in square brackets on the grounds that it circumscribed EEC action and meant that by failing to act in less serious cases the EEC would in effect be condoning human rights violations. As a result, the UK and the Netherlands were forced to concede to the majority view even though Butler, the UK representative, had said in debate that, without the clause, ‘it would mean little’. The small change recommended by EEC Commissioner Cheysson of an addition to the preamble of a reference to the joint human rights declarations of the signing declarations was, however, accepted. The guideline as now approved read: The Council, CONSIDERING that the aims and objectives of the ACPEEC convention include the promotion, development and dignity of man; TAKING INTO ACCOUNT the declarations relating to the fundamental rights of man made in Lomé on 31 October 1979 by the two Presidents of the ACP Council of Ministers and of the EEC Council on behalf of their Groups, DECIDES: When, in the Council’s view, these aims and objectives are consistently denied by a Contracting Party of the Convention, the Council will consider the necessary action.

308 Convention ACP-CEE de Lomé, Communautés Européennes Le conseil, Brussels 12 November 1979: Copies de discours, ACP-CEE 2205/79, NA FCO 98/604, H.B. St. John, ‘The Groundwork of Our Continued Cooperation in the 1980s’, M. O’Kennedy, ‘Solid Steps along the Road of our Cooperation’ and C. Cheysson, ‘Our Experiment has been Converted into a Policy, the Lomé’ Policy’, Courier, 58 November 1979, 4–9. 309 ‘ACP-EEC Consultative Assembly: ACP Complaints over new convention – Mr Cheysson evokes human rights question’, Europe Agènce Internationale d’Information pour la Presse No. 2766 (N.S.) 11 October 1979, 7.

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This was, as the UK and the Netherlands had previously argued, a considerable dilution of the Uganda Guidelines.310 In stages, therefore, the UK position was whittled-away until there was nothing left. There was, simply, no EEC will on this issue. What also emerges is the extent to which the EEC side, the European Commission, member states and Parliamentarians, sought to soothe the sensitivities of the ACP states who, whatever they may have otherwise sought to claim, were suppliants. In comparison, the ACP states were resolute from the outset against any human rights dimension and virulent in their condemnation of the attitude of the EEC states to South Africa. Undoubtedly, their position was buttressed by the openly expressed opposition of France and West Germany. Moreover, in a final irony, and in a stark display of ACP strength, Annex XV of Lomé II set out a ‘Joint declaration on workers who are nationals of one of the Contracting Parties and are residing legally in the territory of a Member or an ACP State’.311 In his formal despatch to Foreign Secretary Lord Carrington following the signing of Lomé II, Maitland, the UK’s Permanent Representative to the EEC, reviewed the process and outcome of the negotiations. He suggested that one of the main reasons why the UK had failed to persuade EEC member states that they should insist on a human rights dimension was that for the key period of the negotiations the EEC Presidency was held by France and Germany, neither of whom were sympathetic to the UK’s position. However, he suggested that the internal EEC decision to generalise the Uganda Guidelines, as he described it, might prove to be of greater significance than an explicit provision in Lomé II. Rather crassly, he also suggested that ‘it may also not be too fanciful to conclude that the new and relatively forthcoming stance on human rights adopted by the OAU meeting in Monrovia in July owed something to the stand taken by the Community in the context of Lomé II’. In reaching such conclusions, he seems to have forgotten the commentary of his own despatches. For example, the UK had argued at the July 1979 EEC Foreign Affairs Council that the effect of the German amendment to the European Commission draft of the new internal guideline ‘would omit the essence of the guidelines previously adopted for Uganda’. As for the idea that the stand taken by the EEC contributed to adoption of Decision 115, it is absurd wishful thinking on his part.312 310 Budd to Crompton Lome II: Human Rights and Investment Programme enclosing Decision of the Council of 20 November 1979, Telegram Butler ‘Foreign Affairs Council 20 November: The new Lome Convention’ 20 November 1979 and Hommel to Secretary of State for Foreign and Commonwealth Affairs 22 November 1979 enclosing Decision of the Council of 20 November 1979, NA FCO 98/615. 311 Lomé II Complete Text, Annex XV, http://www.epg.acp.int/fileadmin/user_ upload/LomeII_1979.pdf, last accessed 6 November 2016, 312 Maitland to Lord Carrington ‘The Negotiation of the new Lomé Convention’ 31 October 1979, NA FCO 98/604 and Telegram Maitland 24 July 1979 ‘Foreign

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The impact of the UK’s human rights foreign policy, which rose and fell with startling speed, can be easily dismissed on the basis of the outcome of its two main human rights initiatives. At the World Bank, too, Ryrie, the UK’s representative, reported that, in his experience of loan linkage, ‘no subject provided such complete unanimity; they all regarded the application of a human rights criterion as hypocritical’; accordingly, he ‘hoped to receive the minimum of instructions to abstain or vote against loan proposals’. It also became more widely known, as Minister for Overseas Development Hart had advised from the beginning, that voting at the multilateral financial institutions had to be based solely on economic grounds. Although the US delegation was faced with increasing instructions to vote on political grounds, the UK opposed this approach on the rather naïve grounds that it was more important to protect the ‘integrity’ of such institutions against the intrusion of political considerations.313 In terms of the UK’s overall stance on aid, in the last weeks of the Labour government, Minister for Overseas Development Hart had to admit that only two African countries had had their aid cut or significantly reduced on human rights grounds; these were Ethiopia and Uganda, although it was claimed that in other unspecified cases aid programmes were not initiated.314 Cunliffe in his study of the UK’s aid assistance programme and its relation to the human rights policy came to a broadly similar conclusion. His conclusion was that ‘there is little evidence to assume that the Labour Administration was radically prepared to utilize the aid programme to promote international human rights’ or of a shift in the aid priorities of the 1974–79 Labour government in comparison with the 1970–74 Conservative government as a result of a human rights re-evaluation. In particular, he noted that aid had been increased to Egypt, Malawi, Sudan, Swaziland, Tanzania and Zambia, all of whom were of concern to AI – although some of this increase was probably the result of the redistribution of aid previously advanced to Uganda.315 The coup de grâce of the UK’s human rights policy was essentially delivered by Under-Secretary of State Luard as early as August 1978 when he wrote to Foreign Secretary Owen that:

Affairs Council, 24 July: Lome renegotiation: Human Rights’, NA FCO 98/615. 313 Note of an Inter-Departmental meeting with W. S. Ryrie (UK Executive Director, World Bank) 24 November 1977, NA FCO 59/1499 and Maud to UK Head of Mission ‘Report of discussions with US counterparts’ 25 October 1978, NA FCO 65/2050. 314 Minister of Overseas Development Hart answer to Written Question by Sir Frederic Bennett, House of Commons 5 March 1979. 315 S.A. Cunliffe, ‘British Economic Aid Policy and International Human Rights: A Comparative Analysis of Conservative and Labour Policies in the 1970s’, Political Studies, 33/1 (1985), 101–112.

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The alternative, he now proposed, was a new approach of ‘positive policies’ which involved no cutting off of aid or diplomatic relations but, rather, more intensive contacts. It was to all intents and purposes even less than what Foreign Secretary Owen had abhorred as ‘gutless’ a year earlier. In response, Foreign Secretary Owen admitted that many of these ideas were already agreed but he also expressed a preference for being presented with specific rather than general ideas, noting that the mix between positive and negative policies should be determined on a case-by-case basis. He suggested therefore that Under-­ Secretary of State Luard should put forward some specific proposals for individual countries.316 In subsequently setting out his specific ideas Under-Secretary of State Luard focused on three Asian and two Latin American countries but the extent of his proposals barely amounted to more than two-way exchange visits of professionals in various fields. It was a far cry from what had been envisaged only two years earlier.317 There is also some evidence to suggest that Foreign Secretary Owen, too, was now inclined to assign a lesser priority to human rights considerations in his foreign policy. In a remarkable paper presented to the Cabinet on ‘Africa’, he argued for an increase in aid largely as a response to Soviet interventions and to ‘consider also whether there is greater scope for politically motivated aid focussed where political instability threatens’. Almost as an afterthought, he suggested ‘we should also be prepared to make aid conditional on political and economic reform, as in Zaire’. The essential irrelevance of human rights considerations also emerged in the ensuing discussion in Cabinet which agreed that: although we should not overestimate our ability to influence events, we should be ready to consider giving aid to countries which might not normally qualify for assistance where it was in British interests to see their political and economic structures preserved … Our present strategy … did not preclude the use of aid in support of our general political interests in Africa. It would, however, be a major new departure if aid in future were to be conditional on 316 Luard to Owen 2 August 1978 and Wall to Luard ‘Human Rights Policy 7 August 1978, NA FCO 65/2050. 317 Luard to Goronwy-Roberts/Rowlands/Secretary of State ‘Human Rights Policy’ 14 November 1978, NA FCO 58/1414.

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political and economic reform, as in the case of Zaire. It was important that we continued to implement our strategy on the present case-by-case basis.318

These increasing doubts about the application of human rights considerations to aid decisions were also reflected in a 1978 FCO policy statement. It reported that there were bilateral and more flexible means of making representations to ‘offenders’, but few examples were given of how these representations had been applied in Africa beyond the claim that no new aid commitments had been advanced to Ethiopia and that the Uganda aid programme had been phased out in 1972. Moreover, it also pointed out that: ‘Human Rights are only one of many factors bearing on foreign policy’; and that trade restrictions were potentially ‘harmful to British reputation and risk profile in that it might hand markets to our competitors’.319 The following year, as a result of the election in May 1979 of a Conservative government led by Prime Minister Thatcher, several weeks before Decision 115 was proposed, the idea that human rights should be a primary consideration of UK foreign policy died a death as it would do in the US in November 1980 as a result of the election of President Reagan. It was therefore hard to imagine that in the immediate future UK foreign policy harboured any further thoughts of putting African states under any pressure to adopt a regional human rights regime.

France In reality, the only Western country with real influence in Africa was France whose political leaders and officials enjoyed a close personal relationship with many of Francophone Africa’s political leaders.320 Whereas US Presidents had delegated decision-making on African issues, the importance which France attached to Africa was reflected in the close management of African ‘cooperation’ policy by successive French Presidents. Moreover, France was prepared to back up those relationships with substantial economic and military support. Indeed, as both Martin and Luckham point out, notwithstanding its official stated policy of non-interference, in defence of its interests, France was prepared to intervene militarily in Africa; about twenty times between 1963 and 1983. Moreover, as Schmidt notes, most of these interventions were in response to internal threats to client political leaders. As of 1977, France had also signed military technical assistance agreements with fifteen African states. It had also provided open or tacit support for several coups – for example, Olympio (Togo) 1963, M’ba 318 Memorandum by the Secretary of State for Foreign and Commonwealth Affairs, CP (78) 66 26 June 1978, NA CAB 129/201/16 and Conclusions of a Cabinet Meeting 29 June 1978, NA CAB/128/64/4. 319 HMSO, British Policy towards the United Nations (London, 1978), 15–17. 320 The influence of the French on the West African elite is specifically elucidated in Seaton ‘The French and Senegal’ 1 July 1980, NA FCO 65/2393.

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(Gabon) 1964, Keita (Mali) 1968, Diori (Niger) 1974, Ngouabi (Congo) 1977 and Ould Daddah (Mauritania) 1978.321 In October 1977, UK Ambassador to France Henderson reported to Foreign Secretary Owen that President Giscard was set on a new foreign policy approach towards Africa. Where previously policy was centred on the former French colonies and on developing export markets, particularly in South Africa, it now envisaged a wider role encompassing all of Africa. It described this new role as ‘a political vocation for Europe in Africa’ and justified it on the basis that ‘Africa’s and Europe’s economic future and existence are closely interdependent’ – although this view was not shared by all of France’s EEC partners, many of whom were uneasy about France’s military interventions in Africa. The major driving force of this new policy was France’s concern at ‘the spectre of a Communist swathe sweeping diagonally across Africa’. It therefore wanted ‘to show that African states should not feel that they were abandoned by their friends’ and this had been one of the key factors underlying France’s support for Zaire at the time of the 1977 and, subsequently, the 1978 Shaba invasions. Another element of France’s new foreign policy was its fear that US aid might serve to displace France’s pre-eminent diplomatic status in Africa. Accordingly, whereas in the mid-1970s the UK aid budget was constrained by domestic economic considerations, as a matter of deliberate political priority, the French increased their 1978 aid budget by 17 per cent. In support of this ‘new’ policy, President Giscard and Foreign Minister de Guiringaud also embarked on a wide range of meetings with the leaders of the non-Francophone African states. As Foreign Minister de Guiringaud explained in July 1977: ‘France wishes to show itself interested in the forty-nine African States who play an important role on the international scene … It seems important to intensify the specifically political dialogue.’ One result of these meetings, though, was to expose France to harsh criticism from, among others, President Nyerere and President Machel for its military interventions and its historic policy of supplying arms and nuclear reactors to South Africa. Winnie Mandela was also alleged to have said: ‘France is against us; our children have been killed by French arms.’ These criticisms would persuade 321 G. Martin, ‘The Historical, Economic, and Political Bases of France’s African Policy’, Journal of Modern African Studies, 23/2 (1985), 189–208, R. Luckham, ‘French Militarism in Africa’, Review of African Political Economy, 9/24 (1982), 57 (Table 1: French Military Commitments in Francophone Black Africa), E. Schmidt, Foreign Intervention in Africa After the Cold War: Sovereignty, Responsibility, and the War on Terror (Athens, 2018), 180 and P. Lellouche/D. Moisi, ‘French Policy in Africa: A Lonely Battle against Destabilization’, International Security, 3/4 (1979), 115 (Table 3 Military Technical Assistance Agreements in Force in 1977); the structure of French ‘cooperation’ management and the several reports drawn up to define the nature and structure of that management are described by J. Chipman, French Power in Africa (Oxford, 1989).

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France to change its policy towards South Africa but France was also learning the hard way that the Anglophone and Lusophone states were more inclined to speak their mind than the political elites of the Francophone states. France’s ‘new’ policy was probably also a major factor behind French support for ACP opposition to a human rights dimension in Lomé II.322 As regards human rights, France had shown little interest in post-war international human rights discourse and no desire to criticise human rights violations by its African ‘protégés’. As the UK Embassy in France reported in 1978: ‘The French are not unduly concerned by the criticism that they are supporting corrupt regimes. During his recent Press conference, President Giscard asked indignantly “By what right would we set up in Africa a classification of regimes; how would it be decided, and by whom?”’. Of course, this was exactly what the human rights country assessments and the operative mechanism were trying to do. When, therefore, the US called a meeting at its Embassy in Paris in 1978 to discuss a concerted human rights approach in the multilateral financial institutions (see page 82 above), although the French Treasury had agreed to participate, the French Foreign Office refused to sanction its participation at the meeting on the basis that ‘discussing human rights questions with other governments was not part of French policy’.323 The French government’s attitude towards human rights in Africa is exemplified by its long-standing relationship with Emperor Bokassa.324 Titley, in his biography of Emperor Bokassa, describes how the young Bokassa enlisted in the French (Colonial) Army just prior to the Second World War and served with distinction for over twenty years, including a tour in Indochina, and in the process had earned the Légion d’honneur. Bokassa had also been one of the earliest African recruits to the Free French forces and had taken part in the August 1940 capture of Brazzaville.325 He would only return to the CAR in 1959 on the cusp of independence. Within a few days of independence being agreed, Prime Minister Boganda’s plane crashed in circumstances which suggested French involvement 322 FCO Diplomatic Report No. 274/77 WRF 020/506/1 Henderson to Secretary of State for Foreign and Commonwealth Affairs ‘New French policy towards Africa’ 7 October 1977, NA FCO 98/337; see also G. Cumming, Aid to Africa: French and British Policies from the Cold War to the New Millennium (Aldershot, 2001), 58–69 and T. Golan, ‘A Certain Mystery: How Can France do Everything that it Does in Africa – and Get Away with it?’, African Affairs, 80/318 (1981), 3–11. 323 Kirkness to Jones Human Rights and the IFI’s (sic.) 13 December 1978 and Kirkness to Maud Human Rights 20 December 1978, NA FCO 59/1596. 324 This section on Bokassa has drawn on B. Titley, Dark Age: The Political Odyssey of Emperor Bokassa (London, 1978); see also ‘New French Policy in Africa?’, Keesing’s Contemporary Archives 1979, 29750–29751, International Herald Tribune, 19 June 1981 and ‘End of an Empire’, African Index, 16–30 September 1979, 65, 68. 325 E.T. Jennings, Free French Africa in World War II: The African Resistance (Cambridge, 2015), 259–263.

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and as a result political power passed to Dacko, Bokassa’s cousin, who became the first President of the CAR. In February 1963, Bokassa was therefore a natural choice to head up the army. However, by 1965, President Dacko had become suspicious of Bokassa’s ambitions and refused to allow him to return to the CAR following an official visit to France. Nonetheless, with his long-standing French army connections, Bokassa was able to negotiate his return but soon thereafter, in a pre-emptive strike on New Year’s Eve 1965, he overthrew President Dacko. France acquiesced in the coup probably because President Dacko had been disloyally cultivating China as an alternative source of aid to France. Nonetheless, at French insistence, President Dacko was not killed and he was therefore able to return as President in September 1979 after the overthrow in turn of, by then, Emperor Bokassa by French forces. In 1969, critical comment in the French press about the execution of his former close associate Banza after a failed coup attempt piqued President Bokassa into nationalising the main French-controlled diamond mining company. To placate Emperor Bokassa’s anger at the press intrusion into his affairs and the accusations that had been levelled, Foreign Minister Schuman (France) felt it necessary to send him a message of reassurance: ‘You have understood quite well that there is nothing in common between what some more or less well-informed journalist thinks he can print and the brotherly respect in which the French government has always held the Central African Republic and its head.’ Further French support came when President Giscard’s first Presidential visit in Africa was to the CAE where he described President Bokassa as ‘a cherished relative’. In most respects, therefore, President/Emperor Bokassa was carefully loyal to France aware that, to a considerable extent, he served at France’s economic and political pleasure and, in return, France was loyal to him. That loyalty only began to be tested when, as a result of the publicity arising out of the outrageous cost of his coronation as Emperor in December 1977, the cost of which was largely borne by France and involuntary donations, questions began to be asked by the French press about the precise nature of his relationship with France and its political leaders. There was little hint in the US and UK human rights country reports on the CAR/CAE of the gross violations of human rights with which Emperor Bokassa would become associated, although the UK report was fairly damning. While it was clear that conditions were poor, there was on the whole little hard evidence on which to base their reports, although President Bokassa had called UN Secretary-General Waldheim ‘a pimp, a colonialist and an imperialist’ when he protested against the death and torture in custody of prisoners before their trial. That would rapidly change after the student protests in 1978–79 which catapulted the CAE into the human rights spotlight.326 326 UK 1977 Country Reports, NA FCO 58/1155 and Human Rights Reports prepared by the Department of State in accordance with Section 502(b) of the Foreign Assistance

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As reported by Titley, the protests arose out of a difference of opinion between Emperor Bokassa and Minister of Education Maidou as to the cause of the poor 1977 CAE Baccalaureate results. Whereas Minister of Education Maidou blamed the expatriate French teachers and proposed that the CAE should Africanise the school system, Emperor Bokassa blamed the pupils. On a recent visit to China he had been impressed by the discipline of the uniformed pupils performing at his official reception and he therefore proposed that as from October 1978 standard uniforms should be worn by all pupils on pain of expulsion; uniforms which would be made and sold by Bokassa-family-owned enterprises. When, in January 1979, pupils without the obligatory uniform began to be turned away, it led to major demonstrations which were brutally suppressed with some considerable loss of life and no apparent murmur of displeasure from France. However, despite the repeal of the uniform law, the repression had so escalated the level of public discontent that in April 1979 there were further protests, this time led by students who were consequently arrested and tortured in their hundreds, leading to mass disappearances. It was even alleged that Emperor Bokassa personally took part in the torture and likely murder of many students. This time the news could not be contained and, as reliable information began to appear of the murderous extent of Emperor Bokassa’s reaction to student protests, matters came to a head.327 At the 1979 Kigali Franco-African Summit meeting it was decided to establish a Committee of Inquiry into the reported killings. There was some resistance as it was seen as interference in the CAE’s internal affairs but it was argued and reinforced in a private conversation between Emperor Bokassa and President Mobutu that it was merely a formality that was intended to exonerate him and that this was necessary as otherwise it was not possible for France to continue its support; to press the point, France suspended its military assistance pending the outcome of the Committee of Inquiry. It was even suggested by some French representatives that Emperor Bokassa might wish to execute a few subordinates who he could blame for the excesses in order to pose as a champion of liberty. An unsuspecting Emperor Bokassa, still inclined to view France as his patron, therefore agreed to accept the Committee of Inquiry. The committee consisted of representatives from the Ivory Coast, Liberia, Rwanda, Senegal and Togo under the chairmanship of Ndiaye, a Senegalese Supreme Court Justice and close personal friend of M’baye. It was immediately offered up Bangui, who had just resigned as the CAE’s Ambassador to France, on the grounds that he had witness testimony of Emperor Bokassa’s guilt: testimony that would eventually be substantiated by witnesses on the ground in the Act of 1961, as amended submitted to the Subcommittee on Foreign Assistance of the Committee on Foreign Relations United States Senate, March 1977, 84. 327 J. Power, Against Oblivion: Amnesty International’s Fight for Human Rights (London, 1981), 148–161.

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CAE. When therefore the July 1979 commission report concluded that the massacres of some 100 children had been perpetrated under the orders, and ‘almost certainly’ with the participation, of Emperor Bokassa, France and the EEC finally imposed economic sanctions on the CAE and France made attempts to persuade Emperor Bokassa to resign. When he refused, the reluctant former President Dacko was persuaded out of his home in Paris to return to the CAE as President and Emperor Bokassa was overthrown in a coup in September 1979 led by French paratroopers.328 Although, ultimately, France facilitated the removal of Emperor Bokassa it did so primarily because the closeness of the relationship was becoming an international embarrassment, not out of fundamental concerns over human rights violations which it had tolerated for many years and which it would continue to tolerate in successor governments, not least that of President Dacko.329 There is also a reasonable suspicion that one of the main French aims of Emperor Bokassa’s overthrow had been to remove documents from his archives that were potentially embarrassing to President Giscard; a suspicion made plausible by the visible efforts of the French paratroopers at the time to retrieve Emperor Bokassa’s private correspondence and papers. In the event, Emperor Bokassa would not be the only casualty as the Presidential election defeat of President Giscard in 1981 can almost certainly be attributed to l’affaire des diamants which revealed the extent of the largesse extended to President Giscard and his family by Emperor Bokassa since 1972 at the time when Giscard was the Minister of Finance.

It is all too easy to presume that, confronted by the US and UK’s human rights foreign policies of the second-half of the 1970s, African leaders would have felt the need to propitiate Western donor states in some degree, but, in the main, the picture that emerges of their relations with the African states hardly suggests any scope for pressure to be applied. If at all, the US and UK were themselves under Cold War pressure in Africa and anxious to secure African support. There is little to suggest that, beyond highly specific cases of donor dependence, such policies were able to achieve much more than a token abatement of human rights violations. Nor is there any evidence to suggest that either the US or UK were able to make any impact on the fundamental African objection to the idea that the concept of human rights legitimises outside interference in their internal affairs or that, given their relationship with South Africa, their concerns were anything other than hypocrisy. If at all, the retreat of President Carter’s human rights for328 The report of the Committee of Inquiry is in R. Delpey, Le blanc et le noir: le hold-up du siècle (Paris, 1991), 155–242. 329 ‘France Props Up “Bokassaism”’, New African, 148 December 1979, 28–29.

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eign policy and the failure of the UK Labour government’s human rights foreign policy to take even one step forward before their two steps retreat merely served to demonstrate their powerlessness in the face of African intransigence. Overall, therefore, not only is there barely any evidence of Western pressure on the African states beyond the sole exception of France, but, given the extent of African hostility, it is, perhaps, rather more pertinent to ask whether, on the contrary, Western rhetoric was actually counter-productive in advancing the process of the ACHPR. Insofar as the US and President Carter, personally, were identified with an aggressive human rights policy, for many African political leaders, the ACHPR was identified with the Cold War and perceived in terms of Western neo-imperialism. Indeed, as the process unfolded, it became clear that, alongside the principle of non-interference, the perception, real or otherwise, of the ACHPR as a disguised tool of US neo-imperialism was, arguably, the single most important factor hindering adoption of the ACHPR.

The United Nations The idea of a regional approach to human rights had first been formally hinted at in the UN in the third part of the 1966 UNGA International Covenants resolution. It proposed that certain functions relating to the observance of the International Covenants might best be carried out by national commissions on human rights or ‘other appropriate institutions’ and invited ECOSOC to instruct the CHR to examine the question in all its aspects and for member states to submit comments. Although the resolution as a whole was adopted by a comfortable majority, either by absence, abstention or negative vote, the third part of the resolution had been opposed by more than one-third of all the African states (see Volume 1, page 595).330 Nonetheless, in the following year, in what superficially might have seemed to be a follow-up proposal, Nigeria, together with Dahomey, the Democratic Republic of the Congo, Senegal and Tanzania, sponsored a resolution in the CHR noting that two regional commissions on human rights had already been established and therefore that it might be ‘timely to give encouragement to the formation of regional commissions on human rights within or outside the United Nations system’. It therefore called for ‘an ad hoc Study Group … to study in all its aspects the proposal to establish regional commissions on human rights within the United Nations family, in the light of the discussions held on this question during the present session’; an amendment proposed by the Philippines and UAR had added ‘or outside’ to the original resolution. Rather rashly, either because of the 1966 resolution or, more likely, wishful thinking, Nigeria’s resolution is frequently adduced by many commentators on the ACHPR as evidence, even at this rather early stage, of the desire of the 330 UNGA 21/2200 16 December 1966.

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African states to establish an African regional human rights regime. In fact, it should be evident from even a simple reading of the resolution and its context that its primary intent was really no more than the denunciation of apartheid and colonialism; yet another UN stick with which to beat the minority regimes in Southern Africa. The origins of the resolution, the ‘light’ in which the discussions were held, were a series of CHR debates on the ‘Question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid in all countries, with particular reference to colonial and other dependent countries and territories’, which would seem to establish the context quite conclusively. Further support is suggested by the original wording of the resolution which conceived of regional commissions ‘within’ the UN system as it is impossible to imagine that the African states would have proposed a human rights watchdog over their own activities to be set up ‘within’ the UN – all the more so as the two existing regional commissions had been established outside of the UN system. In any event, the intent would soon become clear in the debates of the ad hoc Study Group formed to consider the proposal.331 It was not only African human rights commentators who failed to grasp the African intent. Several of the eleven representatives on the ad hoc Study Group, that included the Democratic Republic of the Congo, Nigeria, the UAR and the Soviet Union, seem to have missed the point or willfully or optimistically opted to ignore it. As a result, the ad hoc Study Group found itself hopelessly divided as its true purpose was made evident. When discussion moved out of the realm of a regional commission operating as a forum in which apartheid might be condemned and into the realm of domestic governance, the limits of African human rights aspirations and Soviet bloc patience were revealed. While, therefore, some of the representatives proposed that regional action could supplement the global human rights activity of the UN, others objected that this was ‘unnecessary and even undesirable’ and ‘premature’ and that ‘regional political evolution towards concerted action could not be artificially accelerated’. Of necessity, therefore, it was decided that the ad hoc Study Group report would not present specific recommendations. The report was however able to advise that agreement had been reached on a few points. These included: ‘That regional human rights commissions could only be established on the direct and exclusive initiative of the States comprising a given region. There could be no question of any such body being initiated from outside the region or of the United Nations imposing its establishment on the States concerned’; that ‘the decision as to its terms of reference would be within the exclusive competence of those States’; and that, as regards the UN, ‘there should be no formal connection, particularly no hierarchical link … 331 UN ESCOR 42nd Session 1967 Supplement No. 6: CHR Report on 23rd Session E/4322, 80–134 (Discussion and CHR Resolution 6 (XXIII) 16/22 March 1967).

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the relationship could only be determined by mutual agreement’. It was also agreed that a commission could only be established on the basis of a convention and that ‘one aim of regional commissions might be to promote among the peoples of the region an awareness of and respect for human rights and fundamental freedoms in accordance with the Charter and international declarations and conventions’. One further contribution also argued that as such a commission would be set up by sovereign states, ‘no outside authority could determine the criteria for the allocation of any State to a given region’, a patent pre-emptive move against South African participation in an African regional human rights commission. In an attempt, therefore, to prevent further discussion, in view of the direction in which the debate was headed, during discussion of the report, it was argued that ‘the task of the ad-hoc Study Group had been fulfilled … There was no need for any substantive discussion of the report … nor was any further action thereon called for.’ This attempt to bury the issue failed in the first instance as a resolution was adopted requiring the report to be distributed to member states and regional organisations for comments and for the responses to be considered at the 1969 session of the CHR as a matter of priority.332 No OAU member state responded and, as usual, the OAU was the only regional organisation not to respond to requests for preparatory material.333 In the event, the responses would not be discussed at the 1969 CHR session as by then it was no longer considered a priority agenda item, and discussion was therefore deferred for consideration, together with the expected report of the 1969 UN Cairo Seminar (see page 136 below), to the 1970 CHR session. When, however, it came up for discussion at the 1970 CHR, it was finally buried in a rather brutal assertion of African opposition to Western notions of human rights. The discussion was winding-down with a typically hollow resolution, sponsored by Mauritania and the UAR, requesting the UN Secretary-General to provide all possible assistance under the programme of advisory services towards the ‘attainment of the objectives of the seminar’, that is a regional human rights commission for Africa. But, at that point, the Netherlands proposed an amendment referring to ‘the role regional commissions may play in furthering the universal cause of human rights and in the realization of the international 332 Report of the ad hoc Study Group, UN E/CN.4/966 26 January 1968, UN E/CN.4/ SR.974 and 975 28 February 1968, UN ESCOR 44th Session 1968 Supplement No. 4: CHR Report on 24th Session E/4475, 80–92 (discussion), 152–153 (CHR Resolution 7 (XXIV) 1 March 1968); see also for further background, UN (G) G/SO 216/3 (30) HR/LIBERIA/1979/UNWP and L.B. Sohn, Twenty-Eighth Report of the Commission to Study the Organization of Peace, Regional Promotion and Protection of Human Rights (New York, 1980), 33–40. 333 UN E/CN.4/975 1 November 1968 (Add.1 24 January 1969 and Add.2 13 January 1970).

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standards enshrined in the Universal Declaration of Human Rights’. This prompted the sponsors to object that, as the resolution effectively referred to Africa, the amendment infringed on the sovereignty of the OAU. It was made clear that: ‘There could be no question as to the acceptance by the sponsors of the draft resolution of the human rights standards contained in United Nations instruments relating to human rights.’ Morocco even proposed an amendment replacing ‘in the realization of the international standards’ with ‘in furthering the international standards’ – that is, the desirability of ‘universal’ normative values absorbing African normative values. In the face of such opposition, the Netherlands was forced to withdraw its amendment.334 As a perspicacious UK diplomatic report observed: ‘It was clear from … the report of the Cairo Seminar that references to the Universal Declaration … are not always acceptable to the Afro-Asian countries.’335 This heated response ensured that further initiatives would not be risked. Nonetheless, alongside the 1967 CHR resolution that had established the ad hoc Study Group, another resolution had requested the UN Secretary-General ‘to consider the organization, from 1969 onwards, of an annual programme of advisory services in the field of human rights, consisting of at least two seminars on subjects of human rights of which at least one should be on an international level’. In 1968, it was supplemented by a further resolution requesting the UN Secretary-General to ‘consider the possibility of arranging suitable regional seminars…in those regions where no regional commission on human rights exists … for the purpose of discussing the usefulness and advisability of the establishment of regional commissions on human rights’.336 As a result, following on from the 1966 Dakar seminar, between 1969 and 1973, a series of UN seminars on various aspects of human rights were held in Africa. Although only one of those seminars, the 1969 UN Cairo Seminar, dealt directly with a regional commission of human rights, all touched on the issue and all invariably concluded that a regional commission on human rights for Africa was desirable although there was far less agreement on its purposes and terms of reference. 334 UN E/CN.4/1029 15 January 1970 and UN ESCOR 48th Session 1970 Supplement No. 5: CHR Report on 26th Session E/4816, 29–31 (discussion), 76–77 (CHR Resolution 6 (XXVI) 10 March 1970) 335 Briefing prepared by the Steering Committee on International Organisations, 36th Session of the United Nation’s Commission on Human Rights 24 February – 7 March 1970, I.O.C. (70) 59 4 March 1970, (possibly) Baker-Bates UN (e) and ‘Human Rights Commission-1970 Item 20 Question of the establishment of commissions on human rights at the national level and at the regional level’ c. 19 March 1970, NA FCO 61/690. 336 UN ESCOR 42nd Session 1967 Supplement No. 6: CHR Report on 23rd Session E/4322, 187–188 (CHR Resolution 17 (XXIII) 22 March 1967) and UN ESCOR 44th Session 1968 Supplement No. 4: CHR Report on 24th Session E/4475, 152–153 (CHR Resolution 7 (XXIV) 1 March 1968).

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The details of these seminars can be found in official UN meeting notes, although in some cases non-UN participants also published reports. As is clear from the summaries that follow, the reports are not always reliable due to judicious editing whereby the UN and its agencies were always inclined to stress an African desire to join the world human rights community, notably in the conclusions of many of the conferences, but not so minded to give equal prominence to African opposition to the imposition of Western human rights values. Nonetheless, it is still possible to get a sense not only of what the African participants thought about human rights and the UDHR but also their assessment of how a proposal for an African human rights charter would be received by the OAU AHSG. There was: No great enthusiasm for the UDHR, which was regarded as having been arranged without African participation; a marked divergence as to the appropriate content and relevance to the African situation of specific human rights; dislike of the possibility of external interference arising out of human rights; and no great expectation that African leaders had a human rights regime on their agenda. To a significant extent, therefore, these sentiments can be seen as direct and significant precursors of the attitudes that would prevail in the process and content of the ACHPR and are of importance for that reason. They also illustrate that such arguments were not simply the preserve of African dictators anxious to justify their stranglehold on power but also that of educated African opinion and African jurists.

I. 1966 Dakar Seminar on Human Rights in Developing Countries The Seminar was essentially an African regional conference following on from the Asian regional seminar held in 1964 in Kabul. It was attended by twenty-­ four African states and representatives from thirty-two other UN member states, UN agencies and NGOs. Invitations were not extended to UN member states in Africa but only to member states of the ECA, presumably to exclude the necessity of an embarrassing invitation to South Africa. The broad format was a discussion of various individual human rights and their applicability in an African context. As recorded in the seminar report, most participants were supportive of the right not to be held in slavery – a description that it was argued should be applied to the condition of Africans under colonialism and apartheid – and the right to religious freedom. Torture was thought unacceptable as was arrest or detention without trial, although it was recognised that this was an unfortunate fact of present African life. It was also agreed that in principle everyone had the right to participate in political activity but in practice it depended on the needs of a society at different stages of its development and could not be allowed to sharpen dissent. To the extent that it encompassed all the people, the one-party system was supported and described as ‘a new form of democracy’. However, objections were raised against rights perceived to conflict with the African way

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of life. For example, there was concern that individual rights of land ownership might conflict with the African concept of communal ownership and permit foreign control of essential assets and such rights had also to be restrained by the overriding need to provide for development and the national interest. Freedom of information was also acceptable but could not, under the pretext of the free play of democratic forces, be absolute or permitted to facilitate the disintegration of the state. Participants also thought it relevant that, notwithstanding their reservations, many of these rights had already been incorporated into African constitutions. The UDHR came in for particular criticism as it ‘did not correspond with the present state of society in the Third World’. This was because it had been drawn up on the basis of the ideas and needs of quite different economic and social structures and had not taken into account the problems raised by the independence of the African states, which meant that Africa’s ‘economic and political requirements could not be met within the legal framework of the Declaration’. Moreover, although all African states had ‘acceded’ to the UDHR, it was not binding, it was only there for guidance and therefore not an international offence to violate its principles. The solution was to revise the UDHR ‘in order to adapt it to African realities’ and to draw up an international convention on economic and social rights to meet the needs of the African peoples. The attempt to harness support for a Commissioner of Human Rights met with the response that he should not be permitted to interfere in the domestic affairs of African states. As for a regional human rights commission, there was some support but without any great expectation of its imminent uptake.337

II. 1969 Cairo Seminar on the Establishment of Regional Commissions on Human Rights with special reference to Africa Of the forty-two African states invited, only twenty participated. They were joined by representatives of seventeen other UN member states, UN agencies and NGOs. The opening remarks of the initial discussion topic by the Zambian discussion leader set the tone of the Seminar essentially along the lines that had prompted the Nigerian 1967 CHR resolution. He explained that Zambia was surrounded by minority and oppressive regimes in which the principles of the UDHR were constantly being violated and therefore a regional commission of human rights would perform a useful function. Such a commission might also inspire aspirations for freedom of the African peoples suffering under this oppression. Indeed, a regional commission should be established without delay as all Africans were committed to African unity and the total liberation of Africa. 337 UN ST/TAO/HR/25.

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His sentiments were widely endorsed by many of the participants. For example, it was suggested that a regional commission was all the more necessary in Africa as double human rights standards in the policies of several non-African states had resulted in a loss of confidence in human rights organisations outside of Africa. Another participant expressed a similar lack of confidence in fundamental human rights canons ‘because they failed to reflect non-European civilizations and traditions’. Even the UDHR was seen as falling short of its claim to represent a ‘common standard’ of universal validity as it had been drafted by peoples who were white and mainly schooled in the European and Christian traditions, and most of the Afro-Asian countries had not been independent at that time. A regional commission of human rights would therefore surely be able to take the texts and traditions of African peoples into consideration. As to whether the commission should be linked to the UN, the majority view was that any hierarchical link would be seen as limiting the independence and authority of the commission. In summary, then, the Seminar approved in principle of an African regional commission which would reinforce the consciousness of those Africans still to be liberated, and greatly enhance Africa’s international and moral image in that it would demonstrate that Africans were deeply concerned with the promotion and practice of human rights in their own countries, just as they were in the rest of the world. As to the functions to be assigned to the commission, it was suggested that they might include: Education and information; Research; Advisory; Seminars; Fact-finding and conciliation; and Consideration of communications. However, while the first four were considered acceptable, the latter two, it was argued, would conflict with the OAU’s principle of non-interference and the sovereignty of states: ‘The idea of conferring on the African Commission competence to consider communications from States and individuals met with little favour.’ It was also made clear that the commission’s powers would have to depend on what Africans were prepared to accept, the OAU being the appropriate forum for that decision. Accordingly, it was proposed that perhaps the idea might be included on the agenda of the next OAU CoM. However, when one participant suggested that the Seminar might form a commission to lobby the OAU, he was advised that this would exceed the authority under which the Seminar was held. It was therefore concluded that the Seminar should request the UN Secretary-­ General to communicate its conclusions to the OAU Secretary-General, and an appeal made to all OAU members to extend their support for an African regional commission. Rather plaintively, in his report, Robertson, an observer for the Council of Europe, reported that: ‘The type of Commission which many of the participants had in mind was not one comparable to the European Commission, with its quasi-judicial functions, but rather a Commission for the promotion of Human Rights.’ Robertson also implies that the original listing of the six functions that a

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commission might carry out was effectively proposed by the UNDHR Secretariat who, not for the last time, were perhaps rather too keen to lead the Seminar in a particular direction.338

III. 1970 Lusaka Seminar on the Realization of Economic and Social Rights with Particular Reference to Developing Countries Although all African member states were invited, only nineteen attended, reflecting the priority they attached to this Seminar. A further fourteen UN member states, UN agencies and NGOs sent representatives. The Seminar aimed at a broad discussion of the general conditions necessary for the progressive realisation of economic, social and cultural rights in Africa. There was broad agreement that a sufficient level of economic development was a prerequisite for the effective realisation of the economic, social and cultural rights set out in the UDHR and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). Two of the Seminar’s background papers, by Wina (Zambia) and Wade (Senegal), in particular – a few years in advance of the formal pronouncement of a new international economic order (NIEO) – stressed that the entry of the under-developed counties upon the international scene ‘has given a new aspect to the conception of economic, social and cultural rights’ and that, unless such issues are thoroughly appreciated and solutions identified, ‘the social and cultural rights which are enshrined in the constitutions of … Member States will continue to be only subjects for U.N. seminars rather than realities in the developing world’. It was also pointed out that: ‘Only when such malpractices as apartheid and racialism were totally eradicated could African countries devote their full energies and resources to the realization of economic, social and cultural rights.’ African governments, other than the racist minority regimes, it was suggested, generally recognised the economic, social and cultural rights set out in the UDHR and the international covenants. Unusually, participants, who were not identified and therefore not necessarily African, had emphasised the importance of the UDHR as a ‘common standard’ for all states in respect of economic, social and cultural rights. Some support was also advanced for an African regional human rights commission although doubts were expressed as to whether Western models of democracy were appropriate to the present African economic and social conditions. For example, it was argued that ‘representative or popularly elected governments did not necessarily ensure a just society … governments established by other means were endeavouring to respond to the needs of the majority’. It was also widely asserted that Africa’s colonial past was responsible for much of Africa’s current economic problems.339 338 UN ST/TAO/HR/38 and A.H. Robertson, ‘A Commission on Human Rights for Africa?’, Revue des droits de l’homme, 2/1 (1969), 696–702. 339 UN ST/TAO/HR/40, UN SO 216/3 (19) BP/A A. Wade, 6 and BP/C A.N.L.

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IV. 1971 Addis Ababa Conference of African Jurists, African Legal Process and the Individual The Conference was convened by the ECA together with the International Legal Center, a US NGO, and was largely a technical seminar on the process of law. Observers still outnumbered official representatives but there were also sixteen jurists, claimed as eminent, who attended in their personal capacity – none would be invited to participate in the 1979 Dakar Meeting of Experts. It was opened by ECA Executive Secretary Gardiner, who, unlike many African leaders, was prepared to speak frankly about Africa’s problems. His opening address noted: the special problems of the developing countries in safeguarding human rights, the greatest being deficiencies in legislation and in particular law оbservancе and enforcement, a widespread disobedience by public officials to rules and directives handed down to them, and often their collusion with powerful persons whose conduct they should regulate. He hoped that the Conference would put forward considerations which would contain solutions.

The five main topics of discussion were: The judicial process; Process of arrest and detention; Independence of the judiciary; Ombudsman; and Legal aid. The most contentious topic was that of the independence of the judiciary in that a group of delegates argued that the separation of powers was of Western origin and contrary to African tradition; moreover, that it did not answer the present-day realities and needs of the new states in the process of development. The opposite, rather naïve, argument was that as one-party regimes were multiplying in Africa, the need for an independent judiciary and ombudsman was therefore becoming all the more urgent. The Conference concluded with four resolutions. The third of these resolutions gave its support for the conclusions and resolutions of the various ICJ conferences around the world and, in particular, the UN’s 1969 Cairo Seminar resolution that sought to entrust the OAU with the establishment of an African commission on human rights. It also invited the OAU to hasten implementation of this recommendation taking account of international instruments that had been drafted by the United Nations in this connection. When it was observed that this recommendation had not been followed up an explanation was sought from the OAU representative present. He explained that the OAU Secretariat was not in a position to take up seminar recommendations as it was for the member states themselves to propose resolutions for the agenda of the AHSG. In fact, not one member state had chosen to do so, not even those that had sent delegates to the 1969 Cairo Seminar. As one delegate commented: ‘It could hardly be a question of forgetfulness.’ Wina, 7; Wade would be elected President of Senegal in 2000.

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The Conference also recommended, in its own right, that an African convention on human rights should be adopted and an African commission on human rights established. The commission, it was proposed, should be ‘charged with the responsibility of collecting and circulating information relating to legislation and decisions concerning human rights in annual reports devoted to the question of civil rights’. This suggests an overwhelming focus on promotion not on protection and it is therefore unclear, other than in terms of job prospects for jurists, why a further advisory body was also recommended ‘to which recourse may be had for the interpretation of the terms of the African Convention on Human Rights’. However, even this recommendation was not without opposition as several speakers advised that the ‘creation of an intra-African judicial organ … would be ahead of its time’ as OAU member states remained too jealous of their sovereignty; the alternative, proposed by another speaker, was that each member state might have its own human rights committee staffed by judges and lawyers.340

V. 1973 Dar es Salaam Seminar on the Study of New Ways and Means for Promoting Human Rights with Special Attention to the Problems and Needs of Africa The Seminar was attended by representatives of twenty-three African states and an equal number of UN member states, UN agencies, NGOs and African liberation movements. Samb (Senegal), the discussion leader for the opening topic, began by suggesting that there were three problem areas which the Seminar might wish to consider. The first was the serious conflict that arose between the ‘right to development’ and the human rights and fundamental freedoms of every individual, and he suggested that ‘some African States had apparently considered that it was more important to give men and women their freedom, and had sacrificed human rights in their efforts to hasten economic development’. The second was the continuing existence in the newly independent African States of certain customs irreconcilable with respect for human dignity, such as bride-price and the inheritance of widows. The third problem was that African countries had inherited from the colonial powers systems that accorded special privilege to particular categories of residents or to particular private outside interests and suggested that: ‘These arrangements, which had enabled foreign companies and multinational corporations to drain off the profits from business in the newly 340 UN E/CN.14/521 1971, T.G. Verheist (ed.), Legal Process and the Individual: Source Material of the E.C.A. Conference of African Jurists, Addis Ababa, 1971 (Addis Ababa, 1972), A.H. Robertson, ‘African Legal Process and the Individual’, Revue des droits de l’homme, 5/1 (1972–73), 465–478 and ‘Conference of African Jurists on African Legal Process and the Individual: Addis Ababa, April, 1971’, Journal of African Law, 15/3 (1971), 237–239.

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independent countries, and which had enabled foreigners to dominate their economies, could no longer be justified.’ However, Samb went on to explain: the main human rights problem in Africa was not the recognition of those rights in law, since the constitutions of many newly independent countries specifically referred to them and provided guarantees for their enjoyment. The problem was rather how those rights should be promoted and protected bearing in mind the special situations of African countries … In this context some violation of human rights were inevitable, but they constituted for the most part a provisional phenomenon which was bound to give way in time to a liberalism more in keeping with the harmonious development of Africa. The well-known attachment of Africans to human rights made him think that phenomenon was a transient one.

The ensuing discussion was divided as to whether the needs of development justified violations of human rights or if ‘certain practices widely considered to be violations of human rights were, in the context of Africa, merely efforts to correct situations which had developed in preindependence days … This was the justification, for example, for creation of the single-party political system … as well as … economic expropriation and the nationalization of foreign enterprises’. This divide spilled over into the discussion of specific rights. While the Seminar was content to make the general observation that many economic, social and cultural rights would have to await African development, when it came to civil and political rights some of the participants: expressed reservations about discussing certain problems relating to the enjoyment of civil and political rights, which they considered as falling within the domestic jurisdiction of States … implementation of the great principles of human rights might in some cases need to be put aside temporarily until the majority of the African people had been educated and their conditions of living improved. Several participants maintained that the seminar should avoid being drawn into a political controversy and should avoid giving the impression of sitting in judgement on Governments … and in any event such discussion could only be academic rather than practical.

There were, however, no differences in the discussion on racial discrimination and apartheid. Discussion of a possible African regional human rights commission or convention re-opened the divide in the Seminar. The discussion leader felt that: a clearer definition of human rights in the context of Africa was called for. There was a need … for an African convention on human rights, such a convention should not be a mere carbon copy of existing international conventions, but should be flexible and pragmatic and reflect Africa’s peculiar problems, of which economic underdevelopment was the most important.

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The question, though, was whether the time was ripe for such an ‘ambitious project’. While the idea received some support, other participants expressed reservations as ‘they felt that the time was not ripe for such an initiative in view of the African States’ preoccupation with economic development, their jealousy of any encroachments on their national sovereignty, and their attachment to the principle of non-interference in their internal affairs’. In view of the discussion that had taken place, it may then be surprising that the seminar conclusions included an expression of support for an African convention and commission of human rights to be established under the auspices of the OAU. Most likely, this was due to the UNDHR who sponsored the Seminar. The reality was reported by Korey, who attended as an NGO observer: Protection of the … individual was frankly acknowledged to be secondary to the needs of the state. As a result, ‘some violations of human rights were inevitable’ … a number of African participants argued, ‘there was no point in talking about human rights as long as the serious economic problems had not been solved and that, on the whole, the international standards … as set out in the various instruments of the United Nations were alien to African reality’.341

After a brief hiatus in which no seminars were held in Africa, the issue of seminars on regional human rights commissions re-emerged within the UN as a consequence of the CHR’s desire to establish ‘a unified long-term programme of work in the field of human rights’. In 1975, the CHR requested the UN Secretary-­ General to prepare a report ‘of the use made of the advisory services programme … with a view to a more effective utilization of the advisory services programme in the field of human rights, in relation to the over-all work of the Commission on Human Rights and the Sub-Commission’.342 Discussion of that report in 1976 led the CHR to request ECOSOC ‘to enable the Secretary-­General to continue to organize world-wide and regional seminars on human rights’, a request picked up by ECOSOC and confirmed by the UNGA shortly thereafter.343 341 UN ST/TAO/HR/48 and W. Korey, ‘The U.N.’s Double Standard on Human Rights; The U.N.’s Rights Failures’, Washington Post, 22 May 1977, 133–134 (the text is slightly different in the official report). 342 UN ESCOR 58th Session 1975 Supplement No. 4: CHR Report on 31st Session E/5635, 67–69 (CHR Resolution 10 (XXXI) 5 March 1975) and Report prepared by the Secretary-General, ‘Description of the use made of the United Nations advisory services programme in the field of human rights since the adoption of General Assembly resolution 926 (X)’, UN E/CN.4/1192 30 January 1976. 343 UN ESCOR 60th Session 1976 Supplement No. 3: CHR Report on 32nd Session

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Taking his cue from the CHR and ECOSOC resolutions, the UN Secretary-­ General notified all member states of the possibility of hosting human rights seminars and went so far as to negotiate with several governments that had expressed some interest. However, no government was prepared to extend an invitation and therefore no seminar was held in 1976 although expressions of interest were received for 1977 and 1978. There was a similar lack of enthusiasm among UN member states for a wider discussion within the CHR of the advisory services programme which was therefore deferred to 1977 and then deferred again due largely to its low priority and an awareness of UN budgetary constraints.344 It was at this point that van Boven was appointed UNDHR Director. According to Whitaker, the UK Sub-Commission Representative, the contract of his predecessor, Schreiber, had not been renewed because, to further his re-election prospects, he had, it seems, sought to ingratiate himself with the Soviet Union by altering in secret the Summary Record of the Sub-Commission Session so as to exclude criticism of the Soviet bloc countries and the record of the Soviet vote on a resolution.345 Unsurprisingly, his actions, when discovered, had the opposite effect. A replacement had therefore to be found. In the early 1970s, M’baye, First President of the Senegal Supreme Court, began to consider making what he termed ‘une modeste contribution’ to the UN, and sounded out UN Secretary-General Waldheim about his options. In 1973 UN Secretary-General Waldheim advised that, for the present, there was nothing commensurate with M’baye’s qualifications and he wrote again, in 1975, before the news broke, advising that Schreiber would likely be reappointed to the UNDHR until his retirement.346 When, then, it became necessary to identify a replacement, Egypt and Iran sought to put M’baye’s hat into the ring but their

E/5768, 63–65 (CHR Resolution 7 (XXXII) 3 March 1976), UN ESCOR 60th Session 1976 Supplement No. 1: Resolutions and Decisions, E/5850 1976, 29 (ECOSOC Resolution 146 (LX) 12 May 1976), UNGA 31/38 30 November 1976 and Yearbook of the United Nations 1976, 595. 344 UN ESCOR 62nd Session 1977 Supplement No. 6: CHR Report on 33rd Session E/5927, 89–90 (CHR Decisions 4 and 8 (XXXIII) 21 February/10 March 1977), Advisory services in the field of human rights: Report of the Secretary-General, UN E/CN.4/1280 10 January 1978, 2 and UNDHR, Human Rights Bulletin 17 January–­June 1977, 71. 345 Whitaker ‘Report on United Nations Human Rights Sub-Commission 29th Session, Geneva, August 1976’ 7 August 1976, Callway to Callan 7 September 1976 and The Times, 2 September 1976, NA FCO 58/1014 and Washington Post, 1 February 1977, A10. 346 MPP M’baye to Hambro 24 October 1973, MPP M’baye to Waldheim 24 October 1973, MPP Waldheim to M’baye 12 November 1973 and MPP Morse, UN to M’baye 28 August 1975.

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efforts foundered because M’baye felt that the UN ranking status that came with the UNDHR position was too low.347 It was also, perhaps not so coincidentally, around this time that Sanon (Upper Volta) was brought in as UNDHR Deputy-­ Director, the suggestion being that his appointment was intended to neutralise the possibility of an African heading up the UNDHR.348 When Sanon was forced to leave the UNDHR in 1979 (see page 249 below), he would be replaced by Nyamekye, a low ranking official from Ghana, who would eventually serve as Acting-Head of the UNDHR when van Boven was forced out. Van Boven was a committed Christian who, following his resignation in 1982, would be appointed the World Council of Churches (WCC)’s Moderator of the Commission of the Churches on International Affairs. A former ‘expert’ on the Sub-Commission, he announced at his first CHR meeting that: ‘If one tries to work for the cause of human rights … it is impossible to remain indifferent when confronted with the many appeals which are directed to the United Nations.’ He would also lecture the CHR on its failure ‘to meet the expectations of the people’ and warn that the confidentiality process was in reality little more than a ‘screen of confidentiality’ designed to mask the ‘constraints of diplomacy’.349 That impossibility of indifference led him to champion a more proactive approach by the UNDHR and a push for regional human rights mechanisms to be set up in those regions where none existed.350 However, van Boven also found it difficult to accept that action by the UNDHR in relation to urgent and serious violations of human rights had invariably to be determined by political convenience. In time, that impossibility and political convenience, as reflected in his impassioned speech to the CHR at the opening of its 1982 session, would also eventually ensure the non-renewal of his contract in 1982.351 347 MPP Note à la attention de Monsieur Assane Seck Ministre d’Etat chargé des Affaires étrangères (cSeptember 1976), MPP M’baye to Fall 24 September 1976, MPP Vasak to Saint-Leger de la Sausaye 25 October 1976, MPP Vasak to Modinos 25 October 1976, MPP M’baye to President Senghor 21 November 1977 and The Guardian 20 August 1976, 11. 348 Interview with John Pace, 15 April 2009, Ain (telephone). 349 ‘Statement of Mr. Theo C. van Boven, Director of the Division of Human Rights, at the opening of the 1978 CHR’, T. van Boven, People Matter: Views on International Human Rights Policy (Amsterdam, 1982), 48–49 and ‘Statement of Mr. Theo C. van Boven, Director of the Division of Human Rights: The Role of the Commission on Human Rights in the International Community’, UNDHR, Bulletin of Human Rights, 27 January–March 1980, 10–13. 350 Ramcharan Correspondence. 351 ‘Address by Mr. Theo C. van Boven, Director of the Division of Human Rights, at the opening of the 38th session of the CHR, 1 February 1982, T. van Boven, People Matter: Views on International Human Rights Policy, 76–84; see also UN E/ CN.4/1982/SR.1 2 February 1982, 2–4 (CHR Meeting 1 February 1982). For the response to van Boven’s non-renewal, see MacDermot on behalf of 40 NGOs to

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Figure 1. United Nations Division of Human Rights Director Theo van Boven (1977–1982) (seated, first from left), and Kéba M’baye, Chief Justice of the Supreme Court of Senegal (1964–1982) and President of the International Commission of Jurists (1977–1985) (seated, first from right), probably at a UN Commission on Human Rights meeting (M’baye Family Papers).

Immediately upon his appointment, and in view of the budgetary problems that had inhibited discussion at the 1977 CHR session of the future programme of human rights seminars, van Boven began to plot with Nigeria and Liberia (joined by Kenya, Lesotho and Swaziland) the drafting of a UNGA resolution that: ‘Appeals to States in areas where regional arrangements … do not yet exist to consider agreements with a view to the establishment … of suitable regional machinery for the promotion and protection of human rights.’ It also requested the UN Secretary-General to give priority to seminars in those regions in which UN Secretary-General Perez de Cuellar et alia, 17 February 1982 enclosing ‘Statement by NGOs on Mr van Boven’s Departure’, ICJ Press Release ‘ICJ comment on Mr. van Boven’s departure’ 11 February 1982, I. Guest, Behind the Disappearances: Argentina’s Dirty War against Human Rights and the United Nations (Philadelphia, 1990), 411–418 Appendix 1 and ‘Editorial: van Boven Forced Out for Naming Names’, Human Rights Internet Reporter, 7/3 (1982), 1.

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no regional commission on human rights currently existed and to report back on the progress made. In introducing the resolution, Ayeni, the Representative of Nigeria, explained, with enormous tact, that: Its purpose was not to set up new institutions but rather to urge States to seize the initiative within their own geo-political environment in devising local arrangements concerning human rights which would reflect the characteristics of the regions themselves. That invitation to States … would encourage them to exchange ideas and exercise their freedom to establish such machinery as they deemed suitable.

Although the UNGA adopted the resolution, it was not without opposition. When it was first introduced, Mali complained that, as the resolution had been submitted by a fellow African country, it had submitted to the consensus: ‘Nevertheless, it believed that the subject-matter of the draft resolution was of such importance that it should have been referred to the Organization of African Unity, and regretted that that had not been done.’ More significantly, van Boven’s attempt to infiltrate UN oversight into the resolution backfired much as the attempt by the Dutch to reference the UDHR had done in 1970. The draft resolution had envisaged that the UN’s regional and social commissions would contribute to the promotion and protection of human rights and, if necessary, that this should be specifically included in their terms of reference. It also sought a human rights promotional role for the regional economic commissions with a designated human rights officer in their secretariat acting under the advice and in collaboration with the UNDHR. Under protest, to ensure passage of the resolution, the two offending paragraphs were removed; such interference was simply not acceptable.352 Nonetheless, coincidentally, an almost identical suggestion was made at the 1979 UN Monrovia Seminar by an unnamed participant – one way or another the UNDHR would seem the obvious culprit.353 352 UNGA 32/127 16 December 1977, UN A/C.3/32/L.63 and Rev.1 7–8 December 1977 (draft resolution), UN A/C.3/32/SR.74 9 December 1977, 15, UN A/C.3/32/ SR.77 12 December 1977, 7 and B. Ramcharan, The Advent of Universal Protection of Human Rights: Theo van Boven and the Transformation of the UN Role (Cham, 2018), Chapter 7 and ‘The Role of Regional, National and Local Institutions: Future Perspectives’, B.G. Ramcharan (ed.), Human Rights: Thirty Years after the Universal Declaration, Commemorative Volume on the Occasion of the Thirtieth Anniversary of the Universal Declaration of Human Rights (The Hague, 1979), 237–240. WJB N. Rembe, Paper ‘African Charter on Human and Peoples’ Rights’ (possibly 1982), 39 suggests that an attempt was also made at the 1979 UN Monrovia Seminar to place a UNDHR Human Rights Coordinator in the Secretariat of the proposed African Commission but it has not proved possible to identify the source of the reference; most likely this is a mis-recollection for the ECA. 353 UN ST/HR/SER.A/4, 6.

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The pressure, with a specific regional priority, was therefore renewed on the UN Secretary-General at the 1978 CHR despite his plaintive report outlining the financial difficulties which the UN faced.354 While the CHR and ECOSOC adopted supportive resolutions calling for further UN budgetary support, they also reiterated the request for the UN Secretary-General to arrange two seminars a year. The CHR also adopted a resolution sponsored by Nigeria calling once more on the UN Secretary-General to arrange UN regional seminars ‘in those regions where no regional commission on human rights exists at present, for the purpose of discussing the usefulness and advisability of the establishment of regional commissions on human rights’ and ‘to take appropriate steps to give the Organization of African Unity, if it so requests, such assistance as it may require in facilitating the establishment of a regional commission on human rights for Africa’. Of course, no details were given as to what ‘assistance’ Nigeria imagined the OAU might need or indeed why it imagined that the OAU would welcome any assistance at all.355 Yet again, the UN Secretary-General reported, this time to the UNGA, that its 1977 request for seminars to be arranged on regional commissions could not be met unless further funds were made available. After considering this report, the UNGA nonetheless passed a further resolution reiterating its 1977 appeal and specifically requiring that at least one seminar be arranged for 1979. It was this UNGA resolution that led to the 1979 UN Monrovia Seminar.356 In assessing the impact of these seminars on the ACHPR process, it has first to be understood that they were, necessarily, held only at the invitation of the host government, which also agreed in advance the seminar’s agenda. Invitations would be extended only on the basis of nominations from the host government and, for world-wide seminars, a further thirty-two member states chosen on a regional quota basis, and, for regional seminars, all the member states of that region. Although these delegates were formally invited in their personal capacity by the UN Secretary-General, in the first instance they had to be nominated by their governments. Specialised UN agencies having an interest in the seminar’s subject matter were also invited and UN member states were entitled to nominate observers. The UN Secretary-General would also invite 354 ‘Advisory services in the field of human rights: Report of the Secretary-General’ UN E/CN.4/1280 10 January 1978, 4–5. 355 UN ESCOR 1978 Supplement No. 4: CHR Report on 34th Session E/1978/34, 86–87, 115 (CHR Resolution 11 (XXXIV) 24 February 1978), 132 (CHR Resolution 24 (XXXIV) 8 March 1978), UN ESCOR 1978 Supplement No. 1: Resolutions and Decisions of the Economic and Social Council, E/1978/78, 25 (ECOSOC Resolution 1978/14 5 May 1978) and Yearbook of the United Nations 1978, 697–698. 356 ‘Regional Arrangements for the Promotion and Protection of Human Rights: Report of the Secretary-General’ UN A/33/219 19 September 1978, UN A/33/509 16 December 1978, 6 and UNGA 33/167 20 December 1978.

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regional intergovernmental organisations and NGOs in consultative status with ECOSOC whose aims and purposes were related to the seminar’s subject matter to nominate observers. This was not a format that can be imagined to have promoted open debate or inspire in governments fear or any compelling need to respond to the seminar’s deliberations.357 There is, moreover, considerable evidence to suggest that attendance at these seminars was mainly of an undistinguished quality nominated precisely for that reason. For example, the point was made, with respect to the 1979 UN Monrovia Seminar, by Sanon (Deputy-Director, UNDHR) who advised ICJ Secretary-General MacDermot that ‘there are 4 or 5 real experts in this field who will probably not be sent by their governments but whose attendance is essential’. In turn, MacDermot would seek funding from the Ford Foundation for ICJ nominees to attend.358 One of these was Wako, who sought to attend as ABA Secretary-­General. He advised MacDermot that he would not attend as a Kenyan government nominee ‘unless I am very sure that the Kenyan Government’s views are the same as the views of the African Bar Association’. In the event, he was enabled to attend as a representative of the ICJ; the official Kenyan delegate was an Assistant Secretary, Administrative Division, Ministry of Foreign Affairs.359 At a Congressional hearing, Pump, an NGO representative, also reported, with respect to the 1979 UN Monrovia Seminar, that ‘the majority had no special expertise on human rights matters nor … were any delegates especially selected by their countries to attend this conference’; adding that ‘the recommendations generally showed little appreciation of African realities’. He also noted with regret the absence of several North African and all Portuguese-speaking countries.360 Some sense of the seriousness in which attendance at such seminars was taken by African governments can be seen in an internal Kenyan government memorandum discussing its nominee to the 1970 UN Lusaka Seminar. It noted that the deadline had passed two weeks earlier but that an opportunity 357 Report prepared by the Secretary-General, ‘Description of the use made of the United Nations advisory services programme in the field of human rights since the adoption of General Assembly Resolution 926 (X)’, 30 January 1976 UN E/ CN.4/1192. The main impression gained from UN conference files is the administrative urgency attached to ensuring import duty exemption for alcohol supplied to the opening reception. 358 MacDermot to Drysdale (Ford Foundation) 3 May 1979, UN (G) G/SO 216/3 (30). 359 ICJ Wako to MacDermot 3 April 1979 and UN ST/HR/SER.A/4, 30, 34. 360 ‘A Report on the United Nations Seminar on the Establishment of Regional Commissions on Human Rights With Special Reference to Africa’, submitted by R.E. Pump, Representative of the International League for Human Rights, Human Rights in Africa: Hearing before the Subcommittees on Africa and on International Organizations of the Committee on Foreign Affairs House of Representatives 96th Congress First Session, Appendix 3, 78–79, 83 (31 October 1979).

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to nominate a representative was still open. Nonetheless, it was finally decided not to nominate anyone other than ‘our man in Lusaka’.361 Typically, therefore, the composition of African delegates at these seminars was of the middling sort without any influence or desirous of exerting any political waves on the subject of human rights. Invariably, too, even in the African regional seminars, at best, only a bare majority of African states would attend although there would always be a significant contingent, sometimes a majority, of observers representing outside UN member states and agencies and NGOs each competing to project their institutional interests.362 A typical example was the announcement by UNESCO’s representative at the 1979 UN Monrovia Seminar that UNESCO ‘plans to establish, in the near future, an African institute for teaching and research in the field of human rights’, a promise that featured prominently in the seminar report. No such institute was ever established. In Vasak’s view the idea was ludicrous as UNESCO had no money and he credited the suggestion to an overzealous junior staff member. It is possible, though, that the reference was in fact to the far less ambitious UNESCO funding support for the Dakar Institute for Human Rights Education that had already been established in January 1979 (see page 213 below).363 Perhaps the most damming indictment of these seminars was presented by the long-serving UN Ambassador Baroody in a report prepared in 1971 and passed on to UN Secretary-General U Thant, although it was subsequently given a wider circulation. The report was primarily directed to an assessment of the UN Secretariat and how it might be streamlined so as to put it on a firmer financial footing – a problem that was assuming an even greater urgency as the 1976–77 CHR discussions make clear – but a later addendum specifically focused on the UNDHR. He explained that: ‘It behoves any objective analyst to find out which services of the Division of Human Rights are beneficial and practicable, and which services are merely academic in nature if not theoretical, and lastly, which services are wasteful and utterly unfruitful.’ Overall, he concluded, in a passage that is worth quoting extensively, that: 361 Kenya National Archives AMB/4/29 Muraya to Permanent Secretary ‘UN Regional seminar on realisation of economic and social rights 23rd June – 6th July, 1970’, 22 May 1970 (and handwritten comments as late as 18 June 1970) (the original invitation was from L. Hyttinen UN Development Programme, Nairobi 21 April 1970). 362 M.A. Abdul-Razaq, ‘The Organisation of African Unity and the Promotion and Protection of Human Rights in Africa’ (unpublished PhD thesis, University of Hull, 1988), 372–373 reaches a similar conclusion as to the composition and quality of delegates. 363 Interview with Karel Vasak, 15 June 2011, Strasbourg and UN ST/HR/SER.A/4, 5, 15–16. (UNESCO confirmed that no such institute had been established (e-mail 4 January 2008)).

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He therefore proposed that if member states thought they might gain some benefit from a seminar they should pay the cost themselves, but, above all, he felt that, with few technical exceptions, UN seminars should be phased out. More specifically, he did not consider that human rights was one of the technical exceptions in that the ‘tendency is to delegate bureaucrats and self-styled experts. No doubt, the interchange of views and ideas may be useful, but very little, if at all, is achieved in the way of legislation by Member States.’ Finally, he observed that high ranking public officials or important personalities attend only infrequently; moreover: ‘Even if the participants in such seminars were legislators and government officials in high positions, it is unlikely that they could initiate new legislation in their respective countries as a result of deliberations in these seminars, unless the people of their countries were receptive to such legislation.’364 In an otherwise cautious response, Schreiber, basing his comments on his personal experience and examination, disagreed with many of the points that Ambassador Baroody had made: the seminars have proved to be among the most useful means available to the Organisation in the field of human rights … This view, I believe, is taken by practically all Governments which have been hosts to seminars during the last few years or which have participated in seminars through persons nominated by them. In a number of resolutions, the General Assembly has expressed its satisfaction with the results of seminars … and requested that further seminars be held on various topics.

364 Baroody to U Thant 7 January 1971 enclosing Report 7 January 1971 and J.M. Baroody, Sub-division of the Report on the reorganization of the United Nations pertaining to the Division of Human Rights 14 May 1971.

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He also disagreed about the quality of the seminar delegates: ‘The comments made on the value of seminars do not correspond with my own evaluations. Participants have repeatedly indicated that they derive great profit from attending seminars and from discussing with other experienced persons from their region or from other parts of the world current human rights problems.’365 The point was perhaps brought home to Schreiber at the 1976 Dakar International Conference on Namibia and Human Rights: Past and Future, which was sponsored by UN Commissioner for Namibia MacBride – although due to differences of opinion it was denied official UN status by the UN Council for Namibia, the Special Committee and the Special Committee against Apartheid – in collaboration with the International Institute of Human Rights (IIHR), ICJ and International Association of Democratic Lawyers (IADL). A bleak assessment of the conference was made by two independent ‘observers’ from the Commonwealth Secretariat who reported that: Governments were not heavily represented at the Conference. Nor were the delegations of those which were represented conspicuously active; rather they chose to register their presence and generally followed with interest the deliberations of the Conference and its Commissions … Active participation came mainly from various church representatives and university professors and scholars … As regards the status and value of the Declaration of Dakar, our impression was that it will form but another addition to the plethora of similar declarations and resolutions which have … emanated from various international fora.

In contrast, they viewed MacDermot’s contribution as rather more substantial in that the proposed programme of action was ‘far more significant’ as ‘for the first time’ it spelled out the practical steps that had to be taken. As his contribution, Schreiber made two suggestions. Firstly, he called for the establishment of an African commission on human rights, and, secondly, he appealed to those African states who believed in the promotion of human rights to ratify the International Covenants. As noted by the ‘observers’: ‘These suggestions met with fierce opposition from the African delegations, led by Sierra Leone’s Attorney-General, Mr S.A.J. Pratt.’ He observed that this was not the appropriate forum in which to discuss such matters. It was not an African conference but an international conference and that, if it were considered necessary for an African human rights commission to be considered, the CHR should convene a meeting of African states for that purpose not cloak such an appeal in a conference on Namibia. Moreover, he was unfair in appealing to African states. He should recall ‘that the major industrialised nations in the world, who claim to be the custodians of world civilization, are not any less wanting in their 365 Schreiber to Secretary-General ‘Ambassador Baroody’s paper on the subject of the Division of Human Rights’ 9 July 1971.

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observance of the principles of human rights; indeed some of them have not even began (sic.) to consider ratification of the covenants’.366 Despite the evidence, many African human rights commentators have been minded to agree with Schreiber’s assessment and to attribute great significance to these UN seminars as a factor in the ACHPR process. It is, for example, almost impossible to find a commentary on the origins of the ACHPR without a reference to these seminars. One such commentary, for example, proposed that: ‘An emergent African public opinion on human rights is coalescing, mainly through the medium of African meetings which have rejected the commitment of human rights violations in the name of development’; although it was also forced to admit that while: ‘The success of the European mechanism (ECHR) has excited Africans since 1969, when they met at Cairo … No action was taken on the Cairo recommendation.’367 Another commentary proposed that: ‘Internationally, the work of the United Nations in its efforts to encourage the establishment of regional human rights commissions was important to the development of the Banjul Charter.’368 Even AI suggested that: In the 1960s and 1970s, several conferences were organized in Africa … to discuss an African regional system to promote and protect human rights and fundamental freedoms in the light of international standards as well as the experiences of particular regions. The discussions reflected the frustration felt by many Africans about the OAU, which loudly condemned human rights violations by white-ruled governments in Africa but was virtually silent about similar abuses committed in other parts of the continent … One result was the African Charter.369 366 A.N. Papadopoulos/A.C. Bundu, Commonwealth Secretariat, ‘Report on the Commonwealth Secretariat’s attendance at the Dakar International Conference on Namibia and Human Rights: Past and Future, Dakar, 5–8 January 1976’, 21 January 1976, File 2007/22, CSLA, ‘Conférence Internationale de Dakar sur la Namibie et les droits de l’homme: d’hier à demain’, Revue des droits de l’homme, 9/2–3 (1976), 209–569 and J. Dugard, Namibia and Human Rights: A Report on the Dakar Conference and its Implications for the South West Africa Issue and Détente (Braamfontein, 1976). 367 W. Weinstein/L. Jones/F. McCoy, African Perspectives on Human Rights (Washington, 1980), i, 16. 368 E. Kannyo, ‘The Banjul Charter on Human and Peoples’ Rights: Genesis and Political Background’, C.E. Welch, Jr./R.I. Meltzer (eds), Human Rights and Development in Africa (Albany, 1984), 129. 369 The quotation from AI is a conflation of ‘What is the African Charter?’, Amnesty International, A Guide to the African Charter on Human and Peoples’ Rights 2nd edn (London, 1987) and revised and updated 2nd edn (London, 2006), 7; see also R. Murray, ‘Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights’, International and Comparative Law Quarterly, 46/2 (1997), 412.

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Notwithstanding such optimism, it seems difficult to reach any other conclusion than that these UN conferences were fatuous and of minimal significance in advancing an African human rights regime. Indeed, what emerges from the seminar reports is a sense of a dialogue between the deaf. The seminar conclusions often seem stage-managed, irrespective of the content of the debate, with outsiders committed to certain obligatory recommendations oblivious to African comments, while the Africans attempt to express their ‘difference’ and scepticism towards the UDHR as a Western conception and in its applicability to African conditions. An interesting insight into the extent to which the seminars were managed is given by Ramcharan, who was an insider, from his perspective at the UNDHR. In his 1992 commentary, he describes how the UNDHR arrived at Monrovia with ‘a possible outline for the establishment of an African Commission on Human Rights’ in its pocket and was able to introduce it to an unsuspecting seminar for their consideration. In his report to Congress in 1979, Pump also commented that he believed that the UNDHR had ‘reviewed the objectives of the seminar with certain countries in advance’. Significantly, though, when he came to assess the much-vaunted contribution of the 1979 UN Monrovia Seminar to the ACHPR process, Ramcharan was nonetheless careful to follow van Boven’s appropriate circumspection in claiming credit only in respect of the ‘institutional parts’ of the ACHPR, that is those articles relating to the structure of the proposed African Commission on Human and Peoples’ Rights (ACOMHPR).370 The only real significance he attached to the UN seminars is that they kept the subject of human rights at the forefront of the consideration of African leaders. Yet, as he himself reported, when in March 1975 he wrote to the OAU to enquire what steps had been taken in pursuance of the recommendations to create an African convention and commission on human rights, he was advised ‘that the OAU has not so far dealt with the recommendations but that consultations are currently being made with member states’.371 Three years later, it was still possible to write: ‘Proposals for the establishment of an African Commission on Human Rights have been on the table since the 1960s. Requests have been made to the 370 ‘A Report on the United Nations Seminar on the Establishment of Regional Commissions on Human Rights With Special Reference to Africa’, submitted by R.E. Pump, 83 and B. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, Human Rights Law Journal, 13/7–8 (1992), 307–313 (for some, reason he ‘omits’ ‘Peoples’ in the title of the ACOMHPR); see also ‘The Broadening and Deepening of the Human Rights Programme’, Address to the Third Committee of the UNGA at the opening of its Thirty-Sixth Session 23 September 1979, T. van Boven, People Matter: Views on International Human Rights Policy, 32. 371 B.G. Ramcharan, ‘Human Rights in Africa: Whither Now?’, University of Ghana Law Journal, XII (1975), 102.

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Organization of African Unity to initiate action for the establishment of such a commission. Yet, today there has not been much progress in the establishment of an African regional commission.’372 However, by the time of his 2018 biography of van Boven, Ramcharan felt able to make a rather greater disclosure and bolder claims about the role played by the UNDHR at this time. He explained how the UNDHR brought to Monrovia a draft African convention declaration, the strategy deployed in the seminar to secure its adoption and his opinion that ‘this turned out to be a decisive initiative’ that led directly to the creation of the ACOMHPR (see page 241 below).373 In contrast, the idea that UN conferences played any significant part in bringing about Decision 115 was dismissed with extreme prejudice by all the leading political sponsors of the ACHPR process. For example, President Senghor observed that: ‘Since 1961, some people have been conceiving an organ to protect human rights. Unfortunately, this idea never left the beautiful and many pages doctrine devoted to it … nor was it discussed beyond the narrow range of the increased number of symposia and seminars on the theme.’374 M’baye, too, dismissed the idea: African jurists joined their voices with those of the UN and ICJ. Many articles were published on the subject of human rights in Africa in scientific magazines, newspapers and reviews. Unfortunately no attention was given in Africa to these proposals. Seminars followed upon conferences with no positive outcome. Resolutions and recommendations swelled the dossier of the project for an African human rights commission.375

So too Kodjo who was equally adamant that little attention was paid to the UN’s contribution.376 Indeed, the limitations of UN seminars to generate any follow-up action were so well established that it was raised at the 1979 UN Monrovia Seminar. Eze, for example, sought to draw attention to this failing in his background paper. Referencing earlier UN seminars, he noted that: ‘Despite these recommenda372 B.G. Ramcharan, ‘The Role of Regional, National and Local Institutions: Future Perspectives’, 242. 373 B. Ramcharan, The Advent of Universal Protection of Human Rights: Theo van Boven and the Transformation of the UN Role, Chapter 7. 374 OAU (L) President Senghor’s opening address to the 1979 Dakar Meeting of Experts CAB/LEG/67/5. 375 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, ICJ, Human and Peoples’ Rights in Africa and THE AFRICAN CHARTER: Report of a Conference held in Nairobi from 2 to 4 December 1985 Convened by the International Commission of Jurists (Geneva, 1986), 21. 376 Interview with Edem Kodjo, 10 December 2007, Lomé.

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tion … nothing has progressed beyond the level of discussion.’377 During debate, the Seminar itself discussed why repeated and long-standing recommendations had not produced concrete results. It was suggested that they had been ‘too academically framed’ and not drafted in sufficiently action-oriented terms; that they had not been brought before the OAU; and that there had not been enough political will. As Pump would note: ‘This unfortunate history lay heavily on the minds of the participants.’ Accordingly, seemingly oblivious of the adoption of Decision 115, Harris-Eze ‘urged the Seminar not to repeat the mistakes … but to try to ensure that its work would lead to concrete results’. Taking their cue from the example set by ICJ-sponsored seminars, it was thereby agreed that a working group ‘should be entrusted with the task of making representations to African Heads of State’.378 However, beyond notifying OAU Chairman Tolbert of the conclusions, he personally assured van Boven that ‘he would use his good offices to ensure that the proposal received serious consideration by the OAU’, it seems little more was attempted; and, in any event, President Tolbert was overthrown before the next meeting of the OAU AHSG could be held.379 Perhaps, though, in an important sense, Schreiber was right to suggest that the seminars were ‘useful’, albeit not in the way he had imagined. On the one side, they reinforced in African delegates an awareness of a mutually felt sense of difference and antipathy towards the UDHR and on the other side, for those Western delegates prepared to listen, they demonstrated the depth of African feeling and a sense that this feeling could not simply be argued away. For example, Humphrey, UNDHR Director, in an internal UN note, described discussions at the 1966 Dakar Seminar as ‘animated, frank and often most revealing’ and, in his diary, that: ‘I do not remember any discussion of human rights in a U.N. body which was as frank, animated, or so revealing. The big issue of course was the conflict between individual human rights and the “necessities” of development in an underdeveloped continent – collective rights.’380 377 O.C. Eze, UN (G) HR/LIBERIA/1979/BP.3, 15. 378 UN ST/HR/SER.A/4 1979, 8, 15 and ‘A Report on the United Nations Seminar on the Establishment of Regional Commissions on Human Rights With Special Reference to Africa’, submitted by R.E. Pump, 73. 379 Human Rights Internet Newsletter 5/2–3 1979, 65. 380 Humphrey to Narasimhan 16 February 1966, UN S -0198-3-9 UN Archives and J. Humphrey 20 February 1966, J. Humphrey, edited by A.J. Hobbins, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights Vol. 4, 1958–1966 (Montreal, 2000), 155 (reference from R. Burke, ‘Some Rights Are More Equal than Others: The Third World and the Transformation of Economic and Social Rights’, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 11 June 2014, 436–437, http://humanityjournal.org/issue3-3/some-rights-are-more-equal-than-others-the-third-world-andthetransformation-of-economic-and-social-rights-2, last accessed 13 March 2023).

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One of the first outsiders to grasp the depth and import of this rising African conception of human rights was Vasak. Already at the 1969 UN Cairo Conference, he observed ‘that no man of good faith can view the problems of human rights in Africa in the same way and in the same terms as, for example, in Europe’ and therefore that the definition of human rights in an African convention on human rights had to ‘take account of conditions peculiar to Africa’. Well aware of what he was suggesting, he warned that in the UN such regionalism will be perceived ‘as the expression of a breakaway movement, calling the universality of human rights into question’.381 MacDermot, too, listened. In his paper to the 1979 UN Monrovia Seminar, possibly with the benefit of hindsight following adoption of Decision 115 and briefing from M’baye, he observed: The dominant impression resulting from the conclusions of the different seminars … is that … the participants, for the most part Africans, seem convinced of the … need for Africa … to have its own African Convention on Human Rights … it would not be a carbon copy of foreign models, with totally non-African concepts … taking as its basis the customs, traditions and beliefs … the values of African civilisation, as well as the local realities which daily confront African governments and peoples, it would be or should be the product of a specifically African concept of rights. Moreover this would be an essential and indispensable condition for its effective implementation.382

Whereas MacDermot was therefore supportive and instrumental in the process of the ACHPR, as was Vasak within UNESCO, van Boven, who had also grasped only too well where all this might lead, was rather more concerned at the potential implications of African difference on universality and would therefore attempt to head it off. It was a bone of contention that would subsequently be reflected in his negotiations with M’baye over the terms of reference and in his efforts to manage the conduct and outcome of the 1979 UN Monrovia Seminar. It was therefore from within this vortex of African antipathy and difference that, already in 1969, M’baye, who ten years later would lead the push for the ACHPR, anticipated and articulated the basis of an alternative, immanent African conception of human rights (with which to confront the UDHR): 381 K. Vasak, UN (G) SO 216/3 (17) WP.B. (underlining original). For an earlier insight, see L. Barnes, ‘The Rights of Dependent Peoples’ June 1947, UNESCO online archives referenced under Comité sur les principes philosophique des droits de l’homme Part 1, https://atom.archives.unesco.org/uploads/r/5c00m/1/1/11494/ ag08sf00007m_compressed.pdf, last accessed 29 May 2023 and AAA Executive Board, ‘Statement on Human Rights’, American Anthropologist (NS), 49/4 Part 1 (1947), 539–543. 382 N. MacDermot UN (G) HR/Liberia/1979/WP.2 (also published in ICJ Newsletter Quarterly Report 2 1 July – 30 September 1979, 63–68 (it was sent to the UNDHR after the 1979 Monrovia AHSG had adopted Decision 115 (see MacDermot to Palmer 9 August 1979, UN (G) G/SO 216/3 (30) 795)).

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Since the … Universal Declaration … new communities of nations have emerged, bringing with them different views of the world, and correspondingly different notions of human relations … The states of black Africa cannot rely solely on occidental legal concepts. Their people have a different culture, and different problems to be solved. Within this context a black African concept of human rights must grow … The situation has seemed to call for a new interpretation of the Universal Declaration, one compatible with the immediate needs of newly independent states.383

It was a point that M’baye, with Decision 115 in his back pocket, would also recommend in his background paper to the 1979 UN Monrovia Seminar. It was also an outlook that would be reinforced by the opening addresses at the 1979 Dakar Meeting of Experts by the two key sponsors of the ACHPR, President Senghor and OAU Secretary-General Kodjo. In due course, too, it was an approach that was also felt to merit specific mention in the Preamble of the ACHPR: ‘Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights.’384

Non-governmental organisations A number of international human rights NGOs and foundations were also active in sponsoring seminars on African human rights but, until the ICJ seminars of the 1970s, which were sui generis in that they were promoted with a political follow-up in mind, the impact of these seminars was little better than that of the UN seminars. At best, they attracted elements of the professional and intellectual elite, in particular jurists, but they were invariably political outsiders with little or no political influence and there is therefore no reason to imagine that the seminars were anything other than talking shops with little or no impact on African political leaders. It may also be that, irrespective of their personal sympathies, in many cases, they were attracted into the orbit of international human rights NGOs primarily by the prospect of advisory work and travel abroad on expenses. This was certainly the motivation of a prominent former African human rights expert who declared openly that he had envisaged his involvement with international human rights NGOs as a lucrative career opportunity. Moreover, it was a career he was more than happy to give up when a better opportunity in politics 383 K. M’baye, ‘Les réalités du Monde noir et les droits de l’homme: Summary’, Revue des droits de l’homme, 2 (1969), 393–394. 384 UN (G) HR/Liberia/1979/BP.2, 14, OAU (L) President Senghor’s opening address to the 1979 Dakar Meeting of Experts CAB/LEG/67/5 and OAU (L) OAU Secretary-General Kodjo’s opening address to the 1979 Dakar Meeting of Experts, CAB/ LEG/67/4; F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague, 2003), 9 expresses a contrary view.

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presented itself.385 In the main, the African representatives understood what was expected and the conclusions they were expected to reach. Nonetheless, as with the UN seminars, there was not always a meeting of minds as they often also insisted that the human rights demanded by Africa should also be acknowledged. The 1978 Colloquium on Human Rights and Economic Development in Francophone Africa held at Butare (Rwanda), sponsored by the US-based Institute of International Law and Economic Development, is a good example of the futility of these seminars. It was attended almost exclusively by jurists from six French-speaking African countries, although half of the attendees were actually from Rwanda, rather than by political leaders with the influence to effect change. The only attendee of significance was Seminega, President of the Supreme Court of Rwanda, who was elected to the HRC in 1976 and who would also later serve on the 1979 Kigali Committee of Inquiry. However, his primary significance only became apparent in 1979 when he was one of the experts tasked with the responsibility for preparing the first official draft of the ACHPR. The Colloquium report was written by a representative of the sponsor who was understandably keen to stress the support advanced for improvements in the implementation of human rights. Yet, even so, his report could barely suppress the obvious truth that many of the African participants placed a higher priority on the human rights of development than on civil and political rights even though one might have expected a more sympathetic attitude towards such rights from jurists. For example, as the report recorded, they were resistant towards any interference in internal affairs. Moreover: ‘Some participants suggested that the human rights standards elaborated in the Universal Declaration … and the two International Covenants were essentially Western-oriented pronouncements and that, therefore, their applicability to Africa should not be automatically assumed.’ Somewhat self-servingly and fatuously then, the report concluded by trumpeting the overall significance of the Colloquium itself – that the very fact that it was held at all gave a lie to the idea that human rights were a purely Western notion. There was, however, no follow-up and it is not clear what, if anything, it might be said to have actually achieved.386 Yet it would be inaccurate to suggest that in other respects the activities of a small number of international human rights NGOs were not without any influence; particularly in exposing some of the worst human rights abuses committed by African political leaders. While such exposures were primarily aimed at Western public opinion, most, although rarely the most egregious, African political leaders felt obliged to make some response when human rights abuses were alleged against them. In this respect, the most influential international human rights NGO was AI. 385 Interview, name deliberately withheld. 386 H. Hannum, ‘The Butare Colloquium on Human Rights and Economic Development in Francophone Africa: A Summary and Analysis’, Universal Human Rights, 1/2 (1979), 63–87.

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In his 1973 testimony before Congressman Fraser’s House Subcommittee on International Organizations and Movements, Ennals, its Secretary General, described AI’s unique philosophy: an international nongovernmental organization dedicated to work for the release of prisoners of conscience, the prevention of torture and the death penalty. Prisoners of conscience are those detained anywhere because of their political or religious views providing they have not used or advocated violence … We take up individual cases of prisoners of conscience throughout the world on a balanced and factual basis.387

For the greater part of the 1970s AI was a persistent thorn in the side of many African political leaders in that, between 1975–76 and 1979, AI’s Annual Report carried reports on no fewer than twenty-eight and as many as thirty-six African states.388 As Kodjo later attested, AI’s campaigns and reports supported by its extensive world-wide network of supporters psychologically discomfited African leaders who were thereby put on the defensive and, at times, forced into releasing AI’s prisoners of conscience.389 In 1978, for example, the Moroccan Ambassador in Berne felt moved to write to the UN denouncing AI’s ‘campagne insidieuse’ against Morocco, especially its allegation of thirty-six political prisoners.390 It was also primarily as a result of AI’s reporting that Emperor Bokassa’s gross violations of human rights were brought to the attention of the international community.391 Yet, in contrast, despite its extensive reporting, AI was unable to make much headway with President Amin, who largely ignored their reports, and its 1978 appeal to the OAU to act against President Nguema was simply ignored.392 The other side of AI, though, as Power reported, was that, like so many of the liberal intelligentsia in the West, it was seduced by President Nyerere. The existence in Tanzania of political prisoners held without trial was well-known and featured in AI’s annual reports. Power, however, reports that President Nyerere would never reply to AI’s letters and also recalls a particular conversation with President Nyerere in Dar es Salaam in the late 1970s in which President Nyerere 387 Prepared Statement of Martin Ennals, Secretary General of Amnesty International, ‘Work of Amnesty International’, International Protection of Human Rights: The Work of International Organizations and The Role of U.S. Foreign Policy, Hearings before the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs, House of Representatives, 93rd Congress, 1st Session (10 October 1973), 255. 388 Amnesty International Annual Report 1975–1979. 389 Interview with Edem Kodjo, 10 December 2007, Lomé; see also Amnesty International, Human Rights Violations in Zaire (London, 1980), 21. 390 Letter and Report from Moroccan Ambassador, Berne 25 January 1978 UN G/SO 211 (3). 391 J. Power, Amnesty International: The Human Rights Story (New York, 1981), 82–89. 392 Amnesty International appeal to OAU 10 October 1978, Amnesty International Report 1979 (London, 1979), 18.

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explained that: ‘Detaining without trial doesn’t worry me as much [as torture]. Torture is unlawful and criminally immoral. Detention without trial is not. We do it under the law.’ Nonetheless, as Power noted, there was an ‘unwritten rule among the London liberal intelligentsia not to expose Nyerere to public rebuke. His virtues, it was believed, far exceeded his vices’. As a result, the Tanzanian AI section was not provided with the financial resources needed to mount a proper investigation of the political prisoners held by President Nyerere in detention without charge or trial.393 In the final analysis, though, notwithstanding its lead role in promoting the 1975 UN Declaration against Torture, AI’s primary focus was on individual cases of human rights abuse rather than the amelioration of general, widespread human rights violations. It was therefore not at the forefront of the campaign to promote the creation of an African regional human rights regime and, to that extent, its direct influence on the ACHPR process was minimal.394 The only significant human rights NGO presence in Africa was the All Africa Conference of Churches (AACC) and the WCC. Although these were religious organisations, they were also actively involved in human rights issues. As an African organisation, the AACC’s particular strength was its extensive network on the ground, but it was also able to call on the international network of supporters connected to the WCC for funding and lobbying support. MacDermot, for example, described the African churches gushingly as ‘probably doing more than anyone in the field of human rights’.395 Indeed, such were the reputations of the AACC and the WCC that in 1971 their involvement was sought as independent mediators in the Sudan civil war, an intervention that eventually led to the 1972 Addis Ababa Agreement and medals from President Nimeiri for Niilus (Director, Commission of the Churches on International Affairs, WCC) and Carr (General Secretary, AACC).396 Its main impact, though, was probably felt 393 J. Power, Amnesty International: The Human Rights Story, 104–111; see also J. Power, Against Oblivion: Amnesty International’s Fight for Human Rights, 190–202 and S. Hopgood, Keepers of the Flame: Understanding Amnesty International (Ithaca, 2006). 394 UNGA 30/3452 9 December 1975. 395 N. MacDermot, ‘The Credibility Gap in Human Rights’, Speech to Canadian Human Rights Foundation 21 November 1974, ICJ The Review, Special edition 57 (1996), 99 and Address by Mr. Niall MacDermot, Secretary General of the International Commission of Jurists, Geneva to the Annual General Meeting of the Catholic Institute for International Relations, London, 18 June 1976, ‘The Churches and Human Rights’ http://icj2.wpengine.com/wp-content/uploads/1976/06/ the-churches-and-human-rights-conference-report-1976-eng.pdf, last accessed 24 October 2016. 396 D. Rothchild, Managing Ethnic Conflict in Africa: Pressure and Incentive for Cooperation (Washington, 1997), 231–242, E. Rees, ‘Exercises in Private Diplomacy: Selected Activities of the Commission of the Churches on International Affairs’, M.R. Berman/J.E. Johnson (eds), Unofficial Diplomats (New York, 1977), 126–129

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rather more in terms of micro interventions on the ground as, in response to the more concerted attacks on the African churches by determined African leaders, for example, in Guinea and Uganda, it was essentially powerless to respond beyond arousing international indignation. In 1975 the AACC and the WCC held a joint Human Rights Consultation in Khartoum with the declared aim of providing churches with guidelines on the task of pulling up the roots of what it called the ‘parasitic vine’ of human rights violations. The conclusions and recommendations, which had been formulated in workshops before presentation to the plenum, were set out in a Statement: ‘Some of the Factors Responsible for the Violation of Human Rights in Africa’. Its key conclusion was that, although violations of human rights existed in pre-­ colonial Africa, the main factor underlying present-day human rights violations was the structural consequences of colonialism. It cited the introduction of Western economic structures domestically and internationally and the creation in the pre-independence period of a leadership ‘personality cult’ which responded to its present-day sense of insecurity by resort to human rights violations. It went on to suggest that this situation could be ameliorated by the elimination of neo-colonialism, a redistribution of wealth domestically and internationally and a search for the positive elements of the African personality; and also if the Church were to more actively promote human rights in Africa. Elements of these solutions were by now customary within African human rights seminars and would also in due course be reflected in the debate over the ACHPR.397 Given the limited prospect of success in direct appeals to African political leaders, or through the medium of international public opinion, human rights NGOs were forced to turn faute de mieux to the UN as one of the two primary vehicles (governments being the other) for their aspirations. A role for NGOs at the UN had been envisaged from the outset. The UN Charter Article 71 had provided that: ‘The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence.’ In June 1946, ECOSOC responded to this mandate by adopting a temporary set of rules to govern the process by which NGOs could apply for accreditation, the categorisation into which NGOs would be divided, which would determine the degree of their participation, and the procedural rules governing consultation. They prescribed that accredited NGOs might attend ECOSOC meetings as observers, circulate written statements and suggestions within their recognised area of competence and be called upon to and N. Hart (ed.), The Hard Road to Peace: A Report to the Churches of Africa on their Part in the Reconciliation in the Sudan, and an Appeal (Nairobi, 1972). 397 AACC/WCC, Human Rights Consultation (Khartoum, 1975) and ‘Factors Responsible for the Violation of Human Rights in Africa: All African Council of Churches/ World Council of Churches Human Rights Consultation, Khartoum, Sudan, 16–22 February 1975’, Issue: A Journal of Opinion, 6/4 (1976), 44–46.

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consult with ECOSOC’s agencies or committees.398 As a result of lobbying by the World Federation of Trade Unions (WFTU), considered primus inter pares among NGOs at that time, the following year, top-tier NGOs were also allowed the further privilege of submitting questions for inclusion in the provisional ECOSOC agenda. Nonetheless, it was made clear that the participation of the NGOs within ECOSOC was limited to consultation. The NGOs were there to provide ECOSOC with expert advice and to give voice to public opinion, not to take part in deliberations or to transform ECOSOC into a general forum for discussion.399 In 1949 ECOSOC requested that the UN Secretary-General should review the temporary arrangements with a view to establishing long-term rules of engagement. Following a review of his report, ECOSOC’s Committee on Non-Governmental Organizations (NGO Committee) put forward recommendations that were in turn the subject of representations from NGOs. As finally adopted, the new rules governing the consultative relationship between ECOSOC and the NGOs would largely be retained until 1968. Although for the most part the existing arrangements were simply retained or tweaked, the right of top-tier NGOs to submit questions was withdrawn; they could now only make requests for items to be placed on the agenda through the NGO Committee. Similarly, the right to address ECOSOC was also left to the discretion of the NGO Committee. These changes were prompted by a sense that consultation rights had been abused by top-tier NGOs, notably the WFTU, which was perceived to have come under Communist control. Its interventions were therefore considered politically motivated. Less contentiously, ECOSOC also sought to limit the length of NGO written statements and to direct NGO consultation away from its plenum meetings towards its commissions and sub-commissions. To administer these procedures the, hitherto, temporary NGO Committee was made permanent.400 398 UN E/43/Rev.2 (Report of the Committee on Arrangements for Consultation with Non-Governmental Organizations) adopted by ECOSOC Resolution 2/3 21 June 1946, UN Resolutions adopted by the Economic and Social Council during its 2nd session, 25 May – 21 June 1946, 360–365. 399 ECOSOC Resolution 57/4 28 March 1947, Resolutions adopted by the Economic and Social Council during its 4th session from 28 February to 29 March 1947, UN E/437, 46–47 and ECOSOC Resolution 95/5 16 August 1947, Resolutions adopted by the Economic and Social Council during its 5th session from 19 July to 16 August 1947, UN E/573, 89–90. 400 UN ESCOR 8th session 1949 Supplement No. 1: Resolutions E/1310, 25 (ECOSOC Resolution 214/8 16 February 1949), UN E/C.2/231 25 November 1949 (Report of UN Secretary-General), UN E/1619 21 February 1950 (Report of Council Committee on Non-Governmental Organizations), UN ESCOR 10th session 1950 Supplement No. 1: Resolutions, UN E/1661, 24–37 (ECOSOC Resolution 288/10 27 February 1950) and Yearbook of the United Nations 1949, 707–713 and 1950, 656–667.

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In 1952 NGOs were further restrained in that ECOSOC now required that communications from NGOs containing human rights complaints should be subject to the communications rules laid down in 1947, as subsequently amended in 1959 (see Volume 1, page 581), in effect providing that they should be placed on a confidential list with a restricted distribution and thereby most probably end up in the famous ‘wastepaper basket’. The argument put forward by the Western sponsors of this Resolution was that, as ECOSOC would be unable to act on these complaints, their public disclosure would simply bring the UN into disrepute. A further argument put forward by the Soviet Union was that Article 71 did not allow for consideration of human rights complaints by NGOs. Over time, further restrictions would also increasingly bind the NGOs to a code of conduct that would not permit them, in statements and oral representations, to identify by name the states they were accusing of human rights violations, other than, in practice, South Africa and Israel. By convention they were obliged to refer instead to ‘certain governments’.401 As the number of accredited NGOs multiplied, the relationship between ECOSOC and the NGOs came under further strain as member states were no longer prepared to accept the magnitude of interference accommodated by the existing rules of engagement. The first to act was the Western bloc. In 1950 when the Soviet Union was boycotting the UN over its refusal to accept Communist China as the legitimate representative of China with its seat on the Security Council, the Western bloc deployed their majority in ECOSOC against accreditation of the IADL and the International Organization of Journalists, while the World Federation of Democratic Youth was downgraded in status. In 1954 the status of the Women’s International Democratic Federation (WIDF) was also downgraded. As justification, it was argued that they were not genuine NGOs but front organisations acting on behalf of the Soviet Union. However, in 1966, as the 1963 UN quota adjustment process filtered down through the agencies, councils and commissions, membership of the NGO Committee was expanded from seven to thirteen with five places allocated to African-Asian states and two places to the Eastern bloc. Control therefore 401 UN E/2270 27 June 1952 (Report of the Council Committee on Non-Governmental Organizations), UN E/SR.661 and 662 28 July 1952, UN ESCOR 14th session 1952 Supplement No. 1: Resolutions UN E/2332, 60–61 (ECOSOC Resolution 454/14 28 July 1952), Yearbook of the United Nations 1952, 548–553, C. Pei-heng, Non-­ Governmental Organizations at the United Nations: Identity, Role, and Function (New York, 1981), 85–104 and P. Willetts, ‘Consultative Status for NGOs at the United Nations’, 31–43; see also L.C. White (Secretary, Committee on Arrangements for Consultation with Non-Governmental Organizations of the Economic and Social Council of the United Nations), ‘Consultation with Non-Governmental Organizations’, World Affairs, 110/4 (1947), 257–267. This section has drawn extensively on C. Pei-heng, Non-Governmental Organizations at the United Nations: Identity, Role, and Function.

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passed out of the hands of the Western bloc to other blocs disinclined to tolerate criticism of their internal affairs and, in the case of the African states, minded to see such criticism as neo-colonialist intrusions. It meant that henceforth NGOs would have to tread more carefully if their human rights complaints touched member states.402 In 1967, therefore, with the new majority in place on ECOSOC and the NGO Committee, the Soviet Union was able to secure reinstatement of the WIDF and the IADL. Support came from Tanzania (and Libya and Sierra Leone), which argued that ‘because of their preponderance in the United Nations at one time, the Western countries had been able systematically to exclude from association with the Council some non-governmental organizations which had their headquarters in the socialist countries … and followed the socialist philosophy’. This attitude, it was pointed out, no longer reflected the changes in the composition of UN membership over the previous few years. Moreover, Tanzania threatened that if the IADL was denied accreditation it would introduce a resolution in ECOSOC to overturn the decision and suspend all relations between ECOSOC and NGOs. The Soviet Union was aided in its endeavours at this time by news that emerged in February 1967 of secret CIA funding of several Western NGOs, most seriously the ICJ. Further hints of secret funding of NGOs by South Africa added to the consternation felt by many states. It immediately transformed the issue of accreditation beyond the Cold War into the wider issue of Western control over the accreditation process and the dominance of Western NGOs. Accordingly, when the NGO Committee accepted the WIDF but rejected the IADL, Tanzania arranged for ECOSOC to reverse the rejection. It also immediately sponsored an ECOSOC resolution requiring the NGO Committee to review the entire relationship between ECOSOC and the NGOs and the nature and activities of all NGOs, particularly the extent to which they were subject to state influence, and also to formulate rules by which accreditation might be suspended or withdrawn.403 The ensuing review led to the adoption of a new set of principles governing the consulting relationship between ECOSOC and its subsidiary bodies and the NGOs. In the main, there were few changes of substance although ECOSOC was in theory to be advised of the basis of an NGO’s financial support and 402 UN ESCOR 40th session 1966 Supplement No. 1: Resolutions E/4176, 7 (ECOSOC Resolution 1099/40 4 March 1966) and C. Pei-heng, Non-Governmental Organizations at the United Nations: Identity, Role, and Function, 104–106. 403 UN E/4321 1 May 1967 (Report of the Council Committee on Non-Governmental Organizations), UN E/C.2/SR.217 4 May 1967, E/C 2/SR.218 and 219 5 May 1967 and E/C.2/SR.224 22 January 1968, UN E/SR.1476 5 June 1967 and UN ESCOR 42nd session 1967 Supplement No. 1: Resolutions E/4393, 23–24 (ECOSOC Resolutions 1219/42 5 June 1967 and 1225/42 6 June 1967).

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periodic reports were required from the NGOs. However, a new rule now provided that accreditation might be suspended or withdrawn in the event of undue government influence or if an NGO had abused its consultative status by regularly engaging in unsubstantiated or politically motivated acts against a member state contrary to the purposes and principles of the UN Charter. As such abuse was not defined, any decision as to its applicability would, of course, be determined by a majority in ECOSOC or the UNGA; the NGOs were therefore now on notice for good behaviour. The NGOs’ problems were further compounded in that, as Guest points out, during the 1970s, ECOSOC’s rules of procedure were made more restrictive; for example, that NGOs were only allowed to speak once on an agenda item and then for no more than ten minutes. In addition all NGOs were now required to re-apply for UN accreditation, and a further resolution obliged the UN Secretary-General ‘to accord immediate and sympathetic consideration’ of NGO applications from the inadequately represented regions of the world, notably Africa. As Bulgaria and the Soviet Union would point out, of the NGOs reviewed, ‘more than 90 per cent have their headquarters in the Western countries … and only one in an African country’.404 The questionnaire put to NGOs looked closely at how they were funded and their relations with governments. However, NGOs were also expected to confess if at any time over the previous ten years they had ever criticised a political decision of the UN or a member state in which they had no members – the Soviet Union observing that such criticism ‘could only be irresponsible or malicious’ – or had ever adopted a text or resolution ‘on questions of a political nature’. In the event, despite the threatening tone, all NGOs responding to the questionnaire were re-accredited except for the Coordinating Board of Jewish Organizations (CBJO) whose status was kept on hold and only ratified in 1970. During discussion of the CBJO, the Sudan representative, who strongly opposed the CBJO’s accreditation, referred to an article in The New York Times alleging that some UN member states were concerned ‘that non-governmental organizations might become afraid to call attention to Governments’ violations of human rights lest they should be threatened with loss of consultative status. It was not, however, the duty of non-governmental organizations to call attention to such violations’. Explaining why, despite some unease he voted in favour of the CBJO, the Kenyan representative made a similar point. The CBJO ‘has felt 404 UN ESCOR 44th session 1968 Supplement No. 1: Resolutions UN E/4548, 21–26 (ECOSOC Resolutions 1296/44 23 May 1968 and 1297/44 27 May 1968), UN E/4647 (Report of the Council Committee on Non-Governmental Organizations 7 May 1969, Annex, 1–2, Joint Statement by the representatives of Bulgaria and the Union of Soviet Socialist Republics) and I. Guest, Behind the Disappearances: Argentina’s Dirty War against Human Rights and the United Nations, 442–444 (Appendix 6. Non-Governmental Organizations and the United Nations Machinery – An Uneasy Partnership).

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free to criticize political resolutions of the United Nations. This cannot just be dismissed on the pretext of freedom of speech. Economic and Social Council resolution 1296 (XLIV) which governs the granting of consultative status to NGOs clearly provides against such conduct’.405 In this increasing atmosphere of hostility the ability of NGOs to press for investigations was severely constrained. Already in the International League for Human Rights (ILHR)’s 1973 Annual Report, Shestack complained that the CHR ‘has shown an inability to deal effectively, indeed, deal at all with human rights violations. Egregious complaints from individuals and groups have been ignored for political reasons’.406 However, worse was to come as throughout the 1970s the uneasy relationship between member states and NGOs was repeatedly exposed. In February 1974, the widow of President Allende (Chile) addressed the CHR in her capacity as a representative of the WIDF and IADL and made allegations of human rights violations against Chile. Despite the prohibition on disclosing names, Allende felt no compunction about explicitly charging Chile and she was followed by other NGO representatives who also named Chile. None of the NGOs were rebuked for this breach of protocol.407 Shortly thereafter an article by ICJ Secretary-General MacDermot was even more indiscreet about on-going CHR human rights investigations.408 Encouraged by this seeming breach in the wall of silence, at the 1975 CHR session, Jack (World Conference on Religion and Peace (WCRP)) made what even Unwin, the UK CHR representative, described as an ‘intemperate statement’ of complaint against the lack of progress in UN initiatives against religious intolerance and gave examples of religious 405 UN E/C.2/R.38, Annex 4 September 1968, UN E/SR.1593 2 June 1969, UN E/4799 14 March 1970 (Non-governmental organizations: Report of the Council Committee on Non-Governmental Organizations), 33, C. Pei-heng, Non-Governmental Organizations at the United Nations: Identity, Role, and Function, 108–112, 123–126, 171–187, D. Weissbrodt, ‘The Role of International Nongovernmental Organizations in the Implementation of Human Rights’, Texas International Law Journal, 12/2–3 (1977), 309 Note 78 and W. Korey, NGOs and the Universal Declaration of Human Rights: ‘A Curious Grapevine’ (New York, 1998), 82–90. The reference is to K. Teltsch, ‘U.N. Non-governmental Groups Worried by Soviet-Arab Attack’, New York Times, 25 May 1969, 3 which quotes an Izvestia article headlined ‘Rubbish That Should Be Chucked Out’. 406 International League for Human Rights Annual Report 1973, J. J. Shestack, Chairman’s Report, quoted by L.S. Wiseberg/H.M. Scoble, ‘The International League for Human Rights: The strategy of a human rights NGO’, 301–306. 407 UN ESCOR 56th Session 1974 Supplement No. 4: CHR Report on 30th Session UN E/5464, 30–31, UN E/CN.4/SR.1271 25 February 1974, 54–59 and 1274 26 February 1974, 111–112. 408 N. MacDermot, ‘Eight complaints – and signs of possible strength in fragile investigation procedure’, The Times, 21 May 1974, 2.

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persecution in seven states and ‘parts of Africa’. This was an allegation too far. All the states exercised their right of reply in which they accused the WCRP of unfounded and slanderous accusations and an abuse of the privilege accorded to NGOs to participate in the deliberations of the CHR. Egypt declared that it was ‘extremely concerned about the abuse of freedom of speech practiced by some representatives of nongovernmental organizations’ and suggested that the statement by the WCRP should be struck from the records. Moreover, that the WCRP’s accreditation status should be reconsidered in line with ECOSOC’s 1968 Resolution 1296. Such was the strength of feeling that the CHR went into closed session to consider its response.409 The outcome was a resolution driven by Egypt and Iran to put the NGOs in their place. It was adopted by the CHR and put forward to ECOSOC.410 In his report, Unwin recorded that ‘the general uneasiness which is felt about the activities of a few Western NGOs, particularly AI, in drawing attention to inhuman behaviour, ensured that this draft was co-sponsored by every less developed country’s representative’; and that Iran’s ire had been raised by leaks which it blamed on a Marxist NGO.411 However, the time between the CHR and ECOSOC meetings gave the Western states a chance to negotiate and twenty-two NGOs to write in April 1975 to ECOSOC expressing their concern at the proposed resolution.412 As a result, although the resolution was adopted by ECOSOC, it was slightly more measured in tone. Nonetheless it still reminded NGOs of the procedures for human rights complaints and the strict provisions governing the confidential 1503 process. It also noted that ‘the oral interventions of some non-governmental organizations on matters affecting Member States have often shown disregard for proper discretion’. Accordingly, ‘any non-­governmental organization failing to show proper discretion in an oral or written statement may render itself subject to suspension’ and it warned that the NGO Committee would continue to examine carefully the activities of NGOs 409 ‘UNCHR; XXXI Session Geneva 3 February – 7 March 1975, Report by Sir Keith Unwin’ (final draft), NA FCO 61/1406, UN E/CN.4/SR.1300, 97–100 and 1301 11 February 1975 and W. Korey, NGOs and the Universal Declaration of Human Rights, 141–144. The closed session is UN E/CN.4/SR.1317 24 February 1975. 410 UN ESCOR 58th Session 1975 Supplement No. 4: CHR Report on 31st Session E/5635, 1–2, 19, 66 (CHR Resolution 7 (XXXI) 24 February 1975). 411 ‘UNCHR; XXXI Session Geneva 3 February – 7 March 1975, Report by Sir Keith Unwin’ (final draft), NA FCO 61/1406. 412 ‘Statement dated 23 April 1975 submitted by NGOs’ UN E/NGO/31 23 April 1975, NA FCO 61/1406 and S. Liskofsky, ‘Coping with the “Question of the Violation of Human Rights and Fundamental Freedoms”: Highlights of 31st session of the United Nations Commission on Human Rights, Geneva, February 3 – March 7 1975’, Revue des droits de l’homme, 8/1(1975), 896–900, 912–913 (Annex C: Statement on Human Rights Commission NGO resolution 24 April 1975).

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to ensure compliance. Among the sponsors of these resolutions were Egypt, Ghana, Senegal, Sierra Leone, Tanzania, Upper Volta and Zaire who saw in this an opportunity to remind the NGOs of their place in the UN firmament.413 In an interview with Korey, Cohen, ILHR’s Executive Director, suggested that this new ECOSOC diktat on procedures was so dismaying that the ILHR altered its policy of a focus on the UN and concentrated its lobbying efforts on the leverage available to Western governments.414 Shestack, too, writing in 1978 about the UN’s consultative process, would also conclude that it ‘has grown increasingly frustrating. In the human rights field in particular, it soon became evident that consultations by NGOs would be politely received and too often shelved without action … the NGO consultative function is largely empty ritual’. He would conclude that NGO efforts at the UN were ‘futile’.415 Once again, therefore, it is hard to imagine what tangible influence the NGOs might be said to have had on the process by which the ACHPR was brought into being, indeed, it may rather be argued that the ability of the African states to beat back the NGOs merely served to convince them that they had little to fear from their pinpricks. As the Ghanaian CHR representative observed: ‘“The problem with the NGOs” is that they “go beyond their bounds” when they interfere in the internal problems of member states by using political opponents and exiles to cite human rights violations.’ This was the same representative who, in 1979, one year later, would be appointed Deputy-Director, and who in 1982 would therefore serve as the Acting-Head, of the UNDHR when van Boven was forced out.416

The International Commission of Jurists In the context of the limited room for manoeuvre open to international human rights NGOs, all the more remarkable then was the campaign orchestrated by the ICJ which over several years pursued a completely different, low-key, non-confrontational approach that sought to work with rather than against African political leaders. The ICJ was established in 1953 following the International Congress of Jurists held in West Berlin in July 1952. Although it had a nominal membership of only 413 UN E/SR.1947 5 May 1975 and UN ESCOR 58th session 1975 Supplement No. 1: Resolutions E/5683, 8–9 (Resolution 1919/58 5 May 1975). 414 W. Korey, NGOs and the Universal Declaration of Human Rights, 143; see also Frank C Newman to Friends Subject HRC Resolution 7 (XXI) E/CN.4/L.1295/Add.2 27 February 1975 and Note on the Human Rights Commission’s draft resolution on written and oral statements by NGOs concerning human rights, N. MacDermot, Geneva 12 March 1975, NA FCO 61/1406. 415 J.J. Shestack, ‘Sisyphus Endures: The International Human Rights NGO’, New York Law School Law Review, 24/1 (1978), 111–116. 416 ‘Interview with K.F. Nyamekye 27 January 1978’, quoted by C. Pei-heng, Non-­ Governmental Organizations at the United Nations, 197–198.

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twenty-five (subsequently increased to forty) prominent international jurists – they were termed Commissioners – the ICJ could also call on the support of autonomous national sections and affiliates world-wide with a wider membership of over 40,000 jurists.417 Its foundational ‘Objectives’ committed the ICJ ‘to promote the understanding and observance of the rule of law throughout the world’ defined as: The principles, institutions and procedures, not always identical, but broadly similar, which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic background, have shown to be important to protect the individual from arbitrary government and to enable him to enjoy the dignity of man.

In 1975 this was understood to mean the ICJ should focus ‘on the recognition of human rights and fundamental freedoms in the classical sense’. Nonetheless, it was also recognised that this alone was insufficient, that jurists could not ignore ‘the material problems’ of the community, and that therefore ‘social, economic and cultural conditions’ had also to be promoted so as to facilitate the realisation of ‘legitimate aspirations’. As a result, in 1983 the explanation underlying the ICJ’s ‘Objectives’ was refined so as to allow for a focus on ‘not only the classical civil and political rights of the individual but also economic, social and cultural rights, and to promote development policies and social reforms’.418 This subtle but distinct shift in emphasis was justified by the ICJ’s conception of the rule of law as ‘a dynamic concept’ but it also seems more than likely that it was prompted by the ICJ’s increasing involvement in Africa and M’baye in particular. Indeed, in October 1977 at his first ICJ Executive Committee meeting following his election as President of the ICJ, M’baye had made this precise point expressing his support for the ICJ’s ideal of protecting the individual against governments, but ‘particularly welcomed the aim to develop economic, social and cultural rights, which were of such importance to developing countries’.419 Under committed Secretary-Generals, notably MacBride (1963–70) and MacDermot (1970–90), the ICJ interpreted its brief in the widest possible terms. It produced a range of influential reports on human rights abuses in the independent Africa states, for example in Burundi, Uganda and Equatorial Guinea, and its representatives were active in placing before the CHR and Congress 417 This section has drawn on H.B. Tolley, Jr., The International Commission of Jurists: Global Advocates for Human Rights (Philadelphia, 1994) and ‘Popular Sovereignty and International Law: ICJ Strategies for Human Rights Standard Setting’, Human Rights Quarterly, 11/4 (1989), 561–585; see also L.G. Weeramantry, The International Commission of Jurists: The Pioneering Years (The Hague, 2000). 418 For the Rule of Law, The International Commission of Jurists – objectives – organisation – activities (Geneva 1975/1983), 1. 419 ICJ Executive Committee Meetings 15 October 1977 – 28 October 1978, Minutes of Executive Committee Meeting 15 October 1977.

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evidence of ‘gross violations of human rights’. As with AI, albeit on a lesser scale, the ICJ also directly lobbied (respectfully) African political leaders on behalf of individual cases of unlawful or overdue detention without charge and to express concern over prospective legislation. For example, in 1976 ICJ Secretary-­ General MacDermot wrote to Colonel Acheampong, Ghana’s effective head of state, about Hansen, a socialist lawyer who had been detained without charge for urging a return to civilian rule. In 1983 he also felt obliged to write to President Nyerere protesting against his plans to create a special tribunal to hear cases of economic sabotage, corruption and other economic crimes without the right of legal representation or appeal to a higher court (see Volume 1, page 502).420 However, its particular competence and influence within the constellation of international human rights NGOs derived from the integrity and commitment of its Secretary-Generals and its high-level political and legal address book and drafting expertise which it deployed in drafting and commentary on prospective and existing international agreements such as the 1975 UN Declaration against Torture. One notable ICJ intervention was that on behalf of former President Binaisa (Uganda).421 Until his anointment as President, Binaisa had been an ICJ Commissioner. In 1979, the popular interim President Lule (Uganda), who had been elected by a conference of Ugandan exiles in Moshi, Tanzania after the overthrow of President Amin, was ousted after only two months in office and replaced by Binaisa who accepted the nomination from a self-appointed National Consultative Council. Binaisa was nominated as effectively the interim President until the expected (rigged) elections in December 1980 would reconfirm Obote as President. Lule was from the Central region (Buganda), while Obote, who had been ousted in 1971 by President Amin, was a northerner and the preferred candidate of President Nyerere who at this time effectively controlled political office in Uganda and who had therefore sanctioned the temporary appointment of Binaisa. As President, (after Decision 115 had been adopted with his very vocal support), Binaisa banned political parties in an attempt, he explained, to avoid internecine rivalry and in the hope of coming to an internal consensus in an ‘umbrella’ one-party state. After one year in office, though, he too fell out with President Nyerere and was then himself overthrown in a coup that would lead to the ICJ seeking to obtain his release from prison. As Mutibwa records: ‘The reasons for his removal given to the public over Radio Uganda were the corruption of his regime and his attempt to turn Uganda into a one-party state.’422 420 ICJ MacDermot to Colonel Acheampong 26 April 1976 and ICJ MacDermot to President Nyerere 21 April 1983. 421 ICJ Executive Committee Minutes 1 November 1980. 422 N. Munger, ‘Preface’, Y. Lule, Human Rights Violation in Uganda under Obote Munger Africana Library Notes 67 (Pasadena, 1982), 4–8 http://authors.library.

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The ICJ’s first foray into Africa was the 1961 ICJ Lagos African Conference on the Rule of Law. It was one of a series of regional conferences on the rule of law that had begun with Athens (1955) and New Delhi (1959) and would continue with Rio de Janeiro (1962) and Bangkok (1965).423 The aim of these conferences was to extend the international profile and reach of the ICJ and its message of the rule of law. In the case of the 1961 ICJ Lagos Conference, the ICJ also sought ‘to develop closer personal and organizational ties between the International Commission of Jurists and Bar Associations, the Judiciary, and legal study and research groups in Africa’ and ‘to enable lawyers from areas of different cultural backgrounds and legal traditions in Africa to familiarize themselves with the varying viewpoints of their colleagues’. As proof of its commitment to establishing a closer relationship with the newly independent African states, Chief Justice Ademola (Nigeria) in 1960 and former Chief Justice Forster (Senegal) in 1961 were elected as the ICJ’s first African Commissioners. The 1961 ICJ Lagos Conference is mainly recalled for Declaration Four of the Law of Lagos (the resolution with which the Conference concluded), which is the most widely quoted statement in African human rights commentary: ‘That in order to give full effect to the Universal Declaration of Human Rights of 1948, this Conference invites the African Governments to study the possibility of adopting an African Convention of Human Rights.’ The Conference report locates its origins in Committee I, which was tasked with discussion of ‘Human Rights and Government Security – the Legislature, Executive and Judiciary’; by coincidence, the Committee to which M’baye had been assigned. At this Committee, Danquah, President of the ICJ’s Ghana Section, proposed that the Conference should end with a declaration (as previous ICJ regional conferences had done). While expressing his agreement with this proposal, Amorin, a Togolese barrister, also suggested that it ‘should include reference to an African Convention on Human Rights to be approved by the various Governments’. Less frequently quoted, possibly out of embarrassment, is the second part of Amorin’s suggestion, that the declaration should also call for the establishment of ‘an African court charged with imposing punishments upon violations of the Convention’. The initial draft conclusions proposed by Committee I failed to incorporate Amorin’s suggestion, possibly implying either a greater political realism on the caltech.edu/25710/1/maln_67.pdf, last accessed 21 October 2016, P. Mutibwa, Uganda Since Independence: A Story of Unfulfilled Hopes (London, 1992), 126–138 and O.H. Kokole/A.A. Mazrui, ‘Uganda: The Dual Polity and the Plural Society’, L. Diamond/J. J. Linz/S.M. Lipset (eds), Democracy in Developing Countries: Africa Vol. Two (Boulder, 1988), 259–298. 423 ICJ, African Conference on the Rule of Law: A Report on the Proceedings of the Conference (Geneva, 1961) – the ‘Law of Lagos’; in a further alliteration it was the Act of Athens, the Declaration of Delhi and the Resolution of Rio, but, alas, merely the Declaration of Bangkok.

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part of more senior Committee members or a lack of enthusiasm, but he seems to have persisted and, as requested, provided a suitable text for consideration during the final Committee I debate on its draft resolution. The text he proposed besought African governments to adopt ‘an African Convention on Human Rights providing for the creation of an appropriate judicial body to which individual victims of a violation of human rights would have access’. Due to a lack of time, it was accepted in principle by Committee I but referred to the General Drafting Committee for a final decision. When, therefore, the conclusions of Committee I were presented to the plenum by Wade, a future President of Senegal, mention of Amorin’s proposal was only made as an afterthought falling outside of the Committee’s formal conclusions. Nonetheless, the General Drafting Committee seems to have accepted his idea, as did the Plenum, although it was redrafted in less threatening language. In its final form it now read, that the African Convention of Human Rights should operate ‘in such manner that the Conclusions of this Conference will be safeguarded by the creation of a court of appropriate jurisdiction and that recourse thereto be made available for all persons under the jurisdiction of the signatory states’. In view of the significance with which this Declaration has been endowed, it is noticeable that there is no record of any further discussion of an African human rights convention or court in the ICJ Conference report, for example at the plenum which discussed and endorsed the Law of Lagos.424 In fact, the ‘invitation’ was somewhat at odds with the otherwise mainly dry agenda whose main focus was the prosaic minutiae of the ideal relationship between the Legislature, the Executive and the Judiciary. There is, moreover, an air of unreality about debates on the merits of structures and safeguards that 424 ICJ, African Conference on the Rule of Law, 11, 106, 110–113, 161–163; see also T.O. Elias, ‘Reflections on the Law of Lagos’, Journal of the ICJ, 3/1 (1961), 25–28 and ‘A Post-Script to the African Conference on the Rule of Law’, ICJ Newsletter, 11 (1961), 5. Vasak, in an interview, advised that the idea of incorporating a call for an African human rights convention had originated with him. This is supported by K. M’baye, ‘Human Rights in Africa’, K. Vasak (ed.), The International Dimension of Human Rights Vol. 2, revised and edited for the English edn by P. Alston (Westport, 1982), 600 who reported that the inclusion of Declaration 4 was at Vasak’s insistence; M’baye, it will be recalled, was not only at Lagos but was a member of Committee I that had proposed Declaration 4. Although Vasak is not recorded as having been an official member of any committee he may nonetheless have attended the deliberations of that committee or he may have made his point at the drafting committee or plenum session. It is also of interest that ICJ Secretary-General Lalive, in his introduction to the official report (ICJ, African Conference on the Rule of Law, 6), noted that the proposal for Declaration 4 was made by ‘some’ African lawyers, implying that either it was proposed by more than one delegate or that there was no unanimity on its inclusion. Vasak also suggested that an African charter might have been based on Chapter 3 of the Nigerian constitution which he had been studying at that time.

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within a few years, if not already, would be removed or ignored; for example, the naïve demand of Declaration 3: ‘That fundamental human rights, especially the right to personal liberty, should be written and entrenched in the Constitutions of all countries and that such personal liberty should not in peacetime be restricted without trial in a Court of Law.’ In reality, the Law of Lagos was no more than a declaration written by lawyers for lawyers based on Western notions of the rule of law and democracy. More fantastically, ICJ Secretary-­ General Lalive’s Foreword to the Conference report trumpeted that: African lawyers emphatically rejected any notion of a purely African juridical system … Confronted with an order of priorities, African lawyers persist in the belief that the protection of human rights is the only solid basis for any new society. They are fully aware of the threats to personal freedom in some countries despite their newly won political autonomy. They have only recently gained emancipation from colonial rule, and have no intention of falling prey to any homegrown despotism … the first stage towards African unity might well be some form of uniform and coordinated safeguard of the basic rights.

Although, by then, the impending future ought to have been more obvious to most observers than this assessment, the legal tourists of the ICJ had in any event been specifically put on notice by the speech on the last day of Minister of Justice D’Arboussier (Senegal) who warned, in his capacity as a politician and sociologist, that they must attempt to face African realities: Together with the principles of universal legality there are also principles of legality specific to Africa and corresponding to the African requirements of independence, unity, democracy and economic development … the ideas I put to you may come in conflict with certain ready-made ideas regarding African realities or certain classic concepts of democracy, socialism or liberalism.425

Curiously, at the 1959 Ibadan Conference on ‘Representative Government and National Progress’, which was sponsored by the Congress for Cultural Freedom, Amorin had made a broadly similar point to justify his support for a oneparty state, which seems to sit uneasily with his proclaimed support at the 1961 ICJ Lagos Conference for the UDHR: We must remember that institutions are not born in the air, but in the natural evolution of social reality … Therefore, we cannot think of transplanting into Africa an organisation for which there is no prepared basis … I do not 425 ICJ, African Conference on the Rule of Law, 5–6, 11, 166–167 (his comments were further elucidated in a ‘written communiqué …which I have handed to the Steering Committee’ which could not be located); see also G. d’Arboussier, ‘The Significance of the Lagos Conference’, Journal of the ICJ, 3/1 (1961), 22–24.

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It was no doubt on just such a basis of African reality that, soon after independence, President Touré ‘abolished the profession of lawyer’ as ‘that profession was an expression of a “legalistic formalism which is not only useless but incompatible with the social realities of a young African nation”’.427 This had not gone unnoticed by the ICJ as ICJ Secretary-General Lalive’s closing speech also observed that invitations had also been sent to three lawyers in Guinea but that the Guinean government had replied thanking the ICJ for the invitation but regretting that they could not take part.428 Much the same view of African realities and legal formalism would later also be taken by Mozambique after independence.429 The Law of Lagos had virtually no political impact. In early 1961 there was no OAU and for the newly independent African states human rights were hardly the pressing issue that foreign or even Western-minded African jurists might dream them to be. Even in 1963 when the OAU came into existence, as M’baye would later point out, there was barely any place for human rights in the OAU Charter: ‘Careful study of the OAU Charter and inquiry into the practice of pan-African bodies reveals that the importance accorded human rights is both slight and theoretical. Human rights were obviously not the main concern of those who drew up the Addis Ababa Charter’.430 Nor would African unity be constructed as a ‘safeguard of the basic rights’ as ICJ Secretary-General Lalive had intimated it might; quite the contrary, the foundation on which the OAU was constructed was non-interference. Over time, though, as universal human rights were pressed on Africa, the Law of Lagos become romanticised as the moment when the first call was made by Africans for an African human rights charter. While M’baye would on occasion also eulogise the Conference in this way, he would also observe that: 426 H. Passin/K.A.B. Jones-Quartey (eds), Africa: The Dynamics of Change (Ibadan, 1963), 81–82 (Record of a conference on representative government and national progress, organised by the Congress for Cultural Freedom and the Department of Extra-Mural Studies, University College, Ibadan and held at Ibadan, Nigeria, March 16–22, 1959). 427 ‘Justice in Guinea’ (unsigned, most likely N. MacDermot), ICJ The Review, special Africa number 7 (1971), 4; see also Amnesty International, Guinea (London, 1978), 4. 428 ‘Closing speech by J-F. Lalive’, ICJ, African Conference on the Rule of Law, 170. 429 A. Sachs/G.H. Welch, Liberating the Law: Creating Popular Justice in Mozambique (London, 1990). 430 K. M’baye, UN (G) HR/Liberia/1979/BP.2, 6.

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The Lagos recommendation was not followed up immediately although everything justified a certain optimism … Vasak … wrote … that the way appeared to be open for an African human rights convention. There was, however, no echo to the voice of … Azikiwe … when he recommended that the Council of African states should enact an African human rights convention, as a pledge of their faith in the supremacy of the law.431

As for an African human rights court, that was even further removed from reality. Almost twenty year later, the idea was considered and rejected during the ACHPR drafting process as everyone understood that it would not be acceptable to African political leaders and would merely threaten the political viability of the ACHPR itself. More telling of the state of human rights affairs in the independent African states was the fallout from the Conference. At the insistence of Chief Justice Wilson (Liberia), who had attended the Conference, former Attorney-General Cassell (Liberia) was indicted by the Liberian Supreme Court, found guilty of contempt and disbarred. The contempt was deemed to lie in the comments he had made in the paper he had prepared for Committee III of the Conference in which he had suggested that certain Liberian government members and officials may restrict democracy and that the judiciary was ‘the weakest chain in the link of Liberian society’s defense of the rights of the individual’. His criticisms, also voiced during Committee III’s discussion, were denounced as ‘disrespectful, embarrassing and humiliating to the Head of the said Judiciary Branch of the Government’. Moreover, it was also determined that his comments had not been made in good faith as they had criticised laws to which he had made no objection when serving as Liberia’s Attorney-General. The judgement also made clear that the court would not allow such ‘improper behaviour against the courts by members of the profession, and defiant and disrespectful behaviour to judges, whether at international conferences or anywhere else; no matter what might be the opinion of some who claim new-fangled ideas under the supposed Rule of Law’.432 An even worse fate befell Danquah who was detained under Ghana’s Preventive Detention Act on his return. Despite the ICJ’s expression of concern, addressed directly to President Nkrumah, the Ghanaian government failed to 431 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 20. The reference is to ‘Address by Rt Hon. Dr Nnamdi Azikiwe, Governor-General of Nigeria, delivered in London to the Committee of African Organisations on August 12 1961’, N. Azikiwe, The Future of Pan-Africanism, 16; also included in C. Legum, Pan-­Africanism: A Short Political Guide, 2nd edn (London, 1965), 272–278 (Appendix 25) and referred to in N. Azikiwe, My Plan for Africa (Enugu, c.1960). 432 ICJ, The Cassell Case: Contempt in Liberia (Geneva, 1961), ICJ, African Conference on the Rule of Law, 150, ‘Liberia: The Strange Case of a Lawyer’, ICJ Newsletter, 12 (1961), 5 and H.B. Tolley, Jr, The International Commission of Jurists, 64–65.

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provide prompt explanations for his arrest and refused an entry visa for retired Judge Mookerjee (India), as the ICJ’s representative, to visit Danquah. Danquah would be released in 1962, but refused a passport that would have enabled him to attend the 1962 ICJ Rio de Janeiro Conference, and re-arrested in January 1964. He died after thirteen months in custody without having been brought to trial. Following the Conference, the ICJ Ghana National Section, which had been founded in 1958, was also forced to close due to government resentment at criticism of Ghana, a resentment too dangerous to ignore; it would not reform until 1967.433 To a lesser degree, however, the ICJ could claim some success in meeting the goals it had set for the Conference. As Elias (at the time Attorney-General and Minister of Justice in Nigeria) pointed out: ‘For the first time in the history of the continent of Africa there were assembled jurists from both the English-speaking and the French-speaking African territories … discussing most of the problems of legal and constitutional importance to the newly emergent nations of the world in an atmosphere … of sober judgment.’434 The UK Foreign Office also noted that ‘the impact of the conference … on Nigeria was probably very small. The most beneficial aspect … was … the opportunity it gave to Nigerian lawyers to meet distinguished lawyers from other countries. I am told that many of the Nigerians gained a healthy respect for their visitors.’435 The Conference also led to the formation of local ICJ affiliates, for example, a Nigerian section of ‘Liberty’ was set up shortly after the Conference as a forum and esprit de corps around which the Nigerian legal elite could congregate and exchange views.436 Discussions at the Conference also held out the prospect of an African Commission of Jurists. In 1963, a preparatory meeting was held in Lagos followed by an inaugural conference in 1964 (also in Lagos) attended by jurists from twenty-one African states. Yet here too political caution was paramount and the objectives set for the commission rather bland – promote understanding and cooperation among African jurists, encourage study of African law, particularly customary law, consider legal problems of common interest and establish international relationships – and made no mention of human rights.437 Unfortunately, 433 ‘Ghana’, ICJ Newsletter, 13 (1962), 5 and MacDermot to Evans FCO 7 June 1971 enclosing interview notes on MacDermot’s meetings in Africa April/May 1971, NA FCO 52/12. Following President Nkrumah’s overthrow, the new government published further details on Danquah’s detention in Ministry of Information and Broadcasting, J.B. Danquah, Detention and Death in Nsawam Prison, Extracts from Evidence of Witnesses at the Commission of Enquiry into Ghana Prisons (Accra, 1967). 434 T.O. Elias, ‘Reflections on the Law of Lagos’, 26; see also T.O. Elias, New Horizons in International Law (Alphen aan den Rijn, 1979), 27–28. 435 Preston UK High Commissioner to Bates CRO, 15 May 1961, NA FO 1110/1477. 436 H.B. Tolley, Jr, The International Commission of Jurists, 64. 437 Convention and Statute of the Commission of African Jurists, L.B. Sohn (ed.), Basic

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too, in the euphoria that followed the creation of the OAU, it was unanimously resolved that the Commission of Jurists should place itself under the authority of the OAU as one of its Specialised Commissions. The proposal was approved by the 1964 Lagos Council of Ministers (CoM) and, then, the 1964 Cairo AHSG. However, it was barely active and was dissolved by the November 1966 Addis Ababa AHSG as part of the reforms which reduced the number of Special Commissions from six to three. In its place the OAU set up its own Legal Committee, essentially an ad hoc Council of Ministers of Justice as opposed to an independent grouping of jurists.438 Like almost everything connected to the 1961 ICJ Lagos Conference, it therefore led nowhere. In mitigation, Elias, who had been chiefly instrumental in its formation, suggests that the ‘unfortunate’ relocation of the commission within the OAU created a potential conflict of interest in that, by its very nature, ‘proposals for the advancement of the Rule of Law in Africa might be critical of acts or omissions of some of the member governments’. The African states, he added, ‘have not shown any readiness for this enterprise’, that is, the Rule of Law.439 It would be 1967 before the ICJ followed up its 1961 Lagos Conference ‘success’ with a second conference in Africa. Despite the accomplishment of the 1961 ICJ Lagos Conference in bringing together jurists from the two main traditions, in the mid-1960s the intention seems to have been to hold separate conferences for, respectively, Francophone and Anglophone lawyers. In the event, most likely the CIA funding disclosures that emerged after the Conference, only the Dakar Francophone conference was held. The theme of this conference, which was chaired by M’baye, was ‘La fonction du droit dans l’évolution des communautés humaines’ (The Function of Law in the Evolution of Human Society). It brought together about fifty African participants, almost half of whom were from Senegal, and a similar number of non-African observers. In sincere flattery of Lagos, it concluded with the Dakar Declaration and Conclusions which were circulated Documents of African Regional Organizations Vol. I (Dobbs Ferry, 1971), 98–104. 438 OAU CM/Res 27 (II), OAU AHG/Res.4 (I), OAU ‘Report of the Administrative Secretary-General of the OAU: A review of the years 1963–68’, Algiers, September 1968, CM/212 (Part 1), 8 and OAU ‘Report of the Administrative Secretary-­General of the OAU covering the period October 1966 to February 1967’, 7, NA FCO 25/186. 439 T.O. Elias, New Horizons in International Law, 27–29, 165, ‘The Charter of the Organization of African Unity’, American Journal of International Law, 59/2 (1965), 264–265 and UN (G) HR/Liberia/1979/BP.1, 8; see also O.C. Eze, UN (G) HR/ Liberia/1979/BP.3, 7–8, Z. Cervenka, The Organisation of African Unity and its Charter (London, 1969), 75–79 and The Unfinished Quest for Unity: Africa and the OAU (London, 1977), 37, W.C. Ekow Daniels, ‘The Role of Law in Changing Africa’, Pan-Africanist Review, 1/1 (1964), 44, J. Woronoff, Organizing African Unity (Metuchen, 1970), 171–72 and B. Ndiaye, ‘The Place of Human Rights in the Charter of the Organization of African Unity’, K. Vasak (ed.) The International Dimension of Human Rights Vol. 2, 607.

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after the conference to all African lawyers and teachers of law. The last Conclusion proposed that: ‘The International Commission of Jurists is requested, in cooperation with the competent African organisations, to study the feasibility of creating a regional system for the protection of human rights in Africa; an Inter-African Commission on Human Rights, with consultative jurisdiction and the power to make recommendations, might be the first element in such a system.’ The conference also expressed its belief: ‘That it is not possible to introduce discrimination into the concept of the dignity of man; that the dignity of man in Africa calls for standards no lower than those recognized elsewhere; that any erosion of this ideal would be an unacceptable retrograde step.’ That is, Africa should not have a second-class system of human rights protections.440 Just over a month after the 1967 ICJ Dakar Conference, press reports emerged that the ICJ was one of several organisations that had received secret funding from the CIA. The funds had been channelled through various US foundations and the ICJ’s US affiliate, the American Fund for Free Jurists. Most likely, only a few of the US nationals connected to the ICJ as staff or Commissioners were likely to have been directly aware of the CIA’s involvement; although Tolley, the ICJ’s biographer, does not fully exonerate ICJ Secretary-General MacBride of having had some awareness or at least suspicion of long-term CIA involvement. However, following hard questioning by, in particular, Tanzania, the ICJ was able to satisfy the NGO Committee’s 1967 inquiry as to its bona fides. However, it was not as easily able to weather the ensuing financial storm as sponsors, notably the Ford Foundation, began to disengage.441 As a result, by 1970, the ICJ was in serious financial trouble and drastic expenditure cuts had to be effected. ICJ Secretary-General MacBride, although he had been due to leave, nonetheless committed to spend his sabbatical assisting in the ‘restructuring’ of the ICJ’s finances.442 A desperate appeal for financial support was made at the May 1970 Conference of European Ministers of Justice at The Hague, which brought in some support, including a lead contribution from the British government that was itself beginning to come under criticism from the ICJ for its part in the ‘Troubles’ of Northern Ireland and also for its colonial stewardship past – criticism that was scrupulously set out in the ICJ’s funding request memorandum that had been drafted by ICJ Secretary-General 440 Bulletin of the ICJ, 28 (1966), 26 and 29 (1967), 1–17 and Congrès de juristes africaines francophones, La fonction du droit dans l’évolution des communautés humaines: Document de travail (Geneva, 1967), Programme https://www.icj.org/ congres-de-juristes-africains-francophones-programme-dakar-5-9-janvier-1967 and Déclaration de Dakar Conclusions https://www.icj.org/declaration-de-dakarconclusions-dakar-5-9-janvier-1967, both last accessed 25 April 2017. 441 H.B. Tolley, Jr, The International Commission of Jurists, 125–128, 131–133. 442 MacBride to Stewart 11 June 1970, NA FCO 52/9.

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MacBride and sent to the British government. In contrast, not only were the French (and Italians) unsympathetic but the British delegate, Evans, had even to (successfully) resist a French attempt to delete details of the funding request from the meeting records.443 In the event, the ICJ was able to survive only as a result of drastic cost-­ cutting and a final two-year subvention by the Ford Foundation, which, as Tolley explains, was only intended to facilitate an orderly winding up of the ICJ’s affairs, and also the gradual mobilisation of support from several European governments and beyond.444 ICJ Secretary-General MacBride’s memorandum had also indicated that he would seek support from African governments, ‘even if only of a “token nature”’, but, from the list of government subventions, no African support is identifiable until oil-rich Nigeria made a small, probably, oneoff donation in 1974.445 Financial difficulties would endure well into the 1970s. In 1975, ICJ Secretary-General MacDermot reported to his Executive Committee that ‘the underlying uncertainty of our financial position was “looming larger” … our position is now critical. Unless there is a considerable increase in our income in the next few months … we will find ourselves bankrupt early in the New Year’. For a few years, therefore, the ICJ was unable to contemplate any seminars in Africa. The situation would only be slightly ameliorated when in the mid-1970s the Ford Foundation again expressed its willingness to finance seminars but not the ICJ itself.446 In 1971, following MacBride’s departure, MacDermot had been appointed ICJ Secretary-General. Like MacBride, Africa was seemingly top of his list of priorities. That same year, he visited Ethiopia, Kenya, Tanzania, Zambia, Uganda, Nigeria and Ghana with a number of topics in mind but most probably with a view to briefing himself on African opinions. At his interviews with African political leaders he expressed the hope that they would support the formation of an African human rights commission, although by omission his notes reveal no enthusiasm on their part. Among the more interesting opinions put forward, with relevance to future ICJ policy, was one advising that Kenya was ‘a disguised 443 ICJ Executive Committee to Foreign Minister Stewart 5 May 1970 enclosing Memorandum on the International Commission of Jurists, 14–15 and Evans to MacBride 2 June 1970, NA FCO 52/9. 444 H.B. Tolley, Jr, The International Commission of Jurists, 128–130. 445 ICJ Executive Committee to Foreign Minister Stewart 5 May 1970 enclosing Memorandum on the International Commission of Jurists and MacDermot to Sinclair, Legal Advisor, FCO 14 September 1976 enclosing Confidential ICJ Income Statement 1970–1975, NA FCO 52/9. 446 WJB Financial Memorandum by the Secretary-General for the Executive Committee Meeting 11 October 1975.

Figure 2. Niall MacDermot (1916–1996), Secretary-General of the International Commission of Jurists (1970–1990), who played a key role in the process of the ACHPR (Ian Seiderman, Courtesy of the ICJ).

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dictatorship’ due to its one-party political system and another that in Tanzania the ICJ was considered to be an ‘instrument of the cold war’, no doubt reflecting the memory of the secret CIA funding.447 While Butler, the ICJ’s long-time Chairman of its Executive Committee, could not recall a formal African policy, he described the ICJ as ‘geographical junkies, never more than two Americans’,448 there is no denying that from 1970 on the number of African Commissioners increased quite dramatically. The most important appointment was that in 1972 of M’baye who replaced Forster who had also been his predecessor as First President of the Supreme Court of Senegal. In a further statement of intent, in 1977, M’baye was elected President of the ICJ. Although the position was of only limited importance, the title nonetheless provided M’baye with suitable credentials and status when meeting with African political leaders, which almost certainly was what was intended.449 It would be the combination of M’baye’s political address book and ICJ Secretary-­General MacDermot’s ‘tenacity’, ‘determination’ and access to funding that would enable the ICJ to orchestrate the remarkable political campaign that helped bring about the process by which the ACHPR came into being. M’baye himself ‘recounted and paid tribute to the decisive contribution which the ICJ had made to the creation of the ACHPR’ with ‘tact and discretion’ and singled out for ‘public homage’ ICJ Secretary-General MacDermot’s personal ‘tenacity’.450 The reference to ‘tact and discretion’ most likely refers to ICJ Secretary-­General MacDermot’s appreciation of the need to understand and tolerate the one-party state system and Africa’s desire to follow its own path towards a human rights regime and not a path determined and circumscribed by Western conceptions and concerns. Most appropriately, Tolley, the ICJ’s biographer, described the ICJ as the ‘midwife’ of the ACHPR.451 The idea of an ICJ conference in support of an African human rights commission had been contemplated by ICJ Secretary-General MacBride already in 1969. He had included a detailed specification for this conference, as an example of the type of work carried out by the ICJ, in the funding request memorandum that had been given to potential government sponsors. Apart from what he considered was the obvious need for an African human rights regime, in a damning indictment of British colonial rule, he also argued that: 447 MacDermot to Evans FCO 7 June 1971 enclosing interview notes on MacDermot’s meetings in Africa April/May 1971, NA FCO 52/12 448 Interview with William Butler, 1 November 2007, New York. 449 H.B. Tolley, Jr, The International Commission of Jurists, 103 (Table 5.1), 158–159 (Table 7.2). 450 ICJ Executive Committee Minutes 30 October 1982, 6 and K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 21; Butler also referred to MacDermot’s ‘determination’ (Interview with William Butler, 1 November 2007, New York). 451 H.B. Tolley, Jr, The International Commission of Jurists, 178.

Figure 3. Kéba M’baye, Chief Justice of the Supreme Court of Senegal (1964– 1982) and President of the International Commission of Jurists (1977–1985) (M’baye Family Papers).

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The rule of law was unknown in the majority of colonial territories, indeed colonial rule was the negation of the principle that every individual was entitled to equal protection under the law … The heritage left by the colonial powers has been one of instability and a negation of most of the ideas set forth in the Universal Declaration … the example of colonialism in practice has set precedents which could not be destroyed by the drafting of an independence constitution. This accounts for much of the instability existing at the present time in Africa and it also accounts for the tendency towards the establishment of dictatorships, military or otherwise.

The specification also outlined the expressions of support for an African human rights commission that had been tabled at the 1961 ICJ Lagos and 1967 ICJ Dakar conferences. But he suggested that above all it was the discussions at the 1969 UN Cairo seminar that ‘marked a very decisive step forward towards the establishment of a regional commission on human rights’, even though delegates had disagreed as to the functions and powers to be delegated to this commission. For that reason, he argued, ‘it is highly desirable and urgent to take follow-up action to ensure that such a commission is set up and to ensure that, if set up, if (sic.) will be effective’. Yet, at the same time, he also noted that the quality of the delegates had been poor and that the seminar outcome had received little publicity in the African press. He therefore concluded that: ‘It is doubtful that the proceedings of the Cairo Seminar will receive really high level consideration by African Governments unless the matter is now actively pursued.’ If therefore the momentum was to be sustained it was ‘essential to enlist the active interest of lawyers throughout Africa in the project … and to get them to participate actively in the formulation of concrete proposals’. To that end, he proposed a conference of African jurists that might formulate concrete recommendations. As to the make-up of attendees, he envisioned between 130 and 160 participants in which each African state would be represented in the proportion of two non-government to one government lawyer. It would not draft a convention but its conclusions would be passed on to appropriate African and UN bodies. Unfortunately, the idea had come at the wrong time for the ICJ and, as a result, the proposed conference was never held.452 Discussions about an African conference seem to have re-emerged in 1972. It was discussed at the October 1972 Executive Committee and a decision reached that it would be better to choose a specific topic for the conference rather than 452 ICJ Executive Committee to Foreign Minister Stewart 5 May 1970 enclosing Memorandum on the International Commission of Jurists Appendix “B”: S. MacBride, ‘Confidential Memorandum from the Secretary-General of the International Commission of Jurists: Proposed African Conference to formulate proposals for the setting up of an African Commission on Human Rights’ 1 November 1969, NA FCO 52/9.

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the more general ‘Rule of Law’. By the time of the May 1973 Executive Committee the suggestion had already begun to take shape and the topic of ‘human rights under a one-party state’ given serious consideration.453 In early 1974 ICJ Secretary-General MacDermot visited Tanzania and Zambia and in the process took soundings with African political leaders about the proposed topic and the extent to which they were willing to host such a seminar.454 Tanzania eventually agreed to host the seminar with funding provided by the Swedish government and the Ford Foundation. Disturbingly, the ICJ also accepted the Tanzanian government’s stipulation that it should be regarded as a private meeting and that nothing should therefore be published without the consent of the participants; indeed, that the seminar report was to be submitted for prior approval to the heads of state of the nationals attending the conference.455 Clearly the past had not been forgotten and the ICJ was still on probation as far as the Tanzanian government was concerned. According to Dieng, the topic had been ‘sold’ to ICJ Secretary-General MacDermot by M’baye as a necessary reconciliation with African political reality and as a ‘tactical approach’ although it was precisely at this time that President Senghor began the process of opening up the Senegalese political system to other parties.456 It was to be understood as a means of reaching out to the predominant political system in Africa, but also as a means of communicating to non-Africans the African notion of communal society and the difficulties faced by emerging states as factors that needed to be addressed if human rights were ever to become acceptable. As ICJ Secretary-General MacDermot would later explain: It had by this time become clear that very few of the new independent States were going to adopt or maintain a system of parliamentary democracy on the Western model … If we were to have any influence in these countries, we had to be ready to discuss human rights under their system of government.457

He would also argue that ‘there is a great deal of what is meant by the concept of the rule of law which is perfectly compatible with a one-party state or even with a military regime’.458 It was a point that Msekwa (Vice-Chancellor, Dar es Salaam 453 ICJ Executive Committee Minutes 28–29 October 1972 and 26 May 1973. 454 ICJ Report on Secretary-General’s Visit to Zambia and Tanzania 20–24 January 1974, 455 ICJ, Human Rights in a One-Party State (London, 1978), 11; see also WJB MacDermot to Participants 18 October 1976 and WJB Nyerere to MacDermot 7 February 1978. 456 Interview with Adama Dieng, 12 November 2007, Paris. 457 N. MacDermot, ‘Acceptance Speech Erasmus Prize 1989’, ICJ The Review, Special edition 57 (1996), 135; see also N. MacDermot, ‘The Credibility Gap in Human Rights’, 96–98. 458 Testimony of N. MacDermot, International Protection of Human Rights: The Work of International Organizations and the Role of U.S. Foreign Policy, Hearings before the

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University) would also stress in his keynote address, observing that ‘all of us here are convinced that one-party systems are compatible with democracy’.459 The 1976 ICJ Dar es Salaam Seminar on ‘Human Rights in a One-Party State’ was attended by thirty-two African delegates from eight African states and, unusually, only four ICJ and Ford Foundation outsiders; Kenyan delegates, though, were conspicuous by their absence. It would not be an exaggeration to suggest that the message the conference sought to convey was naïve, at best, and, at worst, did not knowingly accord with the observable practice of the African one-party state. Indeed, references in the seminar report of ‘lapses’ and of ‘a morbid aversion to legality and lawyers’ hint at the reality. Moreover, in the seminar Workshop on ‘Individual and Collective Rights’, conflict had arisen over the ‘basis of the concept of human rights’. Participants had argued that in a conflict between group rights and individual rights, individual rights had to yield – a sentiment recorded in the seminar’s conclusions. In conception and in its conclusions, the seminar sought to put a positive gloss on the one-party state system. For example, it emphasised that preventive detention was not the sole preserve of one-party states and that an ombudsman was not only or especially applicable to one-party states. It also concluded, rather haplessly, that ‘participation by the public in the decision making process was desirable and necessary’ and that national constitutions should include justiciable Bills of Rights – a notion long resisted by President Nyerere. Its final, trite, conclusion was that: ‘The commitment of the party to human rights is of crucial importance in a oneparty state. The party should seek to the greatest possible degree to give effect in its policies to fundamental human rights and basic freedoms.’ Although it had been of particular urgency for ICJ Secretary-General MacBride in 1969, interestingly, there is no record of any discussion of an African regional commission of human rights.460 A more realistic assessment of the one-party state was given one year later at the 1977 FESTAC Colloquium by a Kenyan professor who observed, no doubt with Kenya in mind, that: ‘If African intellectuals expect African governments to give them freedom of expression and set up opposition parties I think they’re waiting for the second coming of Christ.’461 However, even within the ICJ, this apologia for the one-party state was severely criticised. In what was described as Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs House of Representatives 93rd Congress, First Session (1973), 18. 459 P. Msekwa, ‘Keynote Address’, ICJ, Human Rights in a One-Party State, 21. 460 ICJ, Human Rights in a One-Party State, 9–16, 39, 59, 107, 112–114, 119, 123–124; MacDermot was subsequently obliged to write to President Nyerere, after Tanzania had signed the ACHPR, to protest at the creation of Special Tribunals allowing for no legal representation or right of appeal (WJB MacDermot to President Nyerere 21 April 1983). 461 J.C. Randal, ‘Weariness, Disillusionment Grip African Intellectuals’, Washington Post, 25 January 1977.

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‘a lively discussion’, at the 1977 ICJ Twenty-Fifth Anniversary meeting in Vienna, several commissioners made the point that a one-party state was incompatible with the rule of law and the right to criticise, oppose and demand elections; that, for example, the conclusion of the conference which sought to emphasise the freedom of the press but denied it the right to challenge a government’s fundamental philosophy or policies was a contradiction; and that dialogue with one-party states could be taken as implied approval. In response ICJ Secretary-General MacDermot and a number of commissioners (such as Binaisa) argued that such a system of government was ‘here to stay for a substantial period of time’ and that, instead of condemning it, there should be an attempt to understand the circumstances that had given rise to its ubiquity in Africa.462 From the opposite perspective, President Kaunda also expressed his dissatisfaction and insisted on having his displeasure formally recorded in the Conference report. While agreeing that it ‘reflects fairly objectively and without misrepresentation the protection in practice of human rights in the one-party participatory democracy of Zambia’, he argued that it was not correct to suggest that the one-party system instituted in 1973 had created any limitation on the right of expression in Zambia or that membership of the party was only open to those who supported its objectives.463 As with the 1967 ICJ Dakar Conference, it was intended that the seminar conclusions should be followed up and widely disseminated. However, due to funding difficulties, it was only when the Ford Foundation provided a grant in early 1978 that the ICJ was, belatedly, able to arrange for Supreme Court Justice Chomba (Zambia) and Thoolen (ICJ Executive Secretary) to visit the Minister of Justice of the participant states to discuss its findings and to assess the extent to which the seminar’s recommendations were in accord with actual political practice; the first time an African human rights conference had been followed up by lobbying of the political kingdom. The primary value of the seminar, though, probably its main aim, was to establish the credibility of the ICJ as an NGO sympathetic to African conditions and forms of political expression irrespective of its occasional private representations and public reports. In this, the ICJ would prove to be extremely successful and tactically astute. As will become clear, it would be their next colloquium in Africa, in 1978 in Dakar, that would kick-start the real political process of the ACHPR.464 462 WJB Vienna Meeting Miscellaneous, Note, MacDermot (undated) and Report of the Twenty-Fifth Anniversary Meeting of the ICJ, Appendix A ‘Summary of discussions on the Opening Plenary Session on the Policy and Activities of the ICJ’ and Appendix B ‘Report of Discussion in Committee II: The Rule of Law in Emerging Forms of Society’. 463 ‘Comments by His Excellency President Kaunda of Zambia on the Conclusions’ ICJ, Human Rights in a One-Party State, 125–126. 464 ICJ Report on Activities 1977–1980, 3, ICJ Secretary-General’s Report No. 28, 1

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The essential point that ICJ Secretary-General MacDermot had grasped was that outsiders were in no position to compel the formation of an African human rights regime. Whether at the UNGA, where the African Group was increasingly able to insist on an African revanchist interpretation of human rights; the CHR, where African governments could only be brought before the bar with (reluctant) African consent; in bilateral government to government negotiations where human rights admonishments were largely finessed; multilateral trade agreements where human rights clauses were successfully resisted; or in the general contempt in which the NGOs and human rights conferences were held by African political leaders, to a very considerable extent, African governments were able to defy what they saw as neo-colonialist attempts, motivated by self-interest and double standards, to interfere in what they regarded as their internal affairs. No African government accused of ‘gross violations of human rights’ would be brought down by the UN, a human rights conference or aid sanctions. On the contrary, they were simply encouraged to believe that they were untouchable. If an African human rights regime was therefore ever to come about, the initiative, as ICJ Secretary-General MacDermot would shortly advise the 1979 UN Monrovia Seminar, would have to come from within Africa and it would have to be brought before the OAU AHSG. Moreover, the basis of such a regime would have to be seen to reflect African interests and concerns and African values, and not the wholesale adoption of Western conceptions and precedents.465 It would be precisely on just such a basis that M’baye and ICJ Secretary-General MacDermot would begin to put into action their plans for the final push for an African human rights charter.

July – 30 September 1978, 1–2, WJB MacDermot to Butler 3 March 1978, ICJ Executive Committee Minutes 9 October 1976, 7 and 15 October 1977, 3, ICJ, Report of the follow-up mission to the Dar es Salaam Seminar on Human Rights, their protection and the rule of law in a one-party state (1978) http://icj2.wpengine. com/wp-content/uploads/2013/06/Dar-es-salaam-human-rights-rule-of-lawseminar-follow-up-mission-1978-eng.pdf, last accessed 24 October 2016 and K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 21; in June 1978 Chomba was appointed Minister for Legal Affairs and Attorney-General. 465 N. MacDermot UN (G) HR/Liberia/1979/WP.2.

Part Four

The Political Process

Chapter 2 The Insiders – the Political Process of the ACHPR As described in earlier chapters, sometime around 1977, the first tentative signs that at least some African states were prepared to consider a degree of human rights oversight had begun to emerge. In 1977 and 1978, the military government of Nigeria, with support from other African states, had sponsored resolutions in the UNGA and CHR calling for states in those regions where regional arrangements for human rights did not exist to consider putting arrangements in place and requesting the Secretary-General to extend to the OAU, ‘if it so requests’, such assistance as it may require to facilitate the establishment of an African regional human rights commission. For the first time, unlike the Nigerian-­ sponsored 1967 CHR resolution with which these resolutions are often bracketed, the primary consideration was no longer self-determination or apartheid but domestic governance.1 At the same time, following M’baye’s appointment as Chairman of the CHR in 1978, there had also seemed to be a modest shift in the attitude of some African states towards acceptance of criticism of one of their number thereby opening up the prospect of limited action being taken in respect of the Sub-Commission referrals against Equatorial Guinea and Uganda.2 Human rights, with President Amin most specifically in mind, also emerged as a major topic of discussion at the 1977 London Commonwealth Heads of Government Meeting (CHOGM). 1

2

UNGA 32/127 16 December 1977, UN ESCOR 42nd Session 1967 Supplement No. 6: CHR Report on 23rd Session E/4322, 80–134 (Discussion and CHR Resolution 6 (XXIII) 16/22 March 1967) and UN ESCOR 1978 Supplement No. 4: CHR Report on 34th Session E/1978/34, 115 (CHR Resolution 11 (XXXIV) 24 February 1978), 132 (CHR Resolution 24 (XXXIV) 8 March 1978); see, for example, C. E. Welch Jr., ‘The O.A.U. and Human Rights: Towards a New Definition’, Journal of Modern African Studies 19/3 (1981), 410 Note 4. For a favourable assessment of M’baye’s role at the CHR, see UK Mission to FCO 10 March 1978, NA FCO 65/2050 and Human Rights: 34th Session of the United Nations Commission on Human Rights, Personal report of Sir Keith Unwin, UK Representative, IOC (78) 25 10 May 1978, NA FCO 58/1386.

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The Commonwealth human rights initiative Already in advance of the 1977 London CHOGM, a major point of concern for most member states, but especially the UK where political feelings ran high, was whether President Amin would, or should be allowed to, attend – and the corollary concern that, were he to attend, the Queen would be obliged to invite him to her Silver Jubilee celebrations which overlapped with the CHOGM. The British government therefore deliberated carefully on what steps it might take as it was well aware that CHOGMs, by tradition, did not address the internal affairs of member states. The options ranged from barring President Amin, but not a Ugandan delegation of acceptable standing, expelling or suspending Uganda from the Commonwealth and an African walk-out at the meeting. As the due date neared, and it was feared that President Amin would after all force himself on the UK, arrangements were also made to divert his plane to Scotland or to detain him until he agreed to leave.3 Some two months ahead of the CHOGM, Lord Thomson, a former Colonial Secretary and European Commissioner, was despatched by the British government to meet with senior African leaders in order to sound them out on their attitude to the various actions that might be taken to block President Amin’s attendance. He reported that President Nyerere thought that President Amin would threaten and bluster about attending but ultimately he would not attend. If he were to come, the British government should ignore him and confine him to his hotel. As to how President Nyerere might respond if President Amin announced his intention to turn up for an OAU meeting in Dar es Salaam: ‘President Nyerere said he would be ready to lock him up and to quarrel with the whole of Africa if necessary. But he could threaten to do this because it was believed he would do it, whereas he knew perfectly well that a British government could not threaten an African leader in this way.’ Minister for Foreign Affairs Waiyaki (Kenya) similarly advised that if President Amin was denied entry into the UK: ‘Kenya wouldn’t say a thing.’ As to the views of other African Commonwealth countries, he thought that: ‘Zambia, Tanzania and Botswana would similarly say nothing … Ghana and Sierra Leone would support such a move. Nigeria, however, would probably choose to see it as a matter of African pride.’4 3

4

Dales 4 February 1977, NA FCO 58/1176 and Dales to Wright 4 April 1977 enclosing President Amin’s attendance at the Commonwealth Heads of Government Meeting (CHGM), FCO 1 April 1977, The Exclusion of President Amin, Home Office 26 May 1977 and Arrival of President Amin: Guidance for FCO representatives, FCO 31 May 1977, NA FCO 31/2164. ‘CHGM: Human Rights’ Dales to Chitty 7 March 1977, NA FCO 58/1176 and Record of the meeting between Lord Thomson and the Minister for Foreign Affairs of Kenya, Dr Munyua Waijaki on Wednesday 13 April at 1500 hours at Harambee House, Nairobi, British High Commission 20 April 1977 and Record of the meeting

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A parallel FCO review of the views of British High Commissioners on the attitude that would be adopted by member states if President Amin was denied entry into the UK, or detained if he tried to enter, concluded that the outcome was uncertain. A majority would oppose President Amin, but India, Jamaica and Nigeria would be strongly against any such action and any fallout would depend on the African-Asian consensus at the time in response to the specific action that had been taken.5 This assessment and subsequent threats made to the British government by the Nigerian government puts into a wider context the worth of Nigeria’s sponsorship of human rights resolutions at the UN at this time. Ultimately, the political decision was taken by the British government that, while a delegation from Uganda composed of officials deemed suitable would be given entry into the UK, President Amin would not. President Amin was so advised in late May by the Saudi Embassy which, in the absence of diplomatic relations between the UK and Uganda, was handling Ugandan affairs in the UK. The Nigerians, who were generally opposed to any action being taken against President Amin, were also kept informed of developments by an anxious British government but there was a real fear that they might use any action taken as an excuse to leave the Commonwealth as they were still angry about the British government’s decision to allow the overthrown General Gowon leave to stay in the UK. Foreign Minister Garba, for example, berated FCO officials and warned ‘that if anything was done to humiliate President Amin, the reaction of black Africans could be very adverse’, including non-attendance. There is therefore good reason to suppose that the Nigerian delegation sent to Uganda to meet with President Amin at the end of May 1977 may well have been sent with the sole purpose of advising him that Nigeria would support his attendance whatever the attitude of the British government.6 In contrast, President Kaunda spoke out publicly against President Amin, describing him as a ‘black dictator’ as bad as Hitler and hinting that he would not allow him in to a CHOGM in Lusaka, but also warning that few Commonwealth leaders would speak out because of skeletons in their own cupboard.7

5 6

7

between Lord Thomson and President Nyerere of Tanzania on 14 April at 1730 hours in Dar es Salaam, British High Commission 26 April 1977, NA PREM 16/1174. ‘President Amin’s attendance at the Commonwealth Heads of Government Meeting (CHGM)’ Commonwealth Coordination Department, FCO 1 April 1977, NA PREM 16/1174. Wall to Mansfield 30 May 1977, NA FCO 31/2164, PS to Wall 1 June 1977, Message from Prime Minister Callaghan to General Obasanjo enclosed with draft Ewars to Mansfield 2 June 1977, Glasby 5 June 1977, Glasby ‘CHGM Nigerian Mission’ 6 June 1977 and Owen to Lagos ‘President Amin’ 7 June 1977, NA FCO 31/2165 and Johnson to Lagos ‘Commonwealth Heads of Government Meeting’ 6 June 1977, NA PREM 16/1176. President Kaunda speeches 23 May and 9 June 1977, Africa Diary, 6–12 August 1977, 8608–8609.

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As therefore the political temperature rose, President Amin threatened attendance, exactly as President Nyerere had forecast he would. In the process, he exchanged several telegrams with Commonwealth Secretary-General Ramphal, invariably copied to Prime Minister Callaghan (UK), OAU Administrative Secretary-General Eteki, Arab League Secretary-General Riad, UN Secretary-General Waldheim and President Bandaranaike (Sri Lanka), Chairman of the Non-Aligned Movement (NAM). In a telegram at the end of May, he referred to the personal and confidential communication he had received from Prime Minister Callaghan warning of the intention to refuse him entry into the UK but nonetheless advising of his intention to attend and the points he would make at the meeting: although Britain has long ceased to be an Empire, of which she was the master and the colonies the slaves, she iss (sic.) still clinging to day-light dreams in which she pretends to arrogate to herself the right to exclude an independent and sovereign state like Uganda from attending the Commonwealth Meeting of Heads of State and Government. It is obvious that this has been due to the fact that it is Uganda’s intention … to point out the two thousand mistakes made by Britain during her colonial rule. I wish to make it absolutely clear that gone are the days when Britain yielded the powers and authority of an Imperial Master over the Commonwealth.8

The draft response from Commonwealth Secretary-General Ramphal – it is not clear from the Commonwealth Secretariat archives whether, although it seems likely, it was sent – was crafted in such a way as to encourage President Amin’s non-attendance. It noted the immense personal hostility towards President Amin both inside and outside the meeting and warned ‘of immense danger to you personally and of incalculable embarrassment’, a warning that the FCO had also thought to communicate to President Amin, a coincidence that therefore suggests some collusion. In the event, neither President Amin nor a Ugandan delegation even attempted to attend the meeting.9 There was, however, also the further question of the Seychelles delegation as President Mancham (Seychelles) had been overthrown in a coup supported by Tanzania timed deliberately to coincide with his absence at the CHOGM. His entitlement to a seat was therefore briefly considered at the first session of the CHOGM but refused on the basis of assurances given by President Nyerere that he no longer represented the de facto government of the Seychelles. Given President 8 9

President Amin to Ramphal 23 February 1977 File 2008//09, CSLA and Life President of Uganda Amin to Rumphal (sic.) et alia 3 and 31 May 1977 File 2008/02, CSLA. Second Draft Letter to President Amin from Ramphal (undated), File 2008/15, CSLA.

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Nyerere’s reputation, and the insignificance of the Seychelles, it was an exclusion that occasioned far less angst than the question of President Amin’s attendance.10 Irrespective of Ugandan attendance, with or without President Amin, there was also the related question as to whether the CHOGM should discuss human rights, a discussion which would inescapably focus on President Amin. The UK would have liked to propose such a discussion but decided, in what can only be regarded as further evidence of its impotence in such matters, that discretion was the better part of valour. In a paper setting out the case for proposing or, in this case, not proposing such a discussion, the argument was made that: Commonwealth Governments in general would regard the suggestion with suspicion. Many of them have skeletons in their cupboards and would realise that they were open to attack: eg Singapore (political detention without trial extending over many years); India (suppression of free speech, political detention, dictatorship); Nigeria (corruption, bloodshed); Tanzania (detention without trial, oppression regime (sic.) in Zanzibar) and so on. More important, Britain would be vulnerable because of the deprivation of basic human rights in Rhodesia.

Moreover, the paper argued, if it was accepted on the agenda, member states ‘would have plenty of time to prepare their attacks on others, in order to divert criticism from themselves, and an unedifying slanging match could result’. It was therefore recommended, and approved by Foreign Secretary Owen, that the issue might best be addressed in the formal speeches at the meeting or under one of the more general items of discussion.11 In the event, discussion of human rights at the restricted session, in which no formal record is taken, was requested by Barbados and Canada, although collusion with the UK cannot be totally discounted.12 Privately, in advance of the 10

HGM (77), Minutes of Meetings, Second Session 8 June 1977, File 2008/17, CSLA. One of the petitions addressed to the meeting was A Memorandum To All The Delegates Attending the Commonwealth Conference in London ( June 1977): Tanzania’s Detainees and Human Rights from ‘the friends of Tanzania’, which sought to draw attention to the 200 detainees held in Tanzanian jails under the 1962 Preventive Detention Act but contrary to the UDHR (File 2008/16, CSLA). In line with established protocol (see Papadopoulos to Anyaoku 31 July 1973 File 2008/16, CSLA), it was probably circulated to the Chairman and Heads of Government but not discussed at any of the sessions. 11 ‘Commonwealth Heads of Government Meeting – June 1977: General Brief for Chairman’, File 2009/161 3/3, CSLA, ‘Commonwealth Heads of Government Meeting: Human Rights’ Chitty to Duff 25 February 1977, NA FCO 58/1153 and ‘CHGM: Human Rights’ Dales to Chitty 7 March 1977, NA FCO 58/1176. 12 H. deB. Forde (Barbados) to Ramphal 4 March 1977, ‘Extract from Monthly Report February 1977’ 1 March 1977 (Prime Minister Trudeau) and Prime Minister

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meeting, Foreign Secretary Owen also wrote to Prime Minister Callaghan, who would chair the CHOGM, expressing the hope that, despite the fact that the discussion of human rights would be held in restricted session, some reference to human rights might be made in the final CHOGM communiqué possibly by way of reaffirming the commitment to the 1971 Singapore Declaration of Commonwealth Principles.13 As for President Jawara, he advised Commonwealth Secretary-General Ramphal that ‘it is not my intention to submit … any additional papers’ or to raise other issues for discussion.14 Almost inevitably, then, the restricted discussion on human rights concluded with agreement on a reiteration of the commitment to the 1971 Singapore Declaration of Commonwealth Principles and an expression of a shared belief ‘in the fundamental rights of all men to life and liberty, to those personal freedoms that are the common heritage of their peoples and to respect for human dignity and the equal rights of all men’. Notably, as two years later in Decision 115, it was also stressed that ‘rights’ meant ‘economic, social and cultural rights no less than … civil and political rights’. A strong denunciation of Uganda was also adopted, ‘despite fears expressed privately by Nigerian, Tanzanian and Kenyan representatives that this might provoke violent reprisals from Amin on those living in that country’: ‘Cognisant of the accumulated evidence of sustained disregard for the sanctity of life and of massive violation of basic human rights in Uganda … these excesses were so gross as to warrant the world’s concern and to evoke condemnation by Heads of Government in strong and unequivocal terms.’ More ominously, President Jawara took advantage of the restricted discussion on human rights to advise that the Gambian government ‘is particularly concerned about the disturbing increase in gross violations of human rights in the world and we feel that the Commonwealth ought to play its part in combating this tendency’. To that end, he proposed that a Commonwealth Human Rights Commission should be set up.15 According to Taal, then Permanent Secretary at the Gambian Ministry of Foreign Affairs, the proposal seems to have been a personal initiative of President Trudeau to Ramphal (undated, likely mid-April) File 2008//09, CSLA. 13 Owen to Prime Minister PM/77/50 ‘Commonwealth Heads of Government Meeting; Human Rights’ 3 June 1977, NA PREM 16/1176; see also ‘Singapore Declaration of Commonwealth Principles’, Commonwealth Institute, Declaration of Commonwealth Principles (1972). 14 President Jawara to Ramphal 2 February 1977, File 2008//09, CSLA. 15 Commonwealth Secretariat, Commonwealth Heads of Government, The London Communiqué June 1977 (London, 1977), 11, Commonwealth Heads of Government Meeting, London, 8–15 June 1977, Minutes of Sessions and Memoranda: Second Session 8 June 1977, Ninth Session 14 June 1977 (restricted session), Eleventh Session 15 June 1977, NA CAB 133/478 and Brief by the FCO, Commonwealth Senior Officials Meeting, Kuala Lumpur 28–30 November 1978, 14 November 1978, CSOM (78) 1 (h), NA FCO 65/20; see also OAU (L) AHG/Dec.115 (XVI) Rev.1.

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Jawara. He was, by inclination, an Anglophile in much the same way that President Senghor was a Francophile, and therefore more predisposed towards the Commonwealth as a forum for discussion whereas the Foreign Ministry looked more towards the OAU.16 Two months later, therefore, The Gambia would follow up the concern expressed by President Jawara by submitting a proposal for a Commonwealth Human Rights Commission to the 1977 Winnipeg Commonwealth Law Ministers Meeting.17 In fact it was a proposal that two years earlier The Gambia had seemingly sought to air at the 1975 Lagos Commonwealth Law Ministers Meeting but it had been so readily dismissed ‘that “if there had been any lack of determination on the part of The Gambia, it might have died a natural death”’.18 The proposal recalled the 1971 Singapore Declaration of Commonwealth Principles, the recent 1977 London CHOGM statement on fundamental rights and, more specifically, the atrocities in Uganda, and bluntly argued that: ‘Ad hoc condemnation is not enough … the efficacy of ad hoc condemnation of such violations as they arise must be seriously doubted.’ It therefore proposed that a working preparatory committee be created with a view to reaching an agreed draft by the time of the 1979 Lusaka CHOGM or earlier. As to the structure and function of such a commission, The Gambia suggested that it might be composed of eight to ten distinguished jurists who would be given authority to receive and investigate complaints from member states or individuals. Other­ wise, more generally, the commission would encourage an improvement in human rights conditions. As the proposal was only handed out at the meeting, it was agreed that before a decision could be taken it should first be passed to governments for comment.19 The immediate (internal) reaction of Foreign Secretary Owen and Under-­ Secretary of State Luard was to welcome this proposal. They were especially encouraged that The Gambia ‘should have focused in this way on the difference between the theory and practice of human rights and the need for their 16 17

Interview with Ebou Taal, 4 August 2012, London. Establishment of a Commonwealth Human Rights Commission, Memorandum by the Government of The Gambia, Meeting of Commonwealth Law Ministers Winnipeg 22–26 August 1977, LMM (77) 25, NA FCO 65/2050; (see also To Fulfil the Promise of Harare: Rights Must Come First – The Commonwealth Human Rights Unit: A Chequered History, A report by the Commonwealth Human Rights Initiative (New Delhi, undated, probably 1999), 33–37 (Appendix 1) http://www. humanrightsinitiative.org/publications/chogm/rights_must_come_first/rights_ must_come_first.pdf, last accessed 10 January 2017. 18 Interview, Attorney-General Saho, 21 May 1981, quoted by E.G. Bello, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’, Academie de Droit International Recueil des Cours, 194 (1985), 29. 19 Establishment of a Commonwealth Human Rights Commission, Memorandum by the Government of The Gambia, Meeting of Commonwealth Law Ministers, Winnipeg, Canada, 22–26 August 1977, LMM (77) 25, NA FCO 65/2050.

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enforcement’ and, in particular, that a developing African state had taken such an interest in the practical implementation of human rights standards. They also viewed the prospect of a human rights tribunal free of Soviet disruption tactics as in the UN as a further positive. Yet, despite their enthusiasm, consideration of the Gambian proposal only seems to have proceeded at a leisurely pace. This may have been because it was felt that ‘the impetus should come from the developing countries, especially the Africans, if possible’ in that if the UK were to be the first to comment ‘this might not enhance its prospects’. It was therefore not until April 1978 that Foreign Secretary Owen began to request comments on the proposal from Cabinet colleagues.20 The outcome was agreement that before a formal response was given Ministers should meet to consider the issues which such a proposal raised.21 As part of the inter-ministerial preparations for this meeting, a preliminary meeting of officials from the FCO, Home Office, Northern Ireland Office and the Law Officers was therefore held in July 1978. At that meeting, officials expressed concern at the potential for overlapping jurisdiction with the ECHR and also (with no sense of irony) the ‘risk of political and administrative interference’ from such a Commonwealth Commission and individual Commonwealth countries in UK domestic affairs. There was also, in the background, the spectre of Northern Ireland. Views also began to be expressed that there were already many ineffective human rights mechanisms in place and that Commonwealth machinery would most likely fare no better. Not without opposition from those resolutely opposed to the Gambian proposal, it was agreed that a holding conversation should be held with the Gambian government and that, depending on their response, the views of, and consultations with, other ‘like-minded’ Commonwealth countries might also be sought. In any event, until further information could be gathered, it was agreed that the meeting of Ministers should be deferred.22 20 Owen to the Lord Chancellor FCS/78/48 ‘Proposal by The Gambia for a Commonwealth Commission on Human Rights’ 3 April 1978 and ‘The Gambian Proposal on Human Rights’ Simpson-Orlebar to Hall, PS to Mr Luard 21 March 1978, NA FCO 65/2050; see also Wyn Roberts Written Question to Secretary of State for Foreign and Commonwealth Affairs answered by Parliamentary Under-Secretary of State Luard House of Commons 7 December 1977. 21 Silkin to Foreign Secretary 7 April 1978, NA FCO 65/2050. 22 Secretary of State to Legg 2 June 1978, Simpson-Orlebar to Legg 2 June 1978, Beattie to Weir 3 June 1978, ‘Proposal by The Gambia for a Commonwealth Commission on Human Rights’ Beattie to Legg 28 June 1978, ‘Proposal by The Gambia for a Commonwealth Commission on Human Rights’ UND 28 June 1978, ‘Proposal by The Gambia for a Commonwealth Commission on Human Rights’ Wall to Maxwell 8 August 1978 and ‘Gambian Proposal for a Commonwealth Commission on Human Rights’, Elliott (UND) 14 November 1978 and attached draft letter with hand-written responses, NA FCO 65/2050.

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The UK High Commissioner in The Gambia was accordingly instructed to advise the Gambian government that their proposal was being reviewed with care and that the British government regarded it as providing ‘a basis for further discussion in which the UK would play a constructive part’, although there were still concerns. At the suggestion of the Northern Ireland Office, the initial ‘welcomed the proposal in principle’ had been amended to ‘a basis for further discussion’. He was also asked to identify whether The Gambia had received any other responses and whether and how they intended to take their proposal further. In reply, the Gambian Attorney-General said that ‘he recognised that this was a “touchy” subject … So far the Gambia had heard nothing from any other Commonwealth government or from the Commonwealth Secretary-General’. Indeed, they were already coming to the conclusion ‘that no one really wishes to pursue it’ but the ‘ball was not in the Gambians’ court and he was content with this situation’. Their assessment was largely accurate in that, as the FCO learned privately from a friendly source in the Commonwealth Secretariat several months later, ‘the Commonwealth Secretariat have received no comments so far from any Commonwealth country and do not intend to stimulate reactions on what they see as a potentially contentious subject’.23 All the same, a cautious FCO would nonetheless anxiously continue to seek out the views of a few member states, notably Australia, Canada and New Zealand, but also Nigeria (and possibly Ghana). While a Nigerian response is not identifiable, it seems likely that the Nigerians would not only have preferred to take such a lead themselves but also to see any such project proceed on a regional and not a Commonwealth basis.24 Unsurprisingly, therefore, during President Jawara’s several visits to and transits through the UK between 1978 and 1982, there is no mention in the meeting records of a discussion on human rights but there are frequent references to golf holidays in Scotland of which President Jawara was inordinately fond. The bottom line was that, despite all the fine words about human rights at the 1977 London CHOGM, the proposal was in limbo as at this time neither The Gambia nor the Commonwealth Secretary-General were intent on pushing the proposal

23

James to Simpson-Orlebar 17 July 1978, Simpson-Orlebar to Rogers, British High Commissioner, Banjul 13 September 1978, ‘Proposal by The Gambia for a Commonwealth Commission on Human Rights’ Rogers to Simpson-Orlebar 11 October 1978, ‘Proposal for a Commonwealth Commission of Human Rights’ Barltrop to Simpson-Orlebar 18 October 1978 and Baltrop to Secretary of State 18 October 1978, NA FCO 65/2050. 24 ‘Proposal by The Gambia for a Commonwealth Commission on Human Rights’ Beattie to Weir 3 August 1978 and ‘Gambian Proposal for a Commonwealth Commission on Human Rights’, Elliott (UND) 14 November 1978 and attached draft letter with hand-written responses, NA FCO 65/2050.

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and in fact the subject was not raised at the preparatory 1978 Kuala Lumpur Commonwealth Senior Officials Meeting.25 As late as June 1979, therefore, ahead of the August 1979 Lusaka CHOGM, UK officials seemed to presume, with some relief, that the Gambian proposal had most likely died a death. President Jawara had visited London in September 1978 and Minister of State Hart had visited The Gambia in January 1979 and on both occasions there had been no discussion of the Gambian proposal. No doubt to their surprise, then, not only was it placed on the 1979 Lusaka CHOGM agenda at President Jawara’s request but he would energetically pursue it in the review committee and the subsequent discussion among the heads of state.26 The brief prepared by UK officials for the 1979 Lusaka CHOGM was now aimed at an unsympathetic Conservative rather than Labour government. It was therefore more forceful in reminding the UK delegation of the serious concerns that had been raised by the 1978 meeting of officials and identifying that the key policy question for the UK was how the proposal might be blocked with appropriate political tact. It also noted that a consensus was forming with Australia, Canada and New Zealand which were equally doubtful about the proposal. No doubt they too recognised the validity of the brief ’s concern that ‘in the exercise of double standards, a Commonwealth Commission could interfere with the British government’s independence: critics would seize on immigration to embarrass the UK in an international forum’. More in hope then than necessarily expectation, as an argument for blocking the Gambian proposal in the UK interest, the brief noted that over recent years the African states had seemed to take a more proactive stance towards the idea of a regional human rights commission. Insofar as it had been prepared prior to the 1979 Monrovia AHSG the brief was only able to reference as evidence of this regional intent the Nigerian UN initiatives and the prospective 1979 UN Monrovia Seminar.27 At the 1979 Lusaka CHOGM, the Gambian proposal, supported by Foreign Minister Walter (Mauritius) who observed that Mauritius had just recently 25

President Jawara’s visits to the UK are recorded in NA PREM 16/1651 and NA FCO 65/1989, 2159 and 2797; the attitude of the Commonwealth Secretariat may be compared with the sanctimonious sentiments expressed at broadly the same time by its Secretary-General, see S. Ramphal, ‘Preface’, ICJ, Human Rights in a One-Party State, 7–8. 26 ‘Proposal by the Gambia for a Commonwealth Commission on Human Rights’ Simpson-Orlebar to Legg 4 June 1979 and ‘Proposal by the Gambia for a Commonwealth Commission on Human Rights’ Legg to Simpson-Orlebar 7 June 1979, NA FCO 58/1668. 27 ‘Commonwealth Heads of Government Meeting, Lusaka, 1–8 August 1979, Human Rights Gambian Proposal for Commonwealth Human Rights Commission, Brief by FCO’ 11 July 1979 and ‘Gambian Proposal for a Commonwealth Human Rights Commission’ Simpson-Orlebar to Gordon-Lennox 11 December 1979, NA FCO 58/1668.

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proposed a Charter of Human Rights and Responsibilities to the OAU (see page 221 below), was placed on the agenda under Item 4 Commonwealth Co-­ operation but assigned for review by a Committee of the Whole which produced a report for the heads of states. Clearly in a blocking mood, it recommended that the Commonwealth Secretary-General should invite all member states to present their comments as had been proposed by the 1977 Winnipeg Commonwealth Law Ministers Meeting. After these comments had been received, the Commonwealth Secretary-General should appoint a working party to make recommendations to Commonwealth governments. In amelioration, it also recommended that the CHOGM should reaffirm its commitment to human rights.28 An indignant President Jawara countered by proposing that the working party should be set up immediately on the basis that ‘what was lacking was not a reaffirmation of principles and values, but a mechanism which could protect those principles and values’. He was supported by President Binaisa, Foreign Minister Conteh (Sierra Leone), President Moi and President Kaunda who all spoke in favour of President Jawara’s proposed amendment. In explaining his support, President Moi adduced the existence of a Bill of Rights in many constitutions as a relevant factor and also expressed the opinion that: ‘Among the factors to be considered were the effects of racialism and tribalism on any system aimed at the protection of individuals.’ President Binaisa was particularly forceful in arguing that the ‘recommendations’ were too soft and that what was rather needed was a Commonwealth Declaration of Human Rights. This idea was dampened down by Commonwealth Secretary-General Ramphal who pointed out that, as this issue involved so many nuances and potentially many outcomes that had to be considered, it would be inappropriate to tie the hands of the working party whose remit, in any event, allowed them to reach precisely the sort of conclusion that was being proposed by President Binaisa.29 As a result of such support, President Jawara’s recommendation was essentially accepted and the 1979 Lusaka CHOGM communiqué: ‘Reaffirmed the 28 Commonwealth Heads of Government Meeting, Lusaka 1–7 August 1979: Minutes of Sessions and Memoranda File 2010/191, CSLA, HGM (79) 23 Establishment of a Commonwealth Human Rights Commission: Memorandum by the Government of The Gambia and HGM (79) 24 Report of the Committee of the Whole, Note by the Secretary-General 4 August 1979. 29 Commonwealth Heads of Government Meeting, Lusaka 1–7 August 1979: Minutes of Sessions and Memoranda File 2010/191, CSLA Second Session 1 August 1979 and Ninth Session 7 August 1979 (see also Commonwealth Heads of Government Meeting, Lusaka 1–7 August 1979: Minutes of Sessions and Memoranda, NA CAB 133/491 and HGM (79) Ninth Session Commonwealth Heads of Government Meeting, Lusaka, 1–8 August 1979, Provisional record of the Ninth Session 7 August 1979, NA FCO 58/1668) and Reith to Legg UNR 241/2 29 August 1979 NA FCO 58/1668.

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importance attached … to the observance of human rights … and welcomed in principle the initiative by the Government of The Gambia … also requested the Commonwealth Secretary-General to appoint a … Working Party to make recommendations for the consideration of Commonwealth Governments.’30 When it came to setting up the working party, the Commonwealth Secretariat sought the advice of the ICJ as to suitable candidates. While the ICJ was happy to respond, as the first point in his reply, ICJ Secretary-General MacDermot nonetheless queried whether it was ‘a timely moment to discuss such a proposal’ as the ACHPR process was now moving ahead and had been brought ‘into the realm of practical politics’.31 This was undoubtedly good advice but, for presumably what he thought were equally good reasons, it was not advice that he himself had followed in the paper he had just tendered to the 1979 UN Monrovia Seminar (see page 243 below). However, the Commonwealth human rights train had already been ordered to leave the platform and so in November 1979 Commonwealth Secretary-General Ramphal sought the views of all member states and in April 1980 announced the appointment of the members of the working party.32 The working party’s report was issued in interim form in April 1980 following their first meeting. It had taken on board comments collected by the Commonwealth Secretariat33 but clearly some nervousness about the acceptability of its recommendations encouraged the working party to test the waters by issuing an interim report for governments to review.34 The report was also made available to the 1980 Barbados Commonwealth Law Ministers Meeting and the 1980 Nicosia Commonwealth Senior Officials Meeting although they did little more than acknowledge its receipt. However, as a portent of what was to come, at the 1980 Nicosia Commonwealth Senior Officials Meeting, one unidentified representative noted that his country’s representative on the working party served in a personal capacity and that his government’s view was that since there was already

30 Commonwealth Secretariat, Commonwealth Heads of Government, The Lusaka Communiqué August 1979 (London, 1979), Paragraph 65. 31 MacDermot (ICJ) to Fuad 31 October 1979 File 2011/13 3/3, CSLA. 32 Commonwealth Secretariat Circular Letter No 26/80 ‘Commonwealth Working Party on Human Rights’, Deputy Secretary-General Anyaoku 9 April 1980 (including text of Circular Letter No 73/79 7 November 1979 from Commonwealth Secretary-General Ramphal to Commonwealth Governments) File 2011/13 1/3, CSLA and Simpson-Orlebar to Gordon-Lennox 11 December 1979, NA FCO 58/1668. 33 To Fulfil the Promise of Harare: Rights Must Come First – The Commonwealth Human Rights Unit: A Chequered History, A report by the Commonwealth Human Rights Initiative, 38–39 (Appendix 2). 34 Commonwealth Secretariat, Interim Report of the Commonwealth Working Party on Human Rights 18 April 1980, File 2011/12 2/3, CSLA.

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an existing UN human rights machinery there was no need for duplication.35 A similar comment had also been sent in to the Commonwealth Secretariat by Australia and Malawi. The Foreign Office was also aware that Australia, Canada and New Zealand all shared misgivings and the question was therefore how the proposal could be killed off as sensitively as possible.36 The fundamental issue, as the working party understood intuitively and from the comments submitted by governments, was that no Commonwealth government was prepared to accept an investigatory human rights commission; but, equally, governments were reluctant to take political responsibility for killing the proposal. However, many of the comments were so discouraging that Beaulne (Canada), as Chairman, began the second and final meeting of the working party with the personal observation that the reaction of governments to the interim report ‘had filled him with despondency’. Ironically, then, it was the working party’s three African members, The Gambia, Mauritius and Tanzania, who pointed to the January 1981 Banjul Ministerial Meeting, which, they explained, had just recently concluded drafting of the ACHPR, as an example of the possible – however, ultimately, it would be the Chairman who would essentially be proved right in his assessment.37 The Interim and Final Reports, which were issued in April 1981, were broadly similar in that they provided separately for the promotion and the protection of human rights. Promotion of human rights was to be the responsibility of a Special Unit within the Commonwealth Secretariat. Clearly comments had been made by the ‘richer’ member states to limit even this initiative, which they would be expected to fund, and they therefore suggested that this work should be carried out by existing Commonwealth Secretariat staff, but were 35

Record and Background Papers of the Meeting of Commonwealth Senior Officials held in Nicosia, 5–7 November 1980 5th Session 6 November 1980, 84–92, File 2011/73 CSLA. 36 Schultz (Australia) to Malhoutra (Commonwealth Secretariat) ‘Re: Commonwealth Working Party on Human Rights’ 31 October 1980 File 2011/016, CSLA, ‘Gambian Proposal for a Commonwealth Human Rights Commission’ Simpson-­ Orlebar to Gordon-Lennox 11 December 1979, NA FCO 58/1668 and To Fulfil the Promise of Harare: Rights Must Come First – The Commonwealth Human Rights Unit: A Chequered History, A report by the Commonwealth Human Rights Initiative, 38–39 (Appendix 2). 37 Second Meeting of the Working Party on Human Rights, 21 April – 1 May 1981, Report on Opening Session, 21 April 1981 10.45a.m.–12.35p.m.’, File 2012/079, CSLA; ironically, at the time of the 1981 Melbourne CHOGM, the Commonwealth TUC requested the Commonwealth Secretary-General to raise with Zambia the question of the imprisonment of several trade union leaders (Robinson to Secretary-General 11 September 1981, File 2012/18 CSLA). Mtango, the Tanzanian representative on the working party, had also served as an expert at the 1979 Dakar Meeting of Experts which prepared the first official draft of the ACHPR.

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opposed by the Commonwealth Secretariat on the grounds of inadequacy of resources. In line with the practice that had already been established in the UN, the final report also clarified the definition of human rights, no doubt at African behest, so as to allow for economic, social and cultural rights to be included in the promotion mandate. With respect to protection, the working party rather tentatively recommended a Commonwealth Advisory Committee on Human Rights. Members would be nominated by member states but would serve in their own right. They were to be empowered to consider only those situations ‘which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’. If it was thought a complaint was merited the committee would, rather weakly, ‘with the agreement of the Government concerned, make its good offices available and … undertake conciliatory functions for the settlement of the situation’ – it was all to be done in ‘a spirit of conciliation’. All proceedings would be confidential and the committee would also take into account a range of mitigating factors.38 The report was considered by the 1981 Melbourne CHOGM with what was by now the almost inevitable outcome. The heads of state reaffirmed, yet again, ‘the importance which all Commonwealth governments attached to the observance of human rights’ but were still only able to endorse the promotion element of the recommendations, and then only subject to finance being made available. Further consultation would also be needed ‘on an agreed definition of human rights within the Commonwealth context as well as of the unit’s functions’. As for the proposed Commonwealth Advisory Committee on Human Rights: ‘They took note of the Working Party’s proposals … and asked that these should be further considered by the next meeting of Commonwealth Law Ministers.’39 Discussions over funding for the Special Unit continued in the run up to the 1983 Colombo Commonwealth Law Ministers Meeting in that in 1982 the Commonwealth Secretariat’s Finance Committee had rejected the Special Unit on the grounds that there was no clarity as to its funding. In the event, the 1983 Colombo Commonwealth Law Ministers Meeting was finally able to reach a sufficient level of agreement as to enable the Special Unit to be set up. However, no agreement could be reached on the proposed Commonwealth Advisory Committee on Human Rights. Nor was it possible to agree a definition of human rights and it was therefore left that the definition would be based on existing international definitions.40 38 Acland to Ramphal ‘Commonwealth Working Party Human Rights – Interim Report’ 29 October 1980, NA FCO 58/2059 and Report of the Commonwealth Working Party on Human Rights 28 April 1981, File 2012/11, CSLA. 39 Commonwealth Secretariat, Commonwealth Heads of Government, The Melbourne Communiqué October 1981 (Melbourne, 1981), Paragraph 83, File 2012/18, CSLA, 1983. 40 Commonwealth Secretariat, Meeting of Commonwealth Law Ministers, Colombo: Minutes of Meeting, 37–50 (Mubako, the Zimbabwe representative, remarked that

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In 1985, therefore, the Special Unit was finally established. Its mandate, as Commonwealth Secretary Ramphal explained, provided that: ‘The HRU’s principal role will be in the promotion of human rights; it has neither an investigatory nor adjudicative function, and will not duplicate the work of other international agencies. The Commonwealth’s major pronouncements on human rights … provide the conceptual framework for the Unit’s work.’ What this entailed, as Bourne points out, was no more than a two-man unit which for a period in 1987– 88 was not even staffed as funding became a political football in which human rights priorities, notably over South Africa, became a key issue; NGO groups, such as the Commonwealth Human Rights Initiative, also came to essentially the same conclusion that, in its early years, due to a lack of political will on the part of Commonwealth governments, the HRU was deliberately ineffective.41

Is it possible to see in these initiatives the dots in the political process that led to the ACHPR? The Nigerian regional initiative in the UN, the developments at the CHR under M’baye and the Gambian initiative within the Commonwealth are widely lauded as indicators of the ‘awakening’ of African interest in human rights. Yet the reality is that the Nigerian initative merely ended, as will become apparent, in the less than helpful 1979 UN Monrovia Seminar, which, in any event, post-dated Decision 115; the moves in the CHR against Equatorial Guinea and Uganda played no part in the removal of President Nguema or President Amin – in fact, President Nyerere was censured by the 1979 Monrovia AHSG for his part in the removal of President Amin; and as for the Gambian Commonwealth initiative, nothing of any significance was achieved. In fact, all these ‘tentative signs’ had gone nowhere and they ought rather to be understood as indicators of the reluctance of Nigeria and The Gambia to put such a proposal before the OAU AHSG, the only forum which, they knew, could authorise a regional human rights regime. With good reason, their reluctance reflected their anticipation of continuing African opposition regardless of what might be proposed in UN resolutions or CHOGMs. Indeed, that is precisely how most contemporary observers viewed prospects for an African regional human rights regime at that time (although many African human rights commentators have Whiggishly suggested after the fact

41

his government had an elaborate bill of rights and was fully committed to implementing human rights although one year later President Mugabe would publicly disown the constitution which he said had been imposed on Zimbabwe by the British government (see Volume 1, page 562)), File 2014/231 CSLA. To Fulfil the Promise of Harare: Rights Must Come First – The Commonwealth Human Rights Unit: A Chequered History, A report by the Commonwealth Human Rights Initiative, 5–8 and Commonwealth Secretary Ramphal, 1985 report to Commonwealth governments, quoted by R. Bourne, ‘The Commonwealth and Human Rights’, The Round Table, 80/320 (1991), 411–416.

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that in 1979 the time was right for an African human rights regime). For example, at the 1978 ICJ Dakar Colloquium, Fall, a Professor of Law at the University of Dakar, had argued that such an idea was ‘par trop idéaliste’. In much the same vein, Bello (Nigeria), even after adoption of Decision 115 and with the ACHPR process well underway, still wrote that he ‘firmly believes that a Charter on Human Rights acceptable to fifty member States of the O.A.U. is illusory and unworkable as things stand at the moment’. The alternative, both suggested, was an initial agreement among a small group of like-minded African states. Even Eze, in his background paper to the 1979 UN Monrovia Seminar – it is not clear whether it was drafted before or after Decision 115 – suggested that ‘it will be difficult to get African State (sic.) to accept as of now, a supranational institution for human rights protection’.42 Foreign and Commonwealth Office officials, too, were less than confident about prospects for an OAU human rights regime. The UK Ambassador in Addis Ababa reported in June 1977 that: The OAU as an institution is not for the foreseeable future going to put any of its members in the dock over human rights. Privately, many Africans … express their disgust at the atrocities perpetrated by Amin. But none here have so far been prepared to speak out. The outcome of the Commonwealth Heads of Government Meeting may make them a little less coy, though I doubt it. Many have skeletons in their own cupboard.43

Edis, a member of the FCO’s UN team, similarly envisaged little future for the Nigerian initiative: ‘We have been fortunate that the Nigerians have been prepared, largely at the instigation of the Secretariat, to take a lead on the matter at the UN in recent years. But I doubt if they want to take things much further.’ He therefore supported the Gambian proposal, against the views of his colleagues in London, as basic differences in culture and law made an African regional human rights system unlikely – an assessment made a month or so before Decision 115.44 42 I. Fall, ‘Des structures possible à l’échelon regional africain pour la promotion des droits de l’homme’, Revue sénégalaise de droit, numéro special 22 December 1977 (1978), 76, E.G. Bello, ‘Human Rights: The Rule of Law in Africa’, International and Comparative Law Quarterly, 30/3 (1981), 633–634 and O.C. Eze, UN (G) HR/ Liberia/1979/BP.3, 24 (even if the paper was written before Decision 115, it is, nonetheless, indicative of how prospects were viewed just prior to President Senghor’s intervention). 43 ‘Background Briefing on OAU, Organisation of African Unity: 14 Years On’, FCO Diplomatic Report No 239/77 Ambassador Day to Foreign Minister 18 June 1977, NA FCO 160/190/9. 44 Edis UND NY to Elliott 7 June 1979 and Minute Elliott to Reith ‘Regional Human Rights Machinery’ 14 June 1979, NA FCO 58/1690 and Travis to Dunnachie 25 September 1979, NA FCO 58/1691.

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If not, therefore, Nigeria or The Gambia, who or what would be the agency that would initiate the political process of the ACHPR?

The gestation and birth of Decision 115 Notwithstanding frequent protestations to the contrary by the African states, most especially in the UN, by the late 1970s (if not earlier), it had become blatantly obvious that the major human rights violations committed by African governments could hardly be accounted for by the competing priorities of human rights and development. Sometime around 1977–78, therefore, M’baye seems to have begun to reconsider the old shibboleths about the nature of human rights violations in Africa. Tanor Dieng, who, from 1978 on, served as Diplomatic Adviser to, first, President Senghor and, then, President Diouf, and in that capacity attended the 1979 Dakar Meeting of Experts and the two Banjul Ministerial Meetings alongside M’baye, suggested that it had been M’baye’s experience at the CHR in 1977–78 in particular that had brought about the decisive realisation that in African states such as Equatorial Guinea there was neither development nor human rights and that it was therefore necessary to rethink his approach. Another perspective on M’baye’s thinking is suggested by M’backe, a close colleague and a Judge of the Supreme Court of Senegal who assisted M’baye in the preparation of the first draft of the ACHPR. M’backe thought that Vasak had played an influential part in the evolution of M’baye’s thinking and that M’baye had also felt a sense of pride in his role of connecting human rights and development and his conception of the original idea of the ‘right to development’ and he was therefore minded to promote other new ideas within the same orbit of human rights.45 The 1976 ICJ Dar es Salaam Seminar ‘Human Rights in a One-Party State’ had been M’baye’s idea.46 In a chapter in a UNESCO compendium on the international dimension of human rights published in 1978, he also clearly still felt comfortable proposing that: ‘African governments appear clearly to have sacrificed rights and freedoms for the sake of development and political stability. This situation can be explained and even justified.’ The justification, he suggested, was the consequence of an over-exclusive political emphasis on economic and social development and a concern to improve standards of living: ‘Inaction or idleness thus come to be regarded as an infraction and the exercise of certain freedoms, even in the absence of any abuse, as an attack on public order’. But, in the first hint of his new way of thinking, he then went on to observe that ‘the difficult issues involved in the relationship between respect for human rights and the quest for development’ had recently been explored at the 1978 Butare Colloquium and the 1978 ICJ Dakar Colloquium with the result that they had both 45 Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar and Interview with Mouhamadou Moctar M’backe, 13 September 2012, Dakar. 46 Interview with Adama Dieng, 12 November 2007, Paris.

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called on African governments to recognise the need to provide for a greater degree of protection for individual human rights.47 M’baye, by then, widely acknowledged as the leading authority on human rights issues in Africa, was also minded to give a far wider expression of his new way of thinking. For example, in late 1977, in a meeting with the Soviet Ambassador to discuss Senegal’s position on the issue then under discussion of a UN High Commissioner for Human Rights, M’baye, as he subsequently informed President Senghor, advised the Soviet Ambassador that ‘while affirming the principle of non-interference in the internal affairs of States proclaimed by paragraph 7 of article 2’ it was also appropriate ‘to recognize that this principle cannot serve as a cover for violating with impunity the rights of man and his fundamental freedoms within borders’.48 At the 1978 UNESCO Meeting of Experts to discuss the right to development, M’baye also began to question even more directly the existing balance between priorities: Within the framework of development law, the traditional balance ‘freedom-social order’ is upset because the need for order overrides the need to grant liberties. This is where … government(s) … invoke … ‘you can’t make an omelette without breaking a few eggs’. Unfortunately, it often happens that eggs are broken without producing an omelette at all …. The idea would be to discover what is the required correlation between development and respect for human rights … what would be the shape of the graph representing respect for human rights in terms of level of development?49

Dieng, M’baye’s personal assistant and protégé, and subsequently ICJ Secretary-General upon MacDermot’s retirement in 1990, recalls that M’baye, as his thinking evolved, now began to describe the old argument as a ‘pretext, self-­ serving’ and determinedly sought to set out a new paradigm for Africa and to do so in a manner calculated to generate increasing political support for an African human rights charter. The main vehicle for his crusade would be the ICJ.50 While the financial position of the ICJ itself was still precarious in the late 1970s, funding from the Ford Foundation and friendly governments for indi47 K. M’baye, ‘Human Rights in Africa’, 599. 48 MPP M’baye to President Senghor 25 November 1977: ‘tout en affirmant le principe de la non-ingerence dans les affairs intérieures des Ėtats proclamé par le paragraphe 7 de l’article 2 … a reconnaître que ce principe ne peut servir de couverture pour violer impunement les droits de l’homme et les libertés fondamentales à l’intérieur des frontières’. 49 K. M’baye, ‘Emergence of the “Right to Development” as a Human Right in the Context of a New International Economic Order’, Paper to UNESCO Paris Meeting of Experts on Human Rights, Human Needs and the Establishment of a New International Economic Order, 19–23 June 1978, UNESCO SS-78/CONF.630/8, 2. 50 Interview with Adama Dieng, 12 November 2007, Paris.

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vidual seminars had again become a realistic possibility, although a misappropriation of conference funds by a junior employee was not helpful.51 M’baye and ICJ Secretary-General MacDermot were therefore able to consider a more ambitious programme of action. Their aim was not a talking-shop for jurists but political suasion of African political leaders without whom, as M’baye knew, there could be no movement towards an African human rights system. The 1976 ICJ Dar es Salaam Seminar had been a first step but now, at M’baye’s prompting, ICJ Secretary-General MacDermot proposed a further conference, this time in Francophone West Africa. It was proposed that the conference should focus on the relationship between development and human rights with the goal of promoting the new balance of priorities that M’baye had come to believe was necessary.52 When it came before the ICJ Executive Committee there was some initial questioning as to whether the ICJ should involve itself in a debate over policies, but it was argued that the ICJ was concerned with the legal aspects of the range of human rights and was therefore also entitled to concern itself with the extent to which restrictions on civil and political rights were justified in the interests of development.53 It was initially envisaged, following a tour of West Africa by ICJ Secretary-General MacDermot, that this conference, which the Ford Foundation was willing to sponsor, might be held in Yaoundé (or Libreville). No doubt it was hoped to draw President Ahidjo into the ICJ web and it also represented an alternative venue to the increasingly ubiquitous Dakar. A FCO report, for example, noted that: ‘President Ahidjo trying to project public image of support for human rights; recently human rights seminar held there, ICJ hoping to hold conference there.’54 However, despite an application to Cameroon, it proved impossible to agree a date for 1978 so the venue necessarily reverted to Dakar.55 The 1978 ICJ Dakar Colloquium was organised in conjunction with the Association sénégalaise d’études et de recherches juridiques (ASERJ), a Senegalese 51

WJB MacDermot to Bushey, Ford Foundation 27 October 1977, WJB MacDermot to Debevoise 13 February 1978, WJB MacDermot, ICJ Programme of Activities of the International Commission of Jurists 1978, March 1978 and Interview with William Butler, 1 November 2007, New York. 52 Interview with Adama Dieng, 12 November 2007, Paris. 53 ICJ Executive Committee Minutes 6 May 1978, 2. 54 Confidential Report by Post (undated but reference is to covering note from Holding, West Africa Department 21 February 1978), NA FCO 31/413 and Glasby to Simpson-Orlebar 16 January 1978 Annex A: Cameroon Human Rights Assessment, NA FCO 58/1395. 55 ICJ Executive Committee Minutes 9 October 1976, 7, 15 October 1977, 7 and 6 May 1978, 2 and WJB MacDermot, ICJ Programme of Activities of the International Commission of Jurists 1978, March 1978; see also ICJ MacDermot to M’baye 27 October 1977.

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ICJ affiliate, and was funded by the EEC, Belgium, France, Norway and the Ford Foundation; the Ford Foundation would also fund the follow-up missions. It was attended by the OAU, the usual UN agencies and forty participants from twelve Francophone Africa states. In his address to the Colloquium, M’baye declaimed, yet again in French revolutionary terms: ‘Development, how many crimes have been committed and are being committed in thy name?’56 That led directly to the critical conclusion adopted by the Colloquium, as he reported to the 1979 UN Monrovia Seminar, that Africa should adopt its own convention and commission on human rights on the basis that: Economic and social development provides a ready pretext for very serious violations … of rights and freedoms … In the 1967 Dakar Declaration, the jurists noted that there were violations of rights and freedoms … but that there were justifications of varying degrees … for these violations … This ‘dynamic’ view … presented obvious dangers … As a result, at the Dakar Conference of September 1978 … African jurists started out on a new tack. They no longer considered it acceptable to justify systematic violations of human rights by the need for economic and social development.57

It was a point that Secretary-General Kodjo would later recall in his address to the 1979 Dakar Meeting of Experts: ‘Africa wants to be of age, to break the manicheistic straightjacket that interned Human Rights and Development in conflictual and not complementary terms.’58 One of the Colloquium’s other conclusions also recalled President Senghor’s ‘Civilisation of the Universal’ and anticipated a key element of the ACHPR process, the revanchist need to reflect an African dimension to universal human rights: ‘The problem is to know how to resist cultural imperialism, or to free oneself from it, how to start from traditional African culture, to affirm its authenticity, to promote coexistence with other cultures.’ [Le problème est de savoir comment résister à l’impérialisme culturel ou s’en liberer, comment partir de la culture traditionelle africaine, en affirmer l’authenticité, pour favoriser la coexistence avec les autres cultures.]59 56 K. M’baye, quoted by A. Dieng, ‘Background to and Growth of the Right to Development: The Role of Law and Lawyers in Development’, P. Nobel, ‘Notes on the Right to Development’, P. Nobel (ed.) Refugees and Development in Africa (Uppsala, 1987), 58, Nordic Africa Institute, nai.diva-portal.org/smash/get/diva2:274056/ FULLTEXT01, last accessed 18 January 2017. 57 K. M’baye, UN (G) HR/Liberia/1979/BP.2, 6–7. 58 OAU (L) OAU Secretary-General Kodjo’s opening address to the 1979 Dakar Meeting of Experts, CAB/LEG/67/4, 2; see also OAU CM/1002 (XXXIV) Part I, 15. 59 ‘Conclusions et Recommandations du Colloque de Dakar sur le Développement et les droits de l’homme’, Revue sénégalaise de droit, numéro special 22 December 1977 (1978), 208.

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Significantly, copies of the Colloquium documents were requested by President Senghor.60 How much of the debate and formal conclusions were spontaneous or stage-managed as cover for the ICJ’s real objective – follow-up lobbying of OAU heads of state – is not clear. It seems most probable, as Dieng confirmed, that for ICJ Secretary-General MacDermot and M’baye the follow-up lobbying with conclusions in hand was the main aim of the conference.61 M’baye hinted at this when he recalled: ‘Noting that meetings and conferences always finished with expressions of good-will, they formed a so-called “follow-up” committee, composed of four eminent Africans, to follow-up closely … the implementation of the conclusions and recommendations.’ He went on to suggest that the visits were ‘to countries carefully chosen for the presumed support of their leaders for human rights and for their influence within the OAU.’62 This same stress on the follow-up was also emphasised by ICJ Secretary-General MacDermot in his introduction to the Colloquium report: The most compelling aspect of this symposium is the determination expressed by so many participants to see the recommendations of this symposium translated into action. The decision of the participants to establish a Follow-up Committee to disseminate the conclusions and recommendations of the colloquium in the most appropriate way is the fruit of this determination. [L’aspect le plus convaincant de ce colloque est la détermination qui a été exprimée par tant de participants de voir les recommandations de ce colloque traduites en action. La décision des participants d’établir un Comité de suivi pour diffuser de la manière la plus appropriée les conclusions et recommandations du colloque est le fruit de cette determination.]63

Following the pattern that had already been set in 1976, a working party under M’baye, which included Procureur Général Mbouyom (Cameroun) and President of the Supreme Court Amega (Togo), together with ICJ Secretary-General MacDermot, met in March 1979 in Abidjan to discuss how to proceed. It was agreed that meetings at which the Colloquium conclusions might be explained should be sought with the heads of state of all the sub-Saharan Francophone states at which time their opinion should also be sought on the more difficult question of implementation.64 60 61 62 63 64

ICJ Executive Committee Minutes 26 October 1978, 2. Interview with Adama Dieng, 12 November 2007, Paris. K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 22. Revue sénégalaise de droit, numéro special 22 (December 1977) (September 1978), 9. N. MacDermot, ‘Preface’ and K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 5, 22, ICJ Executive Committee Minutes 28 April 1979, 4 and 19 April 1980, 3 and Interview with Adama Dieng, 12 November 2007, Paris; see also ICJ Report on Activities 1977–80, 4–5, ICJ Newsletter Quarterly Report, 1 1 April – 30 June 1979, 3 and Human Rights Internet Newsletter, 4/9 to 5/1 (1979), 16.

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Figure 4. President Senghor of Senegal (1960–1980) and Kéba M’baye with their wives (Mbaye Family Papers).

The first meeting, in April 1979, was with President Senghor, who had been briefed in advance by M’baye that the human rights charter that was being contemplated would be drafted by Africans to meet the needs of Africans. In response, President Senghor ‘promised to give close personal attention to the recommendations … and to raise the … proposal with other African Heads of State’.65 Visits were undertaken to a further nine countries. Initially, Cameroon, Ivory Coast, Mali and Togo; subsequently, after Decision 115 had been adopted, Rwanda, Burundi, Benin, Niger and Gabon. Seven of these states would ratify the ACHPR prior to it coming into force. One of several ICJ reports on these visits provides further evidence of ICJ intent: ‘The interest shown by Heads of State … has been encouraging and is very timely in view of the OAU Summit meeting in July.’ Not without good cause, M’baye would later report to the ICJ’s Executive Committee that ‘the Dakar follow-up action had contributed substantially’ to the adoption of Decision 115.66 65 K. M’baye, Les droits de l’homme en Afrique (Paris, 1992), 149–150 and ‘Keynote Address, 1985 ICJ Nairobi Conference’, 22 and ICJ Executive Committee Minutes 28 April 1979. 66 ICJ Newsletter Quarterly Report, 1 1 April – 30 June 1979, 3, 2 1 July – 30 September 1979, and 4 1 January – 31 March 1980 and ICJ Executive Committee Minutes 6

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M’baye was also active in promoting other African human rights pressure groups. In January 1979, he was instrumental in arranging an International Colloquium (of French-speaking African Bar Associations) on Human Rights and the Right to Defence after which the cornerstone of the Dakar Institute for Human Rights Education was laid. One of its key recommendations was that an Inter-African Union of Lawyers (IAUL) should be formed as an umbrella organisation for African lawyers – a recommendation originally made by the 1978 ICJ Dakar Colloquium.67 With powerful support from leading African jurists, Wako suggested that he and Seck were the main organisers, it was accordingly established in May 1980 at an organising conference in Dakar.68 The conference was attended by more than 200 lawyers from nineteen African states brought together by the African Bar Association (ABA), the Conference of Francophone Lawyers and the Union of Arab Lawyers. However, the conference did not go as smoothly as the outcome, the creation of the IAUL, might suggest as it was confronted by a wide range of conflicts that threatened to derail it. These conflicts, described by Scoble, an outside observer, ranged from differences over the language question and generational perspectives, cross-currents within Senegalese domestic politics and, importantly, differences over whether the proposed organisation should support the work of African governments and the OAU or operate as an autonomous NGO. Rather candidly, too, it is not clear on what authority, in his conference address, OAU Secretary-General Kodjo apparently referred twice to the role of ‘ombudsman’ as one of the potential tasks the IAUL might wish to take on. Probably with that end in mind, the IAUL set up a Commission on Human Rights and the Rights of Peoples ‘whose mission will be to monitor violations of human rights in all African countries; to hold press conferences or colloquia … to undertake missions of inquiry in serious cases of violation’. Seemingly undeterred by the debacle of the Commission of Jurists, it was also proposed that a Commission of Human Rights and the Rights of Peoples should be established within the OAU, in effect alongside the proposed ACOMHPR, as the 1979 Monrovia Symposium Report What kind of Africa by the year 2000? had also proposed (see page 217 below). As an important element of how it envisaged the prospective scope of its mandate, Article 9 of the IAUL’s foundational charter also envisaged the creation of an ‘African Institute of Human Rights’ to provide for the education of October 1979, 3 and 19 April 1980, 3; see also N. MacDermot, CHR 21 February 1979 UN E/CN.4/SR.1489 23 February 1979, 6–7. 67 M. Seck, ‘A Plea for Human Rights Education in Africa’, Human Rights Law Journal, 11/3–4 (1990), 284–289 and Revue sénégalaise de droit, numéro special 22 (December 1977) (September 1978), 217. 68 Interview with Amos Wako, 23 July 2012, Geneva. Wako also explained that the IAUL was closely modelled on the OAU Charter and provided for regional balance but was then ‘hijacked’ by the Arabs because they had the money.

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African human rights practitioners. However, as Seck reports, due to an inability to agree a location for this institute, it was never established. As a result, Senegal unilaterally absorbed the Dakar Institute for Human Rights Education into a newly created African Institute of Human Rights which it attached to the University of Dakar. Support was provided by, among others, UNESCO (though it is not clear how much came in the form of funding), US AID and several other foreign governments.69 Other African jurist groups whose members had close personal links to the ICJ provided further lobbying support, notably the ABA. The ABA was founded in Kenya in 1971 as a forum for representatives from the national bar associations of seven African Commonwealth countries. In 1978, its Third Biennial ABA Freetown Meeting elected as its Secretary-General Wako who would also be elected the first Secretary-General of the IAUL in 1980 and a member of the ICJ in 1981 and participate in the 1979 Dakar Meeting of Experts.70 As had by now become customary, due to the precedent set by the ICJ, the ABA Freetown meeting concluded with a declaration which stressed the importance of the rule of law and condemned ‘the flagrant violation of Human Rights in Africa’; but with the rider ‘and in particular in South Africa, Namibia and Zimbabwe’. Typically, too, while it affirmed a belief in the fundamental rights of the individual ‘as enshrined in the Charter of the United Nations’, no reference was made to the UDHR.71 In a subsequent press conference describing the outcome of the 69 H. Scoble, ‘Visit to West Africa on the Inaugural Meeting of Inter-African Union of Lawyers, Dakar, May 1980’, Human Rights Internet Reporter, 5/8–9 (1980), 56–61, MPP IAUL Conference 21–25 May 1980 and M. Seck, ‘A Plea for Human Rights Education in Africa’, 284–289. Seck, who was elected President of the IAUL and the Dakar Institute for Human Rights Education, reported that the Dakar Institute for Human Rights Education was inspired by the 1978 UNESCO Conference on Human Rights Teaching and the Paris Bar Association’s Institute for Human Rights Education. It was part-funded by $25,000 from US AID which was above the $10,000 country limit as it was deemed a regional initiative (see US DEC Database, AID Human Rights Fund for Africa, PD-AA1-609-A1). 70 ‘Kenyan lawyer elected to top post’, Sunday Nation, 20 August 1978, 3. 71 ‘ABA, Freetown Declaration of 1978 on Human Rights in Africa’, W. Weinstein/L. Jones/F. McCoy, African Perspectives on Human Rights, Annexe, ‘The Freetown Declaration on Human Rights’, Index on Censorship, 8/2 (1979), 21, E. Kannyo, Human Rights in Africa: Problems and Prospects A Report Prepared for The International League for Human Rights (Washington, 1980), 36–37 and ‘Sierra Leone: Freedom of Judiciary’, ‘African Lawyers on “Human Rights”’ and ‘Barristers in Favour of Liberty’, West Africa, 14 August 1978, 1588–1590 and 21 August 1978, 1628, 1668–1669; see also T.O. Elias, ‘Organisation and Development of the Legal Profession in Africa, in particular, the ability of the Bar and judiciary to uphold the rights of both the citizen and the state’, African Journal of International Law, 1/1 (1988), 27–29.

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ABA Freetown meeting, Wako also announced that the ABA had called on the UN Secretary-General to convene a seminar to consider establishing an African commission on human rights as the 1977 and 1978 Nigerian UN resolutions had broadly proposed. This is a yet further indication that the mood at the time saw little prospect of such a project being taken up by the OAU.72 As to the meeting, even a highly regarded Western expert on African law was persuaded to read rather more into the proceedings than was justified. Indeed, he suggested that the convening of the meeting itself was proof that there was ‘now greater causes for optimism’. For example, he noted that ‘a number of delegates were adamant in refusing to accept the facile argument that Africa was different, or that there was any justification, either in African cultural or legal traditions … for the non-recognition … of fundamental rights as universally defined and accepted’.73 However, as at the 1961 ICJ Lagos Conference, this wishful appraisal seemed to ignore the political reality clearly spelled out in the opening address by Attorney-General and Minister of Justice Minah (Sierra Leone). He noted that the rules of conduct that had been set out in the independence constitutions were not only ‘seriously qualified’ in scope but had been imposed by the colonial powers in the ‘mistaken belief that Africans were incapable of governing themselves’. Moreover, that: criticisms often levelled against African governments by … institutions in the west were in most cases unjustified … the BBC carried distorted reports of the 1977 general election … He also alleged similar distortions in the 1977 Report of Amnesty International … He admitted that serious violations of human rights do occur now and again in Africa, but … the worst violations occur in Southern Africa … the best approach to the many problems confronting the new African states was … a single party.

He went on to suggest that ‘(without development finance) “the crusade for the observation of human rights in Africa will not be enhanced” (and) deplored the tagging of development aid to … human rights provisions’; and, referencing the 1977 London CHOGM, contrary to widely held opinion: ‘Both collectively and individually, African leaders have themselves not failed to castigate in the strongest terms those African countries which are regarded as worst (sic.) violators of human rights.’74 Following, yet again, the ICJ example, with which many of the delegates were familiar, the ABA finally determined that copies of its declaration should 72 ‘Call for Human Rights Body’, Daily Nation, 24 April 1979, 1. 73 A.N. Allot, ‘Notes and News: Human Rights in Africa: The Third Biennial Conference of the African Bar Association, Freetown, August 1st–5th, 1978’, Journal of African Law, 22/2 (1978), 89–90. 74 ‘Sierra Leone: Freedom of Judiciary’, West Africa, 14 August 1978, 1588–1590.

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be sent to all OAU member states and to the OAU General Secretariat. Nonetheless, it cannot be said that the 1978 Third Biennial ABA Freetown Meeting had any meaningful impact whatsoever on the ACHPR process. It was simply another declaration by African jurists whose influence and importance is invariably exaggerated by the wishful thinking of African human rights commentators. The key difference was that, in contrast to the ICJ’s programme of action, there was no focused follow-up on the people that mattered, Africa’s political leaders. What was and would be critical was not so much declaration of sound bites by African jurists but action by African political leaders within the ambit of the OAU AHSG. Typical of its impotence was the telegram from ABA Secretary-­ General Wako to Flight-Lieutenant Rawlings (Ghana) in June 1979 drawing attention to the 1978 Freetown Declaration and emphasising the importance of the rule of law.75 A rather more significant development was the election of Kodjo, Togo’s Foreign Minister from 1976 to 1978, as OAU Secretary-General. His candidature had been supported by President Senghor and, in the main, by the Francophone states in what proved to be a long-drawn out contested vote over three rounds at the 1978 Khartoum AHSG. Although his election may therefore be regarded as a victory for the moderate states, at the same time the narrow margin of victory demonstrated the precariousness of his position; indeed he would not be re-elected at the end of his term.76 Kodjo would later recall that, following his election, after reading an interview with President Senghor in the summer of 1978 in Jeune Afrique, he wrote privately to President Senghor suggesting that he should sponsor a human rights resolution at the next AHSG. Such a resolution, he argued, could only be advanced by a head of state of considerable standing among his peers who could not be accused of trying to impose a Western idea on Africa at the behest of a Western leader such as President Carter, but could claim to be proposing an African charter for Africa and by Africa. President Senghor ‘found that the idea was a good one’ and it was therefore followed up through the mediation of the Senegalese Ambassador in Addis Ababa. It is not clear therefore whether the proposed resolution, which became Decision 115, was drafted by M’baye alone, at the request of President Senghor, as M’baye has reported, or whether it had been drafted with input from OAU Secretary-General Kodjo and the Senegalese Ambassador in Addis Ababa. As would also become apparent, OAU 75 ‘Rule by law, Ghana is urged’, Daily Nation, 20 June 1979, 11. 76 Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1978: The Challenge of Foreign Intervention’, Africa Contemporary Record: Annual Survey and Documents, XI (1978–79), A30; see also diplomatic assessment of OAU Secretary-­ General Kodjo, Brief No. 9 Ministerial Meeting of the North Atlantic Council, Brussels, 7/8 December 1978, Africa, NA FCO 65/2139, Paragraph 25.

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Secretary-General Kodjo’s assessment was not fully borne out. Although President Senghor was certainly regarded by most of his peers as a head of state of considerable standing, in the eyes of many heads of state, he was also thought of as a French stooge.77 While it has not proved possible to independently verify Kodjo’s account,78 there is otherwise considerable evidence of his commitment and efforts at this time. It was, for example, on his initiative that the OAU sponsored the What kind of Africa by the year 2000? Monrovia Symposium in early 1979 which aimed at promoting African economic development. In a style that recalls President Senghor, whom OAU Secretary-General Kodjo greatly admired, and also the 1978 ICJ Dakar Colloquium’s conclusion, the symposium report asserted that: Culture frees mankind … one of the cultural values is “the duty of freedom” … no development or political stability is possible so long as individual and collective rights go unheeded and basic freedoms … are ignored … with this in mind … the Symposium called for the creation within the OAU’s General Secretariat of a Human Rights Department to analyse all matters related to personal, economic and social rights and to take appropriate action in coordination with the international community.

It may be considered of some significance, though, that, despite such fine sentiments, obviously inspired by OAU Secretary-General Kodjo, the symposium, held only a few weeks before the 1979 Monrovia AHSG, nonetheless

77 Interview with Edem Kodjo, 10 December 2007, Lomé and K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 22. 78 It has not proved possible to access former OAU Secretary-General Kodjo’s private papers and the OAU Secretary-General Archives in Addis Ababa post-date his term of office. It is likely that the papers were lost when the OAU Secretary-­ General’s office moved to its (then) new location in the AU compound. The Senegal Embassy in Addis Ababa returns its papers to Dakar after ten years and, despite several research trips to Dakar and Addis Ababa, it has proved impossible to locate any documents in the Foreign Ministry files in Dakar or the Senegal Embassy. The Senegalese National Archives does not store such files. Any files on this period are therefore probably retained, if at all, within a special Presidential archive which has proved impossible even to locate. There also does not seem to have been an interview with President Senghor in Jeune Afrique during 1978 although, as a result of President Senghor’s announcement of a transition from a one-party to a multi-­party structure, Senegal appeared frequently in the African press at that time. There was, however, a major article P. Gaillard, ‘Les grandes manoeuvres avant la succession’, on Senegal’s new party system on 29 November 1978 and an interview ‘Senghor: Une interview du président sénégalais dirigée par Siradiou Diallo’ on 10 January 1979, which may mean that OAU Secretary-General Kodjo simply misrecalled the date.

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Figure 5. Edem Kodjo, Secretary General of the Organisation of African Unity (1978–1983) (Photo by Keystone/Getty Images).

stopped short of recommending the creation of an African human rights commission or charter.79 The problem, and OAU Secretary-General Kodjo’s personal perspective, is most evident in an interview he gave to Jeune Afrique published only a few days before the 1979 Monrovia AHSG. In that interview he defended himself against charges of not opposing President Amin’s violations of human rights and invasion of Tanzania and of failing, as OAU Secretary-General, to demand a certain level of ethical behaviour based on human rights from OAU member states. As he pointed out in reply, he would if he could but he was simply not authorised by either the OAU Charter or African political leaders to act in such a manner. While he himself supported respect for human rights, at the present, human 79 OAU What kind of Africa by the year 2000? Final report of the Monrovia Symposium on the future development prospects of Africa towards the Year 2000 (Addis Ababa, 1979), 19 Paragraphs 31–32. Italics original.

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rights were seen as an outside influence brought into Africa, whether one saw human rights as deriving from President Carter or the UDHR. This perception was further confirmed by the still on-going attempt to import human rights into Lomé II. As to whether a human rights proposal might be tabled at the forthcoming 1979 Monrovia AHSG, OAU Secretary-General Kodjo claimed that he could not know, it was beyond his remit.80 However, irrespective of the role he played in sparking Decision 115, there can be little doubt that, without his support, the ACHPR would not have been adopted. Although he had no voice in the AHSG, his administrative support was indispensable and in other hands the process might well have foundered. The vital role he played was publicly acknowledged by M’baye and supported by Coulibaly (Mali), one of the experts, who reflected that he was a ‘good facilitator’ and ‘supported us all along’ so that she was made comfortable that the process would ultimately prove successful. Tanor Dieng similarly described OAU Secretary-General Kodjo’s role as essential and noted his ‘great sympathy and admiration’ for President Senghor, as did Jallow (The Gambia), another expert, who ‘respected him very much’ and suggested that he was the ‘driving force and inspiration’.81 There is also, possibly, a subtle self-plug in his opening address to the 1979 Dakar Meeting of Experts to the part he played. Referring to President Senghor, he said: ‘you who extended the support of your authority and understanding to the efforts of the General Secretariat … to conceive and organise this conference.’82 Within the formal ambit of OAU meetings, however, there were few indications at this time that African political leaders shared the concern of outsiders or of African jurists at the ‘systematic violations of human rights’ described by the 1978 ICJ Dakar Colloquium. They were concerned with far more pressing issues not the least of which was the question of the survival of the OAU itself as it came under increasing pressure from a widening divide between the ‘radical’ and ‘moderate’ member states across a range of conflagrations and border disputes across Africa. For example, in his 1977 annual report on the OAU, Cervenka described 1977 as by far the worst year for the OAU. Although many of the heads of state of the radical states had declined to attend the 1977 Libreville AHSG their representatives nonetheless ensured that the preceding CoM would find it 80 ‘Edem Kodjo: un optimiste incorrigible reçu par Jeune Afrique/J.A. fait parler Edem Kodjo’, Jeune Afrique, 966 11 July 1979, 80–89. 81 K. M’baye, Les droits de l’homme en Afrique, 147–158, Interview with Mariam Coulibaly Ndiaye, 12 August 2009, Paris, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar and Interview with Hassan Jallow, 7 October 2008, London. 82 OAU (L) OAU Secretary-General Kodjo’s opening address to the 1979 Dakar Meeting of Experts, CAB/LEG/67/4, 1.

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difficult to reach agreement on many key issues, such as the invasions of Benin and Zaire’s Shaba Province, the occupation of part of Chad by Libya, the Ethiopia/Somalia conflict and the war over the Western Sahara, and this division fed through into the 1977 Libreville AHSG itself. It effectively paralysed the work of the OAU which responded, in an attempt to paper over the cracks, by barring Agence France-Presse for its distorted reporting of the debates. President Amin also made a surprise appearance and was ‘applauded resoundingly’ although one press comment suggests that the applause came not from OAU delegates but from spectators who saw in him a black man fearless in the face of attacks by white Western states.83 With a continuation of the conflicts across Africa, Russian and Cuban intervention in Southern Africa and further Western intervention in Shaba Province, the 1978 Khartoum AHSG promised more of the same. However, unexpectedly, the ‘moderates’ were able to gain a greater measure of control as evidenced by Kodjo’s election. The meeting was therefore described in more optimistic tones by a FCO report which recorded that ‘the OAU survived a real risk of disintegration … The moderate African states, particularly the Francophones, asserted themselves strongly and the discovery that the moderate states could command a majority gave them confidence.’84 The 1978 Khartoum AHSG also hinted at an increased awareness among some African leaders of the real prospect of a major break-down of order in Africa and a growing sensitivity towards the depredations by Africans on Africans. For example, President Touré, who had recently reconciled with President Houphouet-Boigny and President Senghor, attended his first AHSG since 1965. His address still attacked ‘imperialism, colonialism, neo-colonialism and racial discrimination as … .utterly humiliating … to the dignity, liberty and sovereignty of all African countries’, but it also ‘accused some Africans of being more responsible for Africa’s misfortunes than imperialism and colonialism’.85 General Obasanjo, too, pointed out that: 83 Z. Cervenka, ‘OAU’s Year of Disunity’, Africa Contemporary Record, X (1977–78), A57–65, J.C. Randall, ‘Organization of African Unity To Bar Press Agency From Summit’, ‘Most Radicals Skip Summit of Divided African Leadership’ and ‘Sudanese: Moscow is “Imperialist”. Moderates Rally at OAU Summit; Amin in Audience’, Washington Post, 30 June 1977, 26, 2 July 1977, A13 and 3 July 1977, 1 and ‘Claque at OAU?’, West Africa, 11 July 1977, 1405. 84 Brief No. 9 Ministerial Meeting of the North Atlantic Council, Brussels 7/8 December 1978 Africa, Paragraphs 23 and 25, NA FCO 65/2139; see also ‘OAU Conference’ Carruthers to FCO 21 July 1978 and Report on the Khartoum Summit 27 September 1978, NA FCO 65/2139. 85 ‘OAU Conference’ Carruthers to FCO 21 July 1978, NA FCO 65/2139 and Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1978: The Challenge of Foreign Intervention’, A25–39; see also ‘Guinea: The Big Switch’, Africa Confidential, 19/22 3 November 1978, 3–4.

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We must begin to depart from the diplomatic habit of closing our eyes to what should be deprecated simply because it is happening in an African country or … committed by a fellow African leader. We must have the courage to tell ourselves what is unjust and … immoral so that we can ensure amongst ourselves certain minimum levels of decent leadership and good government.86

In themselves, though, these were as yet mere straws in the wind; the reluctance to contemplate reform of the OAU Charter or to establish an African Defence Force did not suggest a willingness to abandon in any degree the principle of non-interference, but they did at least seem to indicate the beginning of a changing mood.87 In his opening address to the 1979 Monrovia CoM, President Tolbert, as OAU Chairman, therefore felt it appropriate to outline the problems facing Africa. At the top of his list were: Liberation; Peace in Africa; and Economic Growth and Development. He then went on to warn of the consequences of inter-Africa conflict which, he argued, not only served to ‘tarnish the image and undermine the credibility of Africa, but also weaken her case for equitable and just consideration from the international community’. More explicitly, he added that: ‘In my view, every Member State … has a sacred obligation to guarantee … to all who reside within its borders respect for their fundamental rights.’88 Yet, despite these honeyed sentiments, there was no place in the AHSG agenda prepared by the CoM for a discussion on human rights although, in what might otherwise have been regarded as a related issue, a proposal by Mauritius for a ‘Universal Declaration of Human Duties’ was listed for discussion. It had initially been put forward by Mauritius at the March 1979 Nairobi CoM but at that time discussion was deferred so as to allow member states sufficient time to review the proposal. It was therefore only at the 1979 Monrovia CoM that it was given consideration. As to the origins of this proposal, a FCO report attributed the idea to de Robillard, a leading social campaigner in Mauritius, and his Spiritual Forces Mobilisation for Universal Peace, a movement founded on a mixture of Catholic and spiritualist influences and which de Robillard had also placed at the service of the Northern Ireland peace process. The argument in support of the proposed declaration, which consisted of thirty Articles with more than a passing resemblance to the text of the UDHR 86 General Obasanjo, Address to 1978 AHSG Khartoum, NA FCO 31/2201. 87 Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1978: The Challenge of Foreign Intervention’, A25–39. 88 OAU CM/Plen/Rapt.Rpt. (XXXIII), 1–3, Annex I (Opening Address by President Tolbert) and Annex II (Speech by Foreign Minister Waiyaki (Kenya), which listed racism, apartheid and economic problems as the main issues facing Africa) and Opening Address by Dr William R. Tolbert, Jr, President of the Republic of Liberia to the Thirty-Third Session of the Council of Ministers of the Organization of African Unity 6 July 1979, NA FCO 65/2257.

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and the International Covenants, was asserted in the preamble. It referenced, in particular, the failure ‘by individuals, Governments or Nations’ to respect the UDHR and ‘the fact that no “rights” can exist without corresponding duties’. The CoM committee that looked into the proposal recommended that it should first be distributed for comments to member states and thereafter the OAU General Secretariat should convene a meeting of legal experts to study it further and report back to the next CoM meeting. How far it would have gone is not clear but, once President Senghor proposed his resolution, it was overtaken by events and Mauritius effectively joined Senegal and The Gambia as the principal sponsors of Decision 115.89 When he came to address the 1979 Monrovia AHSG, President Tolbert was more direct about human rights. He declared that the principle of non-­ interference had become ‘an excuse for our silence over inhuman actions committed by Africans against Africans … The provisions concerning the protection of fundamental human rights must be made explicit’. However, his concern may not have been all it seemed as the context was closely connected to non-­interference and ‘repeated aggression between sister states’ and in his closing address there was no further reference to human rights other than a call for respect for human rights and aid to the liberation movements in order ‘to liberate the continent from the whites’ hegemony’. There must also be a further suspicion that his apparent solicitude for human rights at this time may well have been the result of his prior knowledge of President Senghor’s intention to put forward his resolution.90 It would also seem appropriate to place President Tolbert’s remarks on human rights within the context of his own domestic problems. Indeed, his ability to host the AHSG without widespread demonstrations was only made possible by a last-minute amnesty for Liberian opposition leaders detained in the wake of the April 1979 ‘rice riots’ and the re-opening of the university – in the event, he would be brutally overthrown with popular approval less than one year later.91 There was also a, possibly and necessarily coded, reference to the need for an African human rights regime in the Secretary-General’s Report of the Activities of the OAU presented by OAU Secretary-General Kodjo, which suggested that ‘at the time when certain people all over the world are in doubt about us, we must 89 OAU CM/Plen./Rapt.Rpt (XXXII), OAU CM/966 (XXXIII) Rev.4 (Agenda) and Add.1 (Universal Declaration of Human Duties), Report of the Rapporteur of Committee A, OAU CM/Cttee.A/Rapt.Rpt. (XXXIII), 13 and Elliott to Charlton 14 June 1979, NA FCO 65/2257. De Robillard’s ideas are described in E. de Robillard, Citoyen du monde: Lettre circulaire aux hommes politiques et aux responsables de partis (Port Louis, 1974). 90 L. Dash, ‘Dispute Erupts at Africa Summit over Tanzanian Action in Uganda’, Washington Post, 18 July 1979, A22 and Keesing’s Contemporary Archives 1979, 29840–29841. 91 J. Margolis, ‘Dissension and Resolution’, Africa Report, 24/5 (1979), 54.

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have the courage to remove the sources of distress through our conviction’.92 Some measure of support for human rights was also evident in the OAU symposium debate on the What kind of Africa by the year 2000? report. In an obvious echo of the conclusion of the 1978 ICJ Dakar Colloquium, General Obasanjo observed that ‘adherence to human rights principles would aid in creating the stability needed for development’. Foreign Minister Conteh similarly thought that: ‘There is a feeling that you can’t have one without the other.’93 The AHSG resolution on the report accordingly proclaimed ‘that the political regime which protects basic human rights and democratic freedom is essential for mobilizing the creative initiative of our people for rapid economic development including scientific and technological innovation’.94 Yet, in other debates at the 1979 Monrovia AHSG, African political leaders not only seemed to attach a limited priority to human rights but the debates were so acrimonious as to suggest that there was little possibility of a necessary consensus ever being reached on such a contentious issue. The first issue confronting the AHSG was that of credentials. Nigeria and Libya combined forcefully to reject all the contending Chad delegations, in the case of Nigeria on the, somewhat dangerous, grounds that the representatives of the provisional government did not represent the people of Chad. An attempt was also made to eject or suspend President Sadat’s delegation in protest against Egypt’s recent peace treaty with Israel. Although that failed, a resolution critical of Israel and expressing strong support for the Palestinian people was adopted as was a separate resolution which was forced to adopt Aesopian language to criticise President Sadat’s treaty with Israel as no mention was allowed of either the treaty or Egypt by name. In addition, when President Sadat spoke at the AHSG, several Arab delegations walked out as did the delegations of Angola, Benin, Djibouti, Madagascar, Mozambique, Somalia and Sudan. The debates then moved on to the equally divisive issue of the Western Sahara. When the OAU Committee recommended a cease-fire and referendum, Morocco, with Senegal and The Gambia in attendance, walked out. Unusually, the first vote on the Western Sahara report was disputed and a second was therefore required in order to scrape together the necessary two-thirds majority endorsement.95 92 OAU CM/967(XXXIII) Part X Introduction to the Secretary-General’s Report of the Activities of the OAU, 25. 93 L. Dash, ‘African Summit: A Facing Up To Reality’, Washington Post, 24 July 1979, A10. 94 OAU AHG/ST3 (XVI) Rev.1. 95 Deputy Assistant Secretary of State for African Affairs W.C. Harrop, Briefing on OAU Summit at Monrovia: Hearing before the Subcommittee on Africa of the Committee on Foreign Affairs, House of Representatives 96th Congress First Session 27 July 1979 and ‘The Summit’s Achievements’, West Africa, 30 July 1979, 1357–1359. The two resolutions on Israel were: OAU CM/Res.725 (XXXIII) Rev. 1 and CM/Res.726 (XXXIII) Rev. 1.

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The most acrimonious debate, though, was that in relation to Tanzania’s military and political intervention in Uganda. Already at the March 1979 Nairobi CoM meeting, even after further consultations, it had not proved possible to agree the wording of the paragraph in the section ‘Relations between Member states’ in the ‘Report by the Secretary-General’ as it referred to the Uganda/Tanzania conflict. All reference had therefore to be dropped.96 At the 1979 Monrovia AHSG, the ball was set rolling by President Tolbert’s opening address. Without mentioning names, he expressed his regret that: ‘Today, again, the principle of non-interference is violated as one member state engages in subversive activities against another.’ He was followed by President Nimeiri who attacked President Nyerere’s attitude towards his mediation in his capacity as OAU Chairman and complained that, whereas President Amin had been prepared to negotiate, President Nyerere had only been interested in a condemnation by the OAU of President Amin’s invasion. This, he argued, was beyond the scope of the OAU let alone that of mediation and tantamount to interference in Ugandan internal affairs and a breach of the principle of territorial integrity.97 It was a point he had already made in a meeting with Minister of State Luce (UK) and publicly, just prior to the 1979 Monrovia AHSG, when he denounced Tanzania’s military presence in Uganda warning that it ‘represented a serious violation of the OAU Charter’. President Moi, too, had warned President Nyerere ahead of the 1979 Monrovia AHSG that he would find it difficult to support his actions as the sanctity of borders and principle of non-interference were the foundation of the OAU system and could not be set aside.98 Many of the smaller African states, too, in the context of the numerous on-going border disputes, still feared the larger states and therefore, much as they had done in 1963, saw this issue as the key aspect of the OAU agreement. President Nyerere, who together with President Binaisa would deliver a seventeen-page dossier to all OAU delegations setting out the facts as seen by Tanzania and particulars of President Amin’s depradations, responded. He argued that he was aggressed against rather than the aggressor and as tempers rose the discussion was forced to move into closed session. The following day General Obasanjo also condemned Tanzania seeing the invasion of Uganda as interference, ‘a dangerous precedent of unimaginable consequences’ that threatened the 96 OAU CM/Plen./Rapt.Rpt. (XXXII), 8 and OAU CM/928 (XXXII), Part II, 72. 97 Africa Research Bulletin, 15 August 1979, 5328–5331, J. Margolis, ‘Dissension and Resolution’, 52–55 and Africa Diary, 17–23 September 1979, 9685–9686. 98 ‘Tanzania Drawing Fire For Its Role in Uganda’, Washington Post, 7 July 1979, A8, Fingland to FCO 27 February 1979, NA FCO 31/2685, Summary: First two days of Arusha Pan-African Conference on Refugees, Hinchcliffe (British High Commissioner, Dar es Salaam), 11 May 1979, NA FCO 36/2591 and Record of meeting between Richard Luce and President Nimeiri 11 July Wednesday 9.00am 1979, NA FCO 36/2564.

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OAU, not a ‘trump card’ of human rights, adding that ‘our position was that it was primarily a matter for the Ugandans themselves to resolve’. When he attempted to read into the record a letter from a Ugandan opposition group, he too was shouted down and objections raised by Angola and Kenya who protested that he had gone too far. President Binaisa also interrupted, arguing that he was interfering in Uganda’s internal affairs, to which General Obasanjo replied: ‘President Binaisa is on honeymoon, but when the honeymoon is over, he will know the realities.’ In turn, President Binaisa replied that it was rather General Obasanjo who would have to face reality when he left his barracks. General Obasanjo’s comments probably reflected the slight Nigeria had felt after Tanzania had declined its offer of mediation. No doubt, too, Tanzania’s recognition of Biafra was also recalled. Moreover, Nigeria had already made its feelings known when, after the final overthrow of President Amin, it closed its already slimmed down mission in Kampala. This was done partly for reasons of safety but primarily in protest against Tanzanian interference in Ugandan internal affairs. In support of Tanzania, President Binaisa argued that the OAU had remained silent for too long on questions of human rights and denounced the atrocities committed in Uganda, Equatorial Guinea and the CAE. At this point his own legitimacy as a stooge of President Nyerere was questioned and OAU Chairman President Tolbert then felt obliged to rule that ‘all remarks made by President Binaisa (be) deleted from OAU records’ on the grounds that the AHSG was not a forum for criticism of African heads of state.99 However, the message was quite clear. If few African political leaders were prepared to defend President Amin at the AHSG, nonetheless, they felt that no violation of domestic human rights justified a breach of the OAU Charter’s principles of non-interference and territorial integrity. In an attempt to calm the 99 Deputy Assistant Secretary of State for African Affairs W.C. Harrop, Briefing on OAU Summit at Monrovia: Hearing before the Subcommittee on Africa of the Committee on Foreign Affairs, House of Representatives 96th Congress First Session 27 July 1979, Johnson to Williams enclosing ‘Sixteenth Meeting of the Heads of State and Government of the Organisation of African Unity, Monrovia, 17–21 July’ 27 July 1979 Carruthers, Addis Ababa, NA FCO 98/601, O. Aluko, ‘Bureaucratic Politics and Foreign Policy Decision-making in Nigeria’, T.M. Shaw/O. Aluko (eds), Nigerian Foreign Policy: Alternative Perceptions and Projections (London, 1983), 87, Keesing’s Contemporary Archives 1979, 29840–29841, J. Margolis, ‘Dissension and Resolution’, 52–55, J-B. Alima, ‘Après l’O.A.U: Des nouveaux clivages’, Jeune Afrique, 969 1 August 1979, 13–16, ‘Africans Are Confronting The Illusions of “Unity”’, New York Times, 22 July 1979, E4, L. Dash, ‘Dispute Erupts at Africa Summit over Tanzanian Action in Uganda’, A22 and ‘African Summit: A Facing Up To Reality’, A10, ‘The Summit’s Achievements’, West Africa, 30 July 1979, 1357–1359, ‘OAU Assembly XVI’, African Index, 16–31 July 1979, 49–50, P. Enaharo, ‘Notes from a Summit’, New African, 145 September 1979, 9–11, M. Adam, ‘Nyerere under Fire’, New African, 145 September 1979, 11–12 and Africa Research Bulletin, 15 August 1979, 5328–5331.

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troubled waters, President Touré intervened pointing out that ‘if Tanzania was guilty the OAU itself was also guilty; it had failed to do anything about the enormities committed by Amin, even encouraging him … by honouring him the chairmanship … Instead of recriminations … there should be measures taken to see that the Organization’s failures were not repeated’. But he also noted that: ‘The OAU … was not a tribunal which could sit in judgment on any member state’s internal affairs.’ At his prompting, the debate was closed.100 Of course, at least on the surface, sitting in judgement was exactly what President Senghor was about to propose – although the suggestion made by some African human rights commentators that he introduced his ACHPR resolution in response to the Uganda debate is widely off the mark.101 In his reporting of the 1979 Monrovia AHSG, Deputy Assistant Secretary of State for African Affairs Harrop described the meeting as ‘one of the most acrimonious meetings in the … history of the OAU’. In contrast, Carruthers, reporting out of the UK’s Addis Ababa Embassy, described it as ‘less highly charged than on previous occasions although some subjects, notably Tanzania’s intervention in Uganda, led to acrimonious exchanges’. He also felt that there had been less polarisation on ideological grounds with groupings of states forming in response to the subject under debate. This was also a point that Cervenka and Legum stressed in their 1979 annual review of the OAU. They pointed out that a categorisation of ‘radical’ and ‘moderate’ oversimplified a continual shifting alignment of member states on individual issues. Nonetheless, as a general guide, they identified the existence of a core of ten or so ‘radical Marxist’ states and a further similar group of ‘radical’, although less ideologically Marxist, states that came together on many issues and were invariably opposed by an equal number of ‘moderate’ states.102 100 C. Winfrey, ‘Harmony at Africa Talks Eroding’, New York Times, 22 July 1979, E4, ‘The Summit’s Achievements’, West Africa, 30 July 1979, 1357–1359 and Africa Research Bulletin, 15 August 1979, 5328–5331. 101 See, for example, F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 37–39, E. Kannyo, ‘The Banjul Charter on Human and Peoples’ Rights: Genesis and Political Background’, 144–146 and C. Thomas, New States, Sovereignty and Intervention (Aldershot, 1985), 109–111, who attribute a particular significance to the debate on the Uganda/Tanzania conflict. 102 Deputy Assistant Secretary of State for African Affairs W.C. Harrop, Briefing on OAU Summit at Monrovia, Hearing before the Subcommittee on Africa of the Committee on Foreign Affairs, House of Representatives 96th Congress First Session 27 July 1979, 1–16, Johnson to Williams enclosing ‘Sixteenth Meeting of the Heads of State and Government of the Organisation of African Unity, Monrovia, 17–21 July’ 27 July 1979 Carruthers, Addis Ababa, NA FCO 98/601 and Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1979’, Africa Contemporary Record, XII (1979/80), A5 8–66.

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The ACHPR resolution was placed on the AHSG agenda by President Senghor at the last possible moment in the category ‘Items proposed by Member States’ as ‘African Charter on civil political, economic social and cultural human rights’. Senegal’s sole sponsorship is clearly identified and was also subsequently confirmed by President Jawara in his opening address to the 1980 Banjul Ministerial Meeting and by the British post’s meeting report based on information supplied by OAU Assistant Secretary-General Onu.103 As Kodjo, Tanor Dieng and Dieng all pointed out, a tactical decision had been taken that the resolution should not be tabled at the CoM meeting, as normal practice would have dictated, ‘lest it be killed’.104 The resolution itself was carefully worded so as to appeal to as wide a constituency as possible. In a negative sense, it declined to refer to the UDHR preferring once again to base its references to ‘fundamental human rights’ and ‘the dignity and worth of the human person’ in the UN Charter’s Preamble. This was a conscious decision that recognised that most African political leaders had little liking for the UDHR irrespective of whether adherence had been asserted in their national constitution. Nonetheless, the UDHR was indirectly and discreetly referenced by association with the recital in the OAU Charter Preamble 103 There is no reference to the resolution in OAU CM/Plen/Rapt. Rpt (XXXIII) or OAU CM/966 (XXXIII) Rev.4 which set out the proposed agenda discussion; the first reference to the agenda item seems to be in ‘Draft Agenda’ OAU AHG/91 (XVI) Rev.1; see also OAU (L) Speech by His Excellency the President of the Republic of The Gambia at the OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980, Banjul, The Gambia CAB/LEG/67/8, 2 and Tesh Telegram number 185 6 August 1979, FCO 98/615. Africa Research Bulletin, 15 August 1979, 5330, ‘OAU Assembly XVI’, African Index, 16–31 July 1979, 50 and Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1979’, A66 attribute sponsorship jointly to Senegal and Mauritius. Most likely this reflects either a joining up of Mauritius’ separate proposal with President Senghor’s resolution or a seconding of President Senghor’s resolution by Mauritius. Deputy Assistant Secretary of State for African Affairs W.C. Harrop, Briefing on OAU Summit at Monrovia: Hearing before the Subcommittee on Africa of the Committee on Foreign Affairs, House of Representatives 96th Congress First Session 27 July 1979, 2–3, 10 suggests joint Senegal and The Gambia sponsorship as does C. Winfrey, ‘OAU’s Unity Loses Appeal’, New York Times, 23 July 1979, A9. The suggestion by F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 38–39 that human rights were ‘not included in the agenda of the meeting’ but were ‘broached in various ways’, and, thereby, his subsequent account seems incorrect and misleading. Interestingly, Harrop’s account does not include Decision 115 in the list of resolutions passed by the OAU AHSG notwithstanding his subsequent mention of a resolution on human rights. 104 Interview with Edem Kodjo, 10 December 2007, Lomé, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar and Interview with Adama Dieng, 12 November 2007, Paris.

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and Article II.1 (e). The resolution was similarly careful to stress that ‘human rights are not confined to civil and political rights but cover economic, social and cultural problems’ and that, although there were no hierarchical implications as between these rights, ‘it is nevertheless essential to give special attention to economic, social and cultural rights in future’. It also asserted that ‘economic and social development is a human right’, reaffirmed ‘the right to development’ and emphasised that ratification of certain international conventions by OAU member states ‘would help to strengthen Africa’s struggles against certain scourges, especially against apartheid and racial discrimination, trade imbalance and mercenarism’. All these references were intended to hit sensitive African buttons. Only in its last paragraph was the real purpose of the resolution made apparent in its call to: the Secretary-General of the Organization of African Unity to … organise as soon as possible … a restricted meeting of highly qualified experts to prepare a preliminary draft of an ‘African Charter on Human and Peoples’ Rights’ providing inter alia for the establishment of bodies to promote and protect human rights.105

It is not at all clear why President Senghor decided to sponsor the resolution as he had never taken a particular interest in human rights. As Niasse, who was Director of the Presidential Cabinet from 1970 to 1979 and Minister of Foreign Affairs from 1979 to 1983, explained, President Senghor’s view was that the African states had first to establish themselves politically, financially and administratively and only then would it be realistic to focus on human rights. He had argued that: ‘We don’t have time for 35 parties.’106 On the contrary, in his drive for domination within Senegal during the mid-1960s he had banned opposition parties. In 1969 he had also dissolved the National Union of Senegalese Workers in favour of a faction, the National Confederation of the Senegalese Workers, that supported the government and which he then incorporated into his Senegalese Progressive Union ruling party as the ‘eighth region’. Other reforms confirmed by the National Assembly and referenda in 1969–70 further strengthened the power of the Presidency but at the same time limited his term of office to two further terms that were scheduled to end in 1983. However, like M’baye, sometime in the mid-1970s human rights issues began to assume a higher profile in President Senghor’s priorities probably in the context of the planning for his retirement and succession and his legacy about which he was most sensitive. In 1974, for example, after eleven years, he released former Prime Minister Mamadou Dia from detention and, for the first time, authorised a single opposition party – although he felt little compunction 105 The resolution is set out in OAU AHG/91 (XVI) Add.1 Annex I, Draft Resolution, NA FCO 58/1690 and, in its final form, OAU AHSG/Dec.115 (XVI) Rev.1. 106 Interview with Moustapha Niasse, 14 September 2012, Dakar.

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in clamping down on and imprisoning some of the more emboldened elements in this newly authorised opposition party for making subversive speeches, at the same time warning against ‘importing foreign ideologies’. Two years later, he authorised a second opposition party. The parties were chosen so as to fit into three pre-­determined categories along the political spectrum: The ‘Parti socialiste’, the new name of President Senghor’s party, as social democrats; ‘Parti démocratique sénégalaise’ (PDS), Wade’s party, as liberal democrats; and ‘Parti africain de l’indépendance’ (PAI), as the Marxist-Leninist party.107 It also seems unlikely that President Senghor would have given M’baye such a free hand at the CHR without his approval in principle at least of the approach to be adopted. The suggestion was also made by M’backe that President Senghor’s sponsorship of Decision 115 was inspired by France which saw him as a human rights wedge into Africa, a perception that was shared by several of the experts at the 1979 Dakar Meeting of Experts (see page 252 below). A broadly similar suggestion was made by Niasse. He explained that on a semi-private visit in February/ March 1972 President Senghor met in London with Carlsson, at the time International Secretary of Prime Minister Palme’s Swedish Social Democratic Party and in 1976 Secretary-General of the Socialist International (SI); in 1973 he would also meet privately in London with SI Secretary-General Janitschek (Austria). At the SI’s May 1971 Helsinki Conference a resolution had been adopted stressing that it continued to regard human rights ‘as basic to genuine democracy’. Among the rights were ‘free elections’ and ‘a judiciary independent of government’. Separately, it expressed support for the right to self-determination and an end to colonialism; an end to the problems of poverty and exploitation; and also the UDHR. These were issues which President Senghor either already supported or would come to support in the second half of the 1970s. At that initial meeting with Carlsson, the idea of human rights in Africa was apparently raised for the first time. It would subsequently be raised with President Senghor by Mitterrand, then First Secretary of the French Socialist Party, and Chancellor Brandt (West Germany) both of whom saw President Senghor as the interlocutor of the SI and human rights in Africa.108 107 F.O. Alalade, ‘Senghor, the Rise of the Dominant Party and Return to Limited Multi-Party System in Senegal’, Journal of the Historical Society of Nigeria, 11/1–2 (1981–82), 36–51. 108 Interview with Mouhamadou Moctar M’backe, 13 September 2012, Dakar, Interview with Moustapha Niasse, 14 September 2012, Dakar and ‘Resolution adopted by Helsinki Council’, Socialist Affairs, 5–6 (1971), 167. President Senghor, with Niasse in the party, visited London in June/July 1972, Niasse may therefore have been out a few months, to attend the Manding Conference at SOAS (see SOAS, Manding Conference 1972: Report and Recommendations (London, 1972) and Date to Kelly, Manding Conference and President Senghor’s visit 22 June 1972, NA FCO 65/1185). The schedule indicated several free days. In October 1973 he visited

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In 1975, in what may therefore have been a testing of the waters, President Senghor sponsored the Tunis Conference of African Socialist Parties. A year later Senegal became the first African state to join the SI. President Senghor was therefore conscious of the obligations that membership entailed and of Senegal’s image abroad and was also keen to recruit other African leaders into the SI. In December 1977, President Senghor therefore sponsored a meeting in Dakar attended by the representatives of twelve African socialist parties to discuss an inter-African socialist group, each of whose members would have to commit to ‘democratic socialism’. In May 1978, further backing for his sponsorship of the SI in Africa was extended in the form of a first meeting of the Bureau of the SI in Africa, in Dakar. Finally, in 1980, a yet further conference in Tunis attended by the representatives of socialist parties from Senegal, Tunisia, Morocco and Sudan decided to set up an African Socialist Institute, an idea that was first mooted at the 1975 Tunis conference.109 Almost certainly, too, President Senghor was conscious of his image and legacy. The evidence, such that it is, suggests that the idea of the ACHPR appealed to his vanity and, as he had already probably made the decision to resign the Presidency at the end of 1980, he would have felt that he had little personal prestige, politically, within Africa to lose and much international prestige to gain; always an important consideration for President Senghor. All the more so as he was still regarded as a potential future Nobel Prize laureate (in Literature). Moreover, as the promise extracted from M’baye and his address to the 1979 Dakar Meeting of Experts further implied, he envisaged the ACHPR as progressing his ‘Civilization of the Universal’.110 In his 1979 Jeune Afrique interview President Senghor had also started speaking out against detention without trial: ‘I am against the imprisonment without the UK again to attend his Doctoral award from Oxford. This time his schedule included a reference to a visit to SI Secretary-General Janitschek (see Visit of His Excellency Monsieur Léopold Sédar Senghor, President of the Republic of Senegal October 1973, NA FCO 65/1358). 109 ‘Bureau of Socialist International, Dakar, 12/13 May 1978’, Socialist Affairs, 5 (1978), 111–119, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar, ‘Socialist International: Wooing Africa’, Africa Confidential, 19/15 21 July 1978, 4–6 and Africa Research Bulletin, 15 August 1980, 5734. Taal (Interview with Ebou Taal, 4 August 2012, London) also reported that he accompanied his Foreign Minister to Dakar in December 1980 to congratulate President Senghor on behalf of President Jawara for representing the ‘honour of Africa’ by his unforced resignation. In response, President Senghor asked that thanks be passed on and, reflecting on the failed October 1980 coup against President Jawara, asked that the Wolof proverb ‘When you are eating in a large group, don’t lick the plate clean with your finger, leave a little for the next person’ also be passed on to President Jawara. 110 OAU (L) President Senghor’s opening address to the 1979 Dakar Meeting of Experts CAB/LEG/67/5.

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trial of any man … Arbitrary detentions are reprehensible … Arbitrary detention is a vice from which Africa must heal itself as soon as possible.’111 Nonetheless, without some preliminary and prior indications of support from other heads of state, and confidence in his ability to persuade, it seems unlikely that President Senghor would have been minded to risk such a contentious resolution. An important element of that, as he observed to the departing British Ambassador, was that the ‘moderate’ states had been able to take control of the 1978 Khartoum AHSG ‘as his contest with Boumédiènne … had shown’ and, therefore, he ‘did not expect serious difficulties at … Monrovia’.112 This was the first time that a resolution on human rights had been discussed by the AHSG. More importantly, it was the first time African political leaders had been obliged to respond before their peers and the world within an exclusively African political forum to a resolution calling directly for an African human rights charter. The tactical need to introduce a resolution at the last moment and the fact that Nigeria and The Gambia only felt able to posture in international forums outside of the OAU AHSG makes clear that significant opposition was to be expected. The radical states were hardly sympathetic, at best, but, in view of President Carter’s foreign policy statements at that time, they were especially suspicious of the intentions of the moderate states and saw them, as Kodjo described, as stooges of neo-colonialism who sought to impose foreign ideologies.113 This perspective emerged in the AHSG debate when, as Tanor Dieng recalled, Colonel Ghadaffi talked of human rights as a Western idea and argued that democracy was a luxury for Africa – only a few weeks after the 1979 Monrovia AHSG had adopted Decision 115, he would protest to France about its involvement in the coup against Emperor Bokassa.114 The following year President Ahidjo, in a reference to a February 1980 AI report on Cameroon, would also refer to ‘“the fallacious pretext of human rights” used by some to “deceive the ill-informed”, and to wonder whether concern for human rights should permit plotters to attack the state and the people’.115 As Kodjo therefore stressed, support for the resolution from the floor of the AHSG from ‘elder statesmen’ and from influential states such as Nigeria 111 ‘Senghor: Une interview du président sénégalais dirigée par Siradiou Diallo’, 48: ‘Je suis contre l’emprisonnement sans jugement de tout homme … Les detensions arbitraries sont condamnables … La detention arbitraire est un vice dont l’Afrique doit se guérir au plus vite.’ 112 Report on Farewell Audience with President Senghor 11 June 1979, Powell-Jones to FCO, NA FCO 36/2564. 113 Interview with Edem Kodjo, 10 December 2007, Lomé. 114 Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar and Jamahiriya News Agency, ‘Communiqué du Secretariat aux Affairs etrangères au sujet de l’invasion du Centrafrique par les troupes françaises’ 24 September 1979, UN (G) G/ SO 211 (3) 59. 115 ‘UNC Party Congress’, Africa Research Bulletin, 15 March 1980, 5576.

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was essential if the resolution was to be adopted – declarations by UN seminars and African jurists counted for nothing at this point. Notwithstanding the important part played by M’baye: ‘Without us (Kodjo and Senghor) he is nothing.’ The support identified by the pre-summit lobbying of M’baye’s 1978 ICJ Dakar Colloquium follow-up team and the pre-summit caucus of Senegal, The Gambia, Botswana and Ghana, with support from OAU Secretary-General Kodjo, were therefore crucial elements of the process. Tanor Dieng also recalled numerous phone calls before the AHSG meeting and the active involvement of the Ambassadors in Addis Ababa, but that President Senghor also side-stepped normal channels by making direct contact with other heads of state. Niasse also described how President Nyerere gave his strong approval and advised President Senghor that the drafting of the proposed ACHPR should initially be assigned to a group of experts.116 Information on the Decision 115 debate is sketchy and relies heavily on not-always consistent press reports. One account, for example, reports that: ‘Although the debate … was prolonged and at times excited, there were no voices raised against’; while Welch, rather rashly, observed that it ‘passed unanimously and almost without debate’ and this ‘indicated the willingness of the O.A.U. to take its first major step, following several years of urging by other groups’. Similarly, Winfrey reported that the resolution was approved ‘without so much as a flutter of opposition’, although adding that: ‘The phrasing may be less than unequivocal.’ For Cervenka and Legum, though, it was not so straightforward and they reported that it ‘met with virtually no opposition once a Malagasy amendment was accepted adding “peoples” rights to “human rights”’.117 Kodjo, however, recalled the occasion somewhat differently. Towards the end, President Senghor asked for the floor. The debate was ‘long and daft’. Angola, Mozambique, Madagascar, Guinea and Ethiopia all opposed the idea. President Machel was ‘very tough’, being convinced that the initiative was due to pressure from President Carter. President Touré was also vocal, expressing concern about the rights of the group not merely the rights of the individual, that people suffering from colonialism and imperialism also had the right to be considered and, Taal recalls, insisting on the socialist twist of ‘Peoples’’. Taal recalled, too, that President Touré had also accused Francophone Senegal and Anglophone Gambia of deliberately attempting to weaken Africa and of being ‘tools of imperialism’.118 116 Interview with Edem Kodjo, 10 December 2007, Lomé, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar, Interview with Moustapha Niasse, 14 September 2012, Dakar and Interview with Hassan Jallow, 7 October 2008, London. 117 Africa Research Bulletin, 15 August 1979, 5330, C.E. Welch Jr., ‘The O.A.U. and Human Rights: Towards a New Definition’, 410, C. Winfrey, ‘OAU’s Unity Loses Appeal’, New York Times, 23 July 1979, A9, and Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1979’, A66. 118 Interview with Edem Kodjo, 10 December 2007, Lomé and Interview with Ebou

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The moderate countries gave some support in the debate. Press reports suggest that: ‘Nigeria and Uganda were among the most eloquent advocates in floor debate’; and that ‘strong support for a declaration came from Nigeria, Liberia, Tanzania and … Uganda’.119 Jallow recorded that the resolution was ‘supported by Mauritania, Uganda, Nigeria and The Gambia’, while Tanor Dieng recalled President Senghor urging that it was not a European but a human African idea and, in response to objections based on the principle of non-interference, that African culture respected human dignity and that the OAU should therefore confirm this in the proposed charter.120 What is most noticeable, though, is the absence of any significant reference in these reports to participation in the debates by the North African states and also that opinion was almost exclusively split along Cold War fault lines. However, in order to achieve the consensus that OAU AHSG convention demanded, if the resolution was to pass, the radical states would have to be bought off or mollified. That had already been attempted in the formulation of President Senghor’s resolution but clearly more give was needed. As Dieng recalled, at the insistence of Guinea and Madagascar, with Mozambique alongside, it was therefore agreed that ‘Peoples’’ should be added to the title and conception of the proposed charter. At this stage, although it was clear that this shifted the tone of the resolution away from its original conception, the concession was nonetheless seen as enabling a first step to be taken. M’baye, according to Dieng, saw the process as requiring a ‘step-by-step’ tactical approach. It was to that extent merely a battle that had been lost, not the war, and the sponsors were prepared to accept the amendment as a relatively easy concession to make; although, even without the benefit of hindsight, it is not clear that such optimism was warranted. As to what ‘Peoples’’ meant, little guidance was forthcoming.121 There are no simple or all-embracing explanations as to why Decision 115 was adopted, only a range of motivations that varied from one African political leader to another. What can be said with certainty, though, as the ACHPR process would soon make clear, is that Decision 115 was not the outcome of a mass Taal, 4 August 2012, London. 119 ‘OAU Assembly XVI’, African Index, 16–31 July 1979, 50 and Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1979’, A66. 120 H.B. Jallow, The law of the African (Banjul) Charter on Human and People’s Rights (Victoria, 2007), 24 and Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar. 121 Interview with Adama Dieng, 12 November 2007, Paris; W. Benedek, ‘Peoples’ Rights and Individuals’ Duties as Special Features of the African Charter on Human and Peoples’ Rights’, P. Kunig/W. Benedek/C.R. Mahalu (eds), Regional Protection of Human Rights by International Law: The Emerging African System (Baden, 1985), 60 reports confirmation from M’baye in a personal communication that ‘Peoples’’ was added at the insistence of Madagascar and Guinea.

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Damascene conversion by African political leaders. At this initial stage, Decision 115 committed OAU member states to do no more than consider an African charter on human rights. It was understood by opponents and sponsors alike that acquiescence did not presage final acceptance, it was as easy to approve a vague motion as to kill it procedurally thereafter. Decision 115 was therefore merely the first step in a tortuous journey. In his welcome speech at the opening of the June 1980 Banjul Ministerial Meeting, President Jawara would make much the same point: ‘Many cynics must have felt that the Will of Africa to pursue this delicate and complex subject would wane and that the resolution would ultimately die a natural death.’122 Nor did Decision 115 commit the OAU member states to any particular content, and clearly the devil would be in the detail. As Humasi reported, a member of one of the Asian observer teams at the June 1980 Banjul Ministerial Meeting was also later to remark, most presciently, ‘it would be a shame if African’s (sic.) effort to establish a Human Rights code of conduct for governments and opponents turned out to be nothing but window dressing’.123 It is also worth noting that Mauritius, which had essentially co-sponsored Decision 115, did not ratify the ACHPR until 1992, several years after it had come into force. Although, until this point, few African political leaders had been prepared to speak out publicly, some degree of acquiescence in, although scarcely outright support for, Decision 115 came from the revulsion felt by many African leaders towards the murderous activities of, in particular, President Amin, Emperor Bokassa and President Nguema. As Clapham notes, when all three were removed ‘the sense of continental relief was such that external involvement was tacitly ignored’.124 To that extent, Decision 115 was therefore an opportunity for African political leaders to signal that revulsion and the shame that many felt, but to express that shame within the family. This also impacted on those who did not feel shame. As Kodjo stressed, it meant that even those African leaders who might wish to oppose Decision 115 could not be seen to oppose it.125 It is an explanation that is reinforced by an anecdotal report of a moderate West African state invited to table a resolution opposing the Tanzanian invasion of Uganda. Any such inclination was deflected by Tanzanian diplomacy which ‘showed the country concerned that there was more prestige to be gained from championing the human rights campaign unleashed by the fall of Amin than by 122 OAU (L) ‘Speech by His Excellency the President of the Republic of The Gambia at the OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980’ CAB/LEG/67/8. 123 N. Humasi, ‘That Charter: Rights Record may Hamper it’, New African, 168, September 1981, 12–13; there does not seem to be a reference to ‘observers’ in any other source or meeting records. 124 C. Clapham, Africa and the International System, 189. 125 Interview with Edem Kodjo, 10 December 2007, Lomé.

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pursuing a side show’.126 There was a sense, too, that, whether it was described as human rights violations or otherwise, the violence had reached such unacceptable proportions not just on a moral level but more importantly at a practical level that it disrupted prospects for development and created the problem of enormous numbers of refugees. Kodjo was therefore to write that the ACHPR ‘came about as the result of the ordeals which certain African peoples had suffered at the hands of their governments’ and that ‘the Secretary-General … pressed by Statesmen like President … Senghor … was worried by the authoritarian and totalitarian drift which was taking hold of power in Africa’; but he would also add: ‘It was further justified by the desire of the African people to see the world governed by the principle of the right … to self-determination.’127 Yet, at the same time, the extent of this prospective commitment by African political leaders to a human rights regime in Africa has to be set against the vehemence with which Nigeria, together with Sudan and Liberia and other states otherwise supportive of Decision 115, expressed their opposition to Tanzania’s interference in Uganda on the grounds that non-interference was a more important principle for the OAU than human rights for the people of Uganda. It should perhaps also be borne in mind that the so-called OAU AHSG consensus that approved Decision 115 included the representatives of both Emperor Bokassa and President Nguema – the CAE was represented by Foreign Minister Mokodopo and Equatorial Guinea by Vice President Mchama. Such turkeys could hardly be said to have knowingly voted for Christmas. Another key consideration for the more moderate African political leaders was the increasing importance of human rights perceptions within international relations. Not so much in terms of national interests, but regional interests such as self-determination, apartheid and development. It was a message that had been trickling back from the African Group and the Lomé II negotiations and would therefore be invoked as a key argument throughout the whole ACHPR process. For example, the impact of an African human rights charter on the OAU’s campaign against apartheid had been directly invoked in the text of President Senghor’s resolution and further deployed in the course of the AHSG debate by President Binaisa much along the lines that President Nyerere had been arguing for many years.128 Deputy Secretary-General Onu was also reported to have said in a press conference after the 1979 Monrovia AHSG that: ‘We felt it was high time we had such a charter … we cannot be talking 126 P. Enaharo, ‘Notes from a Summit’, 9 and M. Adam, ‘Nyerere under Fire’, New African, 145 September 1979, 11–12. 127 E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, Human Rights Law Journal, 11/3–4 (1990), 273–275. 128 Africa Research Bulletin, 15 August 1979, 5330b and ‘OAU Assembly XVI’, African Index, 16–31 July 1979, 50. The argument is attributed to President Binaisa by Z. Cervenka/C. Legum, ‘The Organization of African Unity in 1979’, A66.

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about the denial of human rights in certain parts of Africa (where whites retain power) if we don’t accept the same standard ourselves.’129 The argument was also invoked at the 1979 UN Monrovia Seminar and the 1979 Dakar Meeting of Experts by OAU Secretary-General Kodjo: ‘Africa will thus derive more strength for her dignity and her honour. She will better be able to command attention when she voices out her rejection of hatred, and oppression in Namibia, Zimbabwe and South Africa.’130 It would also continue to be invoked even during the ratification process, notably by M’baye in his formulation of Declaration 2 of the 1985 ICJ Nairobi Conference (see page 280 below). The implication of this line of argument, however, is that for African political leaders an underlying desire to protect human rights in Africa was hardly sufficient in itself for supporting the ACHPR, support was essentially tactical and secondary to furthering African interests on the international stage.131 Ultimately, though, Kodjo felt that the critical factor that compelled support for Decision 115 was that a resolution had been tabled and a formal response had therefore to be made. While the radical states were inclined to reject the resolution outright, they were aware that there was a political cost to be paid individually, as it would soon become an open secret as to which states had blocked the proposal, and collectively for Africa if it was rejected. They therefore concluded that it might be better, initially, to acquiesce in adoption but thereafter to oppose it by bureaucratic means and through control over its content. As Mtango noted, President Nyerere, a long-standing opponent of constitutional human rights, was prepared to take the view ‘why not?’ provided that the content was acceptable such as the inclusion of duties and economic rights.132 Increasingly, too, a further argument began to emerge as the most compelling and around which consensus opinion could coalesce. This was the notion that it was better for Africa to take the initiative and employ its own vision of human rights than to acquiesce in the imposition of a foreign concept, but also that it was, in any event, desirable that Africa should finally express an African conception of human rights; indeed, for President Senghor and M’baye, this was essential if the ‘Civilization of the Universal’ were to be advanced. It was a point that Warioba, coming from a different, Anglophone, tradition, also made. Human rights, he said, might be thought universal, but they were fundamentally European in content and certain aspects of African culture were excluded. Most 129 OAU Deputy Secretary-General Onu, quoted by D. Lamb, ‘African Leaders Act to Aid Human Rights’, Los Angeles Times, 21 July 1979, A10 and (slightly different text) S.J. Solarz, ‘Africa: As Tyrants Fall.’, Washington Post, 16 October 1979, A17. 130 UN ST/HR/SER.A/4, 10 and OAU (L) OAU Secretary-General Kodjo’s opening address to the 1979 Dakar Meeting of Experts, CAB/LEG/67/4, 8. 131 ‘Declaration No. 2’, ICJ, Human and Peoples’ Rights in Africa, 74. 132 Interview with Edem Kodjo, 10 December 2007, Lomé and Interview with Eli Mtango, 26 April 2009, Dar es Salaam.

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African states were therefore not convinced that existing human rights could be said to represent any meaningful universalism. On that account, the ACHPR that would emerge could not extend its outright support for the UDHR. Warioba also drew a convincing parallel with the 1969 OAU Refugee Convention which redrew the European post-war needs definition of refugees with a broader definition in order to cover the specific needs of post-colonial Africa.133

The 1979 UN Monrovia Seminar With Decision 115 adopted, attention shifted from the question of principle to that of content. It was of course a project that Western public opinion and governments had been keen to promote, but the 1977 UNGA resolution asserting the priority of economic and social rights, the push for the right to development, the attitude of the African states towards the CHR and the inclusion of ‘Peoples’ rights’ suggested that ‘universal’ human rights standards were unlikely to be high on the agenda. There must therefore have been a temptation for Western governments and NGOs to intervene in terms of drafting advice and assistance. Yet, in the main, it was appreciated that these decisions were for the Africans alone to decide, more importantly that such intervention might prove counter-­ productive. For example, after the 1979 UN Monrovia Seminar, the FCO, in correspondence with other EEC Foreign Ministries with regard to the developing human rights discussion in Africa, recommended ‘the need for careful handling of the matter in order to avoid the impression of a paternalistic attitude on the part of the West, which would undoubtedly have counterproductive effects’. Further correspondence resulted in West Germany suggesting that legal knowhow might be more useful to the African human rights process than ‘spectacular political statements’ in support. The FCO’s response acknowledged the sensitivities but somehow still missed the point: ‘Certainly some unobtrusive practical help would probably be useful to the human rights cause. In due course a request for legal information and Council of Europe know-how … might be discreetly stimulated. Activity on these lines would be more acceptable to Africa than an over-enthusiastic public expression of support.’ It was therefore proposed that some low-key general statement of support by reference to the conclusions of the 1979 UN Monrovia Seminar might be expressed in the UN Third Committee’s review of the ECOSOC report. That was, in effect, what happened although the initiative came from Nigeria. In all other respects, there is no evidence to indicate that Western public opinion or governments made any significant effort to intervene in the drafting deliberations or the subsequent political approval process.134 133 Interview with Joseph Warioba, 28 April 2009, Dar es Salaam; see OAU Convention Governing the Specific Aspects of Refugee Problems in Africa adopted 10 September 1969 at the 1969 Addis Ababa AHSG. 134 Edis to Elliott ‘Regional human rights machinery etc’ 7 June 1979 and Travis to

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There was, however, a limited degree of indirect support as the US provided funding for a range of projects through its Human Rights Fund whose mandate was, ironically, the promotion of civil and political rights. It is noticeable that its disbursements seemed to favour projects linked to M’baye and Wako. For example, in 1979, on top of the grant to the Dakar Institute for Human Rights Education, grant funding also supported attendance at the 1979 UN Monrovia Seminar. In 1980 four African (Kenyan) lawyers were assisted in attending the IAUL Dakar conference (and in 1981 three East African lawyers assisted in attending the follow-up conference in Nairobi) and two Senegalese lawyers assisted in making contact with US human rights NGOs. The US also paid for a 1979 mission by seven African jurists, including Wako, to study regional human rights institutions in Europe and America.135 Thirty years later, Wako, then Kenya’s Attorney-General, would be declared persona non grata by the US for ‘obstructing the reform process’.136 The ICJ, too, notwithstanding its role as midwife of the ACHPR process, clearly chose to exclude itself from the drafting process. It seems to have understood that, as a matter of political sensitivity, it should stand aside from the fray. M’baye and several of the ICJ’s other African commissioners and associates would be closely involved in the drafting process, but only in their capacity as African experts or jurists, not as members of the ICJ. This reflected the promise M’baye had made to President Senghor that the ACHPR was to be a process by Africans for Africans but also a recognition of African sensitivities. It would only be after the adoption of the ACHPR that the ICJ would, once again, intervene by supporting M’baye’s efforts to push along the process of ratification and implementation. However, where others feared or chose not to tread, the UNDHR under the proactive van Boven was not so reticent. Following the 1978 UNGA Resolution, Reith 5 July 1979, NA FCO 58/1690, Bonn COREU to all COREU ‘Object: Human Rights discussion in Africa’ 23 October 1979, UK to Dublin COREU ‘Object: Discussion in Africa of regional human rights machinery’ (possibly 31 October 1979), Dublin to COREU ‘Object: Human Rights in Africa’ 8 November 1979 and ‘Human rights discussion in Africa’, La Haye 6 November 1979, NA FCO 58/1691; see also UNGA 32/130 16 December 1977 and 34/171 17 December 1979. 135 US DEC Database, AID Human Rights Fund for Africa, PD-AA1-599-D1 (1979), PD-AA1-594-B1(1980) and PD-AA1-603-C1(1981) (the funding was at the discretion of US Ambassadors), Prepared Statement of Deputy Assistant Secretary of State for Human Rights and Security Assistance S. Cohen, Human Rights in Africa: Hearing before the Subcommittees on Africa and on International Organizations of the Committee on Foreign Affairs, House of Representatives, 96th Congress, First Session, 9 (31 October 1979), ‘Law Body Chief on Tour’, Daily Nation, 24 July 1979, 4 and OAU (L) Wako to Kodjo 31 August 1979. 136 ‘Banned Kenya Official “to Sue US”’ http://news.bbc.co.uk/1/hi/world/africa/ 8343088.stm, last accessed 28 April 2017.

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budgetary authorisation for a revival of the programme of seminars on regional human rights commissions had finally been approved thereby enabling van Boven to proceed with the seminar in Africa that he had been contemplating for some time. In April 1979 his negotiations with potential sponsors bore fruit when the Liberian Government agreed to sponsor what would become the 1979 UN Monrovia Seminar. Invitations to participants and requests to Elias, Eze and M’baye for background papers were therefore sent out throughout April and May 1979. It is not clear whether van Boven ever approached Senegal and Nigeria, with whom he had been collaborating, with a view to their hosting the proposed seminar and, if so, why they declined; alternatively, as the two most obvious candidates for hosting the conference, why it was that van Boven chose not to approach them.137 It is also not clear whether van Boven knew of M’baye’s intention to persuade President Senghor to propose an African human rights charter at the forthcoming 1979 Monrovia AHSG. There had, for example, been a meeting with the ICJ in February 1979 when the subject may have been broached, although it seems unlikely. The ICJ also made a formal presentation to the CHR of the conclusions reached by the 1978 ICJ Dakar Colloquium but, clearly, in such a public forum, future intentions of such sensitivity could only have been conveyed indirectly between the lines of any statement. In any event, the commitment from President Senghor to sponsor what became Decision 115 would likely not have been given earlier than the April 1979 ICJ follow-up meeting and, therefore, could not have been taken into account by the UNDHR in their initial planning.138 Ramcharan also described regular contact between the UNDHR and the ICJ and, it is not precisely clear on what basis, therefore suggested that the discussions leading to the Monrovia Seminar may have stimulated the Decision 115 initiative. If he intended to suggest that Decision 115 was brought about by van Boven’s plans for an African human rights seminar, this suggestion can be almost completely discounted. If, on the other hand, he is suggesting no more than that the discussions encouraged M’baye to press ahead with an OAU-driven initiative, then that suggestion is plausible, if not probable. What it does confirm, though, is an awareness by the UNDHR of the deep gulf in conception between the two sides.139 137 The administrative arrangements for the 1979 Monrovia Seminar are located in the UN Archives and Library, Geneva files G/SO 211 and 216 files. See, for example, Communication from Minister of Foreign Affairs C.C. Dennis, Jr. (Liberia) to UN Secretary-General, UN (G) G/SO 216/3 (30) and P. Sanon 4 April 1979, UN (G) G/SO 216/3 (30), which indicate that discussions with Liberia had been on-going since at least December 1978, and T.C. van Boven to K. M’baye 11 April 1979, UN (G) G/SO 216/3 (30). Unfortunately, many other papers of interest are missing. 138 CHR 21 February 1979, UN E/CN.4/SR.1489 1979, 5–6 and Human Rights Internet Newsletter, 4/9 to 5/1 (1979), 16 139 Ramcharan Correspondence.

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The discussions throughout 1978 and into 1979 with various African parties to which Ramcharan refers in his account were not only limited to the matter of sponsorship but there was also the further question of the terms of reference for the envisaged seminar. In Ramcharan’s account there were frequent communications with M’baye and MacDermot as regards the development of the proposed seminar.140 Guest also describes van Boven’s ‘long telephone conversation with M’baye … about this seminar’, which, as a quite separate matter, may have been bugged (see page 249 below).141 However, at least with M’baye, these advance discussions had not gone well. The problem was that van Boven wanted to move ahead with a regional human rights commission whereas M’baye was aiming at an African charter that incorporated a regional human rights commission. It was not only, M’baye argued, that it made no sense to have an African human rights commission without normative standards, but that M’baye had in mind that the normative standards should be African. He developed this point in his background paper to the 1979 UN Monrovia Seminar which also noted that the 1978 ICJ Dakar Colloquium had proposed both an African human rights charter and a commission: human rights always have a dimension measurable by the history, civilization and aspirations of the people concerned … In other words, an institution for the protection of human rights cannot be isolated from the ideological context on which it is based. Europe and the Americas have had their declarations of human rights: Africa must have its own, which should take due account of its concerns and aspirations. In other words, development, decolonization, the elimination of racial discrimination and the duties of the individual vis-à-vis the community will have to have an important place in such a declaration.142

In his background paper to the 1979 UN Monrovia Seminar, Elias, too, would advise that: ‘Such a Commission, however, presupposes the prior adoption by the Organization of African Unity of an African Convention on Human Rights under which there should be a Commission of Human Rights and a Court of Human Rights.’143 As the process of agreeing sponsorship by a UN member state 140 Ramcharan Correspondence. 141 I. Guest, Behind the Disappearances: Argentina’s Dirty War against Human Rights and the United Nations, 145–147 (incorrectly attributed to May 1980). It was (possibly) this telephone conversation that was (allegedly) bugged by Sanon. Other information given on a confidential basis by an interviewee suggests that Sanon may not have been the (only) guilty party within the UNDHR. The UN investigation into the matter was conducted by Jonah (Sierra Leone) but the papers are apparently not available for public inspection. 142 K. M’baye, UN (G) HR/Liberia/1979/BP.2. 143 T.O. Elias, UN (G) HR/Liberia/1979/BP.1.

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for a UN seminar also involved agreement on the terms of reference, this difference of opinion may well explain why there was little possibility of holding the seminar in Dakar. In Ramcharan’s 1992 account, therefore, he argued ‘that there was a strong Senegalese view that machinery should come along with African norms’ and implied that everyone else was able to agree on suitable terms of reference, that is the UNDHR terms: In the consultations leading up to the seminar, two main lines of approach were in contention. One view, which came out essentially from Senegal, was that an African Commission on Human Rights should be constituted within the framework of an African convention which would contain substantive norms on human rights as well as make institutional arrangements. The second view was advanced by the United Nations Secretariat and by organizations such as the African Bar Association. The latter view favoured the establishment of the African Commission on Human Rights by a resolution of the Organization of African Unity Summit.

The Senegalese approach was exactly what van Boven wished to pre-empt, he wanted ‘universal’ standards to be applied and feared African normative standards. Accordingly, even after Decision 115, which, as Ramcharan recognised, implied that ‘a fundamental policy question had been settled’, the UNDHR still went ahead with its terms of reference largely unchanged – to consider a stand-alone regional commission on human rights for Africa.144 There seems to have been little inclination on van Boven’s part to support the Decision 115 initiative. For example, in his opening address, van Boven laid stress on UN human rights initiatives and the Inter-American regional experience but made only a brief reference to Decision 115, at the very end, and then only in the context that while the charter was being negotiated ‘measures might be taken to establish arrangements which could function pending the entry into force of the charter, and even to prepare the ground so that … they will have the experience of any such earlier arrangements’.145 That lack of support is also evident in the UNDHR’s decision to bring to the 1979 UN Monrovia Seminar a draft declaration providing for an African human rights commission on a stand-alone basis. Ramcharan has suggested that this was a purely tactical question; a commission could come into immediate effect whereas a charter would take time to negotiate and ratify and would then only apply to those OAU member states that ratified it – but the UNDHR’s 144 B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 307–314. 145 UN ST/HR/SER.A/4, 25–28; see also B. Ramcharan, The Advent of Universal Protection of Human Rights: Theo van Boven and the Transformation of the UN Role, Chapter 7.

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intentions are open to a rather different interpretation. Indeed, Ramcharan himself described the UNDHR’s aspirations at that time, these were that a commission should precede a charter because it ‘was similar to the pattern which had been set for … the first Inter-American Commission on Human Rights’. This was re-emphasised in his later 2018 account in which he described the considerable opposition that the UNDHR had to overcome to convince the 1979 UN Monrovia Seminar to come to the UNDHR’s conclusion.146 The 1979 UN Monrovia Seminar was attended by representatives of thirty African states, a goodly complement, together with an almost similar number of delegates from UN agencies, non-African UN member states, intergovernmental agencies and NGOs. The OAU was represented by OAU Secretary-General Kodjo and Chief Legal Adviser Egbunike and the ICJ by Secretary-General MacDermot together with Fall and Wako. Six of the experts who would shortly be called upon to prepare the first draft of the ACHPR also attended the seminar, four of whom were included in the working group that ‘reflected upon’ the Monrovia Proposal with which the seminar concluded.147 There is good reason to conclude that the seminar’s conclusions were stage-managed in support of the UNDHR’s view that an African human rights commission should be set up in advance of the proposed OAU human rights charter. As Ramcharan explained in his 1992 account, the UNDHR had come to the seminar with a possible outline for the establishment of an African Commission on Human Rights … they should be prepared in the event that the seminar wished to have a working paper to reflect upon. One possible scenario which the Division of Human Rights had in mind was that the Seminar could possibly establish a working group to consider such a working paper.

That, coincidentally, was precisely what the seminar wished to do, or rather, more precisely, what it was led by the UNDHR to do. Once again, Ramcharan points out: ‘In the light of deliberations during the first few days of the Seminar, consultations were launched by the Secretariat aiming at the establishment of a working group so that the seminar could come up with concrete ideas for the establishment of African machinery on human rights.’ Thereafter, Ramcharan goes on to describe: ‘In the light of the general discussion within the Working Group, Mr Justice Wiredu … introduced, as a basis for discussion, the draft which had been prepared by the UNDHR. That draft then became the basis for discussion within the Working Group.’ Both van Boven and Ramcharan ‘also 146 Ramcharan Correspondence and B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 307–314 and The Advent of Universal Protection of Human Rights: Theo van Boven and the Transformation of the UN Role, Chapter 7. 147 UN ST/HR/SER.A/4, 13, 29–34.

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participated’ in the working-group deliberations, although their participation is not disclosed in the UN’s official report only in Ramcharan’s 1992 account. Eventually, as Ramcharan explained, that draft, ‘as revised, developed into the Monrovia Proposal’. This early account of the UNDHR’s machinations has been amplified by Ramcharan’s 2018 account, which provides further detail on the tactics employed by the UNDHR to bounce the delegates into supporting the UNDHR’s vision. He noted that Morocco had been particularly obstructive of the proposal and that the OAU’s legal adviser, presumably Egbunike, ‘was unfriendly to the idea’. Moreover, that there was a strong sense among other delegates, clearly extending beyond the Senegalese, that a commission only made sense in combination with a charter incorporating normative values. As a result, following a strategy session with Nchema (Equatorial Guinea), it was proposed that Nchema should give a speech, which he did, to rouse delegates behind the idea of a Working Group tasked with drafting a seminar recommendation. Even then, he admits, opposition was not dimmed. In the Working Group, Wiredu, as Chairman, was forced to face down several attempts to filibuster the UNDHR’s proposal.148 Although the draft Monrovia proposal had been drawn up by the UNDHR, ICJ Secretary-General MacDermot’s working paper suggests that his ideas may in part have influenced the UNDHR’s thinking. At the very least they are sufficiently similar as to suggest some prior consultation and, therefore, to that extent, rather strangely, his ideas conflicted with M’baye’s ideas. All the more so in that his working paper was written after Decision 115 had been adopted. In his working paper, ICJ Secretary-General MacDermot proposed that an African human rights commission should be established straight-away by a simple decision of the OAU, an approach he thought feasible under OAU Charter Article XX, although in this respect he was probably incorrect (see page 245 below). He recognised that a commission established under a charter would have more authority than one simply established by the OAU but felt that OAU Charter Article XX offered a faster route and could subsequently be confirmed by a charter as in the case of the ACHR. The idea would therefore be that in the first stage the African Commission on Human Rights would essentially be mandated to pursue a promotional mandate and only at the next stage would it be authorised by a charter to enquire into and report on violations of the proposed African human rights convention. In effect, this is what the UNDHR’s 148 B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 307–314 and The Advent of Universal Protection of Human Rights: Theo van Boven and the Transformation of the UN Role, Chapter 7. Nchema is recorded as having attended as a representative of the International Movement for Fraternal Union among Races and People – his speech is not recorded by name, if at all, in the official seminar report (UN ST/HR/SER.A/4).

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draft put forward but with the superfluous but telling reference in Article 2 to international normative standards tacked on.149 The most likely explanation for ICJ Secretary-General MacDermot’s approach was that, as he confided to the FCO, in respect of Decision 115, ‘he considered it would now take 10 years to produce a Charter and achieve its reasonably comprehensive ratification … He seemed to be well satisfied with that.’150 If, in this way, ICJ Secretary-General MacDermot was complicit in the UNDHR paper to the 1979 UN Monrovia Seminar, it is most likely that it was also a factor in M’baye’s thinking, as reflected in his first draft of the ACHPR, that provided that the ACOMHPR should come into effect immediately upon adoption of the ACHPR but preceding its ratification by the individual OAU member states.151 There were three key elements to the UNDHR’s draft proposal, which was then amended by the Working Group and presented to the full plenum of the seminar for final approval: Firstly, it only provided for an African human rights commission; there was no provision for an African human rights charter. As Ramcharan reports, initially, the Working Group was split on this question but the decision was taken to set this question aside for the time being and after the introduction of the UNDHR’s working paper as the basis for discussion conveniently the question is not indicated as having resurfaced although in his later 2018 commentary Ramcharan is more open about the extent of opposition to the UNDHR’s draft proposal.152 In the plenum discussions, too, the matter was raised and the conclusion that an African human rights commission was essential and could not wait upon the drafting of the proposed African charter which could take as long as twenty years, as in the case of the OAS, was endorsed by the majority. It was therefore proposed that a commission could be set up without a charter immediately utilizing OAU Charter Article XX, even though, as Pump reported, OAU Chief Legal Adviser Egbunike informed the seminar that legally the OAU Charter did not allow for such a step.153 The significance of this suggestion was therefore subsequently also picked up by the OAU in its official report on the seminar which noted with some annoyance that ‘it seems as good as saying that there will be no need for the African Charter … as proposed by the OAU Assembly of Heads of State and 149 N. MacDermot UN (G) HR/Liberia/1979/WP.2 (also published in ICJ Newsletter Quarterly Report, 2 1 July – 30 September 1979, 63–68) and UN ST/HR/SER.A/4, Annex 1 Monrovia Proposal. 150 Travis to Dunnachie 25 September 1979, NA FCO 58/1691. 151 ‘Introduction’, OAU (L) CAB/LEG/67/1, 1–2 152 B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 307–314 and The Advent Of Universal Protection of Human Rights: Theo van Boven and the Transformation of the UN Role, Chapter 7. 153 UN ST/HR/SER.A/4, 8, 16 and ‘A Report on the United Nations Seminar on the Establishment of Regional Commissions on Human Rights With Special Reference to Africa’, submitted by R.E. Pump, 7– 91 (Appendix 3–5) (31 October 1979).

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Government’. But the OAU report also expressed doubts as to whether this option was, firstly, legally feasible within the OAU Charter and, secondly, whether it conflicted with the OAU principle of non-interference: ‘Any Commission established under Article 20 … as recommended by the seminar may not be clothed with authority for the promotion and protection of Human Rights in Africa.’ It concluded, therefore, that ‘the recommendation of the seminar in this respect whilst commendable, seems hasty and impracticable’. The same point, from quite the opposite perspective, would be made by opponents of the ACHPR at the 1981 Nairobi CoM meeting when it came up for adoption. Even if the ACHPR was adopted, it was argued, Article XX was insufficient to support it and an African Commission would therefore be ultra vires. Indeed, the issue was pressed in a post-adoption objection by Ghana. In reply, the OAU General Secretariat advised Ghana that the ACOMHPR had been set up outside of the remit of Article XX (see page 275 below). The OAU report also advised that the proposal to endow the commission ‘with a rather indefinite or unlimited principle upon which it can operate does not seem to be practicable’. On the contrary: ‘It is submitted that principles of Human Rights acceptable to the generality of African people should of necessity be agreed upon whether by way of an African Declaration or an African Convention or Charter before a Commission on Human Rights for Africa can effectively operate on especially protective and promotory function (sic.).’154 Secondly, the draft proposal gave primacy to UN instruments in its list of normative documents that should guide the proposed African human rights commission. The primary references which were to guide the commission were ‘the international law of human rights’ in which the UN Charter, UDHR and International Covenants (and Optional Protocol) together with instruments adopted by the specialised UN agencies such as the ILO, UNESCO and FAO are specifically mentioned. As for African practices and general customs, the commission was merely to ‘also have regard’ for them. This was not acceptable to a seminar in which all the African delegates at least agreed that: ‘African conditions and realities should be taken into account when setting up an African commission on human rights.’ In the amended draft of the Working Group, which Wako suggests was dominated by himself and Fall, although the proposed commission was still to be guided by ‘the international law of human rights’, a greater prominence was accorded to African documents in the pri154 OAU (L) Report of the U.N. Seminar on the establishment of regional commissions on Human Rights with Special reference to Africa, Monrovia, 1st–20th September 1979, OAU General Secretariat 1 October 1979 (it also identified other legal and practical objections), OAU CM/Plen.Rapt.Rpt (XXXVII), 58, OAU (L) Embassy of the Republic of Ghana to General Secretariat No. SCR.GEA.21/67 9 June 1982 and OAU (L) General Secretariat to Embassy of the Republic of Ghana 22 June 1982, CAB/LEG/67/1/91.

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mary reference list so that it now included not only the OAU Charter but also, more pertinently, any African human rights charter or declaration ‘which may be concluded’ and, more generally, ‘African instruments in the field of human rights’. In the Preamble, the direct reference to the UDHR was also removed and a prominent reference to Decision 115 added. It was, to that extent, a telling renunciation of van Boven’s universalism.155 Thirdly, it might have been imagined that the timing of the seminar presented an ideal opportunity for ideas to be floated with the forthcoming meeting of experts in mind. For that reason alone, the modesty of the Monrovia Proposal is astonishing. It is a sparse document comprising of fifteen articles, twelve of which address ‘the institutional parts of the African Charter’; that is, how many commissioners should be appointed, how they are to be elected, their qualifications and term of office. These ‘institutional parts’ with some tinkering were to form the basis of Articles 30–44 of the ACHPR. However, significantly, although the Monrovia Proposal employed the standard UN phrase to ‘promote and protect human rights in Africa’ to define the purpose of the putative African Commission, the proposed functions of the commission seemed to consist of little more than promotion. The only function which seemed to facilitate protection was that which enabled the African Commission, rather weakly and vaguely, and with no further guidelines, to: ‘Study situations involving alleged violations … provide its good offices to any State member … in relation to such situations, and make reports with appropriate recommendations thereon to the OAU.’156 Wary of political sensitivities, the UNDHR clearly preferred to side-step the issue of protection. This may have been intended to make their intervention more palatable to African political leaders, possibly as a means of smuggling universalism into the process, but, yet again, the implied message to African political leaders was that they had nothing to fear from the UN. It was an unfortunate decision in that it could only have undermined the subsequent efforts of M’baye and the 1979 Dakar Meeting of Experts to provide for a more substantial measure of protection. Indeed, in contrast, M’baye, although alive to the political limitations of the possible, argued in his background paper to the seminar that an effort should be made to achieve the maximum programme: ‘Neither politi155 Interview with Amos Wako, 23 July 2012, Geneva and B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 307–314. There is an interesting discrepancy between B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 312 Annex III Monrovia Proposal, in which the closing recital of the Preamble submitting the proposal to the OAU for consideration is decribed as ‘pending the coming into force of an African Declaration of Human Rights’, which would reinforce the sense of the defeat of the UNDHR’s universalism, and the official UN report on the seminar UN ST/HR/ SER.A/4, 17 Annex 1 Monrovia Proposal from which this sub-clause is missing. 156 UN ST/HR/SER.A/4, Annex 1 Monrovia Proposal.

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cians nor even jurists have a unanimous longing for an African commission … the reasons of the politicians can easily be divined, while those of the jurists are based on realism. But is it not dangerous for specialists in law to give in to pessimism?’ Accordingly, in his working draft for the 1979 Dakar Meeting of Experts, M’baye, supported by the experts, did not give in to pessimism and attempted to provide for a degree of protection. If, ultimately, this effort was largely negated, African political leaders could at least argue that the ACHPR had gone further than the UNDHR’s proposal in providing for measures of protection. The suspicion, though, is that, for the UNDHR, protection of universalism was a far more vital issue than protection of the individual, a suspicion confirmed in a communication with a delegate to the 1979 UN Monrovia Seminar who suggested that, above all, the UNDHR was concerned with ‘universalism’ and fearful of an ‘African’ conception followed by an ‘Asian’ conception.157 One seemingly promising aspect for the seminar was the attendance of OAU Secretary-General Kodjo and Chief Legal Adviser Egbunike; the first OAU presence at an UN seminar on human rights in Africa outside of Addis Ababa. The fact of their attendance and the optimism that their attendance implied was featured in the Preamble to the Monrovia Proposal and in Ramcharan’s subsequent commentary.158 This persuaded Pump and Ouguergouz at least of the significance of their participation. However, as Ramcharan would subsequently advise not only was there no substantive engagement, their involvement was, on the contrary, one of indifference and non-engagement with the work of the seminar. Other participants also sensed a froideur. For example, Wako noted that Chief Legal Adviser Egbunike was not happy that the UN should attempt to hijack an OAU idea, that it should be an African initiative, and Pump reported that while OAU Secretary-General Kodjo had attended the opening session he ‘did not speak or even greet the seminar’, although he thought this may have been out of deference to President Tolbert, the OAU Chairman. This ‘indifference’ has, of course, to be contrasted with the essential role both came to play in facilitating 157 UN (G) HR/Liberia/1979/BP.2, 8 and OAU (L) CAB/LEG/67/1. It is not clear how F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 42–43 can suggest that the 1979 UN Monrovia Seminar was at all concerned with protection of human rights. Most likely, M’baye’s obligation to provide a working paper draft for the 1979 Dakar Meeting of Experts and other responsibilities kept him away from the seminar. However, he provided a background paper and his close colleagues, M’backe and Fall, attended. Travis to Dunnachie 25 September 1979, NA FCO 58/1691 reported that the final wording reflected ‘fairly insistent … watering down’ by many African representatives of the original Senegalese wording. The identification of the seminar delegate has been deliberately withheld to avoid possible embarrassment. 158 UN ST/HR/SER.A/4, Annex 1 Monrovia Proposal, 17 and B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 310.

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the actual ACHPR process.159 As for Kodjo, he could not recall his attendance at what he plainly regarded as merely yet another insignificant UN seminar and dismissed out of hand with considerable indignation the suggestion of an UN role in the ACHPR process: ‘Perhaps the UN gave a hand, but it was an African initiative.’160 Some of the observations by Western observers on the conduct of the seminar also make for interesting reading in that they reveal issues that do not appear in the official UN report. Pump, for example, noted that in the final discussion there was some contention as to ‘whether the report accurately reflected the record of the debate’. Travis, the UK FCO observer, also recorded that the expected debate over the priority between a commission and charter did not materialise but he also noted a heated debate on whether or not to record views expressed during the discussions. In particular, in relation to apartheid, colonialism and foreign domination, at Senegalese insistence, the draft seminar report recorded some participants as suggesting that: ‘Africa could not speak with legitimate conviction … when a certain number of African countries subjected their own subjects to atrocious violations of human rights.’ However, the draft seminar report (UN HR/Liberia/1979/D. Rep.3 Chapter III, 5) had read: It was emphasized by many participants that an African commission on human rights was not only desirable but an absolute necessity, and that Africa could not speak with legitimate conviction of the evils of apartheid, racism, colonialism and foreign domination when it was itself subjecting its own children to atrocious violations of human rights.

In any event, as Travis reported, such aggressive wording led to ‘fairly insistent demands from Tanzania, Nigeria, Niger, Cameroon, Egypt, Burundi, Ivory Coast and others to water-down or remove this passage’; clearly such criticism was not acceptable, even from those countries that had apparently voted for Decision 115. After heated debate, the final version therefore recorded that: It was emphasized by many participants that an African commission on human rights was not only desirable, but was an absolute necessity. The African states’ stand against apartheid, racism, colonialism and foreign domination could be strengthened if certain of them did not subject their citizens to atrocious violations of human rights. 159 ‘A Report on the United Nations Seminar on the Establishment of Regional Commissions on Human Rights With Special Reference to Africa’, submitted by R.E. Pump, 73 and F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 32 Note 122, 35, Ramcharan Correspondence and Interview with Amos Wako, 23 July 2012, Geneva; see also B. Ramcharan, The Advent of Universal Protection of Human Rights: Theo van Boven and the Transformation of the UN Role, Chapter 7. 160 Interview with Edem Kodjo, 10 December 2007, Lomé.

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It is also amusing to note that history repeated itself in that, as Pump reported, some of the delegates imagined that they were participating in the conference of experts called for by Decision 115 and that this therefore ‘added considerable confusion to defining the task of the seminar. It wasn’t until the fourth day of the seminar that the exact role of the seminar was clarified by Mr. Van Boven’. Pump also reported that van Boven’s ‘views and suggestions carried considerable weight and he was able to sway opinion as a function of the high esteem in which he was held’ – he also recorded that news broke at the seminar of the apparent complicity of Sanon, Van Boven’s deputy, in the facilitation of the alleged bugging of van Boven’s office by the CIA.161 In all respects therefore far from facilitating the ACHPR process, as the historiography has often claimed, the 1979 UN Monrovia Seminar should rather be seen as a less than helpful hindrance. However, with the Monrovia Proposal, the UNDHR’s active involvement ceased and it too made no further effort to influence the drafting process. Nonetheless, in line with the recommendation of the seminar, the UNGA adopted a resolution expressing its satisfaction with the seminar. As an indication of what was to come, though, when the resolution was discussed, Guinea argued that it ‘saw no need to establish such a body in Africa which had always shown itself to be sufficiently responsible in that matter’. Benin similarly noted that: ‘Africa was not the only continent where there was no regional human rights commission and she regretted that it had been singled out for mention in the draft resolution.’ Guinea therefore called for a roll-call vote on the first paragraph of the resolution, which ‘expressed the hope that the recommendations of the Seminar will be given due consideration by the Governments and organizations concerned’, and was able to elicit thirty-nine abstentions in support. Guinea also reiterated its objections when the vote on the resolution in full came up, noting that the seminar had not taken account of Decision 115 – the main sticking point seems to have been the absence of any mention in the resolution of ‘peoples’ rights’: ‘This would seem to indicate that this idea came not from the African continent but from outside it.’162

The drafting process Following adoption of Decision 115, the baton passed to OAU Secretary-­General Kodjo whose responsibility it now was to arrange a place and date for the meeting and to appoint the experts. In view of considerable underlying residual 161 ‘A Report on the United Nations Seminar on the Establishment of Regional Commissions on Human Rights With Special Reference to Africa’, submitted by R.E. Pump, 77, 88, 119 and Travis to Dunnachie 25 September 1979, NA FCO 58/1691. 162 UNGA 34/171 17 December 1979 and Yearbook of the United Nations 1979, 854; see also UN A/C.3/34/SR.68 5 December 1979, 4–5, A/34/829 15 December 1979, 8 and A/34/PV.106 17 December 1979.

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opposition to the proposed ACHPR, in principle and in content, the selection of the host and choice of experts were critical decisions that would almost certainly determine the fate of the process. Initially, OAU Secretary-General Kodjo determined that all nine member states of the OAU’s Standing Committee of Legal Experts should be offered the opportunity to host the meeting and to send a representative but he also proposed to invite five other ‘prominent African Legal Experts’. Egypt, which was one of the nine members of the Standing Committee, therefore offered to host the meeting, but it was finally decided that Senegal, which was also on the Standing Committee, and probably the favoured choice all along, should act as the host. While Egypt would most probably have been supportive of the ACHPR, the hostility shown to President Sadat by the other North African, Muslim and radical states at the 1979 Monrovia AHSG would likely have made Egypt too controversial a host and would simply have detracted from the momentum that OAU Secretary-General Kodjo was keen to maintain.163 As to the choice of experts, Decision 115 had merely laid down that the OAU Secretary-General should call a ‘restricted meeting of highly qualified experts’, it had not given any further guidance as to who they might be, or indeed whether they should be representatives of OAU member states, or simply invited in their own personal capacity as highly qualified experts. At an early stage, therefore, M’baye and Wako lobbied hard; Wako, on behalf of the ABA and the seven African jurists who had recently been funded by US AID on a human rights fact-finding tour of Europe and the US. The initial invitation sent out in early October included five of the jurists on Wako’s list as the five ‘prominent African Legal Experts’ alongside the representatives of the Standing Committee members. The five were: Seck (Senegal), Benson (Nigeria), Kavaruganda (Rwanda), Wako (Kenya) and Ntoka (Zaire); the two on the list that were not invited – it is not clear why as they were likely to have been supportive – were Hayfron-­ Benjamin (Botswana) and Garber (Sierra Leone). In the event, only Wako and Seck (unofficially) would attend, although alternates seem to have been proposed for two of the three invited experts who it seems were unable to attend.164 The problem with the Standing Committee was that it included Ethiopia and Guinea, both of which were known to oppose the idea of an ACHPR, and Sudan and Tunisia, whose support could not be assured. Only Nigeria and Senegal could be regarded as being fully committed, although Egypt, Tanza163 OAU (L) ‘Invitation to Meeting of Experts’ CAB/LEG/67/10 1 October 1979 and CAB/LEG/67/11 1 October 1979 and OAU (L) Embassy of the Arab Republic of Egypt to General Secretariat, 20 October (286/79) and 26 October 1979 (297/79). 164 Interview with Adama Dieng, 12 November 2007, Paris, Interview with Amos Wako, 23 July 2012, Geneva, OAU (L) Wako to Kodjo 31 August 1979, OAU (L) Egbunike to Wako CAB/LEG/67/9 1 October 1979 and OAU (L) ‘Invitation to Meeting of Experts’ CAB/LEG/67/10 1 October 1979.

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nia and Zambia would probably be supportive depending on the actual content of the text. At some point, therefore, probably in early November, OAU Secretary-­General Kodjo made the decision to change the composition of the experts meeting although, it is clear as some states would later claim, without all member states being properly advised of the change in approach. The change may have been brought about by a need to alter the legal status of the meeting, that is, that it should merely qualify as a meeting of experts rather than a formal ministerial meeting (see page 262 below), but, in writing, OAU Secretary-General Kodjo would simply explain to the OAU member states that: ‘The Experts were selected on their personal capacity … and were to work in place of the Committee of Legal Experts … as earlier communicated.’ They would be ‘independent African jurists’ chosen ‘on the exclusive basis of their competence and honor’; or, rather, as Kodjo would later explain: ‘I knew who was fighting for the rule of law and human rights.’165 This new approach annoyed several states, mainly those opposed to the ACHPR, and therefore, in addition to direct complaints sent to the General Secretariat, OAU Secretary-General Kodjo would be obliged to provide an explanation at the June 1980 Banjul Ministerial Meeting of ‘the conditions and the practical methods which dictated’ the composition.166 In fact, OAU Secretary-General Kodjo had also sought advice from van Boven about possible experts most likely anticipating that he would suggest experts sympathetic to the idea of the ACHPR. Tactfully, van Boven responded with the names of thirteen experts known to him, including M’baye and Wako. All were sent invitations but only six (including M’baye and Wako) would ultimately attend.167 The final choice of experts seems to have been based on an amalgam of both approaches most probably because of the need to reflect at least the appearance of political and geographic balance. Of the nine Standing Committee member states, only four would be represented although experts from several other Standing Committee member states were invited to attend but either declined or were otherwise committed. In terms of geographic balance, while experts from Egypt and Tunisia were invited, they were apparently unable to attend and, although Libya had actively sought representation, it was, almost certainly, excluded on

165 E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, 274, Interview with Edem Kodjo, 10 December 2007, Lomé and OAU (L) General Secretariat to Ministry of Foreign Affairs, Ethiopia, 3 March 1980. 166 OAU CAB/LEG/67/3/Draft Rapt.Rpt. (II), 9 and OAU (L) CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, 7. 167 OAU (L) Van Boven to Kodjo 9–12 November 1979 (at this time a further seven ‘experts’ were invited so that this may have been the moment when the change of composition was decided).

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the basis of its known opposition and its potentially disruptive influence.168 As a result, no North African states were represented. Ethiopia, as a member of the Standing Committee, had also nominated an expert, but he, too, was not invited probably, again, as a result of Ethiopia’s known opposition. This undoubtedly explains Ethiopia’s subsequent strong remonstrations against the process, which drew attention to the manner in which the change in the composition of the experts had been determined (see page 262 below), and its subsequent efforts at obstruction.169 Guinea, which was also a member of the Standing Committee, was invited probably to provide political balance but also because it was clearly necessary to keep the influential President Touré on-side. Other states, such as The Gambia, which was not on the Standing Committee, received an invitation for obvious tactical reasons. An expert from Mauritius, which had co-sponsored Decision 115, was also invited but declined the invitation so too the opportunity to nominate an alternate. It is not at all clear why Madagascar, which was not on the Standing Committee and governed by a military-controlled Supreme Revolutionary Council, and moreover had strongly opposed Decision 115, was given the opportunity to provide two participants, both of whose names seem to have appeared on the invitation list rather late in the day. Most likely it was imposed by the requirement for political balance. Madagascar would not ratify the ACHPR before it came into force.170 In the event, twenty experts representing fifteen OAU member states officially attended the 1979 Dakar Meeting of Experts, although two further Senegalese observers, M’backe and Seck, seem also to have participated unofficially at the meeting. Other than Brooks-Randolph (Liberia) and Coulibaly (Mali), all the experts were men. Four of the experts were from Senegal, with Kenya and Madagascar each providing two experts. Of the four official Senegalese experts, M’baye was President of the Supreme Court, Diaite and Fall were Professors of Law and Tanor Dieng an adviser to President Senghor. Moli (Uganda), Mtango (Tanzania), Taki Ould Sidi (Mauritania), Lamptey (Ghana) and Said Osman (Somalia) were all diplomats; Brooks-Randolph and Seminega (Rwanda) were senior judges who had also served on the Kigali Committee of Inquiry; Wako and Sokan (Nigeria) were, respectively, ABA Secretary-General and alternate for Benson, President of the Nigerian Bar Association; Coulibaly (Mali), Diawara (Guinea), Jallow (The Gambia), Mathanjuki (Kenya), Rakotomanana (Madagascar) were all legal officers at either the Ministry of Justice or Foreign 168 OAU (L) Libya Note Verbale to General Secretariat 14 November 1979, Ref 2/97/397. 169 OAU (L) Ministry of Foreign Affairs, Ethiopia to General Secretariat 9 November 1979, OAU-84/23/3 and 16 January 1980, OAU-84/27/3 and OAU (L) General Secretariat to Ministry of Foreign Affairs, Ethiopia, 3 March 1980. 170 OAU (L) List of participants for Dakar Meeting (undated) and two earlier versions (14 November and undated).

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Affairs; Rajaonson (Madagascar) was an adviser to President Ratsiraka; and Ahanhanzo (Benin) an academic with wide experience of international assignments. Seminega, in particular, had considerable international human rights experience having attended the 1978 Butare Colloquium, where he delivered a paper ‘Les droits de l’homme et le développement économique’ which referred to the right to development as a condition of world peace and of the need to safeguard the African personality in any definition of human rights, and the 1978 ICJ Dakar Colloquium. He had also been elected to the HRC in the first round of elections following the coming into force of the ICCPR. Nonetheless, despite such experience, he had only been invited as a replacement for Kavaruganda, who had been on Wako’s list but was unable to attend. M’baye was the only ICJ representative, although Lallah (Mauritius) was invited but unable to attend. Chomba was on the original invitee list but, now, as Attorney-General, was ineligible, and Wako would be elected to the ICJ in 1981.171 What emerges from the several interviews with these experts is how unprepared many of them were for the task to which they had been assigned in that they had not been fully briefed as to what to expect or, in most cases, been given specific political instructions. This was rather more an indication of the low level of importance attached by most OAU member states to the ACHPR process at this time than of the fiction that the experts had been invited in their own right for their expertise. For example, Jallow, although subsequently rather prominent in African human rights institutions, was at that time a middle-level desk officer at the Ministry of Justice; attendance, no doubt, was, for him, a major career advance. Similarly, Mathanjuki was relatively junior within the Ministry of Foreign Affairs law and economic technical department, but he had studied international law and recently been to Geneva and was therefore regarded as having human rights experience; Dakar was his first major technical appointment, for which he was given little guidance or instruction. Mtango was head of the Legal Department at the Ministry of Foreign Affairs, having previously been Ambassador to China; although, therefore, rather more senior, human rights were not an area with which he was particularly familiar, nor was he given particular instructions other than broad guidelines as was the ‘nature of the times’. Sokan was a private lawyer, an alternate for the more senior Benson, who was given no instructions, nor was he sure what to expect, whereas Wako, also a private lawyer but an increasingly prominent and ambitious human 171 OAU (L) List of participants for Dakar Meeting (undated), which includes the two ‘unofficial’ Senegalese representatives, OAU (L) Secretary-General’s Report on the preliminary draft African Charter on Human and Peoples’ Rights CAB/LEG/67/6 and OAU (L) Office of Prime Minister, Zambia to Kodjo 19 November 1979 (this tallies with the list provided by H.B. Jallow, The Law of the African (Banjul) Charter, 64 Note 6); see also F. Seminega, ‘Les droits de l’homme et le développement économique’, Revue Juridique du Rwanda, numéro special 4/1 (1980), 29–46.

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rights campaigner, was resolved to make his mark on proceedings at Dakar.172 Tellingly, Lamptey, a late alternate, telegrammed OAU Secretary-General Kodjo nine days before the meeting to advise that he had ‘no knowledge of human rights charter committee and my role’.173 An interesting insight into the process is provided by Coulibaly, who was Head of Privileges and Legal Issues at the Ministry of Foreign Affairs. At this time, nominally, Mali was moving towards civilian rule, although it was still a one-party police state with the military in effective control. Mali had been visited by the 1978 ICJ Dakar Colloquium follow-up team and President Traoré was also in close personal touch with President Senghor whose initiative he was therefore prepared to support. Although Coulibaly was appointed by her Minister, instructions had therefore been passed down by President Traoré that the ACHPR process should be supported. It was fortunate that the military, who ran foreign policy, paid little attention to the ACHPR debate – it was simply not of immediate importance to them – as if they had known more they would almost certainly have opposed it. According to Coulibaly, the prevailing view of human rights within the Ministry of Foreign Affairs was that it was driven by Western interests and, in particular, the US. It was widely felt that: ‘Jimmy Carter is not going to dictate how we run things in our country.’ For her support of human rights, Coulibaly was therefore viewed by colleagues as a ‘Carterist’. Initially, her proposal for an African human rights commission was not supported, but her working paper for presentation to the 1979 UN Monrovia Seminar was eventually approved although her colleagues advised her not to waste time on it on the basis that the President and military would ultimately not support it, nor, they argued, would it be adopted by the OAU.174 The Dakar Meeting of Experts, which unanimously elected M’baye as Chairman, took place from 28 November to 8 December 1979. At OAU Secretary-­ General Kodjo’s behest, M’baye, ‘a world respected expert’, had prepared a first draft which was presented to and adopted by the meeting as the starting working paper.175 This draft had been prepared by M’baye and then passed on 172 Interview with Hassan Jallow, 7 October 2008, London, Interview with Peter Mathanjuki, 22 April 2009, Nairobi, Interview with Eli Mtango, 26 April 2009, Dar es Salaam, Interview with Alexander Sokan, 18 August 2009, London and Interview with Amos Wako, 23 July 2012, Geneva. Unfortunately, despite persistent requests, Abdullahi Said Osman (Somalia), who could have provided interesting insights into the ‘radical’ perspective, declined to respond. Unfortunately, too, despite his willingness to meet, it was not possible to agree a mutually convenient time to interview Ahanhanzo (Benin). 173 OAU (L) Lamptey to Kodjo 19 November 1979. 174 Interview with Mariam Coulibaly Ndiaye, 12 August 2009, Paris. 175 Interview with Edem Kodjo, 10 December 2007, Lomé and OAU (L) CAB/ LEG/67/1. The reference by N.J. Udombana, ‘Towards the African Court on

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to his drafting group who worked on it under his direction. M’baye, himself, therefore referred openly to the support he had received from Fall and M’backe. M’backe recalled how they had discussed tactics, specifically, that while human rights protection should be included in the ACHPR, it should not be such as to enable those states still opposed to find a pretext for resisting the idea of the ACHPR. The draft itself was completed, most likely, by the end of September as by early October it had arrived at the OAU for translation in preparation for the meeting.176 The meeting began with opening addresses by OAU Secretary-General Kodjo and President Senghor which attempted to point the meeting in the right direction but also to mollify possible concerns that the more radical experts might have that their views would not be accommodated. OAU Secretary-­ General Kodjo made three key points: Firstly, that the time had come for Africa ‘to liberate the people … her peoples’. To achieve this, if Africa wanted to come of age, it was necessary ‘to break the manicheistic straightjacket that interned Human Rights and Development in conflictual and not complementary terms’. In this context, he recalled the findings of the 1978 ICJ Dakar Colloquium. More pertinently, the Secretary-General argued that steps had now to be taken, the time for talking was over: ‘Today the question is to go further, further than the manipulation of concepts, further than the sieving of ideas and to give sustenance to the reconciliated exaltation of the declaimers of law and the builders of nations.’ However, he also warned that: ‘If rights are to be determined they must be protected lest we fall prey to theory, illusion and futile exercise.’ Secondly, he noted that economic, social and cultural rights ‘interpenetrate and complement’ civil and political rights although: ‘They cannot be defined in a hierarchical comparison of one another.’ He also laid great stress on the breadth of vision implied by the ‘right of peoples’, which, he suggested, ‘cannot be limited only to the right to development’. Thirdly, he suggested that ‘there is a burning obligation and an Human and Peoples’ Rights: Better Late than Never’, Yale Human Rights and Development Law Journal, 3 (2000), 59 to a working group under Justice Wiredu set up by the OAU and forming the basis in part of M’baye’s draft is most probably a mistaken reference to the working group set up by the 1979 UN Monrovia Seminar. 176 Interview with Mouhamadou Moctar M’backe, 13 September 2012, Dakar, K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 22 and OAU (L) Memo Egbunike to Onu 4 October 1979. Dieng suggested that Professors Diaite and Traoré also contributed and Fall also mentioned Professor Diaite and Justice N’Diaye as collaborators in the ‘collegial’ process (Interview with Adama Dieng, 12 November 2007, Paris and Interview with Ibrahima Fall, 7 May 2008, Dakar (telephone)); Wako (Interview with Amos Wako, 23 July 2012, Geneva) also suggested, although how is not clear, that he was privy to the preparation of the M’baye draft.

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urgent necessity once again to demand the “right to difference” by bringing out in the drafting of the Charter an African conception of human rights. The specificity and authenticity of our continent irresistibly justifies an original effort of conception and praxis’; but he also warned that this should not result in Africa providing for merely a second-class level of safeguards.177 In his address, President Senghor briefly summarised the failure of the OAU to give priority to human rights in Africa and of the many human rights seminars. It was necessary, though, to go beyond theorising and he sought to place the task before the experts within the context of his philosophy of the development of man in humanistic terms. While advising that ‘we should, once again assimilate without being assimilated’, he also warned that Africans should not ‘have to give up thinking by ourselves and for ourselves’. Most especially, he advised that: ‘As Africans, we shall neither copy, nor strive for originality, for the sake of originality. We must show imagination and effectiveness. We could get inspirations from our beautiful and positive traditions. Therefore, you must keep constantly in mind our values of civilization and the real needs of Africa.’ Rather more ominously, he also warned that: ‘As regards human rights, liberarian (sic.) freedom, irresponsibility and immorality should carefully be avoided.’178 This balance between universalism and African particularism would also later be stressed by President Jawara in his opening address to the June 1980 Banjul Ministerial meeting which asserted that ‘there is a need to prepare a truly African Charter … which would, because of its restricted geographic application, be able to focus on the problems of our region without derogating from the universally accepted principles embodied in these international instruments’.179 The draft M’baye put forward to the meeting recognised from the outset that a delicate balancing act was required in several primary respects: Firstly, as between political systems; secondly, in accommodating and defining the relationship between the two sets of rights; and, thirdly, as regards measures of protection. In establishing that delicate balance, M’baye had to acknowledge the continuing reluctance of many African political leaders to accept interference in their internal affairs, a reluctance that might easily provide the pretext for outright rejection of the whole. It was therefore unrealistic to expect acceptance of certain protective measures or to imagine that the system as a whole would not have to be subjected to some measure of OAU political control. 177 OAU (L) OAU Secretary-General Kodjo’s opening address to the 1979 Dakar Meeting of Experts, CAB/LEG/67/4 (see also his remarks in OAU AHG/98 (XVII), 18). 178 OAU (L) President Senghor’s opening address to the 1979 Dakar Meeting of Experts CAB/LEG/67/5. 179 OAU (L) Speech by His Excellency the President of the Republic of The Gambia at the OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980, Banjul, The Gambia CAB/LEG/67/8.

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The substance of his draft was constituted by two chapters on, respectively, ‘Economic, Social and Cultural Rights’ and ‘Civil and Political Rights’, which provided for an extensive and detailed list of rights, and the chapter on the ‘Inter-African Commission on Human Rights’. M’baye also proposed that the ACHPR should come into force immediately upon adoption by the AHSG, and be applied to each member state as and when it ratified the ACHPR, so as to enable the immediate creation of the ACOMPHR. This structure was, in effect, his preferred solution to the problem of the likely delay in ratification that ICJ Secretary-General MacDermot and the UNDHR had proposed should be handled by establishing the ACOMHPR under Article XX. However, in political and inspirational terms, M’baye’s draft can be seen as disappointing. It was dry and legalistic with little of the political sensitivity or flair of Decision 115 or the 1985 ICJ Nairobi Declaration – it is also considerably longer than the finalised ACHPR. In particular, the Preamble is curt to a fault with none of the bold rhetoric of African values that is characteristic of the OAU Charter and many of M’baye’s other published works. Moreover, while the obligatory references to self-determination and the right of peoples to ‘freely dispose of their natural wealth and resources’ are prominent, there is no mention of the ‘right to development’. There is too much universalism in the draft and too little Africa. It is not impossible that some of the exhortations in President Senghor’s opening address that Africa should not copy but use its imagination and gain inspiration from African traditions reflected some disappointment with the M’baye draft which is most obviously the work of a legal draughtsman, based on precedents, not of a politician.180 As to why that was, Warioba made a general point that M’baye was far too conservative and legal in his drafting; Tanor Dieng agreed that the draft was ‘arid, impenetrable, technical, and not easy to understand, people wanted an easier draft to understand’, and that this probably reflected the fact that the Senegalese conception of human rights was closer to the Western conception of human rights as exemplified by France; and Vasak (incorrectly) that its aridness was the result of an over-reliance on the ECHR, one of the few available precedents. Wako, too, thought that the first draft was ‘boring’. However, Fall, defending his part in drawing up the draft, suggested that, nonetheless, the African conception of human rights was reflected in five respects: The mixture of individual and collective rights; the idea of duties as a counterpart to rights; the notion of the family as the backbone of society; peoples’ rights in various forms; and, finally, the equivalence of economic rights with civil and political rights.181 180 OAU (L) CAB/LEG/67/1. 181 Interview with Joseph Warioba, 28 April 2009, Dar es Salaam, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar, Interview with Karel Vasak, 15 June 2011, Strasbourg, Interview with Amos Wako, 23 July 2012, Geneva and Interview with Ibrahima Fall, 7 May 2008, Dakar (telephone).

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According to M’baye, the meeting was conducted in a spirit of fraternity and sympathy in which all the participants were motivated by a desire to play their part in this project to bring human rights to Africa. Kodjo also recalled ‘a good meeting’ and a ‘moment of exultation’ at its end. Indeed, the work was completed in only ten days, far fewer than had initially been contemplated and allowed for. Both Wako and Niasse, however, described an ‘inner core’ of experts who met in advance in secret to discuss strategy. Wako also described an open style of debate in which there was an element of acrimony as the French/ English language and political divide was worked out. M’baye, however, was a good Chairman who listened to the opinions of the various experts.182 The first part of the meeting, though, was concerned with principles and there were therefore already signs of tensions as experts from the radical states began to flex their ideological muscles, and some sensitivity at the fact that M’baye had been invited to prepare a working paper draft; all the more so as it clearly reflected other regional precedents.183 Akinyemi, for example, in interviews with some of the experts, was advised that the Libyans would complain that the Senegalese draft had been prepared in Paris. M’backe, too, recalled that, for many of the experts, Senegal was seen as a French stooge. Much the same point was made by Mtango who recalled the suspicion at that time that President Senghor was being used by Western interests to sell ideas to Africa. However, as the draft was opened for discussion, as Mtango and Tanor Dieng describe, there was a ‘free debate’ and the experts were able to begin to reflect on the bigger picture of Africa that had not found its place in M’baye’s draft. Coulibaly described it as a ‘very active meeting’ in which ‘everyone fought for what they believed in’ and Mathanjuki recalled that he understood only too well the need to respect the principle of non-interference and the continual ‘balancing act’ between human rights and non-interference and between turmoil, development and human rights; in particular, the problem of destabilisation and the need for detention. He was also mindful of the need to bring out the concept of duties. Mtango would also recall that while the experts were happy to accept leadership they would oppose points if necessary, but, given the balance between rights and duties, it looked interesting and he felt that he could support it.184 182 MPP M’baye to Kodjo 12 December 1979, Interview with Edem Kodjo, 10 December 2007, Lomé, Interview with Amos Wako, 23 July 2012, Geneva and Interview with Moustapha Niasse, 14 September 2012, Dakar. 183 Some of the tensions are identified in H.B. Jallow, The Law of the African (Banjul) Charter, 31–32. 184 A.B. Akinyemi, ‘The African Charter on Human and Peoples’ Rights: An Overview’, The Indian Journal of Political Science, 46/2 (1985), 212 Note 13, Interview with Mouhamadou Moctar M’backe, 13 September 2012, Dakar, Interview with Eli Mtango, 26 April 2009, Dar es Salaam, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar, Interview with Hassan Jallow, 7 October 2008, London,

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With the wider participation of the experts, the draft began to take on the shape and content of its final form. There is, for example, a more comprehensive Preamble in which the main principles are more fully elaborated in political rather than legal form. However, the most striking feature of the draft produced by the experts is their evident enthusiasm, desire and intention to express Africa’s difference and the continuing downplaying of the primacy of the UDHR, and therefore it now expressed more boldly the idea of an African conception of human rights. This approach was noted in the finalised draft’s introductory commentary which recorded that: the preliminary draft was guided by the principle that the African Charter … should reflect the African conception of human rights. It was not therefore necessary to copy simply and purely what was done in other regions or at world level. The African Charter should take as a pattern the African philosophy of law and meet the needs of Africa. This idea led to some originality in the contents and presentation of the Charter.185

The origin of this commentary is not identified but, given the similarities, it is most likely a recapitulation of the opening addresses of President Senghor and OAU Secretary-General Kodjo. To a considerable extent, though, this advice was entering through an open door. The idea of difference, of an African ‘personality’ in world affairs, was familiar to, and largely shared by, all African intellectuals; and the idea of an African conception of human rights was, therefore, merely one expression of that difference which had in any event been for many years the staple diet of African human rights conferences. The experts also needed no reminder of ‘the needs of Africa’; it was familiar from the OAU Charter and long-standing political rhetoric. As Coulibaly therefore explained, it was important not to cut and paste UN precedents but to apply African values and traditions. The UDHR was not compatible with African values: African democracy was based on African traditions and was therefore a different and alternative structure of democracy; Africans had no ownership of Western values. Mtango also recalled that the notion that Africa could not think for itself was wrong and therefore the idea that Africa would produce new ideas and have a voice in determining international rules was exciting. This was the basis upon which M’baye’s draft was given a more original African feel.186 Interview with Mariam Coulibaly Ndiaye, 12 August 2009, Paris and Interview with Peter Mathanjuki, 22 April 2009. Nairobi. Coulibaly also mentioned the influence of Wahab Doncoure (Muslim World League) behind the scenes. Doncoure certainly attended the 1979 UN Monrovia Seminar but there is no official record of his presence in Dakar so it may therefore have simply been a misrecollection as Coulibaly attended both meetings. 185 OAU CAB/LEG/67/3/Rev.1, 1–2. 186 Interview with Mariam Coulibaly Ndiaye, 12 August 2009, Paris and Interview with

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The second important change made by the experts was to M’baye’s long listing of rights. Firstly, the strict categorisation of economic, social and cultural rights and civil and political rights was removed and the latter were now listed ahead of the former in one single chapter. It was also decided that many of the economic rights owed to the individual by the state should be truncated on the basis that the under-developed African states were just too poor to take on such obligations. As M’baye would explain in his introductory presentation to the June 1980 Banjul Ministerial Meeting, it was widely felt that: ‘The concise and general formulation adopted … with respect to economic, social and cultural rights is in line with the concern to spare our young states too many but important obligations. In effect, these rights of the second generation are rights which entail benefits from the state.’187 This issue would also be touched on indirectly by President Jawara in his opening address to the June 1980 Banjul Ministerial Meeting when he suggested that ‘as the list of what should constitute human rights becomes longer, it is stretched more and more into areas where the implementation of the right becomes problematic’.188 The articles were also simplified in language from the legalistic style of the M’baye draft and a more extensive chapter was added to list the specific duties owed by the individual to, variously, family, community, the state and African unity and cultural values. Taken together with the more extensive Preamble, which paid homage to anti-colonialism, the right to development, the struggle against foreign domination and African values, this change in both form and emphasis now made it possible to see the ACHPR as more of a political document expressing African traditions and values and responding directly to the needs and concerns of Africa. It was no longer a document whose primary purpose was to detail a list of specific human rights. Importantly, it also opened up the possibility for a divergent understanding of what was being proposed so that the various political factions could interpret it each in their own way, while at the same time facilitating a consensus based around Africa-centric values, and not a sop to Western values or influences. Like M’baye before them, the experts also faced the problem of political balance with respect to the question of protection, but this time within the framework of a larger, less cohesive, drafting group. Jallow reported that there Eli Mtango, 26 April 2009, Dar es Salaam. 187 OAU (L) ‘Report of the Secretary-General on the draft African Charter on Human and Peoples’ Rights’, OAU CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, 4. 188 OAU (L) Speech by His Excellency the President of the Republic of The Gambia at the OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980, Banjul, The Gambia CAB/LEG/67/8.

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was therefore an initial discussion as to whether there was a need or whether it was appropriate for the meeting to consider putting in place human rights machinery but this was beaten back by the reference of the majority to the terms of their mandate as laid down by Decision 115; in itself, though, this is a cautionary warning to anyone who imagines that an AHSG consensus had been reached. Wako also felt that the inclusion of ‘duties’ and ‘peoples’ rights’ provided sufficient balance to fight this issue. Nonetheless, although it was determined, by the majority at least, that ‘it was time to roll back the frontiers’ of ‘absolute state sovereignty’, they understood the need for ‘respect for the domestic jurisdiction’ and a realism ‘about the extent to which … sovereignty could be curtailed despite the mandate granted by the AHG’.189 Following completion of the meeting of experts, the baton passed back again to OAU Secretary-General Kodjo. A week after receiving M’baye’s formal report on the meeting, he had so arranged matters as to be able to write to all member states advising that a meeting of Plenipotentiaries had been convened for 24–31 March 1980 in Addis Ababa to consider and approve the draft charter with a view to its submission to the 1980 AHSG. As the date approached though, it was clear that the meeting was in trouble and a reminder was therefore sent in late February 1980 together with a request that any expert that had attended the 1979 Dakar Meeting of Experts should also be included in the delegation.190 Rather worryingly, too, at this late stage, Guinea offered Conakry as an alternative venue. The Gambia also offered, if needed, to host the meeting but was concerned that as the host it would be unable to afford to bear the cost of the delegations as OAU convention dictated.191 Some indication of the pressure faced by OAU Secretary-General Kodjo, and of the extent of continuing opposition to the ACHPR process, is indicated by the formal objection to the process lodged at this time by Ethiopia which it insisted should be communicated to all member states. Ethiopia argued that the December 1979 invitation to the March 1980 meeting, in which it had also been informed that a draft charter had already been prepared, had come as a surprise. In its original October 1979 communication the OAU General Secretariat had advised that all members of the Standing Committee, which included Ethiopia, 189 Interview with Amos Wako, 23 July 2012, Geneva and H.B. Jallow, The Law of the African (Banjul) Charter, 31–35. 190 OAU (L) M’baye to Kodjo 12 December 1979 and OAU (L) Invitation to Plenipotentiaries meeting in Addis Ababa, Ethiopia 19 December 1979, reminder 22 February 1980, CAB/LEG/67/2 and 3 (depending on whether the original expert was also invited). 191 OAU (L) Minister of Foreign Affairs Touré (Guinea) to Kodjo 26 February 1980, 29/AG/AD/80 and OAU (L) Taal Ministry of External Affairs, The Gambia to Kodjo 12 February 1980.

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would be invited to the proposed meeting of experts. Ethiopia had therefore nominated its expert but, in December 1979, in response to Ethiopia’s enquiries as to the prospective dates of this meeting, the OAU General Secretariat had unexpectedly advised that the meeting had in fact already been held without the expert nominated by Ethiopia and that there would now be a further meeting of Government experts to review that draft. A few days later a further communication arrived advising of the invitation to the March 1980 meeting. In Ethiopia’s view, the March 1980 meeting ought to be postponed and the draft that had just been prepared should rather be presented as a working paper for further study by the Standing Committee as originally envisaged in October 1979. Ethiopia also advised of its willingness to host what it therefore called the ‘Meeting of the Charter Review Committee’, as did Somalia. In its belated reply to Ethiopia, the OAU General Secretariat had first to admit that its December 1979 response had contained a ‘typographical error’ and that it had intended to advise of the March 1980 meeting rather than of a further meeting of government experts. More substantively, in response to the actual complaint, it explained that the experts had been chosen in their personal capacity in place of the Standing Committee as had earlier been envisaged. On that basis, it explained, it was after all appropriate that the draft should now be submitted for review to the proposed March 1980 meeting.192 A further, slightly different, objection to the proposed March 1980 meeting was raised by Somalia but clearly with the same aim in mind. It objected, on the one side, that the proposed meeting went beyond the Decision 115 mandate but also, on the other side, disingenuously, suggested that the experts ‘had done excellent work’ and that the proposed meeting was therefore an unnecessary duplication. Instead, it argued, the experts’ draft should be submitted directly to the forthcoming 1980 Freetown AHSG. This would almost certainly have killed the ACHPR process, as would acceptance of the Guinea (mooted), Ethiopia or Somalia offers to host a charter review meeting.193 As OAU Secretary-General Kodjo had already begun to suspect, the March 1980 meeting failed to reach a quorum. The OAU’s Chief Legal Advisor Egbunike indicated that only twenty-four – Jallow, who was present, recalled only twenty-­ 192 OAU (L) Ministry of Foreign Affairs, Ethiopia to General Secretariat 9 November 1979, OAU-84/23/3 and 16 January 1980, OAU-84/27/3 and OAU (L) General Secretariat to Ministry of Foreign Affairs, Ethiopia, 3 March 1980. In OAU (L) Egbunike to Kodjo 27 March 1980, OAU CAB/LEG/72/1 there is also a reference to a telex (22 February 1980) from Somalia inviting ‘Charter Review Committee’ to Mogadishu. 193 OAU (L) Ambassador Osman Somali Permanent Mission to UN, Geneva to OAU Secretary-General Kodjo 18 March 1980, Secretary-General Kodjo to Ambassador Osman Somali Permanent Mission to UN, Geneva 20 March 1980 and OAU (L) Egbunike to Tchouta-Moussa 15 April 1980.

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two – out of the fifty member states presented themselves; the quorum, as laid down by Article XIV of the OAU Charter, requiring the presence of two-thirds of the member states.194 Kodjo would recall that too many member states had declined to send a representative. He also recalled that Ethiopia and the hostile Derg, which was ‘very much against human rights’, had refused visas to other delegations and accordingly was delighted at this outcome. An Ethiopian Herald headline had therefore proclaimed: ‘OAU dispersed.’ Indeed, almost immediately after the failure of the meeting, Ethiopia returned to the attack, reminding the OAU General Secretariat of its previously expressed view that it had ‘no mandate to call a meeting of plenipotentiaries … nor is such a meeting … competent enough to consider a draft of such complex technical magnitude’. It also took pleasure at attributing the failure to reach a quorom to ‘the anomalous and confusing procedure the General Secretariat has followed’ and expressed crocodile tears of concern ‘in case such unexpected low turnout might cast a negative image on Africa on the occasion of drafting such historical document’. However OAU Secretary-General Kodjo also realised that, while it had been the revolutionary states which had sabotaged the meeting, the fault also lay with the moderate states who had been ill-prepared due to a lack of coordination; a point also made by Tanor Dieng. The mistake would not be repeated.195 M’baye would subsequently observe, rather too delicately, that: ‘A number of newspapers interpreted this set-back as a deliberate policy on the part of certain States to kill the Charter in its cradle’; but also that ‘this lack of a quorum … was the manifestation of bad will on the part of certain governments which, without being able to express it, were not in favor of the adoption of a Charter of Human Rights’ [‘ce defaut de quorum … etait la manifestation de mauvais volonte de la part de certains gouvernements qui, sans pouvoir l’exprimer, n’etaient pas en faveur de l’adoption d’une Charte des droits de l’homme’].196 It is, however, hard to interpret the failure in any other way than as an attempt to ‘kill the Charter’. Dieng, too, expressed the view that there was ‘bad will without expressing openly their opinion, fearing the start of liberalism’ as it was still felt to be a matter of shame to oppose the ACHPR openly. It was now evident, though, that the unanimity of the 1979 Monrovia AHSG in support of Decision 115 did not, as some African human rights commentators have suggested, herald a new age and outlook for 194 OAU (L) Egbunike to Tchouta-Moussa 15 April 1980 and H.B. Jallow, The Law of the African (Banjul) Charter, 35. 195 Interview with Edem Kodjo, 10 December 2007, Lomé, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar and OAU (L) Note from Ministry of Foreign Affairs, Ethiopia to OAU General Secretariat 8 April 1980, OAU-121/32/3. 196 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 23 and MPP ‘Marraine de la Charte Africaine des droits de l’homme et des peuples’, Undated Paper, 20–21.

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African leaders in their approach to human rights, nor had it dimmed the opposition towards the ACHPR process of either the radical states or those states still insistent on the principle of non-interference.197 Although OAU Secretary-General Kodjo was now faced with a potential crisis, he had already began an exchange of telexes with The Gambia, which he knew supported the ACHPR process, with the aim of holding the review meeting in Banjul in the event that the Addis Ababa meeting failed; although Guinea, too, seems to have weighed an offer to host this meeting. He followed up this exchange, as Dieng confirmed, by telephoning and eventually flying to The Gambia to meet with President Jawara to request him formally to host a rescheduled meeting ‘knowing he would accept the meeting’. President Jawara responded positively, with the proviso that Senegal would share the cost and provide equipment, and this led to the rapid convening of the June 1980 Banjul Ministerial Meeting – no longer a Plenipotentiaries meeting but an OAU CoM meeting possibly because of Ethiopia and Somalia’s questioning of the authority for such a meeting.198 The June 1980 Banjul Ministerial Meeting was attended by representatives of 38 OAU member states, comfortably exceeding the quorum requirement. It was opened by welcome addresses from President Jawara and OAU Secretary-­ General Kodjo who made clear their support for the process and the importance of the meeting for Africa.199 The response was given by the head of the Zimbabwe delegation, which was attending an OAU meeting for the first time, who emphasised Zimbabwe’s determination to respect human and peoples’ rights. 197 Interview with Adama Dieng, 12 November 2007, Paris; see also E. Bello, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’, 28–29. 198 Interview with Edem Kodjo, 10 December 2007, Lomé, Interview with Ebou Taal, 4 August 2012, London, Interview with Adama Dieng, 12 November 2007, Paris, OAU (L) Series of telex exchanges between Taal Ministry of External Affairs, The Gambia and Kodjo 12 February to 16 April 1980 and OAU (L) ‘Speech delivered by His Excellency The President Alhaji Sir Dawda Kairaba Jawara at the closing ceremony of the OAU Conference on Human and People’s Rights – Monday 19 January 1981’. OAU (L) CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4 also notes that the meeting in Banjul was held ‘at the request’ of President Jawara, but this wording probably represents the procedural position of the OAU. 199 OAU (L) Speech by His Excellency the President of the Republic of The Gambia at the OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980, Banjul, The Gambia CAB/LEG/67/8 and OAU (L) ‘Statement by His Excellency Mr. Edem Kodjo, Secretary-General of the OAU at the opening session of the meeting of the Ministers of Justice charged with adopting the draft African Charter on Human and Peoples’ Rights, OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980 Banjul, The Gambia’ CAB/LEG/67/9.

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After a working introduction by OAU Secretary-General Kodjo, M’baye was invited to give a summary of the ‘major principles and spirit which guided’ the authors of the experts’ draft supplemented by an accompanying introductory commentary which described its key ‘characteristics’. For example, the place of ‘peoples’ rights’, the role of duties, the right to development and the importance of tradition and morals in Africa. The floor was then opened to the delegations to express their sense of the task before them. While ritually praising the draft, they also made it clear that it could be improved on in several respects: Article by article and in terms of a better balance between economic, social and cultural rights on the one hand and political rights on the other. In their view the draft should emphasise in particular ‘the specificity of African problems with regard to Human Rights, the importance of economic, social and cultural rights to developing countries, the total liberation of Africa from foreign domination, the need to eradicate apartheid … the need for a new economic and legal order, the right to self-­determination’. They were also concerned that the ACOMHPR had been given too much authority to decide matters for itself. M’baye was therefore obliged to respond to their forceful comments, for example, emphasising that the ACOMHPR’s terms of reference were ‘essentially technical’ and that the AHSG would be ‘the final decision maker’, and, yet again, some states took to the floor to express their views on his explanations. Clearly, these opening skirmishes did not suggest a meeting of minds and demonstrated that opposition was still alive and kicking and that the meeting would be dominated by the outright opposition and delaying tactics of several member states. As Jallow reported, Angola, Ethiopia and Somalia seemed bent on frustrating the aim of the meeting with the result that: ‘It was a stormy and very slow session.’200 A number of other clashes also slowed and disrupted the meeting. For example, Libya demanded that Arabic be added as an official language of the OAU, a tactic that Kodjo described as ‘provocative’ and Mtango as infuriating. Jallow also described the despair as Libya threatened to report the Gambian Chairman to President Jawara and at one point staged a one-day walk-out.201 The Libyan protest was, according to The Gambia Outlook, against the participation 200 OAU CM/Plen/Rapt.Rpt (XXXV) Rev.1, 29 (Report on the Charter on Human and Peoples’ Rights), OAU (L) CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, Interview with Hassan Jallow, 7 October 2008, London and H.B. Jallow, The Law of the African (Banjul) Charter, 35–43. 201 Interview with Edem Kodjo, 10 December 2007, Lomé, Interview with Hassan Jallow, 7 October 2008, London and Interview with Eli Mtango, 26 April 2009, Dar es Salaam, Africa Research Bulletin, 15 August 1980, 5734 and Smith to West Africa Department ‘OAU Ministerial Meeting’ 18 June 1980, NA FCO 65/2417.

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of Egypt, which it demanded should be expelled from the meeting, or against the Algerians, who were addressing the meeting at that time, according to The Sun.202 Akiwumi also reported that Libya had even argued against the need for an African human rights charter on the basis that the Koran provided sufficient protection, while Ethiopia was said to have suggested ‘that discussion of human rights was in any case pointless until all countries in the African continent had achieved development, both political and economic’.203 In a press conference at the close of the meeting, the Libyan delegation explained its outlook: There is a big difference between Human Rights in our opinion compared to Human Rights as you (the Press) see it. In our opinion, we are here to discuss views from the point of the freedom of human beings, especially those of the Third World; we are not here just to discuss views from Western countries. If you go to the United States of America, you will find about 26,000,000 people from Africa who are still held as slaves; there discrimination to the blackman still prevails.204

The report to the 1980 Freetown CoM of the June 1980 Banjul Ministerial Meeting also notes that one OAU member state (presumably Egypt) complained that it had had its right to participate in the meeting challenged based on the allegation that it had violated human rights and that it had counter-­objected that it considered this as an interference in its internal affairs. Ethiopia and Somalia also clashed as Somalia sought a definition of ‘peoples’’ in relation to self-determination that would support its claim to the Ogaden region. This was resisted by the meeting on the basis that sufficient definitions of self-­determination already existed and they were not inclined to challenge the OAU Charter and the OAU’s 1964 resolution recognising the colonial borders as fixed. Finally, the issue of the composition of the meeting of experts group clearly still rankled and OAU Secretary-General Kodjo was therefore forced to respond to questions from several delegates ‘in order to clear all ambiguities’ and to explain ‘the objective conditions and the practical methods which dictated the establishment of the restricted Committee of Experts’.205 202 ‘O.A.U. Ministerial Conference on Human and People’s (sic.) Rights Ends’, The Gambia Outlook, 16 June 1980, 1, and ‘The O.A.U. Ministerial Meeting/Conference on Human and People’s (sic.) Rights’, The Sun, 69/80 12 June 1980, 1–2 and 72/80 19 June 1980, 3. 203 A.M. Akiwumi, ‘The United Nations International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights’, 32–33 (unpublished), quoted by F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 45. 204 ‘Local Press Interviewed the Leader of the Jamahiriyan Delegation to the O.A.U. Conference’, The Sun, 72/80 19 June 1980, 2–4. 205 OAU CAB/LEG/67/3/Draft Rapt.Rpt. (II), 9, OAU (L) CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights

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Outside of the conference, locals also made their feelings known in a demonstration with banners reading: ‘Where corruption is rampant, human rights is a big joke’; ‘Human rights honour should not be accorded to the filthily corrupt’; ‘Human rights versus corruption’; and ‘Human Right’s conference, Gambians welcome to this country, we hope your task, would come out in the interest of mankind’. These banners were removed by the police by force.206 Apparently, too, the meeting was further disrupted as it became apparent that it overlooked the topless bathing taking place at the swimming pool of the hotel venue and, some delegates complained, was therefore distracting other of the delegates from the matters in hand.207 The meeting was dominated, however, by discussion over the Preamble, which was seen as the primary battleground between radicals and moderates over the hierarchy of rights. Warioba described the meeting as focusing on political issues – there was much discussion about the division between socialism and capitalism – but he also thought there was too much emphasis in the draft on individual rights. The radical states, despite considerable opposition, were therefore successful in effecting some significant changes to the Preamble that, essentially, shifted the balance of the text away from a conception of civil and political rights. As regards the few articles in the body of the draft charter that were debated, Jallow felt that ‘there were not many significant changes of substance’. The meeting ended, however, with agreement on only the Preamble and the first eleven articles of the body of the text.208 The report of the meeting was reluctant to allot blame for this failure and it is necessary to read between the lines to grasp the extent to which there was little meeting of minds or hearts: ‘Efforts were made to arrive at solutions whenever there were difficult problems. This showed the will to adopt an African Charter … meeting the needs and realities of Africa and taking into consideration the political differences of the various regimes … Unfortunately, it could not consider the whole of the Preliminary Draft Charter owing to lack of time.’ The Gambian Attorney-General as Chairman also suggested that holding the meeting could be considered an achievement in itself. As he put it, until then ‘even to mention the subject in an African context was anathema’.209

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CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, 7 and Africa Research Bulletin, 15 August 1980, 5734. ‘O.A.U. Ministerial Conference on Human and People’s (sic.) Rights Ends’, The Gambia Outlook, 16 June 1980, 1 and ‘The O.A.U. Ministerial Meeting/Conference on Human and People’s (sic.) Rights’, The Sun, 69/80 12 June 1980, 1–2 and 72/80 19 June 1980, 3. Interview, source withheld. Interview with Joseph Warioba, 28 April 2009, Dar es Salaam and H.B. Jallow, The Law of the African (Banjul) Charter, 35–43. OAU CM/Plen/Rapt.Rpt (XXXV) Rev.1, 29 (Report on the Charter on Human

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In contrast, Jallow recalled ‘a sense of frustration and defeat and an air of despondency’. Even M’baye, in retrospect, would describe the outcome as a ‘semi-failure’, while Tanor Dieng blamed Libya and thought that the Soviet Union, in particular, was behind the filibuster. President Senghor, in his address to the 1980 Freetown AHSG in his capacity as Acting OAU Chairman (following the coup in Liberia), reported the failure of the OAU to agree on a human rights charter as being due to ‘serious differences’ between member states ‘on the substance of human rights’.210 Writing in the period between the Banjul Ministerial Meetings, Bello, still unable to believe that an agreement could be reached between the entirety of the OAU membership, noted the failure of the June 1980 Banjul Ministerial Meeting and pondered why it was that the process had fallen into abeyance before concluding that: ‘A number of conflicting views were put forward, but in the final analysis, it simply boils down to a lack of willpower, coupled with the simmering distrust among member states of the O.A.U.’ In a further set-back, Balanda reported that the delegates from Upper Volta were arrested after the November 1980 coup by Colonel Zerbo. Rather touchingly, he suggested that knowledge of these arrests helped focus the minds of the January 1981 Banjul Ministerial Meeting on the necessity of a human rights charter for Africa, indeed, was ‘the determining factor’ in accelerating agreement at that meeting.211 Some measure of the black hole into which the ACHPR process had apparently fallen also comes across in a November 1980 letter to the OAU on behalf of Chief Justice Hayfron-Benjamin (Botswana) who had either been unable or not invited to attend: ‘We understand that you are in the process of drawing up a charter for human rights observation within the Continent. We would therefore be interested in knowing how far you have progressed in this endeavor.’212 Although the ACHPR process could now be regarded as having taken one step forward and two steps back, this time the ‘moderate’ states were rather more and Peoples’ Rights), ‘OAU Ministerial Meeting on Human and Peoples Rights’ 18 June 1980, OAU (L) CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights, CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4 and Callaghan to Dimond 18 June 1980, NA FCO 65/2417. 210 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 23, Interview with Hassan Jallow, 7 October 2008, London, Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar and President Senghor, ‘Opening Address’, quoted by L. Dash, ‘OAU Delegates Hear Recitation of Failures, Blasts at South Africa’, Washington Post, 2 July 1980, A16. 211 E.G. Bello, ‘Human Rights: The Rule of Law in Africa’, 632 and M.L. Balanda, ‘African Charter on Human and Peoples’ Rights’, K. Ginther/W. Benedek (eds), New Perspectives and Conceptions of International Law (Vienna, 1983), 135 (reference from F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 46). 212 OAU (L) Forster, High Court of Botswana to OAU Legal Department 4 November 1980.

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prepared. The Gambia immediately offered to host a second meeting, and Egypt offered up a resolution in which it was recommended that the forthcoming 1980 Freetown AHSG accept The Gambia’s offer.213 On their return, M’baye and Tanor Dieng prepared a report outlining the tone of the meeting, the alternative proposals that had been made and to whom President Senghor should speak as a follow-up, particularly in light of the impending AHSG. In the background, too, OAU Secretary-General Kodjo and M’baye worked hard to ensure a continuation of the process which was by no means certain at that time.214 It had been hoped that a final draft could be presented to the 1980 Freetown AHSG, but in its place was a report detailing the meagre progress. However, working in tandem, The Gambia and Senegal and, according to M’baye, ‘grace à la vigilance’ of OAU Secretary-General Kodjo, ensured that a resolution was put to the 1980 Freetown CoM meeting, and confirmed by the 1980 Freetown AHSG, requesting the Secretary-General to reconvene the Ministerial Meeting once again in Banjul and urging that it should ‘deploy every effort to complete the examination of the Draft Charter and to ensure that the final draft is submitted to the (next) Assembly of Heads of State and Government’. As would later become apparent, this was a crucial intervention that undoubtedly rescued the ACHPR process.215 The success of this manoeuvre was all the more remarkable in that, once again, the 1980 Freetown AHSG had served to demonstrate the division between member states across a range of issues. The Western Sahara had applied for membership of the OAU and was backed by the necessary twenty-six of the fifty OAU member states but Morocco queried whether it qualified as an ‘independent state’ and several member states, estimated at between seven to twelve, including Senegal, threatened to leave the OAU if it was granted membership – by 1982, the split would lead to a failure of the quorum at the scheduled 1982 Tripoli AHSG; the conflict in Chad was undimmed; and the OAU was also forced to reflect on the coup in Liberia. With respect to Liberia, President Stevens, as the new OAU Chairman, reported on his recent meeting, together with President Touré, President Houphouet-Boigny and President Eyadéma, with Sergeant Doe, the coup leader, in which they sought a trade-off between 213 OAU (L) ‘Resolution, submitted by Egypt at the close of the first session of the meeting on Draft African Charter on Human and Peoples Rights’. 214 Interview with Edem Kodjo, 10 December 2007, Lomé and Interview with Ousmane Tanor Dieng, 17 February 2009, Dakar. 215 OAU CM/1068 (XXXV) ‘African Charter of (sic.) Human and Peoples’ Rights’, 1–3, 28–29 included in OAU CM/Plen./Rapt.Rpt (XXXV) Rev.1, 28–29, OAU CM/ Res.792 (XXXV), K. M’baye, Les droits de l’homme en Afrique, 158 and H.B. Jallow, The Law of the African (Banjul) Charter, 43; as H.B. Jallow, The Law of the African (Banjul) Charter, 43 and K. M’baye, Les droits de l’homme en Afrique, 158 note, the resolution was adopted by the AHSG but it has not been possible to identify the specific AHSG resolution beyond the composite adoption of the recommendations and resolutions of the CoM.

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the ending of the witch-hunt and release of coup prisoners in Liberia in return for recognition of Sergeant Doe’s government’s place at the AHSG table – Nigeria having already refused landing permission in April to a Liberian delegation making its way to an ECOWAS meeting in Lagos. Moreover, in Sierra Leone itself, in anticipation of possible public protests against the reputed US$200 million, one-half to two-thirds of Sierra Leone’s annual budget, which had been spent on preparations for hosting the 1980 AHSG, it was felt necessary to resort to pre-emptive detentions.216 To maintain the momentum, OAU Secretary-General Kodjo moved quickly to make arrangements for the second meeting. A month after the 1980 Freetown AHSG, in early August 1980, he wrote to all OAU member states advising that 7 November had been set as the date for the reconvened Ministerial Meeting in Banjul. For some reason, in early October, less than two weeks after The Gambia had written formally to confirm this date, it was found to be ‘inconvenient’, which hints at underlying problems, and a new date had to be fixed. In mid-November, therefore, a date of 7–27 January 1981 was proposed.217 To encourage attendance and ensure a quorum attendance, Chief Legal Adviser Egbunike wrote to both President Jawara and the current OAU Chairman, President Stevens, requesting them to write personally to member states with invitations to the meeting and this seems to have had some effect as, for example, President Bourguiba felt it appropriate to respond personally to President Stevens to notify him of Tunisia’s acceptance of the invitation to attend.218 The January 1981 Banjul Ministerial Meeting was attended by forty OAU member states. It was opened by Vice-President Camara (The Gambia) whose opening address betrayed some wariness about the possibility of yet another 216 Z. Cervenka/C. Legum, ‘The OAU in 1980’, Africa Contemporary Record, XIII (1980/81), A64–71, Africa Research Bulletin, 15 May 1980, 5650 and 15 August 1980, 5730–5734, ‘The 35th Ordinary Session of the Council of Ministers and the 17th Assembly of the Heads of State and Government of the Organization of African Unity, Freetown 18 June – 4 July 1980’ Smith 7 July 1980, NA FCO 31/2488 and L. Dash, ‘OAU Delegates Hear Recitation of Failures, Blasts at South Africa’ and ‘Africans’ New Leader Is Wily Referee’, Washington Post, 2 July 1980, A16 and 17 July 1980, A22. 217 OAU (L) General Secretariat to Ministries of External/Foreign Affairs 8 August 1980 CAB/LEG/67/1 and 19 November 1980 CAB/LEG/67/1/48, Ministry of Foreign Affairs, The Gambia to OAU General Secretariat 23 September 1980 MEA/5624/(199-RS), Chief Legal Adviser to The Chief of Cabinet 2 October 1980 OAU CAB/LEG/67/1/28, OAU Secretary-General to Ministry of Foreign Affairs, Gaborone 3 October 1980 and General Secretariat to Ministry of External Affairs, The Gambia 18 November 1980 CAB/LEG/67/1/58. 218 OAU (L) Egbunike to Minister of Foreign Affairs, Sierra Leone 14 November 1980, Egbunike to Permanent Secretary, Ministry of Foreign Affairs, The Gambia 14 November 1980 and President Bourguiba to President Stevens 17 December 1980.

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failure. He therefore reminded the delegates of the obligation contained in the resolution adopted by the 1980 Freetown CoM and AHSG that every effort should be deployed to complete the examination of the draft charter.219 To some surprise, then, almost from the outset, this second meeting confounded expectations. So much so that, although three weeks had been allotted, it took only fifteen days to complete. In many respects, it was better managed. For example, it was agreed at the beginning that a drafting committee should be established – comprising of Cameroon, Kenya, Malawi, Togo and Tunisia – and that, if a consensus could not be reached, which was the agreed requirement adopted at the first meeting, decisions would be made by a vote under the standard rules governing OAU Ministerial Meetings. There was also an awareness of the 1980 Freetown AHSG endorsement and a sense that most of the decisions of principle had already been taken at the June 1980 Banjul Ministerial Meeting.220 This, though, does not fully explain what all participants recalled, namely the more positive spirit in which the meeting was held. M’baye remembered that: ‘The draft Charter was adopted … in an atmosphere of willingness to bring it to a conclusion.’ Kodjo, too, recalled that: ‘Despite some energetic discussions among government representatives concerning the nature and significance of the rights included in the draft, it was unanimously accepted by the delegations which were present.’221 Gomez (OAU Secretariat) would also note the ‘high degree of professionalism’ of the delegates, and Attorney-General Saho (The Gambia) ‘thought the difference between this and the last conference was because people had time to reflect on the document and become more convinced of the need for such charter’.222 Jallow also wrote of a ‘dramatic improvement’ in the atmosphere and an awareness of the failure of the previous meeting and Warioba, too, saw it as a more cohesive meeting. Sondashi (Zambia), who was attending for the first time in his capacity as Solicitor-General, similarly reflected on the seeming absence of any in-fighting and stressed that most of the delegates were happy to follow the lead and advice of M’baye. It was more relaxed and there was a better feeling of wanting to produce something together as a drafting and not a political session. Mathanjuki also recalled that by this point he had been specifically instructed not to disagree. The atmosphere was further improved by the absence of an Ethiopian delegation.223 219 OAU (L) Vice-President Camara, ‘Opening Speech’, OAU CAB/Leg/Sp.1(III). 220 Interview with Hassan Jallow, 7 October 2008, London and H.B. Jallow, The Law of the African (Banjul) Charter, 44. 221 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 23–24 and E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, 275. 222 West Africa, 2 February 1981, 205. 223 H.B. Jallow, The Law of the African (Banjul) Charter, 44, Interview with Joseph Warioba, 28 April 2009, Dar es Salaam, Interview with Ludwig Sondashi, 11 December 2012, Lusaka (telephone) and Interview with Peter Mathanjuki, 22 April 2009, Nairobi.

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Yet, notwithstanding apparent final agreement, a number of states still sought to reserve their position on several aspects of the draft that had otherwise been agreed should be forwarded to the 1981 Nairobi AHSG. An attempt was therefore made by The Gambia within the meeting’s Bureau to reach an understanding on these reservations, particularly with respect to the scope of the ACOMHPR’s right to interpret the provisions of the ACHPR and to make clear that where the AHSG was involved only those heads of state who had signed up to the ACHPR were entitled to take part in the decision, so as to obviate the need for these reservations to be made. It seemed as if The Gambia’s attempt had succeeded but whatever understanding it thought had been reached was overturned at the plenary session. As a result, Tanzania announced that it reserved its position on three counts. Firstly, joined by Burundi and Kenya, it opposed Article 45 (3) which made the ACOMHPR the final arbiter of the interpretation of the provisions of the ACHPR (rather than the AHSG); secondly, it opposed the ACOMHPR’s right under Article 53 to make recommendations to the AHSG when submitting its report on an issue submitted for its review; and, thirdly, it opposed Article 68 which provided for the manner of amending the ACHPR by the AHSG on a simple rather than two-thirds majority. Kenya, together with Burundi, also objected to Article 58 which allowed for special rules to be applied in the case of a ‘series of serious or massive violations of human and peoples’ rights’ and Zambia objected to Article 63 providing for the ACHPR to come into force on the basis of ratifications by a simple majority of member states. At the last moment, too, Guinea tabled an amendment proposing a World Court (not an African Court) ‘to judge crimes against mankind and violations of human rights’; it was rejected as desirable but untimely in terms of the present discussion.224 The meeting closed with a final address by President Jawara in which he sought to draw attention to the problems that still lay ahead: recent history is replete with international agreements … which have been adopted and either not ratified or have taken too long … before coming into force. Let us resolve not to put the African Charter … into that category. The Charter must not go the way of the African Convention on Refugees or the African Convention on mercenaries … It must not be left to gather dust in our respective archives … Having adopted the Charter here in Banjul it is the responsibility of each of you to work to … ensure … adoption of the Charter by the … Heads of State and Government … and its coming into force … 224 OAU (L) ‘Report of the Secretary-General on the draft African Charter on Human and Peoples’ Rights’, CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, 26–28, OAU (L) Handwritten note on agreement reached by Bureau 18 January 1981 and H.B. Jallow, The Law of the African (Banjul) Charter, 43–48; in contrast with the official record, H.B. Jallow, The Law of the African (Banjul) Charter, 37–38 records that Guinea’s proposal for a World Court was actually made at the June 1980 Banjul Ministerial Meeting.

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within the shortest possible time …Even ratification is not an end in itself … your offices … place upon you the onus of implementing the provisions.225

The final draft was now ready to be presented to the AHSG. As was standard practice, a report was first presented to the CoM meeting preceding the 1981 Nairobi AHSG by OAU Secretary-General Kodjo and Minister of Justice Saho (The Gambia). OAU Secretary-General Kodjo expressed his gratification at the ‘celerity’ with which the ACHPR process had been implemented, a process that had its origins in the UN Charter, the UDHR and the OAU Charter, and, in recommending adoption, stressed ‘the originality of the text which reflects the concern expressed by one and all … that the Charter must reflect an African conception of Human Rights and duties’. This originality, he suggested, distinguished the Charter from those adopted in other regions. Minister of Justice Saho reviewed the procedure that had been followed and suggested that ‘delegations which so desired could ask for clarifications or express their reservations’ on any of the provisions. However, he noted that the 1980 Freetown AHSG had instructed that the draft be submitted directly to the AHSG. His interpretation was challenged by Somalia and other delegates who claimed the right to discuss the substance of the Charter but his interpretation was reaffirmed by the CoM Chairman supported by speakers from the floor. A number of states took the opportunity, though, to make observations, many taking up issues that had already been raised at the conclusion of the January 1981 Banjul Ministerial Meeting. At last, the financial cost of the ACOMPHR was raised as a matter requiring study and resolution, but the most important objections related to the role and status of the ACOMHPR, demonstrating clearly that opposition remained undimmed. For example, it was argued that Article 45, which set out the mandate of the ACOMHPR, should be amended to reflect the sovereignty of states and the principle of non-interference ‘so as not to make the commission think it has the power to interfere in the internal affairs of OAU Member States’ and that the AHSG should be the interpreter of the Charter. It was also suggested that, as the ACOMHPR was not a Specialised Commission under OAU Charter Article XX, its existence would be ultra vires and would require revision of the OAU Charter. Other states expressed disappointment at the absence of such rights as ‘the right to independence’, ‘women’s and wive’s rights’, ‘the rights and duties of wives’ and duties ‘such as respect for the constitution, laws and responsibilities of states’ and ‘parents’ duties for their children’. Finally, it was ‘decided to take note of the Draft Charter and submit it to the … Heads of State … together with the observations made by the delegations, for consideration’. It is clear that without the 1980 Freetown AHSG resolution requiring the finalised text to be submitted directly to the AHSG, the 225 OAU (L) ‘Speech delivered by His Excellency The President Alhaji Sir Dawda Kairaba Jawara at the closing ceremony of the OAU Conference on Human and People’s Rights – Monday 19 January 1981’.

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ACHPR might well have been fatally holed at this time.226 Even so, some newspaper reports also quoted comments from unnamed sources, possibly Assistant Secretary-General Onu, that the draft ‘left much room for misinterpretation’ and: ‘If adopted as it is, could give (sic.) to a possibility of conflicts with constitutions or laws of some member states.’227 The ACHPR was placed before the 1981 Nairobi AHSG under agenda item ‘Report of the Secretary-General on the draft African Charter on Human and Peoples Rights’.228 It was understood fairly quickly that if the detail was opened up for debate, it would never be passed, but the mood seemed to be in favour of acceptance. As the Polisario debate dominated the AHSG meeting there was also little time left to discuss outstanding issues. One reporter suggested therefore that: ‘It was deliberately relegated to the dying moments of the conference because it was a threatening aspect of OAU legislation for most of the leaders who were there.’229 In the limited discussion, Kenya, The Gambia, Senegal, Nigeria and Mauritius were influential; Liberia and Sierra Leone were pushy, but the North African states were lukewarm. Guinea-Bissau also objected to Article 45 and, when it seemed likely that the mood of the meeting was for adoption, it attempted unsuccessfully to increase the ratification majority required to two-thirds. An unnamed head of state, possibly President Kérékou (Benin), also made the observation that the OAU did not need lessons in post-colonial legal philosophy.230 The debate was not long as people were tired and therefore early in the morning of 28 June, it was finally put to the vote.231 226 OAU ‘Report of the Secretary-General on the African Charter of Human and People’s Rights’ CM/Plen/Rapt.Rpt (XXXVII), 55–60 and OAU ‘Introductory Note of the Secretary General’ CM/1120 (XXXVII) Part I, 31, NA FCO 106/544; see also H.B. Jallow, The Law of the African (Banjul) Charter, 48–55. 227 ‘OAU Secretariat Statement on Human and Peoples’ Rights 21 June 1981’, Africa Contemporary Record, Vol. XIV (1981/82), C-28–29, ‘African Aides Fail to Agree on Human Rights Charter’, New York Times, 22 June 1981, A5 and ‘Leaders to Discuss Charter’, Daily Nation, 22 June 1981, 3. 228 OAU (L) ‘Report of the Secretary-General on the draft African Charter on Human and Peoples’ Rights’, OAU CM/1149 (XXXVII) Annex III: Draft African Charter on Human and Peoples’ Rights, OAU CAB/LEG/67/3 Rev.5 and ‘Draft agenda’, OAU AHG/101 (XVIII) Rev.1. 229 N. Humasi, ‘That Charter: Rights Record may Hamper it’, 12. 230 Interview with Edem Kodjo, 10 December 2007, Lomé, Interview with Joseph Warioba, 28 April 2009, Dar es Salaam and Interview with Hassan Jallow, 7 October 2008, London. 231 H.B. Jallow, The Law of the African (Banjul) Charter, 55 gives the time as 1.10am, Kodjo remembers ‘three or four in the morning’ (Interview with Edem Kodjo, 10 December 2007, Lomé) and A.M. Akiwumi, ‘The United Nations International Covenant on Economic, Social and Cultural Rights and the African Charter on

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It was seemingly adopted unanimously although OAU Secretary-General Kodjo was subsequently assailed by several member states objecting to the ACHPR, the process by which it had been adopted, and indeed whether it had in fact been adopted at all – curiously, it was only several weeks later, and only after extensive investigation, that the otherwise well-informed FCO Addis Ababa post was able to confirm that the ACHPR had indeed been adopted.232 Rather belatedly, too, more than one year later, in an exchange of notes with the OAU General Secretariat, Ghana contended that the ACHPR had not been adopted and proposed several amendments it deemed necessary as they related to OAU Charter Article XX. It argued that: ‘Delegations having strong views on the subject, stayed on to stress their points even during the early hours of the closing day, and to demand that a further collation of views be made to make the document generally acceptable.’ Moreover, Ghana had understood that: ‘In the absence of a concensus (sic.) … the Chairman ruled that note be taken of the document and that Member-States having amendments to make should submit them to the General Secretariat for a later Session to discuss.’ This version of events was disputed by the OAU General Secretariat which explained that the ACHPR ‘was adopted with acclamation and was not taken note of ’, pointing out that: ‘There can not be a noting of a report or a document by the Assembly with acclamation.’ The OAU General Secretariat also noted that, as the ACOMHPR has wider powers than are permitted under Article XX, should it therefore be necessary to amend the OAU Charter to accommodate it, the amendment would in fact have to be made to Article VII which lists the OAU’s principal institutions; an answer that would also apply to the argument raised by the UNDHR and the 1979 UN Monrovia Seminar.233

The sense that emerges from the 1981 Nairobi AHSG is that, to a great extent, it was accepted that the die had already been cast at the January 1981 Banjul Ministerial Meeting. Moreover, since adoption of Decision 115, further military coups in several African states had added to the outside world’s negative perception of Africa and, to that extent, the need for a show of adoption was even greater. It would therefore have been politically most inept for the OAU to have rejected Human and Peoples’ Rights’ (unpublished), 9, quoted by F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 47 reported that a weary meeting voted around midnight. The difference in timing may well represent the subsequent wrangling. 232 Interview with Edem Kodjo, 10 December 2007, Lomé and Smith to Wong ‘OAU Human Rights Charter 6 November 1981, NA FCO 106/538. 233 OAU (L) Embassy of Ghana to General Secretariat No. SCR.GEA.21/67 9 June 1982 and OAU (L) General Secretariat to Embassy of Ghana 22 June 1982, OAU (L) CAB/LEG/67/1/91.

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the ACHPR at this last hurdle. Many heads of state, though, remained deeply suspicious and saw the ACHPR as a ‘window open to foreign eyes’,234 although with President Reagan having replaced President Carter, and with Prime Minister Thatcher elected in the UK, the point could be made that human rights were clearly no longer the Western ‘political crusade’ that they were perceived to be in 1979. Ironically, therefore, President Carter’s contribution to the ACHPR may actually have been his 1980 electoral defeat. More significantly, the provisions of the ACHPR had been considerably weakened from the draft prepared first by M’baye and then the experts and this provided some further comfort for those African political leaders still opposed in principle. Ascofare (Mali), for example, felt that at the June 1980 Banjul Ministerial Meeting the military government he represented was concerned that the proposed ACHPR might involve some measure of control over internal affairs but by the time of the January 1981 Banjul Ministerial Meeting they had come to understand that in practical terms the ACHPR offered little scope for meaningful intervention. M’backe, too, expressed his misgivings with several aspects of the final draft but reluctantly acknowledged that what he felt were shortcomings necessarily reflected the political realities of that time and suggested that President Touré, for example, felt able to sign up to the ACHPR precisely because it was weak on protection, but strong on ‘Peoples’ rights’ and provided for many legal exceptions. Finally, and not least, the many states that were still opposed were only too aware that there was still scope for further, subtle, silent opposition that could be effected in terms of ratification and implementation. In the last resort, too, it was open to states to enter their reservations against specific clauses.235

Postscript: Ratification, implementation and compliance It was clear therefore that adoption was by no means the dénouement of the ACHPR process and that there were still considerable headwinds of opposition at several levels: Ratification, implementation and compliance. There was therefore a widespread consensus among supporters of the ACHPR that, if ratification was to be achieved, support would have to be mobilised. For example, Humasi, a contemporary observer, observed that ‘the ratification of the human rights code for Africa is as remote as unification itself. Some leaders say the OAU human rights document is open to misinterpretation. Others claim sections of it are in conflict with the domestic laws of their countries.’236 At the 1981 Fourth Biennial ABA meeting held in Nairobi only a few weeks after the ACHPR had been adopted, a resolution was therefore passed calling 234 Interview with Edem Kodjo, 10 December 2007, Lomé. 235 Interview with Moulaye Aly Kalil Ascofare, 12 September 2012, Dakar and Interview with Mouhamadou Moctar M’backe, 13 September 2012, Dakar. 236 N. Humasi, ‘That Charter: Rights Record may Hamper it’, 13.

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upon all member bar associations to work for ratification and approving the creation of an ABA Human Rights Committee with constituent committees in each country.237 The IAUL, too, together with the African Institute of Human Rights, organised a symposium on the ACHPR in 1982 which ended with the ‘Appeal of Dakar’ urging all African states to ratify the ACHPR and all ‘well-­ established forces’ to press for its adoption. It was followed up with a letter to OAU Secretary-General Kodjo requesting that he ask the OAU Ambassadors in Addis Ababa to arrange a meeting between IAUL representatives and their governments at the next AHSG meeting.238 Wako, in his capacity as Secretary-­ General of the IAUL, also signed a joint statement with Rafransoa, AACC Secretary-­General, calling on church leaders and people and all legal associations to urge ratification of the ACHPR.239 OAU Secretary-General Kodjo and the OAU General Secretariat were also active in support of ratification. In the enthusiasm that followed the successful January 1981 Banjul Ministerial Meeting, Chief Legal Adviser Egbunike wrote to OAU Secretary-General Kodjo suggesting that in his report to the forthcoming 1981 Nairobi AHSG he might propose that the heads of state should immediately sign the ACHPR and that 1982 be proclaimed as ‘The Year of African Human and Peoples’ Rights’. His concern, of course, was that, based on previous OAU practice, the ACHPR might not be ratified in sufficient numbers for some time; rather wisely, OAU Secretary-General Kodjo does not seem to have acted on this advice.240 However, he did arrange for regular notices and reminders to be sent to member states. Already in September 1981 a notice was sent out advising that the ACHPR was open for ratification and offering practical information on how that might be executed. A further notice announcing ratification by several member states was sent in early 1982 (one of a chain of ratification updates).241 In early 1983 the OAU General Secretariat also advised that it would be sending ‘an officer’ to fourteen member states who had not yet acceded ‘to facilitate the early 237 ‘Activities of the African Bar Association’, CIJL Bulletin, 8 (1981), 15–17 and T.O. Elias, ‘Organisation and Development of the Legal Profession in Africa, in particular, the ability of the Bar and judiciary to uphold the rights of both the citizen and the state’, 27–29. 238 MPP Inter-African Union of Lawyers, ‘Appeal of Dakar’ 28 October 1982, MPP Seck to Kodjo 21 December 1982 and B. Moleur, ‘Le combat pour les droits de l’homme en Afrique: Symposium international sur la Charte Africaine des droits de l’homme et des peoples, Dakar 25–28 octobre 1982’, Droit et Cultures, 5 (1973), 107. 239 ‘OAU States Urged to back Charter’, Daily Nation, 28 May 1982, 5. 240 OAU (L) Legal Counsellor to Secretary-General CAB/LEG/67/1 9 February 1981. 241 OAU (L) General Secretariat to Ministries of External/Foreign Affairs 7 September 1981 CAB/LEG/67/1/12 and OAU (L) General Secretariat to Ministries of External/Foreign Affairs 4 February 1982 CAB/LEG/67/1/47.

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coming into force’ of the ACHPR; including, ironically, The Gambia which took two years to accede. Regrettably, details of the trip could not be located but only four of these fourteen states would ratify the ACHPR before it came into force.242 Moreover, every Human Rights Day (10 December) from 1980 on, that is before even the final draft had been agreed, appeals were made by the OAU General Secretariat in support of the ACHPR.243 It was at this point that the ICJ decided to step in and to consider how ‘it should continue with the same tact and discretion to promote the necessary ratifications to bring the Charter into force’. Already in October 1981 it was decided that ratification of the ACHPR should be considered a priority for the ICJ and it was proposed that M’baye and ICJ Secretary-General MacDermot should discuss how best this might be achieved. Various options were considered: Direct appeals to heads of state; action by the OAU General Secretariat; support from African personalities; and action in concert with pan-African legal associations. In Spring 1983, with the ratification process moving slowly, ICJ Secretary-­General MacDermot therefore wrote to M’baye and Elias proposing they write ‘a joint Letter of Appeal to a number of Heads of State and Governments … urging … ratification’. In response ‘some fifteen African governments gave favourable reactions’. However, what that entailed in practice was not always clear. For example, Mauritius advised Elias in June 1983 that the Foreign Minister ‘has been requested to initiate early action for our adherence’, but in fact Mauritius would only ratify the ACHPR in July 1992. In early 1985, therefore, research by Dieng, who had joined the ICJ in 1982, sought to clarify the current state of play. He identified that only fifteen states of the twenty-six needed had ratified the ACHPR, and a further small number of states had ratified the ACHPR but not deposited their ratifications with the OAU Secretary-General; another eleven ratification deposits were therefore needed for the ACHPR to come into effect. M’baye and ICJ Secretary-General MacDermot therefore decided they should give history another shove.244 The shove took the form of an ICJ conference in December 1985 in Nairobi, funded by Norway, Canada and the Ford Foundation. Its main focus was of course the ACHPR but the ICJ was only too aware of OAU sensitivities and therefore, as barely concealed political cover, to pre-empt an accusation of 242 OAU (L) Egbunike to Ministries of Foreign Affairs of fourteen member states 28 January 1983. 243 OAU (L) Press Release No. 766 10 December 1980; see also M.A. Abdul-Razaq, ‘The Organisation of African Unity and the Promotion and Protection of Human Rights in Africa’, 121 Note 168. 244 ICJ Executive Committee Minutes 17 October 1981, 2, 30 October 1982, 6, 23 April 1983, 17 April 1985, 5 and 26 October 1985, 7, T. Elias, ‘Chairman’s Opening Remarks’, ICJ, Human and Peoples’ Rights in Africa, 12–13 and MPP Ponnusamy, Prime Minister’s Office No. 18666/25/2 to Elias 20 June 1983.

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interference, the conference also included discussion of the provision of legal services in rural areas and ombudsman institutions in Africa. At the last moment, the ICJ decided that it would also be most helpful if the conference were to discuss human rights in South Africa in the light of the ACHPR. This subterfuge was necessary, as ICJ Secretary-General MacDermot noted in a private communication: ‘The OAU has been very weak on human rights, but it would not be well-received for us to discuss directly the role of the OAU.’ It is also significant, as an indicator of the ICJ’s intent, that the official Conference report only lists the ACHPR in its title. The ICJ had also intended to hold a meeting of its Commissioners in conjunction with the Nairobi conference, the first time it was to be held in Africa, but it failed to reach a quorum.245 Again, the conference was a cover for the follow-up. As ICJ Secretary-­General MacDermot made clear, ‘all our conferences and seminars have a very definite action-oriented focus’. In this case, it was ‘to launch a fresh impetus towards bringing the African Charter into force’ and he hoped that ‘the Conference will generate more enthusiasm for the African human rights charter’. Invitations were therefore aimed at facilitating ratification with four delegates from states that had already signed, Egypt, Nigeria, Senegal and Tanzania, in the hope that their commitment would carry weight; five delegates from states who had signed but not ratified (four would ratify); and ten delegates from states ‘which seem to be the most open to persuasion on ratification’ – as it turned out only three of these ten states would ratify the ACHPR prior to its coming into force.246 The conference was opened by President Moi who extended support for the ACHPR and indicated that, subject to certain legal steps, Kenya would accede to the ACHPR – in fact Kenya would only accede in 1992 six years after the ACHPR came into force. Wako explained that he had tried to push for accession but that it was just not wanted and it was therefore only after his appointment in 1991 as Attorney-General that he was able to insist on ratification.247 During the discussion on the ACHPR, delegates raised several concerns that they felt impeded ratification. These included: Reservations or misunderstandings about particular provisions; administrative inefficiency; governmental indifference or concentration on other issues; concern about the notion of peoples’ rights and 245 WJB Wako to MacDermot 13 June 1984 and WJB MacDermot to Butler 13 February 1985; see also WJB G. Petren, Note to ICJ Executive Committee, 31 December 1985; the official report is ICJ, Human and Peoples’ Rights in Africa. 246 WJB ‘Proposal for an African Conference on the Promotion and Protection of Human Rights (undated and unsigned), WJB MacDermot to Butler 13 February 1985, WJB G. Petren, Note to ICJ Executive Committee, 31 December 1985, ‘Interview by telephone with Niall MacDermot’, Sunday Nation, 12 January 1985 and N. MacDermot, ‘Preface’, ICJ, Human and Peoples’ Rights in Africa, 6. 247 ‘Opening Speech by H.E. Daniel T. arap Moi, President of Kenya’, ICJ, Human and Peoples’ Rights in Africa, 16–18 and Interview with Amos Wako, 23 July 2012, Geneva.

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the fear that this might become an excuse for minority or tribal rights; concern over an outside monitoring body examining their human rights records; and that the Charter did not reflect African customary law sufficiently. In response, M’baye attempted to allay their concerns.248 At its close, the conference concluded with two Declarations: The first called for an end to apartheid and for the UN to ‘declare the system of apartheid to be a threat to international peace and security’ and therefore to impose sanctions. The second, having assessed the role the ACHPR ‘can play in the struggle for the elimination of apartheid, racism and racial discrimination’, called for its ratification. This wording demonstrated again that the vicarious conjunction of apartheid was still necessary to justify adoption of the ACHPR. The idea that the ACHPR should not be viewed as a Western document lacking African credentials, or that it might unduly disadvantage African states, had also to be accommodated in the Preamble of Declaration 2: ‘Having noted that the Charter is based on strict respect for African historical traditions, on the values of African civilization, and on the conception of law and human rights in Africa … and the compatibility between … the Charter and the constitutions of Member States.’ Declaration 2 also advised of the conference’s intention to form six regional follow-up groups to help states ‘clarify the content of the provisions … and their various implications’ and to give legal assistance ‘when asked’.249 A Kenyan news report on the conference aptly noted that nothing had been said about human rights violations by the African states themselves: ‘What seems likely … is that the conference, anxious to have the African charter … ratified by the required number of states, avoided touching on any of its members’ own human rights records lest it might further delay ratification.’250 As part of the continuing follow-up, Dieng arranged for the ACHPR and the Nairobi Declaration to be sent to all African heads of state together with a letter from President Diouf (Senegal), as OAU Chairman, requesting heads of state who had not done so to ratify the ACHPR. Success was quickly noted with encouraging information received from Mauritius, Gabon and Cape Verde, and the news that Somalia had finally conveyed its ratification to the Secretary-­General.251 248 ‘Summary of Discussion on the African Charter’, ICJ, Human and Peoples’ Rights in Africa, 51–55. 249 ‘Declaration No. 1 on South Africa’ and ‘Declaration No. 2 on the African Charter’, ICJ, Human and Peoples’ Rights in Africa, 72–74. 250 ‘OAU States Urged To Sign Charter’, Weekly Review, 6 December 1985, 5. 251 ICJ Executive Committee Meeting 22 March 1986 Attachment: ‘Nairobi Follow-­up: Note for the Executive Committee’ (in fact Cape Verde came in after ratification) and H. Tolley, Jr., ‘Popular Sovereignty and International Law’, 579; B. BoutrosGhali, ‘The Third World and Human Rights’, E.G. Bello/A. Ajibola, Essays in

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Until that point, President Diouf, President Senghor’s long-time Prime Minister, had played no part in the ACHPR process as the matter had been retained largely within President Senghor’s personal remit. His first appearance at an OAU AHSG was therefore in Nairobi in 1981 when the ACHPR was adopted. He could not recall any discord at that meeting in relation to the issue of the ACHPR, although he felt it was possible that the 1981 Nairobi CoM had been more divided, but his main priority at that meeting had been to obtain support for M’baye as the African candidate for the ICOJ – he would be appointed in 1982.252 That within seven months of the 1985 Nairobi conference the ACHPR had achieved the ratifications needed to bring it into force undoubtedly owed a lot to the lobbying efforts of the ICJ. However, the ICJ’s involvement did not end there. In June 1987, the ICJ, together with the International Academy of Human Rights and the African International Law Association, arranged a ‘Colloquium on The African Commission on Human and Peoples’ Rights’ in Dakar. It was timed to take place a month before the first election to the ACOMHPR scheduled for the 1987 Addis Ababa AHSG. Its Final Statement explained that the Colloquium was organised in order to shed light on the ‘grey areas’ (M’baye) and ‘insufficiences and ambiguities’ (Ahanhanzo) in the text of the ACHPR as it related to the ACOMHPR ‘and to prepare in some measure the path, fraught with pitfalls, that the future commissioners would have to take’. In practice, though, it was primarily an opportunity for M’baye to influence the election of commissioners and to lay down markers for the approach the ACOMHPR should follow. The result was that six of the first eleven elected members of the ACOMHPR took part in the Colloquium, including Ndiaye, one of M’baye’s closest friends, who had served as the Colloquium’s rapporteur. Again at the outset, and repeated at the conclusion of the report, it was felt necessary to remind the Colloquium that ‘the drafters of the Charter were constantly inspired in their reflexions (sic.) by values of African civilization, Africa’s philosophy or concept of rights and human rights and by respect for Africa’s diversity and the political options of the various States composing OAU’; and that: ‘Persuasion rather than punishment is required. It is at that price that the Commission would ensure the triumph of Africa’s beautiful and positive historic traditions. The Commission constantly must be ever cognizant of our values of civilization and of Africa’s read (sic.) needs.’ Among the other broad areas of agreement reached by the Colloquium was that the ACOMHPR should not be Honour of Judge Taslim Olawale Elias Vol. 1 Contemporary International Law and Human Rights (Dordrecht, 1992), 369 suggests that in 1986 a similar letter was sent out by President Mubarak (Egypt); but this may be a confusion with President Diouf ’s letter. 252 Interview with Abdou Diouf, 22 December 2014, Paris.

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based in Addis Ababa – Banjul was eventually chosen – and, optimistically, that ‘the Commission’s work should not be hamstrung for financial reasons’.253 The ICJ would also advise on the Rules of Procedure. An initial draft was prepared by the OAU General Secretariat and submitted for comments to the ACOMHPR’s first meeting in November 1987. However, with Ndiaye appointed as Special Rapporteur and responsible for collating the comments made by commissioners, unsurprisingly, the draft was routed to the ICJ which in January 1988 submitted numerous amendments to Ndiaye. All but two were accepted by the ACOMHPR at the second meeting in February 1988 which adopted the Rules of Procedure.254 With ratification achieved, the focus turned to implementation. One of the points that had been raised during the final discussion of the ACHPR at the 1981 Nairobi CoM meeting was that of funding for the ACOMHPR.255 It was a point well made. Although formally the responsibility of the OAU Secretary-General, funding was, of course, subject to the discretion of the AHSG where member states were able to express their continued opposition to the ACHPR by the simple expedient of limiting the subvention made available to the ACOMHPR; and that is precisely what happened. Throughout the early part of its existence, the AHSG was only prepared to fund the ACOMHPR so as to ensure its bare existence. It took more than eighteen months for a base to be established in Banjul, until then it was based at the OAU headquarters in Addis Ababa, and, as Udombana observed in 2002: ‘Fifteen years after its inauguration, the African Commission … is still operating in a rented flat in The Gambia’ – the foundation of the ACOMHPR’s headquarters would only be laid in 2001. The failure to provide adequate funding also impacted on the quantity and quality of staff and basic equipment to the extent that, as Umozurike pointed out, even basic dayto-day operations became increasingly dependent on funding from NGOs, the UN and EU. Welch, for example, reported that for most of its first five years the ACOMHPR had no copier or fax machines and few computers. As a result, the ACOMHPR’s sessions were invariably forced to focus on budgetary issues rather than the substantive aspects of its mandate.256 253 MPP M’baye to MacDermot 3 November 1986, MPP M’baye to President Diouf 3 November 1986, ICJ, General Report Colloquium on the African Commission on Human and Peoples (sic.) Rights, Dakar 17 to 19 June 1987 and ICJ Newsletter, 33 (1987), 1, 25–36. 254 OAU AFR/COM/HPR.1 (I) ACOMHPR First Meeting Addis Ababa (Ethiopia) 2 November 1987 and AFR/COM/HPR.1 (II) ACOMHPR Second Ordinary Session Dakar, Senegal 8–13 February 1988: Rules of Procedure on African Commission on Human and Peoples’ Rights and ‘Rules of Procedure of the African Commission for Human and Peoples (sic.) Rights’, ICJ The Review, 40 (1988), 26–30. 255 OAU CM/Plen.Rapt.Rpt (XXXVII), 58. 256 N.J. Udombana, ‘Can the Leopard Change its Spots? The African Union Treaty

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Funding was such a problem that the first three ACOMHPR Chairmen were all prepared to speak out publicly, outside even of the annual reports, about the financial constraints under which they had been forced to operate. For example, at a 1991 conference, Nguema, the first Chairman of the ACOMHPR, reported that ‘the Commission sees its primary difficulty as one of funding, from which all its other infrastructural problems flow’; as a result of which the ACOMHPR ‘did not really have a Secretariat “only the idea of a Secretariat”’. What this meant was that ACOMHPR was neither properly staffed nor equipped and unable to maintain proper records of proceedings, written or taped, or to translate relevant documents so that evaluations were often allocated only to those commissioners who could read the language in which the evaluation had been made.257 At another conference in 1992, attended by the first three ACOMHPR Chairmen, these constraints were reiterated and it was explained that it had not been possible to ‘provide the staff and services necessary for the effective discharge of the duties of the Commission’. For example, ‘there are no summaries or minutes of many of its sessions. The secretariat has not been able to have documents translated … neither has it been able to assist the Commission on the determination of admissibility of communications. Finally, the Commission has not been able to publish its annual reports and other documents.’ The financial problems were so severe that Hansungule, for example, describes how the decision was taken to hold the ACOMHPR’s fourteenth and fifteenth sessions in Addis Ababa so as to be able to draw on the OAU’s technical translation services. In the event, even in Addis Ababa these translation services were not available and the decision had therefore to be made whether to proceed without Arabic translation or not to proceed at all.258 and Human Rights’, American University International Law Review, 17/6 (2002), 1251, U.O. Umozurike, The African Charter on Human and Peoples’ Rights, 237–240 (Appendix E: ‘Speech by Professor U.O. Umozurike to mark the opening of the tenth session of the African Commission and the tenth anniversary of the adoption of the African Charter on Human and Peoples’ Rights, Banjul, 8 October 1991) and C.E. Welch, Jr., ‘The African Commission on Human and Peoples’ Rights: A FiveYear Report and Assessment’, Human Rights Quarterly, 14/1 (1992), 55. 257 Report on ‘Legal and Infrastructural Constraints on the Commission, Professor I. Nguema Member and First Chair, African Commission on Human and Peoples’ Rights’, Conference on The African Commission on Human and Peoples’ Rights June 24–26, 1991, Sponsored by The Friedrich Naumann Foundation (New York, 1991), 12–15. 258 E.V.O. Dankwa, ‘Conference on Regional Systems of Human Rights Protection in Africa, the Americas and Europe’, Human Rights Law Journal, 13/7–8 (1992), 315 and M. Hansungule, ‘The African Charter on Human and Peoples’ Rights: A Critical Review’, A.A. Yusuf (ed.), African Yearbook of International Law Vol. 8 (2000), 265–331.

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As a result of inadequate funding, allied to incompetence, willful obstruction and indifference, in the first fifteen years of its existence, essentially all elements of the ACOMPHR’s mandate, review of communications, submission and consideration of periodic reports and promotion, were largely missing in action. In the case of communications, due to the validation requirements, such as the need for identification, exhaustion of local remedies and respectful language, more than half of all communications received were declared inadmissible and, even worse, as late as 1992, it was regretted that ‘the Commission has not been able to complete the examination of a single communication’.259 A major part of the fault for this failure has been attributed to Mutsinzi, the ACOMHPR’s Secretary since February 1989, who also served as the OAU’s Chief Legal Adviser at this time. Wiseberg has described him as ‘either obstructionist or incompetent, or both’: ‘He has lost important communications, failed to notify states that their reports were to be considered, failed to inform NGOs of the dates of Commission sessions … and what reports will be considered, and failed to complete financial reports, thereby jeopardizing funding the Commission has been promised.’ Without naming names, Ouguergouz, a former Chairman of the ACOMHPR, similarly noted, with a greater degree of political tact, that the ACOMHPR Secretariat had ‘apparently through … inadvertence … forgot’ to inform several states that their reports were to be considered. In 2008, Mutsinzi was elected President of the African Court on Human and Peoples’ Rights.260 As to the obligations on State Parties under Article 62 of the ACHPR to submit periodic reports every two years regarding the measures taken to give effect to the ACHPR, in a further act of low-key opposition, they largely responded with contempt. An AI report estimated that, as of the end of 1992, twenty-eight states had not submitted an initial periodic report despite two reminders, including The Gambia and Senegal, and thirty states had also failed to submit a second periodic report.261 As a result, the 1993 Cairo AHSG adopted a resolution encouraging member states ‘to ensure strict implementation of their obligations’.262 This clearly had only limited effect as, in 2004, a further review by Viljoen found that nineteen states had still not submitted any report and indeed 259 A.P. van der Mei, ‘The New African Court on Human and Peoples’ Rights: Towards an Effective Human Rights Protection Mechanism?’, Leiden Journal of International Law, 18/1 (2005), 117. 260 L.S. Wiseberg, ‘The African Commission on Human and Peoples’ Rights’, Issue: A Journal of Opinion, 22/2 (1994), 34–41, F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 532, N.J. Udombana, ‘Can the Leopard Change its Spots? The African Union Treaty and Human Rights’, 1240–1241 and C.E. Welch, Jr., ‘The African Commission on Human and Peoples’ Rights: A Five-Year Report and Assessment’, 54. 261 OAU (L) Amnesty International to OAU Legal Officer Kioko 8 January 1993. 262 OAU AHG/Res.227 (XXIX): Resolution on the ACOMHPR.

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more than half of these states had eight reports overdue. Only thirteen states had submitted more than one report. Moreover, almost half of the nineteen missing states had been among those that had acceded to the ACHPR as part of the initial majority bringing it into effect. As Ouguergouz has therefore pointed out, this process ‘has not actually been a great success to date, essentially because the State parties have seldom demonstrated the requisite diligence and rigour’.263 Nor was the problem confined to non-submission of reports. Reports were often minimal, over-descriptive and selective. Invariably, too, they were unsupported by government officials able to respond satisfactorily to questions. For example, in 1991, Libya was the first to submit a report. It concluded that ‘all the rights and freedoms of individuals are guaranteed in Libya without discrimination’; but complained about the human rights record of the imperialist countries.264 Even once reports had been submitted, the ACOMHPR was frequently unable to consider reports. The Libyan report, for example, was submitted before rules of examination had been determined. The next report to be submitted was from Nigeria which invited the ACOMHPR to Nigeria for the review but then failed to provide officials to present the report; the ACOMHPR was apparently too embarrassed to telephone the Nigerian government to ask what was going on. In terms of the reviews themselves, only a modest amount of time was allotted for discussion. Thereafter, ‘minimal efforts have hitherto been made to ensure meaningful implementation of… obligations’.265

More than ten years after adoption, therefore, seemingly oblivious to OAU Secretary-­General Kodjo’s warning that if ‘rights are to be determined they must be protected’, the African human rights system was indeed falling ‘prey to theory, 263 F. Viljoen, ‘Strengthening the African Commission on Human and Peoples’ Rights: Procedures, Mechanisms, Partnerships and Implementation’, L. Wohlgemuth/E. Sall (eds), Human Rights, Regionalism, and the Dilemmas of Democracy in Africa, 120–122 and F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 527–542. 264 Libya 1991 First Periodic Report, http://www.achpr.org/files/sessions/9th/ state-reports/1st-1986-1991/staterep1_ libya_1991_eng.pdf, last accessed 15 February 2017. 265 M. Hansungule, ‘The African Charter on Human and Peoples’ Rights: A Critical Review’, 265–331, E.K. Quashigah, ‘The African Charter on Human and Peoples’ Rights: Towards a More Effective Reporting Mechanism’, African Human Rights Law Journal, 2/2 (2002), 261–300, M. Evans/T. Ige/R. Murray, ‘The Reporting Mechanism of the African Charter on Human and Peoples’ Rights’, M.D. Evans/R. Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge, 2002), 58 and C.E. Welch, Jr., ‘The African Commission on Human and Peoples’ Right: A Five-Year Report and Assessment’, 54.

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illusion and futile exercise’. This was most clearly spelled out at the 1992 conference on the ACOMHPR. In response to Henkin’s question as to ‘whether the constraints cited … reflected a lack of commitment on the part of African states to the promotion and protection of human rights…Nguema responded… that the essential task of the Commission is promotion’, but even in that limited task the ACOMHPR had largely failed.266 This is yet further confirmation that, in 1979, African political leaders had no intention of establishing an effective human rights regime for Africa by means of the ACHPR. As to whether, in more recent times, further developments in the structure of, and in the approach of many African states towards, the African human rights system has brought about a more robust system in which, as OAU Secretary-General Kodjo demanded, rights would be protected, this may, or may not, be the case, but it is certainly beyond the scope of an investigation into the origins of the ACHPR.

266 OAU (L) OAU Secretary-General Kodjo’s opening address to the 1979 Dakar Meeting of Experts, CAB/LEG/67/4, 7 and Report on ‘Legal and Infrastructural Constraints on the Commission, Professor I. Nguema Member and First Chair, African Commission on Human and Peoples’ Rights’, Conference on The African Commission on Human and Peoples’ Rights June 24–26, 1991, Sponsored by The Friedrich Naumann Foundation, 15.

Chapter 3 The Text The text of the ACHPR was the outcome of a drafting process that produced three primary drafts: The M’baye draft, which was presented as a working paper to the 1979 Dakar Meeting of Experts (M’baye draft); the draft produced by the 1979 Dakar Meeting of Experts (Dakar draft); and the draft as finalised after the June 1980 Banjul Ministerial Meeting, which reviewed the Preamble and the first eleven articles, and the January 1981 Banjul Ministerial Meeting, which reviewed the remaining articles and resolved the few outstanding points (Banjul draft).1 Although these were the primary drafts, in its English language form at least, a further four drafts, seven drafts in total, were produced: The M’baye draft, OAU CAB/LEG/67/3 and Rev.1 to Rev.5. The text adopted by the 1981 Nairobi AHSG was Rev.5. Over the years, the text has also been published by the OAU in various pamphlets but, unfortunately, they are not always reliable as, in comparison with Rev.5 and as between the pamphlets themselves, there are often textual and stylistic discrepancies, mainly minor but sometimes more material. The non-primary drafts, with the possible exception of the initial OAU CAB/ LEG/67/3, seem to have been drawn up under the supervision of the OAU General Secretariat in the intervening period between the drafting and review meetings and indeed even after the Banjul draft had been finalised by the January 1981 Banjul Ministerial Meeting. They were not intended, it may be assumed, to alter the sense of an agreed text but only to clarify the intention or, more usually, to improve the translation and style of the agreed text. Nonetheless, in some cases, amendments were so extensive as to modify inescapably the meaning of the text – although in mitigation, the initial text frequently left much to be desired or just missed out the changes that had been agreed and therefore extensive editing was most appropriate. In other cases, though, the amendments amounted to little more than, say, altering ‘person’ to ‘individual’. Yet, despite these attempts to refine and improve the style of the drafts, in their English language form, they

1

This chapter does not provide a comparative assessment of the text with other human rights texts or against an ideal text. It deals solely with the sources for and development of the various texts.

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remain, in too many places, clumsy, convoluted, inconsistent and lacking in clarity with commas often appearing in strange places.2 In part, the shortcomings of the various drafts in terms of clarity and style can be attributed to the need to deliberately muddy the waters so as to accommodate the broad spread of views. M’baye rather gave the game away when he explained to a hostile June 1980 Banjul Ministerial Meeting that ‘the provisions relating to justice’ were made deliberately brief because conceptions of justice ‘may differ according to the political choice of the state’. Other articles were drafted in ‘relatively simple form … so as to enable the future users of the Legal instrument to apply and interpret them with some flexibility’ and a definition of ‘peoples’’ had also been left open ‘so as not to end up in difficult discussions’ (see page 296 below). In the main, though, and this is the primary explanation for the number of drafts, the shortcomings are rather more to be attributed to the poor standard of official OAU translation. Insofar as the rapporteurs of the 1979 Dakar Meeting of Experts and the Banjul Ministerial Meetings were French speakers, from Mauritania and Senegal, respectively, the English language drafts had necessarily to be translated from the French primary draft and it was therefore these drafts that bore the brunt of the translation failings. Although, by this time, it was already recognised that the OAU’s translation service was a major problem, its failings seem to have been particularly exposed 2

OAU (L) M’baye draft: CAB/LEG/67/1; Dakar draft: CAB/LEG/67/3/Rev.1; Banjul draft: CAB/LEG/67/3/Rev.3. (Rev.2 could not be located; it is most probably either an amended Dakar draft or the draft prepared after the June 1980 Banjul Ministerial Meeting. It is possible that it was the original Banjul draft itself, but given Rev.4 and Rev.5, this seems less likely. It has also only proved possible to locate a French language copy of the initial OAU CAB/LEG/67/3 draft, which is substantially different from the final OAU CAB/LEG/67/3/Rev.1 Dakar draft in terms of substantive changes to the text and the order of the Preamble and in the body of the text suggesting that it is a particularly early draft of the 1979 Dakar Meeting of Experts.) The ACHPR draft adopted by the 1981 Nairobi AHSG was OAU (L) ‘Report of the Secretary-General on the draft African Charter on Human and Peoples’ Rights’, OAU CM/1149 (XXXVII) Annexe III: Draft African Charter on Human and Peoples’ Rights, OAU CAB/LEG/67/3/Rev.5. All references to the final text are to Rev.5. A.B. Akinyemi, ‘The African Charter on Human and Peoples’ Rights: An Overview’, 212 Note 13 suggests that the 1979 Dakar Meeting of Experts may have also been presented with an OAU Secretariat draft, possibly based on the Monrovia Proposal, but that the meeting preferred the M’baye draft as it was more comprehensive. Insofar as the M’baye draft had been commissioned by OAU Secretary-General Kodjo, it seems most unlikely that the OAU Secretariat would have prepared a further draft. The draft referred to, to the extent that it might be considered a draft, was probably the Monrovia Proposal which had been included in the package of documents made available to the drafting meetings by the OAU General Secretariat.

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during the ACHPR drafting process. The problem was touched on in the report of the January 1981 Banjul Ministerial Meeting which noted that: After the meeting of the Drafting Committee it was noticed that the English and Arabic versions of the draft Charter differed from the French. It was found after verification that the French version contained all the amendments adopted by the meeting. It was, therefore, necessary to adapt the two other versions to the French text.

A subsequent OAU post-mortem note had less need for discretion, and the performance of the translators was therefore described in more graphic detail as ‘unpardonable’ and ‘strange and baffling’. Such was the extent of protests over the poor quality of the translations during the ACHPR process that a formal OAU Inspector General investigation was instituted to look into the reasons for the ‘low standard of translation’. Another issue noted in the official report was the need to reflect the different requirements of the English and French legal systems. This meant that in the use of some terms minor discrepancies between the English and French language texts had also to be accommodated.3 The biggest difference, though, was the use of the term ‘droits de l’homme’ as opposed to ‘droits humaines’ in the French language text reflecting the French tradition of the ‘rights of man’ in preference to the Anglo-Saxon tradition of ‘human rights’.4 In view of the availability of (almost all) these drafts in the OAU archives at Addis Ababa, it is not difficult to follow the progress of the drafting process in outline and to identify at what point articles were brought in, deleted or amended. However, there is little evidence on the detail of the sponsors of, or the motivations that prompted and the discussions that preceded, the changes. The M’baye draft opens with an explanatory introduction of the approach adopted in drawing up the draft, but information on the 1979 Dakar Meeting of Experts is essentially limited to introductory commentary to the Dakar draft and M’baye’s 3

4

OAU (L) Assistant Secretary-General Chimuka to Mfuni, Head of Administration ‘Standard of Translation’ 5 February 1981, OAU (L) Chief Legal Adviser, Egbunike to Director of Administration ‘Standard of Translation’ 16 February 1981 OAU CAB/LEG/67/1/111 and OAU (L) ‘Report of the Secretary-General on the draft African Charter on Human and Peoples’ Rights’, OAU CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, 25. All references to discussions at the two Banjul Ministerial Meetings, unless otherwise indicated, are from OAU (L) ‘Report of the Secretary-General on the draft African Charter on Human and Peoples’ Rights’, CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4. See M. Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (Oxford, 2020), 158–160.

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explanatory commentaries to the June 1980 Banjul Ministerial Meeting. More helpfully, the report on the Banjul Ministerial Meetings does at least provide some limited detail on the discussions and therefore the basis on which a few of the key decisions were reached. A further helpful, although limited, source of information is the ‘Keynote Address’ by M’baye and his question and answer session at the 1985 ICJ Nairobi Conference.5 It is to be regretted that, other than Jallow and Ahanhanzo, none of the other experts or delegates to the Banjul Ministerial Meetings seem to have felt a need or recognised the desirability of recording their recollections of the major issues that confronted the several drafting meetings in any detail.6 However, to a limited extent it has been possible to supplement the available accounts with information obtained in interviews with some of the experts and delegates to the two Banjul Ministerial Meetings and documents held in the National Archives at Kew, London. An insight can occasionally also be gleaned from African human rights commentators, notably Ouguergouz, but in the main their main focus has been not so much textual analysis as the prospective and actual interpretation of the ACHPR by the ACOMHPR and comparative legal analysis.7 It is also possible to identify with a degree of certainty some of the sources upon which M’baye and the experts felt it appropriate to draw. In M’baye’s case, as he explained in the Introduction to his draft: ‘This draft is largely drawn from the provisions of the UN International Covenant on Economic, Social and Cultutal (sic.) Rights and the American Convention on Human Rights. These two resource papers have been found to contain provisions which could in substantial parts be applied to the peoples of Africa.’ A significant part of the M’baye draft can therefore be traced directly, in many cases word-for-word, to the human rights instruments he indicated, but underlying both these human rights instruments is the earlier precedent of the UDHR. The drawback in M’baye’s approach, as a result of an over-reliance on these named human rights instruments, but possibly also time constraints, is that his draft was therefore frequently sloppy and often comes across as too much of a hurried cut-andpaste exercise.8 5 6

7 8

K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 19–55. H.B. Jallow, The Law of the African (Banjul) Charter, 25–65 and M.G. Ahanhanzo, ‘Introduction à la Charte africaine des droits de l’homme et des peuples (Organisation de l’unité africaine)’, Droit et libertés à la fin du XXe siècle: Influence des données économiques et technologiques: études offertes à Claude-Albert Colliard (Paris, 1984), 511–538. F. Ouguergouz, The African Charter on Human and Peoples’ Rights. OAU (L) CAB/LEG/67/1, 1. All references to the ACHR are taken from the OAS website http//www.oas.org/dil/treaties_B-32_American_Convention_on_ Human_Rights.pdf, last accessed 1 April 2017. All references to the International Covenants (ICESCR, ICCPR and the Optional Protocol to the ICCPR) are to

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It is unlikely that M’baye was able to incorporate the Monrovia Proposal into his draft because the 1979 UN Monrovia Seminar ran through until 21 September 1979, which was about the time he submitted his draft to the OAU. There are, in any event, few obvious signs of overlap. If at all, to the extent that M’baye’s colleagues M’backe and Fall, who had collaborated with him, attended the 1979 UN Monrovia Seminar, and were actively involved in the Working Group that reflected on the UNDHR’s draft Monrovia Proposal, it may plausibly be argued that, on the contrary, some of the ideas of M’baye’s drafting team may have found their way into the Monrovia Proposal.9 Some further indication of possible influences is suggested by the list of documents that the OAU Legal Department made available to the various drafting meetings. These included the Report of the 1979 UN Monrovia Seminar, the Monrovia Proposal, the OAU’s report on the 1979 UN Monrovia Seminar, the OAU Charter, Decision 115, the ACHR and the ECHR, a UN compilation of international human rights instruments and UN Action in the Field of Human Rights.10 As Ramcharan has therefore proudly, and appropriately, asserted, ‘it is scarcely known that the institutional parts of the African Charter were drawn up initially in the United Nations Seminar in Monrovia’.11 Of course, the corollary of Ramcharan’s claim is that the 1979 UN Monrovia Seminar contributed nothing to the detail and procedures of the protection element of the ACHPR. Ultimately, those elements would be the product of a reworking of the M’baye draft by first the 1979 Dakar Meeting of Experts and then the January 1981 Banjul Ministerial Meeting. Moreover, some of the Monrovia Proposal’s critical provisions, for example, that membership of the ACOMHPR was incompatible with office in government or the Diplomatic Corps, were rejected. A further, significant influence, to the extent that it was specifically identified as such by both Kodjo and M’baye, was the 1976 Algiers ‘Universal Declaration of the Rights of Peoples’.12 UNGA 21/2200 16 December 1966. All references to the Monrovia Proposal are to UN ST/HR/SER.A/4, Annex 1 Monrovia Proposal. 10 OAU (L) ‘Experts Meeting Preparing African Charter on Human Rights’ CAB/ LEG/67, OAU (L) Chief Legal Adviser to Head of Conference 14 November 1979 and OAU (L) ‘Documents for the OAU Ministerial Meeting on the Draft Charter on Human and Peoples’ Rights to be held at Banjul (Gambia) 9th–15th June 1980’, Chief Legal Adviser to Head of Conference Division 28 and 30 May 1980 CAB/ LEG/72.5. 11 B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 307–314. 12 All references to the 1976 Algiers ‘Universal Declaration of the Rights of Peoples’ are to F. Rigaux, ‘The Algiers Declaration of the Rights of Peoples’, A. Cassese (ed.), UN Law/ Fundamental Rights: Two Topics in International Law (Alphen aan den Rijn, 1979), 219–223 (Appendix ‘Universal Declaration of the Rights of Peoples (4 July 1976)). 9

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In several of the articles, it is also evident that the experts and Ministerial delegates drew on their knowledge and experience of procedures and provisions already incorporated into a wide range of UN commissions and declarations notably the International Covenants and the HRC. There is similarly a reasonable probability, most clearly reflected in the listing of the specific duties of the individual in Article 29, that some provisions might have been based on the national constitutions of some of the experts. Other, more immediate, influences included the Opening Addresses of President Senghor to the 1979 Dakar Meeting of Experts and President Jawara to the June 1980 Banjul Ministerial Meeting. At the behest of the delegates, their speeches were included as official documents of the drafting meetings and it is clear from the texts of the ACHPR drafts that this gesture represented far more than mere flattery.13 Finally, frustratingly, there are also elements of the text that unless further information comes to light can only be attributed to the whims of an unidentifiable individual, the outcome of an unknowable political compromise or simply the individual style or (lack of) skill of a translator. As finalised, the ACHPR consisted of a Title, Preamble, Part I: Rights and Duties, divided into two chapters: ‘Human and Peoples’ Rights’ and ‘Duties’, Part II: Measures of Safeguard, divided into four chapters, ‘Establishment and organization of the African Commission on Human and Peoples’ Rights’, ‘Mandate of the Commission’, ‘Procedure of the Commission’ and ‘Applicable Principles’, and Part III: General Provisions.14

Title The title of the ACHPR was determined, to all intents and purposes, by the wording of Decision 115. In the resolution that President Senghor put before the AHSG, he proposed that a preliminary draft of an ‘African Charter on Human Rights’ should be prepared. It was always envisaged that what was being proposed was a regional charter that would only be open for signature and applied to OAU member states and it was therefore natural that it should be styled ‘African’, the standard form of styling for regional arrangements adopted by the OAU. The decision to adopt ‘African’ in the title of the continental organisation had of course previously been debated in 1963 at the Addis Ababa founding conference 13

All references to President Senghor’s opening address to the 1979 Dakar Meeting of Experts are to OAU (L) President Senghor’s opening address to the 1979 Dakar Meeting of Experts CAB/LEG/67/5 and to President Jawara’s opening address to the 1980 Banjul Ministerial Meeting are to OAU (L) Speech by His Excellency the President of the Republic of The Gambia at the OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980 CAB/LEG/67/8; see also E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, 274 and K. M’baye, Les droits de l’homme en Afrique, 160. 14 The text of the ACHPR is set out in Appendix 2.

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of the OAU. At that time, Madagascar had lobbied hard that it should rather be styled ‘African and Malagasy’, as the 1962 Lagos Charter had allowed, but ultimately it was agreed that the styling ‘African’ alone should be adopted lest it be implied that there were two separate entities rather than one united ‘Africa’ though, as a compromise, OAU Charter Article 1.2 would define the geographic scope of the OAU as ‘the Continental African States, Madagascar and other Islands surrounding Africa.’15 Rather more open to question was the style ‘charter’. The UDHR and 1789 Declaration, with which all the former French colonial territories were most familiar, were both referenced in the opening lines of Senegal’s 1960 constitution and, of course, were styled ‘declaration’. Moreover, the European and American regional human rights arrangements had both been styled ‘convention’ and the 1978 ICJ Dakar Colloquium had also referred to the desirability of a Pan-African human rights ‘convention’.16 It was therefore not immediately obvious as to why the resolution had opted for the description ‘charter’. The most plausible explanation is that it was thought to be the most appropriate legal construction, but there is also the possibility, as was adduced in subsequent debate on the question, that it was considered the most appropriate styling for the solemn undertaking that was being put forward. Nonetheless, notwithstanding the wording of Decision 115, the choice of ‘charter’ remained an open and much discussed question debated throughout the drafting process by, in turn, the 1979 Dakar Meeting of Experts, the June 1980 Banjul Ministerial Meeting and, finally, the 1981 Nairobi CoM meeting. While the M’baye draft employed ‘charter’ in the title and throughout the body of the text, in keeping with Decision 115, when the Dakar draft restructured the preamble, its opening sentence began ‘The African signatory states to the present convention entitled “African Charter on Human and Peoples’ Rights”’ and in the body of the text it replaced all references to ‘charter’ with ‘convention’. In turn, the June 1980 Banjul Ministerial Meeting, while retaining ‘convention’ in the opening sentence of the preamble, decided that otherwise all references to ‘convention’ should revert back to ‘charter’. According to Jallow, who was present at both meetings, it was felt that ‘charter’ was ‘more solemn and appropriate for the subject-matter’.17 Nonetheless, some delegations still argued that this might lead to a confusion with the OAU Charter. OAU SCIAS/Plen/SR.6, 3–5 and C.O.C. Amate, Inside the OAU: Pan-Africanism in Practice (London, 1986), 59. 16 ‘Conclusions et recommandations du colloque de Dakar sur le dveloppement et les droits de l’homme’, Revue sénégalaise de droit, numéro special 22 December 1977 (1978), 207. 17 H.B. Jallow, The Law of the African (Banjul) Charter, 38–39. In Rev.3, in the opening sentence, ‘convention’ was also changed to ‘charter’, notwithstanding the precise instructions of the June 1980 Banjul Ministerial Meeting, but this ‘mistake’ seems to have been identified so that it was reversed in Rev.4 to its finalised form. 15

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At the 1981 Nairobi CoM, at the discussion preceding the submission of the final draft to the 1981 Nairobi AHSG, the issue of styling was taken up again by several delegations who continued to express a preference for ‘declaration’, ‘protocol’ or ‘convention’. There is, though, a suspicion that their objections may simply have been yet another attempt to delay the process of adoption of the, by then, otherwise finalised ACHPR.18 Nor was this the last word. One year later, as one of its several objections to the ACHPR (see page 275 above), Ghana complained to the OAU General Secretariat that the styling of the ACHPR had to be reconsidered. In response, the OAU General Secretariat explained that there was no need to alter the styling of the ACHPR from ‘Charter’ to ‘Convention’ as ‘the word Charter is generally used in legal documents to denote a basic treaty. The OAU therefore can have more than one Charter, and there would be no confusion as it is generally understood that “Charter” when used to describe a treaty relates to a basic instrument.’19 As the subject matter and purpose of the ACHPR as laid down by Decision 115 was to promote and protect human rights, it was natural that human rights should feature in the title. What is less clear is why ‘on’ was preferred to ‘of ’, which would seem both more natural in English and an appropriate translation of ‘des’ – the resolution having presumably been submitted by Senegal in French. The UDHR, of course, employed ‘of ’. The explanation may simply be a question of the initial translation, or mis-translation, that stuck but the most likely explanation would seem to be that ‘on’ was the preposition of choice for both the ECHR and the ACHR. However, as with ‘convention’, it proved hard to dismiss ‘of ’ as the natural option of choice so that, although the M’baye draft employed ‘on’, the introductory commentary to and the opening sentence of the preamble of the Dakar draft and the opening sentence of the preamble of the Banjul draft mistakenly employed ‘of ’ as did the Report of the Secretary-General to the 1981 Nairobi CoM.20 The more interesting question arises out of the addition of ‘Peoples’’ to the title.21 The term, usually in the form of ‘peoples’ or ‘people’, had featured at the 18

OAU ‘Report of the Secretary-General on the African Charter of Human and People’s Rights’ CM/Plen/Rapt.Rpt (XXXVII), 59. 19 Embassy of Ghana to General Secretariat No. SCR.GEA.21/67 9 June 1982 and General Secretariat to Embassy of Ghana 22 June 1982 CAB/LEG/67/1/91; see also ‘Leaders to Discuss Charter’, Daily Nation, 22 June 1981, 3. 20 OAU ‘Report of the Secretary-General on the African Charter of Human and People’s Rights’ CM/Plen/Rapt.Rpt (XXXVII), 55. All references to the ECHR are to HMSO Cmd. 8969, Treaty Series No. 71 (1953) Convention for the Protection of Human Rights and Fundamental Freedoms (London, 1953). 21 The official spelling is ‘peoples’’. However, even in the title, although not the body, of OAU (L) AHG/Dec.115 (XVI) Rev.1 (Decision 115) and OAU ‘Report of the Secretary-General on the African Charter of Human and People’s Rights’ CM/

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UN for some time in most cases in the context of self-determination. For example, UN Charter Article 1 refers to ‘respect for the principle of equal rights and self-determination of peoples’ and the formulation ‘All peoples have the right of/to self-determination’ was employed by the 1960 UNGA ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ and in Article 1 of both the International Covenants. However, as the process of political decolonisation ran its course, by the mid-1970s, ‘peoples’ was also increasingly being applied as a neologism for the developing countries as a whole – the rights of peoples to what President Jawara described in his opening address to the June 1980 Banjul Ministerial Meeting as ‘a more equitable distribution of the world’s wealth’. It was largely in this context that it had been employed in the NIEO debate, in the legitimisation at the UN of the right to development and in the 1976 Algiers ‘Universal Declaration of the Rights of Peoples’.22 Although at the time the addition of ‘peoples’’ may have seemed a straightforward decision, the price for securing AHSG approval for Decision 115, it was quite clear from the outset that no-one grasped precisely what it meant or entailed. There was therefore considerable difficulty in imagining how ‘peoples’’ might be incorporated into the body of the ACHPR. At its most basic, the June 1980 Banjul Ministerial Meeting simply amended references to ‘human rights’ to ‘human and peoples’ rights’ but in most other respects the experts accepted the initial guidance of President Senghor. Aware of the need to be seen to be balancing the two conceptions of ‘human’ and ‘peoples’’ rights, of the vacuum in which the 1979 Dakar Meeting of Experts was being asked to give meaning to the conception of ‘peoples’ rights’ and, not least, concern lest the likely debate on its meaning obstruct progress, President Senghor attempted to address the issue head-on in his opening speech to the 1979 Dakar Meeting of Experts: People will perhaps expatiate for a long time upon the “Peoples’ Rights” we were very keen on referring to. We simply meant, by so doing, to show our attachment to economic, social and cultural rights, to collective rights, in general, rights which have a particular importance in our situation of a developing country … We wanted to show essentially that beside civil and political rights, economic, social and cultural rights should henceforth be given the important place they deserve.

President Jawara would make much the same point in his opening speech to the June 1980 Banjul Ministerial Meeting in his observation that ‘the concept of human rights has, quite naturally, been extended to embrace what are now conventionally called the economic, social and cultural rights which together with Plen/Rapt.Rpt (XXXVII), 55 the spelling employed has been ‘people’s’; a further variation is ‘peoples’. 22 All references to the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ are to UNGA 15/1514 14 December 1960.

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the civil and political rights constitute the right to development’. Such rights, he went on to suggest, are ‘the moral basis for the North-South dialogue and the global debate and request for a New International Economic Order’. However, he also warned that ‘we must at the same time avoid stretching the concept of human rights to the point where the fundamental human rights, namely the civil and political liberties of the individual, become smothered and lose their significance in the process’. As Presidents and hosts, it was understandable that their accounts of the meaning of ‘peoples’’ intended by the 1979 Monrovia AHSG would not be directly challenged. M’baye, however, enjoyed no such free ride in his widely recognised role as chief cheerleader for the ACHPR. On several occasions, therefore, he was forced to provide some sort of explanation in anticipation of or actual questioning as to what it was supposed to mean. His most honest account was probably given to the June 1980 Banjul Ministerial Meeting in response to the hostile reception to his initial explanatory commentary on the Dakar draft. He explained that there had been a ‘deliberate refusal to indulge in the definition of such notions as “People” so as not to end up in difficult discussions’. However, he also faced critical questioning at the 1985 ICJ Nairobi Conference when he was challenged by several delegates who were concerned with the various possible meanings that might be applied to the term and therefore sought his clarification and assurance, in particular as regards the reference in Article 20: ‘All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination.’ This, he sought to assure them, did not authorise secession. On the contrary, Article 29.5 imposed a duty on the individual ‘to preserve and strengthen … the territorial integrity of his country’. Two years later, at the 1987 ICJ Dakar Colloquium on ACOMHPR (see page 281 above), the final statement of the Colloquium, drawn up under M’baye’s direction, would advise, rather disingenuously, that: in certain circles, the adoption by Africa, of a system including peoples’ rights alongside human rights has been greeted with a certain mistrust. It must be emphasised that the peoples’ rights referred to in the Charter may under no circumstances be interpreted as going beyond their concrete acceptance in the actual text. Furthermore, their acceptance does not correspond to any ideological choice, but arises out of traditional African values centred around the careful protection of the individual and his rights by the community to which that individual belongs.23

23

‘Summary of discussion on the African Charter’, ICJ, Human and Peoples’ Rights in Africa, 53–54 and ‘Final Statement of the Colloquium on the African Commission on Human and Peoples’ Rights, Dakar, 17 to 19 June 1987’, ICJ Newsletter, 33 (1987), 26.

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In his 1992 book on the ACHPR, M’baye would go on to suggest that the idea of ‘peoples’ rights’ had been inspired by the ‘Algiers Declaration of the Rights of Peoples’. However, he went on to say, in drafting the ACHPR it was sometimes wiser to simply establish the principles and allow the ACOMHPR to decide on the details in practice.24 As it happened, the difficulty, or rather the impossibility, of defining the term had also confronted the ‘group of jurists, political scientists, sociologists, representatives of trade unions and political parties of various countries, as well as members of several liberation movements’ who had met in Algiers in 1976 and adopted the Algiers ‘Universal Declaration of the Rights of Peoples’. Rigaux, who reported on the meeting, noted that no definition was provided for ‘peoples’ as it was considered dangerous and anyway impossible. As an alternative, he therefore suggested: ‘Cannot the concept of “people” be deduced from the text of the whole declaration.’25 The definition was, however, more than a mere philosophical quibble as at the June 1980 Banjul Ministerial Meeting there had been a heated debate initiated by Somalia, which, in defiance of OAU policy on respect for the former colonial boundaries, had attempted to define ‘peoples’’ in such a manner as to accommodate the right of the disputed Ogaden territory of Ethiopia to self-determination so as to allow it to be incorporated into a ‘Greater Somalia’.26 Notwithstanding these advisory clarifications, the problem could not be completely dismissed in that throughout the ACHPR process several OAU member states expressed their unease about the vagueness of the meaning – although this did not seem to stop them from adopting and acceding to the ACHPR. For example, in its formal comments on the Dakar draft, Botswana pointed out that: ‘The reference to “Peoples” is not clear … The meaning of this word needs to be brought out clearly so that it leaves no room for misinterpretation.’27 After adoption of the ACHPR, Ethiopia made much the same point in its formal observations to the OAU General Secretariat: ‘Though the term “people” is extensively employed in the Charter, it is nowhere defined … Are we referring to tribes or nations or are we using it in the sense that it is used in the UN Charter which is to refer to “peoples” as represented by independent states?’ Referring to M’baye’s observation at the June 1980 Banjul Ministerial Meeting that a definition had been deliberately avoided, Ethiopia added: ‘It would have been better to engage 24 K. M’baye, Les droits de l’homme en Afrique, 171. 25 F. Rigaux, ‘The Algiers Declaration of the Rights of Peoples’, 217 and R. Falk, ‘The Algiers Declaration of the Rights of Peoples and the Struggle for Human Rights’, A. Cassese (ed.), UN Law/ Fundamental Rights: Two Topics in International Law, 225–235. 26 H.B. Jallow, The Law of the African (Banjul) Charter, 36–37. 27 OAU (L) Note No:10, EA. 10/1 III(9)D1 Office of the President of the Republic of Botswana to General Secretariat 17 April 1980.

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in difficult discussions and define the term and avoid future controversies.’28 Kodjo however would subsequently pertinently observe that: ‘The controversy over the definition of people in an Africa where reason of State renders difficult a correct determination of this concept did not prevent the jurists from completing their work in a relatively short period of time.’29 As it clearly remained an unresolved on-going issue, on occasion the OAU General Secretariat was obliged to air its opinion. In 1987 Acting OAU Secretary-­ General Onu delivered a conference paper specifically on ‘peoples’ rights’ as laid down in the ACHPR in which he explained that the concept was introduced to indicate that ‘the individual in Africa is part and parcel of the group, meaning that “individual rights could be explained and justified only by the rights of the community”. The concept also involves a compromise between the ideological leanings of the capitalist and socialist-minded governments of the time’.30 A few years later, the OAU’s Legal Division presented its own, different, commentary in a paper to a 1993 conference in South Africa on international law: ‘The exact definition of peoples has been left to the African Commission. Such determination will resolve the question as to whether the term “peoples” refers to the ethnic group or other communities within a State or the entire people in an existing State or territory.’31 These various explanations have not, however, deterred considerable academic commentary as to the underlying intention of the use of ‘peoples’’ – most of it hopelessly misguided. Invariably, enormous significance has been attached to its usage in the ACHPR as it has been seen as an early application of ‘third generation’ rights and therefore as evidence of the dynamic and progressive content of universal human rights – it should be said in this context that, in an interview, Vasak, who had coined the concept of the ‘three generations of human rights’, was frankly bemused at the extent to which a concept to which he himself had not attached so much importance could take on a life of such 28 OAU (L) Ministry of Foreign Affairs (Ethiopia) to General Secretariat 30 September 1981, OAU 121/18/2. 29 E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, 275. 30 P. Onu, ‘The concept of peoples’ rights in the “Banjul” charter’, Presented at the International conference on human rights education in rural environment, 26–29 November 1985, Nigeria Institute of Advanced Legal Studies, University of Lagos, Nigeria, quoted by E.K. Quashigah, ‘Human Rights and Integration’, R. Lavergne (ed.), Regional Integration and Cooperation in West Africa: A Multidimensional Perspective (Trenton, 1997), 263 https://idl-bnc-idrc.dspacedirect.org/bitstream/ handle/10625/15463/1/IDL-15463.pdf, last accessed 13 March 2017. 31 OAU (L) ‘An Overview of the African Charter on Human and Peoples (sic.) Rights (A paper prepared by the Legal Division of the OAU General Secretariat on behalf of the OAU Observer Mission in South Africa), Attachment to Baricako, Head Legal Division to Ibok ‘International Human Rights Law Conference’ 21 September 1993.

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wide reverence. Unfortunately, as he explained, the concept had resulted in his losing his position with the Council of Europe on the basis that it was regarded as going against first and second generations rights and that he was therefore likely a Communist.32 Thus, for example, Kiwanuka, in his attempt to make sense of it all, points to four possible definitions of peoples’ rights employed in the ACHPR, while Kunig, more earnestly, proposes that: ‘A formal definition of what the term “peoples’” means in the context ot (sic.) these norms is not given. It is most likely therefore that the African Charter refers to the notion of the term as used in international law generally.’ It is not clear, though, why it is necessary to look beyond M’baye’s two explanations and therefore to understand the use of ‘peoples’’ as no more than a necessary political concession whose meaning was left deliberately vague at all stages of the process, starting with Decision 115 at the 1979 Monrovia AHSG, so as to ensure adoption of an otherwise contentious political text. As Viljoen rightly suggests ‘a search for a single meaning of “people” should be abandoned’.33 As the official report records, the January 1981 Banjul Ministeral Meeting wound down in a euphoric mood, having finally reached agreement on the text of the ACHPR, and in that euphoria adopted one last motion proposing a change in the title. On the proposal of two delegations, it was suggested that a recommendation should go forward to the 1981 Nairobi AHSG proposing that the title of the ACHPR should be changed to the ‘Banjul Charter’ in honour of the place where it had been formulated. However, as Ouguergouz has pointed out, there seems to be no record that this recommendation was ever taken up either by the 1981 Nairobi CoM or AHSG.34

Preamble The opening salutation of the Preamble in the M’baye draft followed the salutation traditionally (and broadly) employed in OAU charters and conventions ‘We, Heads of State and Government of the Organization of African Unity Member 32 33

Interview with Karel Vasak, 15 June 2011, Strasbourg. R.N. Kiwanuka, ‘The Meaning of “People” in the African Charter on Human and Peoples’ Rights’, American Journal of International Law, 82/1 (1988), 100, P. Kunig, ‘The Role of “Peoples’ Rights” in the African Charter of (sic.) Human and Peoples’ Rights’, K. Ginther/W. Benedek (eds), New Perspectives and Conceptions of International Law: An Afro-European Dialogue (Vienna, 1983), 167 and F. Viljoen, ‘The African Charter on Human and Peoples’ Rights: The Travaux Préparatoires in the Light of Subsequent Practice’, Human Rights Law Journal, 25/9–12 (2004), 318. 34 F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 50–51 and H.B. Jallow, The Law of the African (Banjul) Charter, 52–53. Ouguergouz observes that the source for the alleged resolution by the AHSG was R. Gittleman, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’, Virginia Journal of International Law, 22/4 (1982), 667 who was reporting on the 1981 Nairobi AHSG.

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States’. This was in effect the formulation adopted by the OAU Charter itself and, more recently, the 1976 Cultural Charter for Africa. It was amended by the 1979 Dakar Meeting of Experts which preferred the formulation adopted by the ACHR in which the salutation was drawn up in the name of the member states themselves so that it read ‘The African signatory states to the present convention’. In turn, the June 1980 Banjul Ministerial Meeting, while accepting that the ACHPR should be drawn up in the name of the OAU member states, amended the salutation further to read in its final form ‘The African States members of the Organization of African Unity, parties to the present convention.’, which is an amalgam of the opening salutations of the ACHR and the ECHR whose opening salutation reads: ‘The Governments signatory hereto, being Members of the Council of Europe.’ Although the salutation as adopted was clearly based on the ACHR and ECHR precedents, it seems likely that this new stylistic approach also reflected acknowledgement of the nature of the ACHPR undertaking. This at least is the conclusion that might be drawn from the subsequent approach adopted for OAU regional agreements. New integral arrangements between the OAU member states such as the 1991 Treaty establishing the African Economic Community and the 2000 Constitutive Act of the African Union retained the old formula of ‘We, Heads of State and Government of the Member States of the Organization of African Unity (OAU)’, whereas single issue agreements such as the 1990 ‘African Charter on the Rights and Welfare of the Child’ and the 1999 OAU ‘Convention on the prevention and combating of terrorism’ seem to have adopted the new formula of ‘The (African) Member States of the Organization of African Unity’.35 The opening salutation was followed by ten recitals whose main aim seems to have been to indicate the context in which the ACHPR should be understood and the principles upon which it was based. Recital 1, which links the ACHPR directly to Decision 115, was added by the 1979 Dakar Meeting of Experts. It was taken up by the June 1980 Banjul Ministerial Meeting which, as described in the official commentary, sought to enhance the reference: ‘It was decided to state specifically the date and venue of the Sixteenth Ordinary Session of the Assembly of Heads of State and Government, and quote faithfully the paragraphs of Decision 115 (XVI).’ This seems to have been a standard OAU format in that the opening salutation of the OAU Charter continued ‘assembled in the City of Addis Ababa, Ethiopia’ and in the same way the 1976 Cultural Charter for Africa referenced the resolution, the AHSG and the location at which it was adopted.36 35

In Rev.3 the salutation was ‘The African states of the OAU’, the final version was only adopted in Rev.4. The text of the treaties and conventions are available on the AU website https://www.au.int/web/en/treaties, last accessed 2 May 2017. 36 Despite the deliberations of the June 1980 Banjul Ministerial Meeting, the precise

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Recitals 2 and 3 sought to situate the ACHPR within the context of the OAU Charter so as to directly associate the aims of the ACHPR with the aims already recognised and set down by the OAU AHSG. The M’baye draft had referred to ‘the importance that African peoples have always attached to the respect for human dignity and fundamental freedoms’ and linked that attachment to the conjunction of civil and political rights and economic, social and cultural rights, a point that he had previously addressed in his background paper to the 1979 UN Monrovia Seminar. That general sentiment was taken on board in Recital 2 by the 1979 Dakar Meeting of Experts, although it preferred to reference the OAU Charter by name and by directly quoting Recital 2 of the OAU Charter. It also deleted the sub-clause describing the conjunction of the two sets of rights which would be taken up separately in Recital 7 (see Recital 7).37 Recital 3 repeated the wording of Article II.1 (b), (d) and (e) ‘Purposes’ of the OAU Charter. The underlying intent was explained by OAU Secretary-General Kodjo in his report on the 1979 Dakar Meeting of Experts to the 1981 Nairobi CoM: ‘The draft was based on the principle that an African charter should reflect African concept of Human Rights (sic.). Consequently, it was essential … to lay emphasis on the Principles and objectives of the OAU as defined in Article 2 of the Charter of the Organization of African Unity’; Article II.1 (e), the key reference, which had been previously referenced in Decision 115, stated that one of the purposes of the OAU was ‘to promote international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights’. It was therefore clearly included so as to discreetly associate the ACHPR with the UDHR, which had already been referenced in the opening recital of the M’baye draft. The M’baye draft also contained a further reference to the UDHR in its fourth recital in the context of ‘freedom from fear and want’ – a wording taken from the fourth recital of the ACHR, the Preamble of the ICESCR and the preamble to the seminal 1977 UNGA resolution 32/130 (see Volume 1, page 641). Yet, despite the pedigree of this fourth recital of the M’baye draft, it was deleted by the 1979 Dakar Meeting of Experts which also preferred to camouflage the Article II.1 (e) UDHR reference by conjoining that reference with references to Article II.1 (b) and (d), which asserted the OAU’s purposes as being the eradication of ‘all forms of colonialism’, a long-standing phrase deriving from the 1955 Asian-African Conference, and ‘achieving a better life for the peoples of Africa’. Almost certainly, these specific references to Article II.1 of the OAU Charter were chosen by the 1979 Dakar Meeting of Experts precisely because they validated the human rights objectives of the ACHPR by means of direct association with the OAU Charter. At the same time they linked the ACHPR diswording of Decision 115 was not inserted until Rev.4. 37 K. M’baye, UN (G) HR/Liberia/1979/BP.2, 5–6. Rev.3 still contained the Dakar draft wording ‘in accordance with which’. The wording was only amended to read ‘which stipulates’ in Rev.4.

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creetly with the UDHR which, otherwise, was not a politically helpful reference to employ hence the deletion of elements of recitals in the M’baye draft. Both recitals were adopted unamended by the June 1980 Banjul Ministerial Meeting, although stylistic changes were made between Rev.3 and Rev.4. Both the M’baye draft and the 1979 Dakar Meeting of Experts also included recitals that made reference to the importance traditionally attached to human rights in Africa. Within the debate on human rights and the extent to which they might be considered a Western invention, it had been a matter of long-standing insistence and pride for many African jurists that the outside world should be made aware that traditional African societies had been based on human rights values. Some years later, Kodjo would attribute the inclusion of this point to a specific desire to reject ‘the arguments of those, on the outside, who believe that the democratic experience is incompatible with the history of African peoples’.38 But it was also a point that supporters of the ACHPR wished to make to the radical states as President Senghor had done in the debate on his resolution at the 1979 Monrovia AHSG. The M’baye draft reference, which was adopted verbatim from Decision 115 and also President Senghor’s argument in debate at the AHSG, had cleverly combined the two aspects. It made the point about the importance ‘African peoples have always attached to the respect for human dignity and fundamental rights’, in line with President Senghor’s AHSG argument, but then added that such rights ‘are not confined to civil and political rights but cover economic, social and cultural rights’. This second point, however, was far less obvious in the Dakar draft which, set against the context of the need to promote and protect human and peoples’ rights, merely stressed the need to take into account ‘the essential importance traditionally attached in Africa to these rights and freedoms’. Recital 4, which was added by the June 1980 Banjul Ministerial Meeting as a new paragraph, in effect reinstated the M’baye draft’s double-sided point in a new formulation; the Dakar draft wording would however be included as a separate Recital 10 (see Recital 10). The new Recital 4 referred to the need to take into consideration ‘the virtues of their historical tradition and the values of African civilization’ but then made the point that this ‘should inspire and characterize their reflection on the concept of human and peoples’ rights’; the idea no doubt being that traditional African human rights values were not simply coincident with Western notions of the rights of the individual. The wording of this paragraph would seem to be based on a reworking of the exhortation in President Senghor’s opening address to the 1979 Dakar Meeting of Experts in which he suggested that: ‘We could get inspirations from our beautiful and positive traditions. Therefore, you must keep constantly in mind our values of civilization and the real needs of Africa.’ A rather similar exhortation was also 38

E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, 276.

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made by President Jawara in his opening address to the June 1980 Banjul Ministerial Meeting. Although he warned that the African states should not derogate unnecessarily from universally accepted principles as embodied in international instruments, he also pointed out that: there is a need to prepare a truly African Charter … which would, because of its restricted geographical application, be able to focus on the problems of our region … A truly African Charter should reflect those of our traditions that are worth preserving, our values and the legitimate aspirations of our peoples to complement the global international approach to strengthen the application of Human Rights.

Unfortunately, there is little indication in the official report on the June 1980 Banjul Ministerial Meeting as to who might have sponsored the insertion of this Recital or the precise considerations which attended its formulation. Jallow simply reports that there was a general consensus that human rights were universal but that certain aspects were culturally bound and it was therefore necessary ‘to place such rights in the context of African values and traditions’.39 Recital 5 was at the heart of the debate between the moderate and radical states over the content and purpose of the ACHPR and was therefore fiercely contested in the drafting meetings. It was first included in the M’baye draft in an over-elaborate legal form based almost in its entirety on the second recital of the ACHR: ‘Recognising that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a charter or a convention reinforcing or complementing the protection provided by the domestic laws.’ This wording was condensed by the 1979 Dakar Meeting of Experts, including deletion of the final sub-clause after ‘protection’ and replacement of the Francophone ‘rights of man’ with ‘fundamental human rights’ a phrase used in the UDHR. However, at the June 1980 Banjul Ministerial Meeting, as the official report noted, ‘there was no consensus on the original provisions of this paragraph owing to considerations of political conceptions of human rights among some delegations’. The task of coming up with a compromise wording was therefore assigned to a carefully balanced working group composed of Guinea, Libya, Nigeria and Togo. Their compromise retained the sense of the existing condensed wording ‘on the one hand’, adding that this justified not only international protection but also national protection, possibly linking in with the reference to complementary domestic laws in the M’baye draft, but, more significantly, it also counterpointed that justification with ‘on the other hand that the reality and respect of peoples’ rights should necessarily guarantee human rights’. It is not precisely clear how this clumsy and convoluted counterpoint links in with the 39

H.B. Jallow, The Law of the African (Banjul) Charter, 39.

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carefully crafted assertion of the basis of ‘fundamental human rights’. Most likely it probably simply represents a compromise formulation that enables ‘human’ and ‘peoples’’ rights to be symbiotically linked and, to that extent, equal.40 It is all the stranger in that there is a close association with the final clause of Recital 7, where the point is essentially repeated, but perhaps its greater significance is as an indicator, in what was a volatile drafting meeting, that the radical states were not likely to be satisfied with the mere addition of ‘Peoples’’ in the title. They also required that their conception be reflected in the body of the text. As was now the case with almost all the Recitals, the changes made by the June 1980 Banjul Ministerial Meeting were inserted over two drafts, Rev.3 and Rev.4. Unusually, as one of the few material changes that were seemingly made independently of the drafting meetings, Rev.5 deleted ‘national’ so that only ‘international protection’ was now regarded as being justified. The best guess is that it was most likely felt to be politically inadvisable to refer to ‘national’ laws within an OAU document because of the OAU’s policy of non-interference in internal affairs. There is, however, a big space in the actual document where ‘national’ would have been and it is therefore not impossible that it was simply excluded by a typing error which made it all the way through to the final version – although the final French language version also does not include ‘national’. Recital 6 asserted the connection between rights and duties. The conception of duties alongside rights had already been recognised by Article 29 of the UDHR: ‘Everyone has duties to the community in which alone the free and full development of his personality is possible’; by Article 32.1 of the ACHR: ‘Every person has responsibilities to his family, his community and mankind’, and by the Preamble of the International Covenants: ‘Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant’. In addition, the preamble to the 1948 ‘American Declaration of the Rights and Duties of Man’, adopted by the Ninth International Conference of American States at Bogota, Colombia in 1948, had not only recognised the obligations of duties owed by the individual, but had also anticipated much of the reasoning of Recital 6 in asserting that rights are dependent on duties: ‘The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man.’ Although the 1979 Dakar Meeting of Experts was supplied with a copy of the ACHR, it is not clear whether the experts also had access to the 1948 American Declaration, although it is possible that it may have been included in the UN bundle of international human rights instruments supplied to all three drafting meetings. It was probably known to at least some of the experts as a 1984 article by Ahanhanzo, who attended the 40 See also OAU Ministerial Meeting on Human and Peoples Rights’ 18 June 1980, Callaghan to Dimond 18 June 1980, NA FCO 65/2417.

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1979 Dakar Meeting of Experts, referenced the 1948 American Declaration as a precedent for the inclusion of duties. The M’baye draft had included Article 32 of the ACHR as a separate article in the body of the text but had not included a reference to duties in the preamble. Recital 6 was therefore added in by the 1979 Dakar Meeting of Experts almost certainly as a result of the exhortation in President Senghor’s opening address which advised that: ‘Rights in Africa … cannot be separated from the obligations due to the family and other communities … liberarian (sic.) freedom, irresponsibility and immorality should carefully be avoided’ – in his 1984 article Ahanhanzo specifically identified President Senghor’s opening address as an inspiration which had guided the 1979 Dakar Meeting of Experts. President Senghor’s sentiment would be repeated by President Jawara in his opening address to the June 1980 Banjul Ministerial Meeting which warned that the individual does not live in a vacuum with unlimited liberty: ‘For us, he lives within society … Thus in addition to his rights he has his own duties to fulfill … We should however avoid the danger of stretching his duties to the point where the individual becomes totally submerged under the collective.’ There are also close similarities with, and undoubted debts to, elements of the Preamble to Mauritius’ parallel proposal for a ‘Universal Declaration of Human Duties’ (see page 221 above) although there was no Mauritian expert present at the 1979 Dakar Meeting of Experts and no evidence that it was included in the bundle of documents supplied by the OAU General Secretariat to the meeting. The recital was adopted unamended by the June 1980 Banjul Ministerial Meeting.41 Along with Recital 5, Recital 7 was central to the debate over the purpose and content of the ACHPR. The M’baye draft had recognised the sensitivity of this question and had therefore paid due homage to the equivalence of the two sets of rights in two of its four recitals. In its second recital it was acknowledged ‘that human and peoples’ rights are not confined to civil and political rights but cover economic, social and cultural rights’ and in its fourth recital it was reiterated ‘that, in accordance with the Universal Declaration … the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights’ (see Recital 3). The 1979 Dakar Meeting of Experts addressed the question in a rather different way. Firstly, it deleted the fourth UNDHR reference recital of the M’baye 41

M.G. Ahanhanzo, ‘Introduction à la Charte africaine des droits de l’homme et des peuples (Organisation de l’unité africaine)’, 524–525. All references to the 1948 ‘American Declaration of the Rights and Duties of Man’ (1948 American Declaration) are to http://www.oas.org/en/iachr/mandate/Basics/declaration.asp, last accessed 7 November 2019 and Mauritius’ proposal for a ‘Universal Declaration of Human Duties’ are to OAU (L) CM/966 (XXXIII) Add.1 (Universal Declaration of Human Duties).

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draft and, secondly, it attempted to reformulate the second recital. Its attempted reformulation included a reference to the right to development for the first time which was most likely derived from President Senghor’s cleverly thought-out opening address in which he had explained that by means of Decision 115 the AHSG had ‘wanted to lay emphasis on the right to development’ and that: ‘Our overall conception of human rights is marked by the right to development since it integrates all economic, social and cultural rights, and also civil and political rights.’ Wako, however, explained that the right to development had been included on his suggestion. The reformulated recital therefore expressed a conviction that it was ‘henceforth essential to pay a particular attention to the right to development’ onto which a rather vague all-embracing sub-clause was tacked on which emphasised that ‘the promotion of this right implies respect for other fundamental human rights recognized and guaranteed by conventions, laws, regulations and customs in force in states’.42 The counter-attack at the 1980 Banjul Ministerial Meeting began almost as soon as M’baye had concluded his explanatory commentary on the Dakar draft. A plethora of radical states advised M’baye and OAU Secretary-General Kodjo that, as ‘in Africa, Man is part and parcel of the group … individual rights could be explained and justified only by the rights of the community. Consequently, they wished that the Draft Charter made room for the Peoples’ Rights and adopted a more balanced approach to economic, social and cultural rights on the one hand and political and civil rights on the other’. When, therefore, the recital came up for discussion, the radical states insisted that alongside the retained reference to the right to development it was necessary to bring in a multi-layered statement of equivalence between the two sets of rights as had been set out in the M’baye draft and Decision 115. In its final form, therefore, the recital reflected the position of the radical states in three conceptual assertions: That it was essential to pay particular attention to the right to development; that civil and political rights could not be dissociated from economic, social and cultural rights in conception and universality; and that the satisfaction of economic, social and cultural rights provided the guarantee for the enjoyment of civil and political rights. This was no more than the African states as a whole had already argued in a range of forums on the international stage. For example, at the 1968 Tehran International Conference on Human Rights, the equivalence and the necessary pre-condition of economic, social and cultural rights for the enjoyment of civil and political rights were aggressively spelled out by the African states. A first resolution argued ‘that the enjoyment of economic and social rights is inherently linked with any meaningful enjoyment of civil and political rights and that there is a profound inter-connexion between the realization of human rights and eco42

Interview with Amos Wako, 23 July 2012, Geneva.

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nomic development’. A second similarly argued ‘that in the modern world the enjoyment of civil and political rights and freedoms also requires the realization of economic, social and cultural rights and that these human rights and fundamental freedoms are closely interconnected and interdependent’. The Final Act of the conference would also assert that: ‘Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. This argument was subsequently encapsulated in the 1977 UNGA resolution 32/130: ‘All human rights and fundamental freedoms are indivisible and interdependent’; and that: ‘The full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.’43 By 1980, with the right to development now firmly established in its own right and as a component of the NIEO, several participants at a UN Seminar discussing the impact of the existing international economic order on human rights in developing states would move that argument further by asserting that the right to development represented a synthesis of economic, social and cultural rights and civil and political rights as President Senghor had suggested in his opening address to the 1979 Dakar Meeting of Experts.44 The new formulation therefore represented an outright victory for the radical states and a further statement of political intent that they would also require a concrete content to ‘peoples’ rights’ in the body of the text. Wistfully, Jallow notes that the ‘technical experts had been overridden by their political masters’. Even more ironic is that the text is an outright reversal, in the cause of political necessity, of the position trumpeted by M’baye as one of the conclusions reached by the 1978 ICJ Dakar Colloquium that it was no longer ‘acceptable to justify systematic violations of human rights by the need for economic and social development’; that, on the contrary, respect for fundamental freedoms was itself a prerequisite for the effective achievement of the right to development. Moreover, it was a reversal that it seems the M’baye draft had already been pre-emptively prepared to accommodate as the necessary price of acceptance of the whole package.45 Recital 8 was also added by the 1979 Dakar Meeting of Experts. It is most obviously intended to associate yet further the ACHPR with the long-standing aims of the OAU: ‘Conscious of the duty to achieve the total liberation of the 43

UN A/CONF.32/41 1968 (Final Act and Resolutions), 4, 14–17 and UNGA 32/130 16 December 1977. 44 UN ST/HR/SER.A/8 ‘Seminar on the effects of the existing unjust international economic order on the economies of the developing countries and the obstacle that this represents for the implementation of human rights and fundamental freedoms, Geneva, 30 June – 11 July 1980’, 15. 45 H.B. Jallow, The Law of the African (Banjul) Charter, 41 and K. M’baye, UN (G) HR/Liberia/1979/BP.2, 6–7.

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African Territories that are not yet independent, and to eliminate all forms of foreign domination and discrimination, particularly those based on race, ethnic groups, colour, sex, language, religion or political opinion.’ The first part of this Recital was clearly taken from OAU Charter Article II.1 (d) ‘Purposes’: ‘To eradicate all forms of colonialism from Africa’ and Article III.6 ‘Principles’: ‘Absolute dedication to the total emancipation of the African territories which are still dependent.’ The listing of discriminations had been included in the M’baye draft, which was otherwise adopted verbatim from Article 1 of the ACHR and which, in turn, was almost certainly copied from Article 2 of the UDHR, but with the further addition of ‘ethnic groups’ that obviously had a particular resonance in Africa and had been included in the definition of racial discrimination in Article 1 of the African-sponsored 1965 International Convention on the Elimination of All Forms of Racial Discrimination.46 In the course of the discussion at the June 1980 Banjul Ministerial Meeting ‘various observations’ were made and it was therefore necessary to revert again to the Working Group to formulate a wording acceptable to all. Their compromise resulted in several substantive amendments. Firstly, ‘African Territories that are not yet independent’ was amended to read in more political form: ‘Africa, the peoples of which are still struggling for their dignity and genuine independence’; secondly, ‘all forms of foreign domination and discrimination’ was made more specific in the form of a list to which ‘colonialism, neo-colonialism, apartheid, zionism’ was added; and thirdly, a clause was added ‘to dismantle aggressive foreign military bases’. The wording of the second substantive amendment, and also the original wording, bore more than a passing resemblance to 1977 UNGA resolution 32/130 which referred to human rights violations ‘resulting from apartheid, from all forms of racial discrimination, from colonialism, from foreign domination and occupation’. However, as the impetus for this reformulation seems to have been driven by the determination of several Arabic-speaking delegations to include ‘zionism’ in the newly specified list of discriminations that had to be eliminated, the wording of the amended recital may more likely have been adopted from the recital in the 1975 UNGA Resolution 30/3379 which quoted the ‘Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace 1975, proclaimed by the World Conference of the International Women’s Year, held at Mexico City from 19 June to 2 July 1975’. This declaration had ‘promulgated the principle that “international co-operation and peace require the achievement of national liberation and independence, the elimination of colonialism and neo-colonialism, foreign occupation, zionism, apartheid and racial discrimination in all its forms as well as the recognition of

46 All references to the International Convention on the Elimination of All Forms of Racial Discrimination are to UNGA 20/2106 21 December 1965.

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the dignity of peoples and their right to self-determination”’.47 In 1973, on the UDHR’s twenty-fifth anniversary, Radio Mali had similarly celebrated the occasion with a broadcast in which it condemned apartheid, Zionism, colonialism and the Pinochet regime.48 The inclusion of ‘zionism’ in the listing of this recital was much contested, most especially by Botswana, on the grounds that it was not an issue that should find inclusion in a charter open only to OAU member states and ‘that it would be a dangerous precedent to import non-African problems into an African organization’. However, as political necessity required it could not so easily be set aside, it was therefore left open in square brackets or inverted commas for final resolution at a later stage.49 Initially, it was proposed that the OAU General Secretariat should prepare a paper for a decision by the AHSG but at the conclusion of the January 1981 Banjul Ministerial Meeting it was finally settled that the reference should be retained. This was not the only condemnation of ‘zionism’ that the OAU would support at this time. At the same 1981 Nairobi CoM which debated the final ACHPR draft, a ‘Resolution on Jerusalem’, one of several resolutions aimed at Israel adopted by the 1981 Nairobi CoM, demanded ‘the liberation of the city from zionist colonialism and its return to its original and historical character’.50 The other significant amendment was the reference to the dismantling of aggressive foreign military bases proposed at the insistence of Libya, a member of the Working Group. It is obviously associated with Libya’s insistence in 1969, following the military coup that brought in Colonel Ghadaffi as effective head of state, on the immediate withdrawal of all foreign military bases in its territory. However, the question of foreign military bases, from a slightly different perspective, had also been the subject of two recent OAU resolutions and for that reason Libya had every right to insist on its inclusion. For example, the 1977 Libreville AHSG had adopted a resolution on non-interference which called on OAU member states ‘to prohibit … the establishment of foreign military bases on their territories, and requests them to liquidate the foreign military bases existing on the African continent’. A further CoM resolution in 1978 had 47 UNGA 30/3379 10 November 1975 and 32/130 16 December 1977. 48 Synthèse 26/73 21 December 1973, quoted by G. Mann, From Empires to NGOs in the West African Sahel: The Road to Nongovernmentality (New York, 2015), 231. 49 The reference to square brackets and inverted commas is made in OAU (L) CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights CAB/LEG/67/Draft Rapt. Rpt (II) Rev.4, 7 (square brackets), 25 (inverted commas) but neither the square brackets nor the inverted commas are visible in Rev.3 to Rev.5; see also R. Gittleman, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’, 675. 50 OAU CM/Res.863 (XXXVII) (reference from F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 63).

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reaffirmed the OAU’s will ‘to work towards the elimination of foreign military bases’.51 The issue had also been raised in the 1978 UNGA Resolution 33/75, sponsored by sixteen African states, that argued ‘that dismantling of foreign military bases would contribute to the strengthening of international security’.52 Recital 9 was added by the 1979 Dakar Meeting of Experts, possibly as a disguised means of acknowledging the UDHR and International Covenants as the human rights ‘declarations, conventions and other instruments’ of the UN were given precedence over those of the OAU – in that sense, much in the same way as the UNDHR’s original Monrovia Proposal draft had proposed. It was amended by the June 1980 Banjul Ministerial Meeting in two significant respects which clearly demonstrate the limitation of the adherence intended by some African states to these UN human rights instruments and in the process making clear that it was a conscious limitation and not merely an accidental choice of words or mis-translation. Firstly, as in the Preamble of the OAU Charter, adherence was no longer simply ‘to’ but amended ‘to the principles of ’, thereby demonstrating once again a refusal to acknowledge outright the UDHR and a desire to hide behind a secondary-level adherence to principles. Although such a wording might have been justified if that adherence had been directly referenced from the Preamble of the OAU Charter, as in the case of Recital 3, that was not how the recital was formulated by the 1979 Dakar Meeting of Experts. The Dakar draft had expressed an unqualified ‘attachment to the human and peoples’ rights and freedoms contained in the declarations, conventions and other instruments adopted by the United Nations’ and it was the June 1980 Banjul Ministerial Meeting that had demurred and amended it to ‘the principles of ’, without mention of a reference to the OAU Charter. Secondly, by adding in the Movement of Non-Aligned Countries and relegating the UN to third on the list of ‘declarations, conventions and other instruments’, where previously it had preceded even the OAU, the intent to put the UN in its place was manifestly clear. All the more strange then that the listing of applicable principles intended to ‘inspire’ the ACOMHPR set out in Articles 60 and 61 made no mention of the Movement of Non-Aligned Countries. Recital 10 was a restructuring of two separate sentiments contained in Decision 115. The first expresses the duty to promote and protect human and peoples’ rights. This was in effect the heart of Decision 115 for which purpose authorisation for the convening of the meeting of experts had been sought. It 51

52

‘Resolution on the interference of the internal affairs of African States’, OAU AHG/ Res.85 (XIV) and ‘Resolution on military interventions in Africa and on measures to be taken against neo-colonialist manoeuvres and interventions in Africa’, OAU CM/Res. 641 (XXXI); see also Smith to West African Dept FCO ‘OAU Ministerial Meeting on Human and Peoples Rights’ 18 June 1980, NA FCO 65/2417. UN A/33/486 13 December 1978, 4 and UNGA 33/75 15 December 1978 (paragraph 12).

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would be reflected in the body of the ACHPR as Article 46 which sets out the mandate of the ACOMHPR. That duty, the recital went on, would be exercised by ‘taking into account the importance traditionally attached to these rights and freedoms in Africa’. This second sentiment, taken directly from Decision 115, had been included in the M’baye draft. The two sentiments were combined in a reformulated article by the 1979 Dakar Meeting of Experts albeit ‘human and peoples’ rights and freedoms’ were preferred to the ‘human dignity and the fundamental human rights’ of Decision 115. Insofar as the June 1980 Banjul Ministerial Meeting had already included a new Recital 4, with which there are obvious similarities, it was adopted without amendment. The Preamble closed with ‘have agreed as follows’ which follows closely the OAU Charter’s ‘Have agreed to the present Charter’, the International Covenants’ ‘Agree upon the following articles’, which was the styling initially adopted by the M’baye draft, and the ACHR’s ‘Have agreed upon the following’. Although the Dakar draft preferred ‘agreed on the following’, and there is no indication in the official report of the June 1980 Banjul Ministerial Meeting that an amendment was discussed, the final wording, with no indication of the reason for its change, seems to pop-up for the first time in Rev.4.

Part I Rights and Duties Chapter I Human and Peoples’ Rights Article 1 Undertaking to recognise and give legal effect to the ACHPR Article 2 Non-discrimination The M’baye draft adopted verbatim Articles 1 and 2 of the ACHR, which in turn had been based on Article 2 of the UDHR and Article 2.1 and 2.2 of the ICCPR, and in far simpler form in Article 1 of the ECHR, but arranged them as two paragraphs of one article. In the introduction to the Dakar draft, it is explained that ‘a place of choice was given to the principle of non-discrimination. This explains why the principle of non-discrimination was the first principle stated in the draft’. As against the M’baye draft, the 1979 Dakar Meeting of Experts reverted to the ACHR format of two separate articles. It also reformatted the two articles so that Article 1 now expressed recognition by the States Parties of the rights and freedoms therein (Article 1 of the ACHR) and also an undertaking to legislate where necessary to give them legal effect (Article 2 of the ACHR) and Article 2 also expressed the entitlement of every individual to the enjoyment of those rights and freedoms ‘without distinction’ (Article 1 of the ACHR). Stylistic and reformatting changes apart, Article 1 was amended by the 1979 Dakar Meeting of Experts so that States Parties (subsequently amended to ‘Member States’ by the June 1980 Banjul Ministerial Meeting in keeping with the amendment to the Preamble’s opening salutation) were committed not only to

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recognise, rather than to ‘respect’, but also to guarantee the rights and freedoms therein. This was not accepted by the June 1980 Banjul Ministerial Meeting which deleted ‘guarantee’ but added the commitment providing for ‘duties’ also to be so recognised. A ‘guarantee’ of rights and freedoms had not been included in the ACHR and its deletion in Article 1 may therefore have been prompted by the ACHR precedent, but there is also a possibility that it was the result of domestic legal considerations. For some reason, most likely in error, reference to the deleted guarantee in Article 1 was retained in Article 2, although Articles 8 and 14 do refer to specific rights being guaranteed so it may be that the retention of the ‘guarantee’ in Article 2 is in any event still justified. In Article 2 the 1979 Dakar Meeting of Experts retained the list of categories set out in the M’baye draft to which the injunction of ‘without distinction’ was to be applied but added ‘ethnic group’ (see Recital 8), for obvious reasons, and ‘fortune’, for less obvious reasons; although it may have been a reflection of the innate superstition of traditional African society, it is more likely that it was another term for ‘economic status’, which was deleted from the M’baye draft. The injunction was also amended from ‘without any discrimination’ to ‘without distinction’. Article 2 of the UDHR had employed ‘without distinction’ as had Article 2 of the ICCPR and the 1963 Senegal constitution, although Article 2 of the ICESCR, in an unusual divergence, Article 1 of the ACHR and Article 14 of the ECHR had all opted for ‘without discrimination’. The ICCPR, to which several African states had already acceded, had also included the additional category of ‘property’ but there is no indication that it was ever considered for possible inclusion. The official report of the June 1980 Banjul Ministerial Meeting noted that Article 2 had provoked ‘a long discussion’ but it was adopted with only minor amendments in form. The only amendment that might be regarded as significant was the deletion, unusual in view of the on-going political sensitivities, of the 1979 Dakar Meeting of Experts’ addition of ‘and every people’ as the subjects of entitlement so that in its final form it simply read: ‘Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed.’ This was the only occasion on which ‘people’ was deleted rather than added to an ACHPR draft. Article 3 Equality before the law The M’baye draft adopted verbatim Article 24 of the ACHR which, in turn, had followed closely Article 7 of the UDHR and Article 26 of the ICCPR. The 1979 Dakar Meeting of Experts accepted the substance of the M’baye draft, although the sub-clause ‘without discrimination’ was deleted, possibly because it was either superfluous as a result of, or incongruous with, the reference to ‘without distinction’ in Article 2, but divided the article into two separate paragraphs: Equality before the law and entitlement to equal protection of the law. It was adopted unamended by the June 1980 Banjul Ministerial Meeting.

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Article 4 Respect for the life and integrity of the individual Article 5 Right to dignity and recognition of legal status The M’baye draft adopted almost verbatim Articles 3 to 6 of the ACHR which itself reflected several elements of Articles 3 to 6 of the UDHR, Articles 6, 7, 8, 10 and 16 of the ICCPR and, in more limited form, Articles 2 to 4 of the ECHR. The two main areas of difference in the M’baye draft were in respect of the right to life in the context of capital punishment and the timeline for respect for life which was amended by the M’baye draft from ‘the moment of conception’ to ‘the moment of his birth’. The 1979 Dakar Meeting of Experts, no doubt anxious to avoid unnecessary controversy, simply deleted the timeline so that the precise moment at which respect was due was left an open question. President Senghor, of course, had been educated as a Catholic but, as he himself explained, he had lost his faith in 1930 and therefore M’baye presumably felt under no obligation to adopt a timeline determined by the Catholic Church – the Islamic view is, generally, that abortion is permitted until the soul is breathed into the foetus, which at this time would have been estimated at 120 days, or in the case where the mother’s life is threatened.53 The extensive detail of the M’baye draft was therefore compressed and reformulated by the 1979 Dakar Meeting of Experts into two new articles but, as regards Article 4, whereas the primary elements were retained, much of the devil in the detail was lost, most especially with respect to the issues of capital punishment and personal liberty. In the case of capital punishment, sensitive to African conditions, the M’baye draft had already deleted much of the detail contained in the ACHR but it had retained the prohibition on capital punishment for political offences and common crimes and the right to apply for amnesty or a pardon. This was deleted and, moreover, ‘No one may be arbitrarily deprived of his life’ was amended to the less definitive ‘No one may be arbitrarily deprived of his right’ – that right presumably being ‘respect for his life’. Similarly, much of the detail on personal liberty and the right to dignity in pre-trial detention was deleted, although some elements would subsequently be included in Article 7. The itemisation of the categories of ‘integrity’ of the person was also deleted in two stages by first the 1979 Dakar Meeting of Experts and then the June 1980 Banjul Ministerial Meeting. The 1979 Dakar Meeting of Experts also added a new opening sentence to Article 4: ‘Human beings are sacred’. It is not clear who initiated this proposal but within Africa there were several possible precedents which might have inspired it. For example, the 1789 Declaration, to which reference had been made in several African constitutions, made reference to the ‘sacred rights of man’. Article 6 of the 1963 Senegal Constitution also provided that: ‘The human person shall 53

J.G. Vaillant, Black, French, and African: A Life of Léopold Sédar Senghor (Cambridge, 1990), 263–264 (Annex II: President Senghor to Vaillant 22 October 1963).

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be sacred. The State is obliged to respect and protect it. The Senegalese people recognize the existence of the inviolable and inalienable rights of man.’ Similarly, Article 12 of the 1978 Rwanda Constitution provided that: ‘The human person is sacred, his inviolability is assured by law’ [‘La personne humaine est sacrée son inviolabilité est assurée par la loi’]. Both Senegal and Rwanda were represented at the 1979 Dakar Meeting of Experts. Nonetheless, the concept of ‘sacred’ was clearly religious in inspiration and several delegations at the June 1980 Banjul Ministerial Meeting therefore found its inclusion to be unacceptable. After long discussion, ‘sacred’ was amended to ‘inviolable’, which may be thought as only one step away in religious terms from ‘sacred’.54 As a result, even after the change in wording, Angola, Cape Verde, Guinea-Bissau and Mozambique expressed their intention to enter reservations and had to be prevailed upon to accept ‘the principle of consensus’ and the ‘spirit of dialogue’ in which the meeting was being held. The final wording of Article 4, the opening sentence apart, was therefore in essence an amalgam of Article 4.1 and 5.1 of the ACHR. Article 5, having been compressed and reformulated by the 1979 Dakar Meeting of Experts, now combined in one article respect for human dignity, recognition of legal status (recognition as a person before the law’ in the M’baye draft, ACHR and ICCPR) and prohibition of all forms of slavery, the slave trade (which had been included in the UDHR but not the ACHR), torture, cruel and inhuman punishment and treatment. At one level, it might reasonably be argued that the new formulation should be understood as merely a simplification of the text or a compromise wording for an article that had come under particular scrutiny by the 1979 Dakar Meeting of Experts. However, its subsequent further reformulation by the June 1980 Banjul Ministerial Meeting suggests that it should rather be understood as representing a completely different understanding of what was implied by the use of the term ‘dignity’. The first change, initiated by ‘several delegations’ to the June 1980 Banjul Ministerial Meeting, amended ‘human dignity’ to ‘dignity inherent in a human being’. Although, on the surface, this was seemingly a simple change that was close to the wording of Article 5 of the ACHR, which the 1979 Dakar Meeting of Experts had discarded, but for the African political and intellectual elite the notion of ‘dignity’ was understood primarily in terms of discrimination and colonial servitude. As Kiano noted, in relation to the Freedom Charter issued by the Pan-African Freedom Movement of East and Central Africa (PAFMECA) in 1959 (see Volume 1, page 491): ‘The African heritage contained within it dignity and self-respect which were incompatible with the degradation which is an essential element of all forms of imperialism and racialism.’55 The new 54 See also OAU Ministerial Meeting on Human and Peoples Rights’ 18 June 1980, Callaghan to Dimond 18 June 1980, NA FCO 65/2417. 55 G. Kiano, ‘The Pan-African Freedom Movement of East and Central Africa’, Africa Today, 6/4 (1959), 11–14.

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wording was therefore in essence the phrase ‘the dignity and equality inherent in all human beings’ employed by the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. It was also employed in that same context in the 1979 UNGA resolution 33/183, which described apartheid as ‘a crime against the conscience and dignity of mankind’.56 In his opening address to the June 1980 Banjul Ministerial Meeting President Jawara also welcomed the Zimbabwe delegates to an OAU meeting for the first time by praising Prime Minister Mugabe as one who ‘fought resolutely to defend and uphold human dignity’. This amendment therefore merely served to emphasise that, insofar as most of the other elements of personal liberty had already been excised by the 1979 Dakar Meeting of Experts, ‘dignity’ was no longer intended to be understood in the context in which the M’baye draft, the ICCPR and the ACHR had intended it should be, namely in respect of the treatment received in the event of a deprivation of liberty and in opposition to torture or cruel and degrading punishment or treatment, but rather in relation to discrimination and the treatment of a black majority by a white minority. The conjunction of the dignity of the individual and the prohibition against slavery and the slave trade in a single article, although they had been regarded as two quite separate issues in previous human rights instruments, had been made by the 1979 Dakar Meeting of Experts. Although it might be considered astounding that it was thought necessary for the ACHPR process in 1979 to prohibit slavery, let alone the slave trade, there was a precedent beyond the UDHR in that several post-independence African constitutions also specifically prohibited slavery; for example, Article 19 of the 1960 Nigeria constitution and Article 17 of the 1978 Rwanda constitution – both states being represented at the 1979 Dakar Meeting of Experts. However, whereas the 1960 Nigerian constitution had intended slavery to be understood on a personal level, at the UN, the African Group frequently interpreted slavery in a much wider sense. In 1975, for example, the Sub-Commission adopted a resolution on the ‘Question of slavery and the slave trade in all their practices and manifestations, including the slavery-like practices of apartheid and colonialism’ in which it was noted ‘the conviction of the Working Group that apartheid and colonialism are contemporary forms of slavery’.57 The second amendment by the June 1980 Banjul Ministerial Meeting suggested that this was precisely the context in which slavery was intended to be understood. In the second sentence of Article 5, the June 1980 Banjul Ministerial 56 UNGA 28/3068 30 November 1973, 30/3452 9 December 1975 (Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and 33/183 24 January 1979. 57 Resolution 5 (XXVII) 10 September 1975, Report of the Sub-Commission on Prevention of Discrimination and Protection against Minorities on its 28th Session, UN E/CN.4/1180 28 November 1975, 61.

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Meeting added an opening clause ‘All forms of exploitation and degradation of man’ before continuing with ‘particularly’ to the Dakar draft’s now conjoined litany of slavery, the slave trade, torture, cruel, inhuman and degrading punishment or treatment. This clearly indicates that these ‘particulars’ were intended as manifestations of exploitation and degradation of man in political terms rather than manifestations or consequences of treatment arising from personal deprivation of liberty. Article 6 Right to liberty and security of the person The M’baye draft adopted verbatim Article 7 of the ACHR, except for the paragraph relating to the prohibition of detention for debt, which follows closely on Articles 3, 9 and 11 of the UDHR, Article 5 of the ECHR and Article 9.1 of the ICCPR. It was truncated by the 1979 Dakar Meeting of Experts so that only the first three paragraphs, slightly reworked, of Article 7 of the ACHR were retained. It was adopted unamended by the June 1980 Banjul Ministerial Meeting. Article 7 Right to be heard and prohibition against retrospective legislation The M’baye draft adopted verbatim Articles 8 and 9 of the ACHR which in turn reflected Articles 10 and 11 of the UDHR, Articles 5 to 7 of the ECHR and Articles 14 and 15 of the ICCPR. In line with its approach of accommodating the different political conceptions of justice and allowing for flexibility of subsequent application, the 1979 Dakar Meeting of Experts truncated the text considerably so that, in the process, several elements of protection were deleted. For example, the prohibition on double jeopardy and confession through coercion, the obligation for proceedings to be held in public, the right to prior notification of the charge, appeal to a higher court, the entitlement to examine and present witnesses and the right to a counsel of choice – although this last deletion was reinstated by the June 1980 Banjul Ministerial Meeting. The 1979 Dakar Meeting of Experts also amended ‘right to a hearing’ to ‘right to have his cause heard’ although both the UDHR and the ECHR employed ‘hearing’ – it is not clear whether this is an Anglicised form or merely a question of translation. It was adopted by the June 1980 Banjul Ministerial Meeting with only two amendments: The right to have one’s cause heard was no longer ‘guaranteed by’ (see Article 1) but ‘comprises’ the listing of rights that followed and ‘inalienable’, as applied to the right to an effective appeal, which had been added by the 1979 Dakar Meeting of Experts, was deleted. The final sentence ‘Punishment is personal and can be imposed only on the offender’ is frequently adduced by African human rights commentators to have been inserted by African modernisers in opposition to long-standing African traditions that allow that guilt can also be communal. Brems, for example, although otherwise most perceptive in her commentary, described it as ‘a unique provision, which responds to situations which occur on the African continent’, although not only on the African continent. Indeed, the provision

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also appears in several African constitutions, for example, Article 9 of the 1974 Mali constitution ‘La peine est personnelle’ and Article 14 of the 1978 Rwanda constitution: ‘La responsabilité penale est personnelle’, both of which were represented at the 1979 Dakar Meeting of Experts, but its usage in the ACHPR can be directly attributed to the M’baye draft which adopted it verbatim from Article 5.3 of the ACHR.58 Article 8 Freedom of conscience and religion The M’baye draft adopted verbatim Article 12 of the ACHR much of which had already been included in Article 18 of the UDHR, Article 9 of the ECHR and Article 18 of the ICCPR. This was clearly a sensitive issue for many of the Muslim states which the 1979 Dakar Meeting of Experts resolved by truncating the four paragraphs of the M’baye draft into two sentences and adding that these freedoms might be restricted ‘subject to law and order’. This derogation was included in several African constitutions, notably Article 19 of the 1963 Senegal constitution and Article 23 of the 1960 Nigerian constitution, and also the 1953 Sudan Self-Government Order. Although the amendments retained the substance of the right to freedom of conscience and the profession and free practice of religion, it was no longer described as a right, it was, unusually, merely to be ‘guaranteed’. However, in the process, the more elaborate provisions of the ACHR and ICCPR, which had been the subject of extensive lobbying by many, predominantly Christian, religious groups since the UDHR had been adopted, were deleted. For example, there was no longer a specific mention of the right to change, manifest or disseminate one’s religion and beliefs, nor the right of parents to provide for the religious and moral education of their children in accordance with their conviction. It is therefore a particularly good example of the unwillingness of African states to accept provisions in their regional human rights arrangements which they had already accepted in related international arrangements. It was adopted unamended by the June 1980 Banjul Ministerial Meeting. Article 9 Right to receive information and express and disseminate opinions For some reason, this article was not included in the M’baye draft although in various forms it had been included in Articles 13 and 14 of the ACHR, Article 19 of the UDHR, Article 10 of the ECHR and Article 19 of the ICCPR. It was added by the 1979 Dakar Meeting of Experts on the basis of a limited version of Article 19 of the UDHR but with two critical caveats. The first caveat limited the right to receive information to ‘objective’ information. The need for objectivity was a two-way concern of many developing, particularly African, states. At one level, as the Somali government explained to the CHR in 1976: ‘The mass media in our country, as in all other socialist 58

E. Brems, Human Rights: Universality and Diversity (The Hague, 2001), 130–131.

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countries, is … a major instrument of furthering the just and equitable principles of socialism … We see the primary functions of the media as … Assisting in the national guidance and raising the political consciousness of the masses.’ It also pointed out that ‘freedom of expression divorced from the other socio-­ economic factors is not of much consequence’.59 At a second level of concern, the developing countries sought to protest against what they regarded as an unbalanced, unfair and unjust one-sidedness in the presentation of news. The point was made by Olasope, Director of News and Current Affairs for the Nigerian Broadcasting Corporation: The present system of gathering and distributing news is patently unsatisfactory. It does not allow the collection and distribution of a great proportion of the news available in the world. It is lopsided in its operation, concentrating on the developed countries to the detriment of the developing ones, thereby creating a gross and unjustifiable imbalance in the flow of news. The system is also entirely owned and controlled by the advanced countries who use it in different ways to further their own political and economic interests.60

This second level of concern, in particular, found expression in the emerging debate during the 1970s over the New World Information Order (NWIO), an adjunct of the NIEO, which was primarily conducted under the auspices of UNESCO. At a general level, as Powell, a US diplomat, pointed out, the NWIO stems from Third World frustration with progress towards the NIEO. It is assumed that if public opinion in the developed world were made aware of and understood the economic problem and the legitimacy of the demands, they would force their governments to negotiate more positively with the Third World – the main obstacle being the media. At a more specific level, Masha, an African UN civil servant, argued that there were four main issues at stake. These were: Tendentious reporting or interpretation of news; media monopolies; the power of the media and its use of information; and the free flow fallacy requiring full accountability and regulation.61 59 UN Somalia, Periodic Report, Reports on freedom of information, for the period 1 July 1970 – 30 June 1975, received from Governments under Economic and Social Council Resolution 1074 С (XXXIX) E/CN.4/1214/Add.3 5 May 1976, 8–9. 60 B. Olasope, ‘The Nonaligned News Agencies Pool and the Free Flow of Meaningful News: An African Viewpoint’, P. Horton (ed.), The Third World and Press Freedom (New York, 1978), 169 (reference from T.R. Wolfe, ‘A New International Information Order: The Developing World and the Free Flow of Information Controversy’, Syracuse Journal of International Law and Commerce, 8/1 (1980), 249–264); C.O.C. Amate, Inside the OAU, 493 notes that the first meeting of the OAU’s Education and Culture Commission in Kinshasa (Léopoldville), 1964 had recommended setting up a pan-African news agency ‘to collect and disseminate truthful, objective and impartial news about Africa in the African and the world press’. 61 W.C. Powell, ‘The New World Information Order’ and F.L. Masha, ‘Decolonizing Information: Towards a New World Information and Communication Order

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In 1978, following several years of debate, UNESCO adopted the ‘Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War’. As the title makes clear, and as set out in the Preamble, the developing states sought to contextualise the declaration in the ‘objective truth’ of UNESCO’s constitution, in the struggle against racial discrimination and prejudice and colonialism and in the NIEO. The Declaration was followed by what became known as the MacBride Report, a 1980 study published by UNESCO’s International Commission for the Study of Communication Problems – four members (out of sixteen) of which were from Africa – and by the subsequent, related, decision of the US and the UK to resign from UNESCO.62 In response to the MacBride Report, the same 1981 Nairobi CoM which discussed and passed on the ACHPR to the 1981 Nairobi AHSG also adopted a resolution on the New International Information Order. It placed the debate in context by connecting it to ‘the struggle waged by the African peoples to complete and strengthen their independence and to eradicate the aftermaths of colonialism – in the political, economic, cultural and intellectual fields’ and also made it clear ‘that the establishment of the New International Economic Order and of the New International Information and Communications Order is a major twin objective that is essential to the elimination of all forms of subjection of the peoples’. As such, it appealed ‘to world public opinion to oppose those who continue to belittle and distort the legitimate aspirations and objectives of the Third World countries and more especially of African countries’ and invited ‘the information organs of the developing world, and especially press agencies and media, to redouble their efforts to make a greater contribution to enriching the information about the Third World intended for world public opinion’.63 The second caveat, which was handled in the ACHR and ECHR by a ‘right of reply’ and liability under law and by the specific expression of concomitant duties owed for this right, was the limitation on opinion ‘subject to the respect of (NWICO)’, Political Communication and Persuasion: An International Order, 1/4 (1982), 329–335, 337–342. 62 ‘Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War’, UNESCO General Conference Twentieth Session Paris, 1978 20-C/135 28 November 1978 Report of Commission IV: Culture and Communication, Annex-Recommendations, 71–76 and UNESCO, Many Voices One World: Towards a New More Just and More Efficient World Information and Communication Order (Paris, 1980); see also UNESCO, ‘Historical Background of the Mass Media Declaration’, New Communication Order, 9 (Paris, 1982). 63 OAU CM/Res.897 (XXXVII) ‘Resolution on the New International Information Order’.

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others’ honour and reputation’ – the ACHR wording was ‘respect for the rights and reputations of others’ – which seems to have been based on Article 8 of the 1963 Senegal constitution. In the event, both these caveats were, surprisingly and generously, deleted by the June 1980 Banjul Ministerial Meeting. As Jallow pointed out, too many states felt it left the door open to state censorship or control over the media.64 Article 10 Right of association In the introduction to the M’baye draft, it was pointed out that there was no provision for the right to freedom of association: This is because the right is one of controversy between differing political ideologies at present active in the affairs of the peoples of Africa. Perhaps the Experts may wish to re-examine the provisions of the International covenant on the subject, and attempt to harmonise them with the differing shades of political thoughts of the African Peoples.

The most obvious manifestation of this difference was the one-party state structure and the legal prohibition on independent political parties and trade unions in many African states. In fact, the M’baye draft had included an article on ‘Freedom of Association’ taken verbatim from Article 16 of the ACHR. It allowed for a free right of association for a wide itemised range of purposes including political, religious, economic, cultural and labour purposes. A number of derogations from this right were permitted but only ‘as may be necessary in a democratic society’. A similar, but unitemised right, except in relation to trade unions, was included in Article 11 of the ECHR, Article 22 of the ICCPR, Article 8 of the ICESCR and Articles 20 and 23 of the UDHR. The 1979 Dakar Meeting of Experts simplified the wording of the article by deleting the detail so as to leave the bare bones ‘right to freely form associations with others’ but with the derogation ‘provided that he abides by the law’, although it was no longer to be subject to the standard ‘as may be necessary in a democratic society’. It also added a second paragraph, which was included in the constitutions of several African states and in Article 20 of the UDHR: ‘No one may be compelled to join an association.’ The exception as it might be applied to members of the army and police was also deleted. The Dakar draft was therefore very close to Article 20 of the UDHR. The debate became more complex at the June 1980 Banjul Ministerial Meeting. Although the first paragraph expressing the right of free assembly was adopted unamended – it was slightly reworded in Rev.4 – two delegations expressed their regrets that, ‘as a result of an appeal made to them’, they could not press their objections. It is not clear who the states were but it can be imagined that any of 64 H.B. Jallow, The Law of the African (Banjul) Charter, 42.

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the one-party states or other states that prohibited trade unions other than those officially sanctioned or tied in with the one-party might have felt uneasy that, although the right was made subject to the requirement to abide by the law, it was still an insufficient legal basis on which to accommodate the one-party state or bar free trade unions. The second paragraph was also discussed at some length and necessarily left open for resolution until after the article on duties had been discussed. As a result, it was only at the conclusion of the January 1981 Banjul Ministerial Meeting that it was agreed to accommodate some measure of derogation by adding an opening sub-clause ‘Subject to the obligation of solidarity provided for in Article 29’. Article 11 Right of assembly The M’baye draft adopted verbatim Article 15 of the ACHR which was closely related to Article 21 of the ICCPR, in particular, and Article 11 of the ECHR; Article 20 of the UDHR simply provided for the ‘right to freedom of peaceful assembly’. Unlike Article 10, the 1979 Dakar Meeting of Experts retained the listing of restrictions that applied to this right but deleted the ‘democratic society’ litmus test and the conditionality of ‘peaceful assembly’ and ‘without arms’ – presumably the national security restriction was sufficient to cater for non-peaceful assembly or the possibility of assembly with arms. It is, perhaps, ironic, though, that Azikiwe’s 1943 Memorandum to the British government, which was the first African proposal to propose a list of ‘Basic Constitutional Rights’, repeated in the NCNC’s 1947 constitutional charter, included as the fourteenth right ‘The right to keep and bear arms’ (see Volume 1, page 427); although it was not included in the 1960 Nigeria post-independence constitution or subsequent post-­independence constitutions – times had clearly changed. The text was reworked by the June 1980 Banjul Ministerial Meeting which retained the substance with the exception that the listing of possible restrictions was no longer definitive but described as ‘restrictions provided for by law in particular’ after which the same exceptions were listed. However, there is some ambiguity in the ‘particular’ restrictions as between the drafts, almost certainly due to translation differences. Thus, the M’baye draft’s ‘public safety or public order’ became ‘other people’s safety’, ‘to protect public health or morals’ became ‘health, ethics’, and ‘the rights and freedoms of others’ became ‘people’s rights and freedoms’ before the text finally settled on, ‘the safety, health, ethics and rights and freedoms of others’. At this point the June 1980 Banjul Ministerial Meeting came to the end of its allotted time and all the other articles and outstanding points of contention were reviewed by the January 1981 Banjul Ministerial Meeting.

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Article 12 Right to freedom of movement and residence The M’baye draft adopted verbatim Article 22 of the ACHR, which reflected Articles 12 and 13 of the ICCPR, Articles 13 and 14 of the UDHR and Articles 2 to 4 of the 1963 Fourth Protocol to the ECHR. The substance, in redrafted and reordered form, was retained by the 1979 Dakar Meeting of Experts, although essential elements of the detail were lost. For example, a specific prohibition on expelling a national from their own state was deleted, although a right of return was included, as was the specific injunction against the deportation of a non-national if their right to life or personal freedom was ‘in danger of being violated’ arising out of discrimination for race, nationality, religion, social status or political opinions. Restrictions on certain of the rights were also no longer to be constrained by ‘the extent necessary in a democratic society’ and the right of asylum for political offences was no longer specified, that right having already been downgraded in the M’baye draft from the standard, as laid down in Article 1 of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, arising out of a ‘well-founded fear of persecution’.65 It was adopted by the January 1981 Banjul Ministerial Meeting with two minor amendments. The first deleted the ‘other people’s rights and freedoms’ derogation in respect of the right to leave and return to one’s country; the second, most probably in response to the many mass expulsions that had taken place across Africa, made clear that ‘mass expulsion … shall be that which is aimed at national, racial, ethnic or religious groups’. In their later commentary on the ACHPR, both Kodjo and Ahanhanzo would make clear that the question of expulsions was derived not so much from the expulsion of the Ugandan Asians as from the several inter-African expulsions. The provision would also subsequently come up for discussion at the 1985 ICJ Nairobi Conference when some delegates suggested that the prohibition might become a concern for some countries if, as a result of economic problems, expulsion became necessary in the future. M’baye’s response, that some of these countries had nevertheless ratified the ACHPR, could hardly be regarded as a satisfactory answer in view of the historic disregard by many African leaders for the most basic provisions in their own constitutions, nor would it be an accurate indicator of the future.66 The problem with this article, as everyone recognised, was that it had the potential to cut across one of the major causes of conflict within the OAU – the willingness of some African political leaders to tolerate the activities of political 65 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa adopted 10 September 1969 at the 1969 Addis Ababa AHSG. 66 E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, 277, M.G. Ahanhanzo, ‘Introduction à la Charte africaine des droits de l’homme et des peuples (Organisation de l’unité africaine)’, 511–528 and ‘Summary of Discussion on the African Charter’, ICJ, Human and Peoples’ Rights in Africa, 53.

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opponents of the regime of a neighbouring state and the corresponding anger of the political leaders of that neighbouring state against what they saw as the accommodation of subversive activities directed against their regimes. It had been a major irritation from the early days of President Nkrumah and had been addressed by OAU Charter Article III ‘Principles’ and several AHSG resolutions, most recently at the 1977 Libreville AHSG.67 Accordingly, when Article 23 on the right to international peace and security came to be discussed by the January 1981 Banjul Ministerial Meeting, a further paragraph was added linking it to Article 12. Article 13 Right to participate in Government The M’baye draft adopted verbatim Article 23 of the ACHR, which followed closely Article 21 of the UDHR and Article 25 of the ICCPR; Article 3 of the 1952 First Protocol to the ECHR merely provided for free elections by a secret ballot. The 1979 Dakar Meeting of Experts made minor changes but, more significantly, deleted the clause providing for the right to vote and be elected in periodic elections under universal suffrage and by secret ballot, no doubt because of its conflict with the one-party state system. It also added a further clause providing for right of access to public services and public properties ‘in strict equality of all persons before the law’. This is likely adopted from Articles 3 and 6 of the 1963 UN ‘Declaration on the Elimination of All Forms of Racial Discrimination’ which was directed at discrimination in South Africa and which in its Article 6, in a blatant example of double standards, did insist on non-discrimination in ‘the right to participate in elections through universal and equal suffrage and to take part in the government’.68 It was adopted by the January 1981 Banjul Ministerial Meeting but with the proviso that the right to freely participate in the government of the country was subject to ‘the provision of the law’. The likelihood is that this was intended as a further layer of protection for the one-party state system but it may also refer to a paragraph in the M’baye draft, which the 1979 Dakar Meeting of Experts had deleted, which allowed that the law may regulate such rights but only on the basis of such factors as age, nationality, residence and mental capacity. This addition may therefore have merely been intended to restore the M’baye draft provision, albeit in such manner as to also offer a further degree of legal protection to the one-party state.69 67 ‘Declaration on the problem of subversion’ OAU AHG/Res.27 (II) and ‘Resolution on the interference of the internal affairs of African states’, OAU AHG/Res.85 (XIV). 68 All references to the Declaration on the Elimination of All Forms of Racial Discrimination are to UNGA 18/1904 20 November 1963. 69 Some significant changes in the wording of this article, which are not recorded in the official report on the January 1981 Banjul Ministerial Meeting, were also effected

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Article 14 Right to property The M’baye draft had not dared to include a right to property, although it was included in Article 17 of the UDHR, Article 21 of the ACHR and Article 1 of the 1952 First Protocol to the ECHR, but not the International Covenants. Several African constitutions had also provided for a right to property; for example, Article 14 of the 1974 Mali Constitution, Article 23 of the 1978 Rwanda Constitution and Article 12 of 1963 Senegal Constitution and, of course, in one form or another in all the constitutions of the former British colonial territories. When the question came up for discussion at the 1979 Dakar Meeting of Experts, as Jallow reports, pressure from the radical experts meant that it proved impossible to reach an agreement. A meaningless formula was therefore inserted whereby, if the right to property was already guaranteed by domestic legislation, it could only be set aside in the interest of public need or the general interest of the community, derogations that were broadly in line with the ACHR and ECHR. However, the precise definition of ‘public need’ or ‘general interest’ was left open to be determined, in practice, most likely, by governments. Nor, in contrast with the ACHR, was any provision made for payment of just compensation. When it came to be reviewed by the January 1981 Banjul Ministerial Meeting, as the official report noted, it became the subject of ‘lengthy discussions’. Jallow mentions that Angola, Cape Verde, Ethiopia and Mozambique, in particular, were opposed.70 The outcome of these discussions was that a right to property was finally agreed although it could not only still be set aside on the same interest grounds but also ‘in accordance with the provisions of appropriate laws’, which made the article a nonsense but enabled both sides of the argument to save face. The evolution of this right has also to be understood in the context of the decolonisation process. At the time of the decolonisation process in the former British colonial territories, the issue for African political leaders was the impact that such a right might have on their ability to dismantle what they regarded as an unjust and expropriated property settlement that operated primarily for the benefit of white settlers. Hence the debate on the precise definition of public interest and need in the 1960 Kenya pre-independence constitution in particular. Following independence, the implications of the right to property shifted in new directions. Most especially, the African states were concerned to protect the property rights of the black majorities in the remaining colonial territories. Accordingly, at one level, Article 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination provided for the right of everyone to own property. At the same time, at a second level, the African states also pursued the rights of all peoples to permanent sovereignty over their natural wealth and resources to limit the scope for colonial governments to disin Rev.4 and 5, for example, ‘in the direction of his country’s political affairs’ was amended to ‘in the government of his country’. 70 Interview with Hassan Jallow, 7 October 2008, London.

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pose of natural resource assets prior to independence and to justify claims of spoilation or nationalisation in the case of natural resource assets that had been sold at what might otherwise have been regarded as unfair or non-arms-length terms. Subsequently, and particularly after the independence of the Portuguese colonial territories, as many African states began to adopt a Marxist approach towards private ownership of property, the right to property evolved into a question of political systems, which was the issue at the centre of the discussions during the ACHPR drafting process. There was also the separate issue of African traditional communal ownership of property which still operated in many African states and therefore further cut across the notion of individual property rights. Article 15 Right to work The M’baye draft adopted almost verbatim Articles 6.1, 7 and 10 of the ICESCR, elements of which had already been included in Articles 22 to 25 of the UDHR. Faced with provisions which the 1979 Dakar Meeting of Experts recognised were over-extensive and unrealistic for most African states, such as, for example, the right of every person to work and gain a living ‘which he chooses or accepts’, a remuneration which provides as a minimum a ‘decent living for themselves and their families’ and the right to social security, they were simply deleted. Other deleted provisions included ‘safe and healthy working conditions’, ‘reasonable limitations on working hours’, ‘rest, leisure’ and ‘periodic holidays with pay’. The 1979 Dakar Meeting of Experts therefore simply limited the commitment to two reworked elements of the M’baye draft: Firstly, ‘the right to work under equitable and satisfactory conditions’ – ‘just and favourable’ in the M’baye draft. The phrase ‘equitable and satisfactory’ was used in Article 30 of the 1978 Rwanda Constitution and would also be included in Article 7 of the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, suggesting a wider international use, but it has not been possible to identify a more likely earlier source. Secondly, ‘equal pay for equal work’, which had been included in Article 7 of the ICESCR. It was adopted unamended by the January 1981 Banjul Ministerial Meeting. Article 16 Right to physical and mental health The M’baye draft adopted almost verbatim Article 12 of the ICESCR. Once again, the 1979 Dakar Meeting of Experts was caught between desirable ends and effective means for a right to which otherwise few African political leaders would have been opposed. The principle was therefore accepted, paragraph 1 being an almost verbatim restatement of Article 12.1 of the ICESCR, but the detail of the specific steps that states would be required to take to ensure ‘the full realization of this right’ was deleted and replaced by a general statement requiring ‘necessary steps’ to be taken. It was passed unamended by the January 1981 Banjul Ministerial Meeting.

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Article 17 Right to education and cultural life of the community The M’baye draft adopted significant elements of Articles 13–15 of the ICESCR, which was a development of Articles 26 and 27 of the UDHR, but with a discretion that already recognised that many of the obligations laid down by the ICESCR were too onerous for the African states. Even so, the 1979 Dakar Meeting of Experts clearly felt unable to commit to any detail whatsoever and therefore simply deleted the remaining obligations. In its place, the 1979 Dakar Meeting of Experts retained the simple statement, combined into one paragraph, of the right to education and the right to take part in the cultural life of the community. However, a further paragraph was added which imposed on the State the duty to promote and protect the morals and traditional values recognised by the community. This obligation in effect reflected the general injunction proposed by President Senghor in his opening address to the 1979 Dakar Meeting of Experts that it was necessary to ‘keep constantly in mind our values of civilisation’ and that: ‘We should borrow from modernism only that which does not misrepresent our civilization and deep nature.’ It is also essentially one of the obligations that African states signed up to in the 1976 Cultural Charter for Africa (see Volume 1, page 373). There are also obvious similarities with the ‘authenticity’ campaign of President Mobutu and other African political leaders. It was adopted unamended by the January 1981 Banjul Ministerial Meeting other than a division of the first paragraph into two paragraphs so that they approximated even more closely the opening sentences of Articles 26 and 27 of the UDHR. Article 18 Rights of the family, women, children and the disabled The M’baye draft provided for extensive rights for the family, mothers and young children based on Articles 17 and 19 of the ACHR, Article 16 of the UDHR, Article 10 of the ICESCR and Articles 23 and 24 of the ICCPR. For some reason, though, the M’baye draft did not include the statement ‘The family is the natural and fundamental group unit of society’ which featured in several of the precedents which the M’baye draft had followed and also as Article 14 of the 1963 Senegal constitution which states that: ‘Marriage and the family form the natural and moral basis of the human community. They are placed under the protection of the State. The State and public bodies shall have the social duty to watch over the physical and moral health of the family.’ Although, in the main, the principle of these extensive rights was probably acceptable, once again, the 1979 Dakar Meeting of Experts felt it necessary on economic grounds to rework and reformat the provisions of the M’baye draft. Firstly, it deleted the specific detail of the provisions so that the article was expressed essentially in terms of principles. Secondly, it made more explicit, as the M’baye draft had not, the centrality of family to the African way of life along the lines enjoined by President Senghor in his opening address: ‘In Africa, the individual and his rights are wrapped in the protection the family and other

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communities ensure everyone.’ In the first paragraph, the principle was therefore stated, in wording that followed closely the ACHR, ICCPR, ICESCR and the UDHR, that: ‘The family shall be the natural unit and basis of society. It shall be protected by the State.’ In addition to the 1963 Senegal constitution, almost identical wording is to be found in a number of other African constitutions. For example, Article 24 of the 1978 Rwanda constitution provides that ‘La famille, base naturelle de la société rwandaise, est protégée par l’Etat’ and Article 37 of the 1975 Madagascar constitution which provides that ‘L’Etat protégé la famille, la femme et l’enfant’. Senegal, Rwanda and Madagascar were all represented at the 1979 Dakar Meeting of Experts. Notwithstanding that the former British colonial territories were less inclined to include such provisions in a constitution, even Article 32.3(e) of the 1979 Ghana constitution provided ‘that the protection and advancement of the family as the unit of society are safeguarded’. The second paragraph completed the circle of paragraph 3 of Article 17 and the first paragraph of Article 18. However, although the official commentary of the January 1981 Banjul Ministerial Meeting reported that the first two paragraphs were adopted unamended, Rev.4 subsequently reworked both paragraphs. A sub-clause ‘which shall take care of its physical health and moral needs’ was added to the second sentence of Paragraph 1, so that it followed even more closely the wording of Article 14 of the Senegal constitution, and Paragraph 2 was amended so that while the duty of the State to assist the family remained, the family and not the State was recognised as the custodian of morals and traditional values. In Paragraph 4, ‘condition’ was also amended to ‘needs’. Thirdly, three new paragraphs were added: New Paragraph 3 provided for the elimination of discrimination against women and protection of the rights of the child as laid down in international declarations and conventions; new Paragraph 4 acknowledged the right in principle for special measures of protection for women and children in accordance with their requirements as in Article 25 of the UDHR – a generalised statement of the detail that had been provided in the M’baye draft. Broadly similar provisions had been included in the ACHR, ICCPR and ICESCR and in several African constitutions. For example, Articles 124 and 125 of the 1977 Benin constitution affirmed the equality of women in all respects and the right for female workers to receive maternity pay, and Article 32.1 of the 1979 Ghana constitution also provided for special measures of support from the state for all mothers; and new Paragraph 5 provided for the right to special measures for the aged and disabled to which brief reference is made in Article 25 of the UDHR and in Article 32 of the 1975 Mozambique constitution. Both Benin and Ghana, but not Mozambique, were represented at the 1979 Dakar Meeting of Experts. While Paragraph 3 was adopted essentially unamended by the January 1981 Banjul Ministerial Meeting, Paragraph 4 was deleted. Most likely it was considered an obligation that even in principle many African states would not be able to afford. Kenya, for example, had previously specifically reserved its position

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on ICESCR Article 10 Paragraph 2 which provided for special protection for mothers before and after childbirth and for maternity pay: ‘While the Kenya Government recognizes and endorses the principles laid down in Paragraph 2 of article 10 of the Covenant, the present circumstances obtaining in Kenya do not render necessary or expedient the imposition of those principles by legislation.’ However the 1979 ‘International Convention on the Elimination of All Forms of Discrimination against Women’, to which most African states signed up, some even before they had acceded to the ACHPR, seemed to have provided for a far greater measure of support for women than had been included in the Dakar draft and which the January 1981 Banjul Ministerial Meeting had thought necessary to delete. In an interview, Coulibaly described how, during the discussions at the 1979 Dakar Meeting of Experts, she had objected to the drafting of a composite paragraph that would combine the rights to be accorded women with those of children, the aged and the disabled and insisted that these should be stated in separate paragraphs. That separation was essentially maintained by the January 1981 Banjul Ministerial Meeting albeit that it also deleted Paragraph 4 which had sought to establish special measures of protection to be accorded women and children.71 Coincidentally, an almost identical point had been made to the 1978 Mensah Constitutional Commission in Ghana (see Volume 1, page 413). It concluded that the interests of women and of the child were not identical and therefore the combining of the two was at best insulting and at worst patronising. However, it is highly unlikely that that conclusion would have reached Coulibaly or any other of the experts, not least as there was no Ghanaian representative at the drafting meeting, and therefore it was almost certainly a matter of two great minds thinking alike.72 Article 19 Equality of peoples This article was added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. Its sentiments and elements of its wording can be traced back to Article 1 of the UDHR which proclaimed that: ‘All human beings are born free and equal in dignity and rights.’ Perhaps more significantly, it can also be traced back to any number of UN pronouncements and resolutions against colonialism and apartheid. The most closely related wording is possibly that of the 1960 UNGA ‘Declaration 71 UNGA 34/180 18 December 1979 (Convention on the Elimination of All Forms of Discrimination against Women) and Interview with Mariam Coulibaly Ndiaye, 12 August 2009, Paris. Details of reservations can be located on http://indicators. ohchr.org, last accessed 19 June 2017. 72 Ghana Publishing Corporation, The Proposals of the Constitutional Commission for a Constitution for the Establishment of a Transitional (Interim) National Government for Ghana, 34–35.

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on the Granting of Independence to Colonial Countries and Peoples’. Its Preamble expressed a consciousness of the need for ‘respect for the principles of equal rights and self-determination of all peoples, and of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction’ and on that basis declared that: ‘The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights.’ Article 20 Right to existence and self-determination The M’baye draft adopted verbatim Article 1 of the International Covenants which is identical to paragraph 1 of the 1960 UNGA ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ other than that it refers to the ‘right to’ rather than the ‘right of ’ self-determination (which was an amendment made by the 1979 Dakar Meeting of Experts). With only minor grammatical changes, and the deletion of the reference to cultural development, a Senghorian obsession, it was adopted by the 1979 Dakar Meeting of Experts. At some point, most likely Rev.2, a new opening paragraph was added which asserted: ‘All peoples shall have right to existence’ and the right to self-­determination was now described as imprescriptible and inalienable; subsequently ‘imprescriptible’ was altered to ‘unquestionable’ in Rev.4. Other grammatical and stylistic changes were also made in Rev.2 and subsequent drafts. The source of these amendments is unclear as the official commentary on the January 1981 Banjul Ministerial Meeting reports that, apart from combining these two opening paragraphs, no other changes were made and it was otherwise adopted unamended by the January 1981 Banjul Ministerial Meeting. The reference to the ‘right to existence’ is probably taken from Article 1 (and also Article 27) of the 1976 Algiers ‘Universal Declaration of the Rights of Peoples’ as its Article 5 also uses the phrase ‘imprescriptible and unalienable right to self-­determination’ and both these amendments seem to have been made at the same Rev.2/Rev.3 point in the drafting process. The second and third paragraphs were added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. They provided for the right of colonized or oppressed people to free themselves ‘by resorting to any means recognized by the international community’ and of the right to receive assistance to that end from OAU member states. This was a reformulation not only of the determination stated in the OAU Charter ‘to eradicate all forms of colonialism from Africa’, backed up by the formation of a Liberation Committee, but of the legal manoeuvre that had been successfully pursued by the African states in the course of their increasingly active involvement in the development of international law. In 1970, the UNGA’s ‘Declaration on Principles of International Law concerning Friendly Relations and Co-­ operation among States in accordance with the Charter of the United Nations’

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established ‘The principle of equal rights and self-determination of peoples’ and thereby provided the ‘means recognized by the international community’ now referred to in the second paragraph: By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle.

In 1974, that right-derived duty was given far stronger emphasis when the UNGA finally agreed on a definition of ‘aggression’ as it applied in the UN Charter (see Volume 1, page 618): Nothing in this definition … could in any way prejudice the right to self·determination, freedom and independence … of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States … particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receíve support … in conformity with the above-­ mentioned Declaration.

As a final step, further protection was awarded ‘to armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination’ in the 1977 Protocol I to the Geneva Convention.73 This meant that under international law colonialism was now officially recognised as aggression and that ‘any means’ of resistance was officially sanctioned and protected by the international community. It was yet another African revanchist triumph over the UN Charter that had tolerated colonialism but had still felt no incongruity with the recital in its preamble that proclaimed: ‘Whereas 73 UNGA 25/2625 24 October 1970 and 29/3314 14 December 1974, Annex: Definition of Aggression and Report of the Special Committee on the Question of Defining Aggression 11 March – 12 April 1974, GAOR 29th Session Supplement No. 19 UN A/9619, Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 1.4 (reference from F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 238).

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it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ There is also a connection with Article 35 of the 1793 Declaration of the Rights of Man and of the Citizen (though the former French colonial territories, including Senegal, claimed an allegiance in their constitution to the less fulsome 1789 Declaration): ‘When the government violates the rights of the people, insurrection is for the people and for each portion of the people the most sacred of rights and the most indispensable of duties.’74 Article 21 Right of peoples to dispose of natural resources Article 22 Right to economic, social and cultural development Paragraph 1 of Article 21 was adopted by the M’baye draft from Article 1.2 of the International Covenants but without including the sub-clause ‘without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law’; most probably because at this time international law was regarded by the African states as substantively prejudicial to their interests. The 1979 Dakar Meeting of Experts essentially adopted the M’baye draft wording but in place of ‘for their own ends’, or, as in the 1962 UNGA resolution 17/1803 on ‘Permanent sovereignty over natural resources’, ‘of the well-being of the people of the State concerned’, inserted a separate middle sentence providing that this right ‘shall be exercised in the exclusive interest of the populations’ – translated as ‘of the peoples’ in Rev.3 and finally ‘of the people’ in Rev.4. A further change amended ‘natural wealth and resources’ as employed by the M’baye draft, the International Covenants and Article 8 of the 1976 Algiers ‘Universal Declaration of the Rights of Peoples’ to ‘wealth and natural resources’, which was the phrase adopted by the 1960 UNGA resolution 15/1515 ‘Concerted action for economic development of economically less developed countries’ and the 1962 UNGA resolution 17/1803.75 The 1979 Dakar Meeting of Experts also altered ‘In no case may a people be deprived of its own means of subsistence’ to ‘In no case shall a people be deprived of it’ – ‘it’ being ‘wealth and natural resources’. These two versions are possibly variations on the same theme but it seems probable that the amended version is intended to accommodate a far wider range of economic transactions as envisaged by the negotiations then on-going in the International Law Commission over the ‘Succession of States and Governments in respect of matters other than Treaties’ which included contracts and debts entered into pre-­independence 74 ‘1793 Declaration of the Rights of Man and of the Citizen’, F.M. Anderson (ed.), The Constitutions and Other Select Documents Illustrative of the History of France 1789­1901 (Minneapolis, 1904), 174. http://www.columbia.edu/~iw6/docs/dec1793.html, last accessed 4 May 2017. 75 UNGA 15/1515 15 December 1960 and 17/1803 14 December 1962.

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and the right to nationalisation – the question of ‘acquired rights’ had been examined in 1969 in detail as a matter of some contention, with considerable scepticism in relation to colonialism, by Bedjaoui, the Special Rapporteur in his Second Report during the preliminary drafting discussions. These negotiations would conclude in the Final Act of the 1983 Vienna Conference on Succession of States in respect of State property, archives and debts. This possibility is suggested by the addition of paragraph 2 of the Dakar draft (it became paragraph 3 when a new paragraph 2 was inserted by the January 1981 Banjul Ministerial Meeting) which reinstated the excluded sub-clause of Article 1.2 of the International Covenants but with the further proviso of ‘in fair, even and beneficial exchange with a view to achieving the new international economic order’ – the idea long held since the 1955 Asian-African Conference at Bandung and reiterated by the NIEO that the lesser-developed states were simply asking for a level playing field of fair and mutually beneficial terms of trade. The January 1981 Banjul Ministerial Meeting would subsequently prefer ‘equitable exchange’ to ‘fair, even and beneficial exchange’ and delete the reference to the NIEO. The likelihood is also suggested by the addition of a new Paragraph 2 by the January 1981 Banjul Ministerial Meeting: ‘In case of spoilation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation’ (in Rev.3 ‘expropriation’ was temporarily applied in place of ‘spoilation’). This demand had already been included in Article 16 of the 1974 UNGA ‘Charter of Economic Rights and Duties of States’ (see Volume 1, page 631) which required ‘the restitution and full compensation for the exploitation and depletion of, and damages to, the natural and all other resources of those countries, territories and peoples’ arising out of ‘colonialism, apartheid, racial discrimination, neo-colonialism and all forms of foreign aggression, occupation and domination’. A similar demand was included in Article 8 of the 1976 Algiers ‘Universal Declaration of the Rights of Peoples’ which asserted the right of every people to recover its natural wealth and resources ‘if they have been despoiled as well as any unjustly paid indemnities’. Although by 1979 this was increasingly an historic question, it still remained a particularly pertinent issue for Namibia and South Africa as the African states made clear when they sponsored two resolutions alongside the Final Act of the 1983 Vienna Conference on Succession of States in respect of State property, archives and debts. The first of these two resolutions, ‘Resolution concerning peoples struggling against colonialism, alien domination, alien occupation, racial discrimination and apartheid’, sought to place the convention in the particular context of decolonisation, but also recalled ‘that the peoples in question possess permanent sovereignty over their resources and natural wealth and their rights to development, information concerning their history and to the conservation of their cultural heritage’. The second resolution more specifically referenced

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Namibia. Further context was provided by the invitation to the conference to the African and Palestinian liberation movements.76 Paragraphs 4 and 5 were added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. The sentiments they express can be traced back to the discussions at the 1955 Asian-­ African Conference and the calls for unity and solidarity so as ‘to achieve a better life for the peoples of Africa’ in the OAU Charter. More recently, economic unity, particularly in relation to multinational companies, had been advanced in the ‘African Declaration on Co-operation, Development and Economic Independence’ adopted in 1973 by the OAU AHSG which argued that ‘regional cooperation … provides a means of co-ordinating and strengthening the position of African countries in their relations with the outside world’. It then went on to propose that the African states should: ‘Organize exchanges of information among African countries … and take adequate steps to put an end to practices of foreign transnational companies that are contrary to Africa’s interests.’ Much the same line was taken by the 1974 UNGA ‘Charter of Economic Rights and Duties of States’, the lead sponsors of which were the African states, which declared that every state had the right: ‘To regulate and supervise the activities of transnational corporations within its national jurisdiction … Every State should, with full regard for its sovereign rights, cooperate with other States in the exercise of 76 UN A/CN.4/Rev.4/216/Rev.1 (Second report on succession in respect of matters other than treaties, by Mr. Mohammed Bedjaoui, Special Rapporteur: Economic and financial acquired rights and State succession) 18 June 1969, UN A/ CONF.117/14 and 15 7 April 1983 (Vienna Convention on succession of States in respect of State property, archives and debts and Final Act of the United Nations Conference on succession of States in respect of State property, archives and debts) and A/CONF.117/16 (United Nations Conference on Succession of States in Respect of State Property, Archives and Debts, Vienna, 1 March–8 April 1983: Vols 1 and 2, Summary records of the plenary meetings and of the meetings of the Committee of the Whole). All references to the 1974 ‘Charter of Economic Rights and Duties of States’ are to UNGA 29/3281 12 December 1974. The convention took over twenty years to negotiate yet even though the ratification threshold for the convention to come into effect was set at a mere fifteen states, by early 2016 only seven states had ratified or acceded to the convention and a further seven states had signed but not ratified the convention. Despite African insistence on its importance the only African state to ratify the convention was Liberia in 2005, although Algeria and Niger signed but did not ratify the convention (see https:// treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mt dsg_no=III-12&chapter=3&lang=en, last accessed 20 January 2016). The history of the negotiations is located on http://legal.un.org/avl/ha/vcssrspad/vcssrspad.html, last accessed 31 October 2017; see also M. Craven, The Decolonization of International Law: State Succession and the Law of Treaties (Oxford, 2007).

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the right’; and that ‘each State has the right and the responsibility to choose its means and goals of development, fully to mobilize and use its resources … All States have the duty, individually and collectively, to co-operate in eliminating obstacles that hinder such mobilization.’77 At the 1979 Monrovia AHSG, alongside the adoption of Decision 115, African political leaders had also adopted the Monrovia Declaration of Commitment in which they committed themselves ‘individually and collectively’ to a range of economic and social policies. That commitment would be further reflected in the Lagos Plan of Action for the Economic Development of Africa initiative promoted by OAU Secretary-General Kodjo which was approved by the April 1980 OAU AHSG Second Extraordinary Session. It emphasised that, due to the activities of foreign transnational corporations and other factors, ‘member states are unable to exercise meaningful and permanent sovereignty over their natural resources’. Part of the answer to this problem was for African states to exercise economic initiatives ‘individually and collectively’.78 Practical expression of these sentiments was also already evident in Libya and Nigeria’s decision to nationalise the assets of foreign oil companies. Libya would begin to increase its ownership of oil assets, revenue share and operating control over pricing in stages from 1970 on, notably by means of the 1971 Tripoli Agreement. It nationalised the BP concession in 1971, in protest against UK foreign policy, and the Hunt oil concession in 1973 and also in 1973 adopted a blanket 51 per cent nationalisation law.79 Nigeria also began to increase the proportion of its ownership of oil assets in the early 1970s and in 1979 passed a law providing for 60 per cent ownership. In August 1979 it also demonstratively nationalised the greater part of BP’s oil assets in response to the UK Conservative government’s authorisation for BP to begin supplying oil to South Africa, and as a sign to OAU member states of its leadership in Africa’s bid to regain control over its economic situation.80 77 OAU CM/St.12 (XXI) ‘African Declaration on Co-operation, Development and Economic Independence’ 13 May 1973 adopted by the 1973 Addis Ababa AHSG on 25 May 1973’. 78 OAU AHG/ST.3 (XVI) Rev. 1 ‘Monrovia Declaration of Commitment of the Heads of State and Government of the Organization of African Unity on guidelines and measures for national and collective self-reliance in social and economic development for the establishment of a New International Economic Order’ and OAU, Lagos Plan of Action for the Economic Development of Africa, 1980–2000, 2nd edn (Lagos, 1980), 77 (Paragraph 76). 79 J.A. Allan, Libya: The Experience of Oil (London, 1973), 183, F.C. Waddams, ‘The Libyan Oil Industry, 1950–1976: A study in Government/oil company relations’ (unpublished PhD thesis, SOAS, 1979) and Section E, ‘Libya: Law on Nationalization of Oil Companies’, International Legal Materials, 13/1 (1974), 60–63. 80 Pickford, High Commissioner, Lagos, ‘Summary of Lagos Despatch ECO 5/3 15

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Article 22 was added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. The first part of paragraph 1 seems to follow Paragraph 1 of Article 20 but with the addition of ‘cultural’ as in Article 1 of the International Covenants and the 1960 UNGA ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’. Whereas the context of Article 20 is essentially political self-determination and Article 21 economic self-determination, the precise context of Article 22 is unclear. On the one side, reference is specifically made to cultural development and ‘freedom and identity’, which hints at a cultural dimension. The ‘common heritage of mankind’ also has a cultural dimension which can be linked to President Senghor’s concept of the Civilisation of the Universal as affirmed in UNESCO’s 1966 ‘Declaration of the Principles of International Cultural Co-operation’: ‘In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind’.81 Moreover, whereas in Article 21 the State Parties are enjoined to act ‘individually and collectively’, in Article 22 the injunction is proposed ‘individually or collectively’ (originally ‘separately or in cooperation with others’) suggesting individual cultural development (or simply another example of inconsistency). There is also a logic in presenting consecutive articles dealing with, separately, political, economic and social and cultural self-determination. Akinyemi is therefore right to point out that there must be at least a suspicion that ‘development’ as used in this article is really a reference to President Senghor’s sense of the holistic development of man (though in support of his argument Akinyemi is wrong to suggest ‘that this article was part of the draft submitted by the Senegalese Government’ as it only made its appearance in the 1979 Dakar Meeting of Experts).82 On the other side, the reference to ‘the right to economic … development’ and the ‘common heritage of mankind’ in Paragraph 1 and ‘the right to development’ in Paragraph 2 would suggest an economic self-determination context. Wako also advised that the inclusion of the ‘right to development’ came about through his intervention on the basis that it was to be considered as an essential element of Africa’s contribution to universal human rights whereas M’baye was a purist and felt that the ‘right’ had first to be sold to the international community before it could be included. The economic self-determination context is June 1972: Indigenisation and nationalisation in Nigeria’, NA FCO 65/1221 and A. Genova, ‘Nigeria’s Nationalization of British Petroleum’, International Journal of African Historical Studies, 43/1 (2010), 115–136. 81 UNESCO, ‘Declaration of the Principles of International Cultural Co-operation’, Records of the General Conference, Fourteenth Session: Resolutions (Paris, 1966), 86–89. 82 A.B. Akinyemi, ‘The African Charter on Human and Peoples’ Rights: An Overview’, 232.

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also suggested in that, in the UN, the ‘common heritage of mankind’ and the ‘right to development’ essentially now enjoyed the status of economic interest discourses in their own right.83 Alongside the right to development (see Volume 1, page 632), the ‘common heritage of mankind’ was an emerging theme of the NIEO by which the developing countries argued for their right to a share in the benefits arising from the exploitation of resources in areas that were coming to be regarded as a common heritage such as the seas, the sea-bed, Antarctica and outer space. In 1970, the UNGA adopted the ‘Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the limits of National Jurisdiction’ which declared the sea-bed, ocean floor and subsoil, as well as their resources, ‘the common heritage of mankind’ and convened for 1973 the Third Conference on the Law of the Sea which after nine years was finally able to agree the 1982 United Nations Convention on the Law of the Sea. The developing countries were able to ensure that one of the goals of that convention, as recited in its Preamble, was ‘the equitable and efficient utilization’ of the resources of the seas and oceans and ‘that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or landlocked’.84 This had already been largely affirmed in Article 29 of the 1974 UNGA ‘Charter of Economic Rights and Duties’. Article 17 of the 1976 Algiers ‘Universal Declaration of the Rights of Peoples’ also referred to the ‘common heritage of mankind’ and specifically identified in that context ‘the high seas, the sea-bed and outer space’, although Article 9 also included ‘scientific and technical progress’ as part of the common heritage of mankind. It seems most likely that the 1979 Dakar Meeting of Experts was also strongly influenced by President Senghor’s opening address, albeit that it had also given out mixed signals as to the message that this article might have been intended to portray – in this context, President Senghor seems to have borrowed a paragraph from Vasak’s 1977 article in which he described the third generation of human rights as the ‘rights of solidarity’ and had outlined many of the same rights which President Senghor would describe. President Senghor’s opening address sought 83 Interview with Amos Wako, 23 July 2012, Geneva. 84 UNGA 2750/25 17 December 1970 and 37/66 3 December 1982; for the relationship between the two concepts ‘NIEO’ and ‘common heritage of mankind’, see M.C.W. Pinto, ‘The Developing Countries and the Exploitation of the Deep Seabed’, Columbia Journal of World Business, 15/4 (1980), 30–41. T. Karis/G.M. Carter (eds), From Protest to Challenge: A Documentary History of African Politics in South Africa 1882–1964, 301. (Document 48 (Congress Youth League Manifesto. Issued by the Provisional Committee of the Congress Youth League, March 1944) also refers to ‘Civilisation as the common heritage of all Mankind’.)

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to explain the background to the AHSG’s emphasis on such rights as the right to development which he defined in broad terms as including ‘the right to peace and security, the right to a healthy environment, the right to participate in the equitable share of the common heritage of mankind, the right to enjoy a fair international economic order and, finally, the right to natural wealth and resources’, all of which would ‘need the solidarity of our states to be fully met’, which in the main would seem to point to a collective economic intent. However, he then also went on to present his personal perspective that development should be understood as ‘a form of humanism; a moral and spiritual fact … an expression of man as a whole’ which suggests a context of cultural self-­determination.85 Article 23 Right to peace and security The article was added by the 1979 Dakar Meeting of Experts and adopted by the January 1981 Banjul Ministerial Meeting unamended but with the addition of Paragraph 2 b). It seems most likely that its inclusion was brought about by President Senghor’s reference to the right to peace in his opening address to the 1979 Dakar Meeting of Experts in that the introductory commentary to the Dakar draft also closely follows the tenor of President Senghor’s opening address. The introductory commentary also noted that: ‘The right to peace did not call for any particular observation.’ This was perhaps just as well in that M’baye, as the original author together with Vasak of the right to peace, would have been only too aware of how the concept had come to be created and therefore he himself had not thought to include it in the M’baye draft although Vasak had included the ‘right to peace’ as one of the rights of solidarity in his 1977 article from which President Senghor clearly borrowed (see Article 22). There was no indication in President Senghor’s opening address of what it meant or the context in which he thought it should be applied other than as one of several elements that made up the right to development. For the twenty years or so since independence, the context in which the African states had called up the threat or right to international peace and security had been decolonisation, apartheid and, more recently, the NIEO (see Volume 1, page 631). In this instance, though, not only is there no obvious connection with that historic context but, unusually, the reference to ‘peace and security’, which was normally contextualised by the prefix ‘international’, in line with the UN Charter, was prefixed by ‘national and international’. Further pointers to the intended context are suggested by the reference to ‘the principles of solidarity and friendly relations’ affirmed in the UN Charter and OAU Charter, the reference in Paragraph 2 a) to Article 12 of the ACHPR and the addition of Paragraph 85 K. Vasak, ‘A 30-Year Struggle: The Sustained Efforts to give Force of Law to the Universal Declaration of Human Rights’, UNESCO Courier (November 1977), 29, 32.

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2 b) (see Article 12); another reference, although it was not recalled in the text, was the Preamble of the UDHR: ‘Whereas it is essential to promote the development of friendly relations between nations.’ These references clearly point to the context as being inter-African relations – all the more so as only African states would be State Parties to the ACHPR – and, specifically, to the long-­ standing concern of the OAU with subversive activities by one African state against another. As explained by Jallow, all the African states were aware that the problems of asylum and refugees arose out of internal instability within African states and therefore the reference to ‘national’ was to the need for the African states to recognise an obligation to put their own house in order as a means of ensuring peace and security. Unusually, therefore, in this context, notwithstanding concern over the issue of non-interference, the reference to ‘national’ was permitted, possibly because all African states were in agreement and the point had already been made in AHSG resolutions and the OAU Charter itself.86 Article 24 Right to favourable environment The article was added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. It is widely interpreted by almost all commentators on the ACHPR as referring to modern environmental rights and, therefore, as van der Linde and Louw optimistically point out, the first time such a right was included ‘in an internationally binding human rights instrument’.87 This interpretation is supported by subsequent judgements of the ACOMHPR and the inclusion of a right to a healthy environment in the constitution of several African states. Although all these constitutions post-date the ACHPR, they at least suggest that this is how Article 24 has been understood by those states. Further support can be adduced from the reference in President Senghor’s opening address to the 1979 Dakar Meeting of Experts to ‘the right to a healthy environment’, although it is tempered by the fact that Vasak, from whom the reference seems to have been borrowed, had referred more explicitly to ‘the right to a healthy and ecologically balanced environment’ (see Article 22)88 and by Article 16 of the clearly influential 1976 Algiers ‘Universal Declaration of the Rights of Peoples’ which asserted that: ‘Every people has the right to the conservation, protection and improvement of its environment.’ 86 H.B. Jallow, The Law of the African (Banjul) Charter, 27. 87 M. van der Linde/L. Louw, ‘Considering the Interpretation and Implementation of Article 24 of the African Charter on Human and Peoples’ Rights in Light of the SERAC Communication’, African Human Rights Law Journal, 3/1 (2003), 167–187. 88 K. Vasak, ‘A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’, 29.

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It is tempting therefore to suggest that this is the obvious end of the matter. Yet, at the same time, many of these same commentators are also agreed that the wording is at best vague and somewhat ambiguous in its support for environmental protection. For example, rather than the requirement for the environment to be ‘healthy’, it is enjoined to be ‘generally satisfactory’ and ‘favourable’, and, moreover, favourable for ‘their development’. Article 30 of the 1974 UNGA ‘Charter of Economic Rights and Duties’ offers more mixed signals in that it is generally environmental in intent but with the rider that environmental policies should not adversely impact the development potential of developing states. This general sense of vagueness arises essentially because the context in which the article is analysed is Western notions of environmental protection. Intent becomes much clearer when the wording is analysed in terms of the African context at that time in which environmental concerns were essentially only of interest insofar as they impacted on economic development. This African context was clearly signalled at the 1972 UN Stockholm Conference on the Human Environment which would conclude with a Declaration of the United Nations Conference on the Human Environment. Its introduction includes a statement of intent which makes the point that is essentially made by Article 24: In the developing countries most of the environmental problems are caused by under-development. Millions continue to live far below the minimum levels required for a decent human existence, deprived of adequate food and clothing, shelter and education, health and sanitation. Therefore, the developing countries must direct their efforts to development, bearing in mind their priorities and the need to safeguard and improve the environment.

This statement of intent was followed by a list of twenty-six principles, several of which clarify the context in which the African states sought to establish their concern with the environment: Principle 1 Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated. Principle 8 Economic and social development is essential for ensuring a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.

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This approach was subsequently pursued at the same 1979 Monrovia AHSG which had adopted Decision 115 by the Monrovia Declaration of Commitment, essentially the prelude to an African development strategy, which included a commitment by African states to: ‘Co-operation in the preservation, protection and improvement of the natural environment.’ How that should be understood became clearer the following year in the Lagos Plan of Action for the Economic Development of Africa where it was discussed under the chapter heading ‘Environment and development’. As the first four headings suggested – sanitation and water, desertification and drought, reforestation and soil degradation, and marine pollution (by foreign shipping) – African concern was primarily centred on those environmental issues that impacted on development.90 There had been no mention of environmental protection in the M’baye draft beyond a brief right to ‘environmental and industrial hygiene’ adopted verbatim from Article 12 of the ICESCR and ‘the right to the enjoyment of the highest attainable standard of physical and mental health’, which had been deleted in relation to Article 16. Almost certainly therefore the catalyst for Article 24 was a slightly nuanced interpretation of President Senghor’s opening address to the 1979 Dakar Meeting of Experts all the more so as the introductory commentary on the Dakar draft refers to the ‘right to environment’ in much the same terms that President Senghor had employed in his opening address. However, that introductory commentary also observed that: ‘The notion of environment … meets the concerns of Africans since the environment involved is a “global environment favourable to development”.’ In much the same way, OAU Secretary-­ General Kodjo’s report on the ACHPR after the 1979 Dakar Meeting of Experts would also note that: ‘Reference to right to satisfactory general environment underscores the dire necessity of overall satisfactory environment needed by Africa for development.’91 89 UN A/CONF.48/14/Rev.1 1973 (1972 Stockholm Conference). 90 OAU CAB/LEG/67/9, OAU AHG/ST.3 (XVI) Rev. 1 (Monrovia Declaration of Commitment of the Heads of State and Government of the Organization of African Unity on guidelines and measures for national and collective self-reliance in social and economic development for the establishment of a New International Economic Order) and OAU, Lagos Plan of Action for the Economic Development of Africa, 1980–2000, Chapter IX. 91 OAU (L) Secretary-General’s Report on the preliminary draft African Charter on Human and Peoples’ Rights CAB/LEG/67/6, 2 and OAU (L) ‘Statement by His

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Article 25 Duty of promotion This article was added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. The idea of publicising human rights instruments can be traced back to the fourth part of the 1948 UNGA resolution 3/217 by which the UDHR was adopted which exhorted all UN member states ‘solemnly to publicize the text…and to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions’. However, it can more immediately be linked to the Preamble of Mauritius’ proposal for a ‘Universal Declaration of Human Duties’, which declared that it was necessary ‘to ensure by adequate teaching and education their diffusion, promotion, recognition and observance by all’, and to Article 8 of the 1963 ‘Declaration on the Elimination of All Forms of Racial Discrimination’, subsequently reinforced by Article 7 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, which proposed that: ‘All effective steps shall be taken immediately in the fields of teaching, education and information, with a view to eliminating racial discrimination and prejudice.’ It can also be traced back to the discussion at the 1979 UN Monrovia Seminar at which participants stressed the widely felt need for promotion of the concept of human rights in Africa on the basis that complaints could not be brought unless people were educated about their rights and the opportunity for redress by means of a complaint addressed to the ACOMHPR.92 Article 26 Independence of the courts and national human rights associations The M’baye draft adopted verbatim Article 8 of the ACHR which provided for the ‘Right to a fair trial’ and formed the basis of Article 7. However, among the several layers of protection that the 1979 Dakar Meeting of Experts had chosen to delete from the M’baye draft in formulating Article 7 was the right for a hearing before ‘a competent, independent and impartial tribunal’, a phrase that had also been included in Article 14 of the ICCPR and Article 6 of the ECHR (which did not refer to ‘competent’). This was now reinstated with a new wording as new Article 26. The concept of the independence of the courts as a necessary condition for the rule of law was, of course, a fundamental axiom with which all the experts would have been familiar and it had also been one of the conclusions put forward by the 1961 ICJ Lagos conference: ‘In a free society practicing the Rule of Law,

Excellency Mr. Edem Kodjo, Secretary-General of the OAU at the opening session of the meeting of the Ministers of Justice charged with adopting the draft African Charter on Human and Peoples’ Rights, OAU Ministerial Conference on Human and Peoples’ Rights 9–15 June 1980 Banjul, The Gambia’ CAB/LEG/67/9. 92 UNGA 3/217A 10 December 1948.

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it is essential that the absolute independence of the Judiciary be guaranteed.’93 Both M’baye and Ahanhanzo had attended that conference but almost all the experts would have been aware of both the conference and its general conclusions – although contentious discussion at the 1971 Addis Ababa Conference of African Jurists, African Legal Process and the Individual had indicated that several delegates had thought the concept was of Western origin and contrary to the African tradition; moreover, that it did not answer the present-day realities and needs of the new states in the process of development (see page 139 above).94 Elias, in his background paper to the 1979 UN Monrovia Seminar, which was attended by several of the experts, also made the point that the independence of the judiciary is absolutely indispensable as otherwise the administration of justice would be a sham.95 The point was emphasised further in Article 10 of Mauritius’ ‘Universal Declaration of Human Duties’ which required that: ‘Justice must be absolutely impartial and independent in all its proceedings … Justice must never be the instrument of politicians’ and that a judge should make decisions on fact and conscience ‘never on orders received from those in power or his desire to please them’. The first part of Article 26 was therefore adopted unamended by the January 1981 Banjul Ministerial Meeting other than with the amendment of ‘judiciary’ to ‘courts’. The second part, providing that the establishment of national human rights institutions should be allowed, was added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. This was a rather unusual addition in that it had not been included in either the ACHR or ECHR. It had also been resisted at the UN (see page 343 below) although in this wording it was no more than a requirement for toleration as opposed to a mandatory requirement. There was a possible connection with the obligation under Article 40 of the ICCPR for states to include in their periodic reports to the HRC ‘the measures they have adopted which give effect to the rights … and on the progress made in the enjoyment of those rights’, however, it was more likely related to recent discussions that had been taking place in the UN especially at the CHR and the UNGA. In 1977, on the occasion of the UDHR’s impending thirtieth anniversary, UNGA resolution 32/123 recommended a number of ways in which the anniversary might be celebrated. These included the ‘establishment of national or local institutions for the promotion and protection of human rights’ and a seminar on that subject in Geneva in 1978. Of the more than thirty non-African states invited to this seminar almost all attended but only two, Benin and the Ivory Coast, of the nine invited African states 93 ICJ, African Conference on the Rule of Law: A Report on the Proceedings of the Conference, 19. 94 UN E/CN.14/521 1971. 95 T.O. Elias, UN (G) HR/Liberia/1979/BP.1, 25.

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attended. This hardly suggested an enthusiasm upon which the injunction might have been included in the Dakar draft. However, the initiative continued to be pursued by further UNGA resolutions in 1978 and 1979, adopted unopposed without the need for a vote, and at the 1979 CHR meeting Egypt, Morocco and Senegal were among eleven sponsors of a CHR resolution which invited all Member States without national human rights institutions to take appropriate steps to establish them;96 Senegal, itself, had already established a Senegalese Committee for Human Rights in 1970, albeit that it was a state-run institution, as was the Uganda Human Rights Committee established by President Amin (see Volume 1, page 593). At the 1979 UN Monrovia Seminar, too, Justice Chipeta, as discussion leader of one of the four agenda items, suggested as one of eleven proposed functions for the ACOMHPR support for the activities of national and local human rights institutions which would eventually be included as one of the ACHPR’s promotional functions in Article 45.97 Chapter II Duties In his report to the 1980 Freetown CoM on the status of the ACHPR process, OAU Secretary-General Kodjo forwarded the Dakar draft and drew attention to several aspects which he suggested differentiated the ACHPR from other conventions on human rights. One of these was ‘the innovation of the obligation of man to observe certain duties in the exercise of his human rights. The blend of rights and duties is a fundamental principle of African culture – a principle which Africa is proud to offer other people.’98 Yet the idea of duties as a counterpart of rights as an African innovation is hardly supported by the historical record. Reference to duties can be found in the UDHR, ACHR, ICCPR and the 1948 American Declaration (see Recital 6). In his 1963 encyclical ‘Pacem in Terris’, Pope John XXIII had also anticipated precisely the points made by President Senghor and Mauritius’ ‘Universal Declaration of Human Duties’ proposal. It seems unlikely that, despite his Catholic education, President Senghor was directly influenced by this Papal encyclical, although he would most likely have been aware of it, but the same cannot be said of Mauritius’ proposal which had originated out of a strong Catholic spiritual background: 96 UNGA 32/123 16 December 1977, 33/46 14 December 1978 and 34/49 23 November 1979, UN ST/HR/SER.A/2 ‘Seminar on national or local institutions for the promotion and protection of human rights’, Geneva, September 1978, 1 and UN ESCOR 1979 Session Supplement No. 6: CHR Report on the 35th Session, E/1979/36, 52, 129 (CHR Resolution 24 (XXXV) ‘National institutions for the promotion and protection of human rights’ 14 March 1979). 97 UN ST/HR/SER.A/4, 9. 98 OAU (L) Secretary-General’s Report on the preliminary draft African Charter on Human and Peoples’ Rights OAU (L) CAB/LEG/67/6, 2.

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28. The natural rights of which We have so far been speaking are inextricably bound up with as many duties, all applying to one and the same person. These rights and duties derive their origin, their sustenance, and their indestructibility from the natural law, which in conferring the one imposes the other. 30 … it follows that in human society one man’s natural right gives rise to a corresponding duty in other men; the duty, that is, of recognizing and respecting that right. Every basic human right draws its authoritative force from the natural law, which confers it and attaches to it its respective duty. Hence, to claim one’s rights and ignore one’s duties, or only half fulfill them, is like building a house with one hand and tearing it down with the other. 31. Since men are social by nature, they must live together and consult each other’s interests. That men should recognize and perform their respective rights and duties is imperative to a well ordered society.99

Somewhat ironically, the concept of duties linked to rights had also been argued thirty years earlier by Prime Minister Smuts. As Dubow has explained, Prime Minister Smuts had developed an holistic, evolutionary theory of ‘Personality’ which, although it was initially to be applied to individuals, could by extension also be applied in a collective sense to nations, cultures or races or demarcated into evolutionary stages – in that respect it was uncannily similar to the development of the concept of ‘négritude’ by President Senghor. Although he had been invited, probably indirectly, to contribute to UNESCO’s 1947 philosophical exploration of the basis of human rights (see Volume 1, page 196), Prime Minister Smuts had declined to offer a contribution. He did, however, correspond on the subject of the universality of human rights at that time with Chung-Shu Lo, a Chinese philosopher who would provide a contribution to the UNESCO project. In that correspondence, Prime Minister Smuts expressed a lack of conviction in the underlying basis of universal human rights. ‘Of course’, he suggested, ‘there is the right to live, to self-development, to self-expression, and to enjoyment’. However, he went on: ‘I find our modern emphasis on “rights” somewhat overdone and misleading … It makes people forget that the other and important side of “right” is “duty”.’ Rights are much too individualistic and give no due recognition to that organic human and social unity which the duties of the older codes recognized as the real rule and law and pattern of right living. A bill of human rights, to be of any real value, would have to deal with such practical rules and guides of conduct, rather than with high sounding phrases which have no practical value.100 99 ‘Pacem in terris’, Paragraph 28, 30, 31 Encyclical of Pope John XXIII promulgated April 11, 1963, http://w2.vatican .va/content/john-xxiii/en/encyclicals/documents/hf_j-xxiii_enc_11041963_pacem.html, last accessed 10 April 2017 (reference from F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 281). 100 S. Dubow, ‘Smuts, the United Nations and the Rhetoric of Race and Rights’, Journal

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It may be recalled that Gandhi’s contribution to the 1947 UNESCO philosophy project also laid emphasis on duties as a prior correlate of rights (see Volume 1, page 199). In addition to the rationale for duties outlined by President Senghor and President Jawara in their opening addresses, respectively, to the 1979 Dakar Meeting of Experts and June 1980 Banjul Ministerial Meeting (see Recital 6), some further explanation as to the necessity for a section on duties is given in the introductory commentary accompanying the Dakar draft. In the first instance, that account reiterated the sentiments expressed by President Senghor: ‘The conception of an individual who is utterly free and utterly irresponsible is not consonant with African philosophy.’ More generally, it followed President Senghor’s explanation that ‘contrary to what has been done so far in other regions of the world, provision must be made for a system of “Duties of Individuals”, adding harmoniously to the rights recognized in them by the society to which they belong and by other men’. This was itself a reiteration of the Preamble of Mauritius’ ‘Universal Declaration of Human Duties’ proposal which argued that the solitary reference to duties in Article 29 of the UDHR was insufficient and that it had become necessary to formulate in clear and explicit terms the corollary obligation of duties. As its introductory commentary therefore went on to explain: ‘Until now, international instruments referring to the duties of individuals do so in a few words and, this often betrays the authors’ lack of conviction … In traditional African societies there is no opposition between rights and duties or between the individual and the community. They blend harmoniously.’ This rationale for the section on duties was later backed up in a 1984 article by Ahanhanzo who referred back to President Senghor’s opening address. He explained that: ‘The authors of the ACHPR wanted to avoid the individualism, irresponsibility and egoism which threaten modern African societies. It was better to safeguard the values and truths of solidarity and of community which other peoples have lost.’101 Rather astonishingly, then, in 1976, in a report by Mauritius to the UN Secretary-­General in relation to a study being undertaken on the individual’s duties to the community (see Article 29), it was explained that: ‘The law of Mauritius does not impose on the individual any specific duties towards the community.’102 of Contemporary History, 43/1 (2008), 65–72 and ‘Smuts to Chung-Shu Lo 29 July 1947, No 758’, J. van der Poel (ed.), Selections from the Smuts Papers Vol.7 August 1945–October 1950 (London, 1973), 154–156 (reference from S. Dubow, ‘Smuts, the United Nations and the Rhetoric of Race and Rights’, 65–66). 101 M.G. Ahanhanzo, ‘Introduction à la Charte africaine des droits de l’homme et des peuples (Organisation de l’unité africaine)’, 524–525 (reference from E. Brems, Human Rights: Universality and Diversity, 111). 102 ‘The individual’s duties to the community and the limitations on human rights and

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Article 27 General duties of the individual The M’baye draft adopted verbatim Article 32 of the ACHR. A similar principle was set out in Article 29 of the UDHR which provided that: ‘Everyone has duties to the community.’ The substance was retained by the 1979 Dakar Meeting of Experts in Paragraph 1 but the UDHR’s ‘duties’ were preferred to the ACHR’s ‘responsibilities’ and the beneficiaries of the duties were clarified, so that ‘mankind’ became ‘the international community’ and ‘his community’ became ‘society’, and extended so as to include ‘the State and other communities recognized by the Constitution and the law’ (this was amended by the January 1981 Banjul Ministerial Meeting to read ‘other legally recognised communities’, which M’baye would subsequently explain meant administrative divisions within a state).103 In Paragraph 2 the 1979 Dakar Meeting of Experts reversed the subject/ object relationship so that rights were not so much limited by the obligations owed to the beneficiaries as that the individual had the duty to exercise his rights and freedoms, amended from just rights, with ‘due respect’ (‘due regard’ from Rev.4 on’) to certain considerations. These considerations were slightly reworked – ‘common interest’ rather than ‘just demands of the general welfare’ and ‘collective security’ rather than ‘security of all’ – and extended to include ‘morals’ (‘morality from Rev.3 on) although the standard of interpretation, ‘a democratic society’, was left out. Similar limitations on the exercise of individual rights in the national interest or security had also been included in several African constitutions; for example, collective interest and national interest in Article 16 of the 1975 Madagascar constitution. As a result of the amendments, Paragraph 2 which was adopted unamended by the January 1981 Banjul Ministerial Meeting took on much of the form of Article 29.2 of the UDHR. Article 28 Duty of respect The article was added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. It does not seem to have featured in any other international or regional human rights instrument although the Preamble of the ICCPR declares that everyone ‘is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant’ and this is supported by Article 20.2 which requires that: ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ There are also fundamental freedoms under article 29 of the Universal Declaration of Human Rights: A contribution to the freedom of the individual under law, Study prepared by Erica-Irene A. Daes’ E/CN.4/Sub.2/432/Rev.2 (New York, 1983), 26. 103 ‘Summary of Discussion on the African Charter’, ICJ, Human and Peoples’ Rights in Africa, 54.

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some similarities with the anti-racial discrimination obligation and promotion injunctions of Articles 4 and 7 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the Preamble to Mauritius’ ‘Universal Declaration of Human Duties’ proposal which lays stress on ‘the responsibility belonging to each and every man … to recognize and observe the Duties enumerated’ and Article 28 which imposes ‘the duty of every person to be aware of and alive to the rights of others, to feel personally responsible for their being respected and to respect them personally in his behavior to others’. Article 29 Specific duties of the individual The article was added by the 1979 Dakar Meeting of Experts and adopted unamended except in form by the January 1981 Banjul Ministerial Meeting. As the introductory commentary on the Dakar draft explained, one of the draft’s key characteristics was: ‘The duties of every one towards the communities in which he lives and, more particularly, towards the family and state were specified.’ Although there were precedents for a general statement of the duty owed by the individual as a counterpart to rights (see Recital 6), the only international human rights declaration to specify precise duties – indeed there was a clear overlap with the ACHPR – was the 1948 American Declaration which Ahanhanzo specifically referenced as a precedent for the inclusion of duties. In contrast, contrary to what might have been expected, there was little to be gleaned from Mauritius’ ‘Universal Declaration of Human Duties’ proposal as, notwithstanding its title, it listed relatively few duties, indeed it was even inclined at times to present rights as duties; for example, Article 15 asserted that it was the duty of every person to have a nationality. The personal sympathies of experts apart, the only other possible origin for the list of duties was therefore African constitutions in which some of the specific duties that eventually came to be listed can be identified.104 The discussion of ‘duties’ at the 1979 Dakar Meeting of Experts can also be seen to have already been anticipated by a discussion several years earlier in the Sub-Commission at which much of the content that would be prescribed in the ACHPR was essentially foreshadowed. This discussion was the result of a decision by the CHR in March 1974 authorising ‘An item on the individual’s duty to the community as defined in Article 29 of the Universal Declaration of Human Rights and the relevant articles of the International Covenants on Human Rights’ to be included on the agenda of the next session of the Sub-Commission. When that item came to be discussed by the Sub-Commission, in which Africa was represented by Egypt, Ghana, Kenya, Morocco, Nigeria, Sudan and Tunisia, several unnamed, but probably African, delegates expressed the view that: 104 M.G. Ahanhanzo, ‘Introduction à la Charte africaine des droits de l’homme et des peuples (Organisation de l’unité africaine)’, 524–525.

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The African Charter on Human and Peoples’ Rights: Volume 2 The fundamental duties which everyone owed to society included the following: loyalty to the State and obedience to law, exercise of a useful activity, willing acceptance of obligations, virtue, moral improvement, education and general sacrifices demanded for the common good or general welfare. Social solidarity, in particular, would be a safeguard against the exaggerated individualism which had done so much harm to mankind. The word ‘community’ should be understood in a broad sense to include the individual’s family, his country, the State in which he lived, the international community and mankind as a whole. Article 1 of the Universal Declaration of Human Rights expressly stated that all human beings should act towards one another in a spirit of brotherhood. The limitations which could be imposed on certain human rights were said to include the respect for the rights and freedoms of others, the protection of morality, the prohibition of abuse of a right, the needs of public order and of the general welfare in a democratic society, and the principle of equality. Reference was also made to provisions restricting rights in times of national emergency.105

Nonetheless, as Jallow reports, at the discussion of the 1979 Dakar Meeting of Experts, several of the experts brought up in an English common law tradition found the idea of including duties in the ACHPR alien in that duties could not be enforced and therefore, they argued, simply served to detract from the individual’s rights and freedoms. While they were persuaded to accept a majority view, the point would also be made during the discussion on the ACHPR at the 1985 ICJ Nairobi Conference when it was pointed out that the ACHPR was an international convention that bound states and there was therefore no serious possibility that an individual in breach of any of the duties specified by the ACHPR might be arraigned before the ACOMHPR.106

Paragraph 1 The idea of a duty owed by the individual to the family as an essential element of African society had been raised by President Senghor in his opening address 105 UN ESCOR 56th Session 1974 Supplement No. 4: CHR Report on 30th Session E/5464, 59 (CHR Decision 6 (XXX) 6 March 1974), Report of the Sub-­ Commission on Prevention of Discrimination amd Protection of Minorities to the Commission on Human Rights on its Twenty-Seventh session, New York, 5–23 August 1974 Е/CN.4/1160 18 October 1974, 16–18 and ‘The individual’s duties to the community and the limitations on human rights and fundamental freedoms under article 29 of the Universal Declaration of Human Rights: A contribution to the freedom of the individual under law, Study prepared by Erica-Irene A. Daes’ E/ CN.4/Sub.2/432/Rev.2. 106 H.B. Jallow, The Law of the African (Banjul) Charter, 31 and ‘Summary of Discussion on the African Charter’, ICJ, Human and Peoples’ Rights in Africa, 54.

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to the 1979 Dakar Meeting of Experts. The importance of the family had already been stated as had the duty owed by the State ‘to assist the family’ (see Article 18) and Paragraph 1 therefore merely extended that duty to the individual. Several African constitutions touched on the duty owed to the family but the usual format limited the obligation to that of parents towards their children; for example, Article 15 of the 1963 Togo constitution states that: ‘Parents have the natural right and duty to raise their children.’ Perhaps the closest wording is that of Article 30 of the 1948 American Declaration which asserted an essentially similar two-way obligation between parents and children.

Paragraphs 2 and 6 The duty to serve the national community, to work and to pay taxes in the interest of the community is set out in Articles 35 to 37 of the 1948 American Declaration and in various forms in several African constitutions. For example, Article 47 of the 1958 Guinea constitution requires that ‘All citizens … shall … pay their taxes’; Article 21 of the 1979 Somalia constitution provides that ‘Work is a duty, honour and the foundation of a socialist society’ and Article 37 that ‘Every person shall have the duty to participate in the economic growth of the country, payment of taxes, and to contribute to state expenditure according to his capacity’; Article 127 of the 1977 Benin constitution provided that citizens of Benin have the right to work which is ‘a duty and an honour’ and Article 141 that ‘The citizens of Benin must pay the duties imposed by the law’; and Article 21 of the 1975 Madagascar constitution also asserts that ‘Work is an honour and duty for all citizens’. Guinea, Somalia, Benin and Madagascar were all represented at the 1979 Dakar Meeting of Experts. Similar provisions were also included in several other African constitutions. For example, Article 13 of the 1971 Egypt constitution provides that ‘Work is the right and duty of every citizen’ and Article 61 that ‘Payment of taxes and public charges is a duty in accordance with the law’; and Article 15 of the 1963 Togo constitution that ‘Payment of taxes and contribution to public expenditure is the duty of all’ and Article 18 that ‘Work is a right and duty for all’.

Paragraphs 3, 4 and 5 The duty to support the security of the state, to preserve social and national solidarity and territorial integrity is also included in several African constitutions and in Article 34 of the 1948 American Declaration. For example, Article 142 of the 1977 Benin constitution provides that ‘The defence of the fatherland and the revolution is … for all citizens … the most noble and most sacred of duties’; Article 18 of the 1975 Madagascar constitution provides that ‘The defence of the nation … is a sacred duty of all citizens’ and Article 19 asserts that ‘National service obligation is a duty of honour’; Article 38 of the 1979 Somalia constitution lays down that ‘The defence of the nation and the consolidation of the

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unity of the Somali people shall be a sacred duty of every citizen’; and Article 48 of the 1958 Guinea constitution insists that ‘The defence of the nation is the sacred duty of every citizen’. Other African constitutions with similar provisions include, for example, Article 19 of the 1963 Togo constitution: ‘Citizens have duties from which no one may absolve himself. These duties arise essentially out of national solidarity and respect for the laws. The defense of the country and of the integrity of the territory of the Republic is the duty of each citizen’; Article 30 of the 1975 Mozambique constitution which requires the ‘active participation in the defence of the country’; and Article 17 of the 1974 Mali constitution which asserts that: ‘Defence of the nation and its territorial integrity is a sacred duty of all Malians.’

Paragraph 7 There does not seem to be an obvious source for this Article although its sentiments are broached in several different ways indirectly in the 1975 Declaration of the Intergovernmental Conference on Cultural Policies in Africa and in the 1976 OAU Cultural Charter for Africa. It is Senegalese in spirit but not Senegalese in construction.107

Paragraph 8 The OAU Charter promoted African unity in several of the recitals in its Preamble and as the first of the ‘Purposes’ of the OAU in Article 2. Support for African unity was also included in the Preamble of several African constitutions. For example, the 1963 Senegal constitution declared ‘Senegal will spare no effort towards the realization of African unity’; the 1974 Mali constitution affirmed Mali’s commitment to the political, economic and social unity that was indispensable to the continued affirmation of the African personality; and the 1977 Benin constitution asserted that it ‘would fight to defend, strengthen and consolidate African unity on the basis of the principles of the OAU Charter’. The Preamble of the 1958 Guinea constitution was even more supportive in that it upheld ‘unreservedly all policies tending towards the creation of a United States of Africa’ and in Article 34 authorised the ‘partial or complete surrender of sovereignty in view of achieving African unity’. To that extent, the duty of the individual to contribute ‘to the promotion and achievement of African unity’ was no more than the extension of the commitment already entered into by the African states either by way of the OAU Charter or directly in their own constitutions.

107 UNESCO, Final Report, Intergovernmental Conference on Cultural Policies in Africa, 27 October – 6 November 1975, Accra (organized by UNESCO with the cooperation of OAU), 23–24 (Declaration of the Intergovernmental Conference on Cultural Policies in Africa).

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Part II Measures of Safeguard Chapter I Establishment and organisation of the African Charter on Human and Peoples’ Rights Article 30 Establishment of ACOMHPR The M’baye draft adopted Article 33 of the ACHR almost verbatim in a rather sloppy manner that left dangling elements of the ACHR’s reference to the Inter-American Court of Human Rights. Following the style of the ACHR, although it was also the styling employed in the 1967 ICJ Dakar Conference declaration (see page 177 above), the M’baye draft referred to the ACOMHPR as the ‘Inter-African Commission on Human Rights’. As to why an African human rights court had not been included, in the introduction to the M’baye draft M’baye explained that: ‘The establishment of a Human Rights Court to redress cases of violations of Human Rights is not included in the Draft Charter. It is thought premature to do so at this stage. The idea is, no doubt, a good and useful one which could be introduced in future.’ There was a further brief discussion during the 1979 Dakar Meeting of Experts as to the desirability of making provision for a court but the majority were realistic enough to conclude that it would most likely drive away too many states from the ACHPR itself. Again, at the Banjul Ministerial Meetings, there was also a debate about the merits of an African human rights court but the consensus was rather in favour of avoiding ‘instruments of legal technicalities’.108 The 1979 Dakar Meeting of Experts largely ignored the wording of the M’baye draft. It adopted a reworked formulation of Article 1 of the Monrovia Proposal with the styling of ACOMHPR but specified, where the Monrovia Proposal had not, that it ‘shall be established within the OAU’. It was adopted by the January 1981 Banjul Ministerial Meeting with a minor amendment that altered ‘promote and protect human and peoples’ rights’ to ‘promote human and peoples’ rights and ensure their protection in Africa’. No reference was made to the seat of the ACOMHPR on the basis that it was still to be determined whether it should be based at the OAU headquarters in Addis Ababa or in one of the signatory states. Article 31 Composition The M’baye draft adopted verbatim Articles 34–36 as to the composition, character and election of the commissioners of the ACOMHPR but not Article 71 of the ACHR which would have made membership of the ACOMHPR ‘incompatible with any other activity that might affect the independence or impartiality’ of a commissioner. Reflecting the larger membership base of the OAU, where the 108 Interviews with delegates, quoted by A.B. Akinyemi, ‘The African Charter on Human and Peoples’ Rights: An Overview’, 234.

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ACHR had allowed for seven commissioners, the M’baye draft proposed that the ACOMHPR should be composed of two members from each of the OAU’s geographic regions and, in keeping with his schema of establishing a ‘provisional’ ACHPR (see Article 63), that: ‘The Commission shall represent all the member countries of the Organization of African Unity.’ Once again, the M’baye draft was largely cast aside by the 1979 Dakar Meeting of Experts in favour of a slight reformulation of Articles 4.1 and 5 of the Monrovia Proposal which seems to have relied in several respects on the earlier precedents of the ICCPR and ACHR. For example, commissioners were to be ‘African personalities’ rather than ‘experts’ and ‘impartiality’ was added to the qualities required of prospective commissioners – the number of commissioners was also fixed at eleven, compared to the Monrovia Proposal’s sixteen commissioners, so as to correspond with, as M’baye later explained, ‘the equitable geographic distribution that the OAU usage devotes to the North, East, West, Centre and South of Africa. An odd number was chosen to facilitate the making of decisions, in the event of division in the votes’.109 The requirements for nomination of ‘high moral character and recognized competence in the field of human rights’ were also included in Article 34 of the ACHR and Article 28.2 of the ICCPR, with respect to appointment to the HRC, and Article 21 of the ECHR, with respect to the appointment of judges to the European Court of Human Rights. Similarly, the inclusion of the dubious fiction that commissioners were to serve in their personal capacity, although nominated (under Article 33) by governments of member states, had also been included in Article 36 of the ACHR and Article 28.3 of the ICCPR and was also the basis of nomination to the Sub-Commission. The article was adopted essentially unamended by the January 1981 Banjul Ministerial Meeting, albeit that further translation improvements, for example, ‘high morality’ rather than ‘high morals’ seem to have been made in Rev.4 to a hitherto clumsy translation. The 1979 Dakar Meeting of Experts also inserted as a separate article the Monrovia Proposal (and ACHR) requirement that membership of the ACOMHPR was incompatible with membership of a government or of the diplomatic corps, which had been inserted into the Monrovia Proposal by the Working Group reviewing the initial UNDHR draft, several members of which were present at the 1979 Dakar Meeting of Experts. (As the Working Group had also included M’backe and Fall, who had assisted in the preparation of the M’baye draft, it is not clear why the limitation had not been included in the M’baye draft.) However, in view of its obvious sensitivity, it was left in square brackets and in the event it proved unacceptable to the January 1981 Banjul Ministerial Meeting. According to Akinyemi, even a Nigerian compromise proposal, which suggested that any government official elected to the ACOMHPR should resign his government post, did not receive any support. Ouguergouz also reports that 109 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 35.

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Nigeria had sought to insert a clause which barred a commissioner from sitting in judgement on a communication against his own state, but this, too, was not accepted although it was the standard set by Article 12 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination which had essentially been drawn up by the African states.110 It was however acceptable practice in the CHR as, for example, in the case against Uganda (see Volume 1, page 591), but not in the HRC under Article 42.2 of the ICCPR. The ACHR also had no similar limitation in respect of the Inter-American Commission on Human Rights but Article 55 of the ACHR did exclude judges of the same state trying a case in the Inter-American Court of Human Rights as did Article 26 of the ECHR in relation to the European Court of Human Rights. Article 32 Limitation on membership The M’baye draft adopted verbatim Article 37 of the ACHR but the 1979 Dakar Meeting of Experts preferred the, effectively identical, wording of Article 31 of the ICCPR and Article 4.2 of the Monrovia Proposal; a similar limitation was included in Article II.2 of the 1964 OAU Protocol of the Commission of Mediation, Conciliation and Arbitration. It was adopted unamended by the January 1981 Banjul Ministerial Meeting.111 Article 33 Election of Commissioners The M’baye draft adopted verbatim Article 80 of the ACHR. A similar provision was included in Article 6 (1) of the Monrovia Proposal, without mention of a secret ballot, and Article 29 of the ICCPR, without mention of a period of office. The 1979 Dakar Meeting of Experts essentially adopted the first sentence of the M’baye draft with the addition of a reference to a six-year period of office. It was adopted by the January 1981 Banjul Ministerial Meeting with the reference to the period of office deleted as the intention was to define the period of office in a separate article (see Article 36). Article 34 Nomination of Commissioners The M’baye draft adopted verbatim Article 36 (2) of the ACHR, which proposed that each state might nominate a slate of up to three candidates at least one of whom had to be a national of another member state, whereas the 1979 Dakar Meeting of Experts preferred to follow the wording of Article 6 (2) of the Monrovia Proposal which limited nominations to two candidates one of whom 110 B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 309, A.B. Akinyemi, ‘The African Charter on Human and Peoples’ Rights: An Overview’, 235 and F. Ouguergouz, The African Charter on Human and Peoples’ Rights, 487. 111 ‘Organization of African Unity: Protocol of the Commission of Mediation, Conciliation and Arbitration’, 1116–1124.

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had to be a national of another member state. Both the Monrovia Proposal and the ACHR, and thereby the M’baye draft, had envisaged that all member states might nominate commissioners, almost certainly because the commissioners were to serve in their personal capacity. In the case of the M’baye draft, however, it also followed because of the ‘provisional’ structure which envisaged that the ACHPR would enter into force immediately upon adoption by the AHSG (see Article 63). It is therefore all the more surprising, and possibly impractical, that the 1979 Dakar Meeting of Experts, which retained the ‘provisional’ structure, took a different view that only State Parties might nominate candidates, although it did not seem to bar nationals of non-State Parties from being nominated. As elections were to be held fairly promptly, it was also not clear how many State Parties had to sign up before the nomination process could begin. There was also a further residual lacuna in that the election was to be conducted by the AHSG which presumably would include OAU member states that had not adhered to the ACHPR, but there is a suggestion that it was agreed at the closing discussion within the Bureau of the January 1981 Banjul Ministerial Meeting that it should be understood that only those heads of state who had signed up to the ACHPR could vote in the election (see page 272 above). The Dakar draft was adopted by the January 1981 Banjul Ministerial Meeting but with nationals of non-State Parties now barred from election. Similar limitations on the nomination of candidates are also included in Article II of the 1964 Protocol of the Commission of Mediation, Conciliation and Arbitration and Articles 28 and 29 of the ICCPR.112 Article 35 Nomination of prospective Commissioners The M’baye draft adopted verbatim, adjusted for the ‘provisional’ structure, Article 79 of the ACHR which provided that, for the first election, the OAU Secretary-­General should write to OAU member states to request, within ninety days, their nominations after which at least thirty days’ notice of the nominations would be given to the AHSG – there seems to be no indication in the M’baye draft as to the nomination procedure to be followed for subsequent elections. Article 7 (1) and (2) of the Monrovia Proposal adopted almost exactly the same approach and time frame for all elections, not merely the initial election, most probably because it was derived, so too the ACHR, from Article 30.2 of the ICCPR (albeit that it provided for a time period of four months for nominations). It was reworked by the 1979 Dakar Meeting of Experts on the basis of a four-month nomination time frame, as in the ICCPR, and was adopted unamended by the January 1981 Banjul Ministerial Meeting. 112 ‘Organization of African Unity: Protocol of the Commission of Mediation, Conciliation and Arbitration’, 1116–1124.

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Article 36 Term of Commissioners Article 37 Drawing of lots after first election The M’baye draft adopted verbatim Article 37 of the ACHR which proposed a term of office of four years with the opportunity of a one-time only re-election and with the retirement of half the commissioners after two years, to be chosen by lot by the AHSG, in the initial transitionary phase.113 Article 8 of the Monrovia Proposal and Article 32 of the ICCPR provided for essentially the identical approach although both allowed for unlimited right of re-election and the Monrovia Proposal envisaged a six-year term of office. The 1979 Dakar Meeting of Experts adopted an amalgam of the texts of the ACHR and Monrovia Proposal but amended so as to take into account the six-year term it had previously proposed and an ACOMHPR of eleven commissioners, and for the drawing of lots to be carried out by the Chairman of the AHSG not by the ACOMHPR as proposed by the Monrovia Proposal; it also placed no limit on the right of re-election. It was essentially accepted but reformulated by the January 1981 Banjul Ministerial Meeting so as to approximate more closely, particularly Article 36, to Article 8 of the Monrovia Proposal. The process and structure described and the wording employed in Articles 35–37 seem to follow closely what seems to have evolved into a standard United Nations approach, hence its adoption by the Monrovia Proposal. It was already being applied with respect to the Committee on the Elimination of Racial Discrimination, set up under Article 8 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, and the HRC as prescribed by Articles 30 and 32 of the ICCPR, although both prescribed for the drawing of lots to be assigned to the Chairman of the Committee rather than the UN Secretary-General, and would therefore have been familiar to many of the delegates at the 1979 Dakar Meeting of Experts and the January 1981 Banjul Ministerial Meeting. Article 38 Solemn declaration by Commissioners This article was added by the 1979 Dakar Meeting of Experts and adopted with minor changes by the January 1981 Banjul Ministerial Meeting. It is most likely derived from Article 12 of the Monrovia Proposal, which in turn may derive from Article 38 of the ICCPR with the exception that the Monrovia Proposal requires commissioners to ‘swear and affirm before the Chairman of the OAU’ and the ICCPR ‘in open committee’, whereas the ACHPR is silent on this

113 In a typical example of sloppy drafting the M’baye draft assigned responsibility for the drawing of lots to the ‘General Assembly’, an ACHR reference, rather than, as it intended, the AHSG.

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point. Both the Monrovia Proposal and the ICCPR require, so too Article 20 of the Statute of the ICOJ, that the affirmation or solemn declaration by the commissioners should state that they will discharge their duties or perform their functions ‘impartially and conscientiously’ rather than ‘impartially and faithfully’ as in the ACHPR; once again, though, ‘faithfully’ may simply be a translation preference.114 Article 39 Death, incapacity, discharge of Commissioners Article 40 Termination of office The M’baye draft adopted Article 38 of the ACHR which provided that vacancies arising on the ACOMHPR other than by the expiration of the term of office were to be filled by the AHSG in accordance with the Statute of the ACOMHPR (see Article 42) – the ACHR provided that such vacancies would be filled by the Permanent Council of the OAS. The 1979 Dakar Meeting of Experts adopted a more detailed procedure based largely on Articles 33–34 of the ICCPR from which no doubt Article 9 of the Monrovia Proposal had derived. However, Paragraphs 1 and 2 also seemed to follow extremely closely the procedure proposed by a 1967 preliminary Draft UN International Convention on all forms of religious intolerance, which would never be adopted by the UNGA. It distinguished between a vacancy arising as a result of the death or resignation of a commissioner and a vacancy arising out of the unanimous opinion of the other commissioners that a commissioner had ceased to carry out his function – Article IV of the 1964 Protocol of the Commission of Mediation, Conciliation and Arbitration also had a provision for the removal of commission members from office. There was, however, an obvious lacuna in the Dakar draft in that having followed the Monrovia Proposal in making ACOMHPR membership incompatible with being a member of the government or of the diplomatic corps, it did not follow the Monrovia Proposal in including incompatibility as a further contingency by which a vacancy might arise. Article 40 was added by the 1979 Dakar Meeting of Expert albeit that it was not included in either the Monrovia Proposal or the ICCPR, although a similar provision had been included in Article III of the 1964 Protocol of the Commission of Mediation, Conciliation and Arbitration.115 Both articles were adopted unamended by the January 1981 Banjul Ministerial Meeting. 114 Statute of the ICOJ, https://www.icj-cij.org/en/statute, last accessed 6 November 2019. 115 ECOSOC Resolution 1233 (XLII) ‘Draft International Convention on all forms of religious intolerance’ 6 June 1967, UN ESCOR 42nd Session 1967 Supplement No. 1: Resolutions E/4393, 13–17 Annex IV Preliminary draft on additional measures of implementation transmitted to the CHR by the Sub-Commission, Article XVIII and ‘Organization of African Unity: Protocol of the Commission of Mediation, Conciliation and Arbitration’, 1116–1124.

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Article 41 Secretariat and funding The M’baye draft adopted verbatim Article 40 of the ACHR which was reformulated by the 1979 Dakar Meeting of Experts based on an essentially similar Article 10 of the Monrovia Proposal, which was itself derived from Article 36 of the ICCPR. It was adopted unamended by the January 1981 Banjul Ministerial Meeting. Article 42 Rules of procedure The M’baye draft adopted verbatim Article 39 of the ACHR which required the ACOMHPR to prepare its own Statute, which it would then submit to the AHSG for approval, but to establish its own regulations. In contrast, the 1979 Dakar Meeting of Experts thought a Statute unnecessary but accepted that the ACOMHPR should ‘lay down’ its own rules of procedure. Otherwise Paragraphs 1 to 3 essentially followed Articles 13 and 14 of the Monrovia Proposal and Article 39 of the ICCPR, with minor changes to reflect the number and term of commissioners, and also Articles 10 and 12 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. The 1979 Dakar Meeting of Experts also added Paragraph 4, which provided that the ACOMHPR Chairman should have the casting vote if necessary, and Paragraph 5, which authorised the attendance of the OAU Secretary-General at meetings of the ACOMHPR. The January 1981 Banjul Ministerial Meeting made minor changes of form, for example, by limiting the scope of the OAU Secretary-General to participate in the deliberations of the ACOMHPR without an invitation from the ACOMHPR Chairman. Article 43 Diplomatic privileges of the Commissioners Although Article 70 of the ACHR had provided that commissioners would enjoy diplomatic privileges and immunities in accordance with international law, for some reason, a similar provision was not included in the M’baye draft. It was also not included in the Monrovia Proposal, but it was nevertheless added by the 1979 Dakar Meeting of Experts on a non-specific basis. It was adopted by the January 1981 Banjul Ministerial Meeting but on the more specific basis that the diplomatic privileges and immunities were to be as provided in the 1965 ‘General Convention on the Privileges and Immunities of the Organisation of African Unity. At the 1980 Freetown CoM, subsequently approved by the 1980 Freetown AHSG, an additional protocol to the General Convention on the Privileges and Immunities was signed but as the article reference is to the General Convention, it is not clear whether the reference also includes the additional protocol. A similar provision, in anticipation of the 1965 convention, which was being negotiated at the time, had also been included as Article XVII of the 1964 Protocol of the Commission of Mediation, Conciliation and Arbitration.116 116 OAU CAB/LEG/24.2/13 ‘General Convention on the Privileges and Immunities

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Article 44 Emoluments and allowances of the Commissioners Although Article 72 of the ACHR and Article 35 of the ICCPR had provided for payment of emoluments and allowances, inexplicably, in view of its importance to the African professional elite and the fact that nominally at least commissioners served in their personal capacity, no such article was included in either the M’baye draft or the Monrovia Proposal. The article was added by the 1979 Dakar Meeting of Experts and adopted unamended by the January 1981 Banjul Ministerial Meeting. Chapter II Mandate of the Commission Article 45 Functions This was one of the key articles as it went to the heart of how OAU member states envisaged the ACHPR should operate and be understood. It was therefore a matter of some considerable debate in the drafting meetings. The opening sentence established the schema by which the functions would be defined. In the M’baye draft, which adopted verbatim Article 41 of the ACHR, the opening sentence defined a ‘main function’, which was ‘to promote respect for and defence of human rights’, and then listed the several facilitating ‘functions and powers’ by means of which this ‘main function’ would be exercised. A similar schema was adopted in the Monrovia Proposal whose opening sentence defined the function of the ACOMHPR as being ‘to promote and protect human rights in Africa’, as proposed by Decision 115, and with that end in mind provided for five facilitating functions. The opening sentence of the schema proposed by the 1979 Dakar Meeting of Experts declared that ‘the ACOMHPR shall’ and then listed the five functions mandated to the ACOMHPR. This schema was broadly adopted by the January 1981 Banjul Ministerial Meeting which amended ‘the ACOMHPR shall’ to ‘The functions of the Commission shall be’ and then refined the functions in such a manner, as Jallow explains, ‘to separate and define more clearly the promotional and the protective functions’. It provided for four functions but expanded the first, the promotion function, so as to include several facilitating functions.117

Paragraph 1: To promote Human and Peoples’ Rights Of the seven facilitating functions and powers assigned to the ACOMHPR by the M’baye draft, which were adopted verbatim from Article 41 of the ACHR, three seemed to correspond to the main promotion mandate – ‘to develop an awareness of human rights among the peoples of Africa’, ‘to make recommendaof the Organisation of African Unity’ 25 October 1965, OAU CM/1034(XXXV) Rev.3 Annex 1 ‘Additional Protocol to the OAU General Convention on Privileges and Immunities’ 3 July 1980 and ‘Organization of African Unity: Protocol of the Commission of Mediation, Conciliation and Arbitration’, 1116–1124. 117 H.B. Jallow, The Law of the African (Banjul) Charter, 46.

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tions to the governments … for the adoption of progressive measures in favour of human rights within the framework of their domestic law’ and ‘to prepare such studies or reports as it considers advisable in the performance of its duties’. The 1979 Dakar Meeting of Experts never spelled out promotion as a specific function but essentially included these three functions among its five specified functions in their own right but based closely on Article 1.1, 1.3 and 1.4 of the Monrovia Proposal, with some circumspection in relation to African circumstances. As part of the revised schema adopted by the January 1981 Banjul Ministerial Meeting Paragraph 1 spelled out promotion as a function directly and included these three functions as sub-paragraphs of Paragraph 1. Article 45.1.a of the ACHPR, based on Article 1.1 of the Monrovia Proposal, provided for a wide promotional mandate, which included collecting documents, undertaking studies and research, organising seminars and disseminating information, but other possible functions such as education and teaching were deleted by the 1979 Dakar Meeting of Experts and rendering advice to governments was diluted to ‘should the case arise, give its views or make recommendations to governments’; subsequently the January 1981 Banjul Ministerial Meeting would also eliminate humanitarian and refugee laws from the ACOMHPR’s promotion purview. Articles 45.1.b and c of the ACHPR, although reformulated, retained the substance of Article 1.3 and 1.4 of the Monrovia Proposal, but the scope in Article 45.1.c to cooperate with intergovernmental and non-­ governmental organisations was removed by the January 1981 Banjul Ministerial Meeting. No doubt African political leaders were disinclined to allow the ACOMHPR to frolic beyond its control with outside agencies.

Paragraph 2: Ensure the protection of rights under conditions laid down by the charter The M’baye draft had provided for its ‘defence of human rights’ main function by mandating the ACOMHPR as one of its seven facilitating functions and powers ‘to take action on petitions and other communications pursuant to its authority under the provisions of this charter’. This article was redrafted by the 1979 Dakar Meeting of Experts by directly spelling out protection as one of the five functions of the ACOMHPR and deleting the direct reference to ‘petitions and other communications’ which it preferred to indirectly reference, as in the M’baye draft, by the sub-clause ‘under conditions laid down by the present charter’. It was adopted unamended by the January 1981 Banjul Ministerial Meeting.

Paragraph 3: Interpreting the provisions of the ACHPR As this function was not included in either the ACHR or the Monrovia Proposal, it was not included in either the M’baye draft or the Dakar draft. It was added by the January 1981 Banjul Ministerial Meeting most likely based on the practice of the OAU Charter and other OAU conventions. For example, Article XXVII of the OAU Charter assigned the authority for interpretation to a two-thirds

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majority vote in the AHSG. Similarly, Article 12 of the 1977 OAU Convention for the Elimination of Mercenarism in Africa provided that any dispute over interpretation should ‘be settled by the interested parties in accordance with the principle of the Charter of the Organization of African Unity and the Charter of the United Nations’ and Article XVIII of the 1968 ‘African Convention on the Conservation of Nature and Natural Resources’ provided that any call for interpretation ‘shall at the request of any party be submitted to the Commission of Mediation, Conciliation and Arbitration of the Organization of African Unity’.118 In the circumstances, therefore, it may be regarded as somewhat generous of the January 1981 Banjul Ministerial Meeting to have conceded authority over interpretation of the ACHPR to the ACOMHPR. Most likely, it was imagined that, as the operations of the ACOMHPR were in any event so closely controlled by the AHSG, the risk was rather limited in practice. Nonetheless, several states remained unhappy with this paragraph and expressed their intention to enter reservations. An attempt was therefore made within the Bureau of the January 1981 Banjul Ministerial Meeting to reach an understanding with these states as to how the paragraph should be understood. The compromise that was reached provided for the interpretation that the role of the ACOMHPR was to assist OAU member states in interpreting the provisions but that in the case of differences in interpretation between two member states it would be settled in accordance with the provisions of the OAU Charter. However, when this understanding was rejected by the plenum, Burundi, Kenya and Tanzania reasserted their reservations on this paragraph (see page 272 above). In contrast, in his introduction to the ACHPR at the 1985 ICJ Nairobi Conference, M’baye expressed surprise that it was thought necessary to empower the ACOMHPR with this function as it was a sine qua non of its obligation to assess the admissibility and validity of communications, the implication being that perhaps it would have been better if it had been simply left unsaid.

Paragraph 4: Perform any other tasks which may be entrusted to it by the AHSG. This was not included in the M’baye draft most likely because it was not included in the ACHR and, as M’baye would explain in his introduction to the ACHPR at the 1985 ICJ Nairobi Conference, for the present, it was difficult to imagine what such tasks might be. It was added by the 1979 Dakar Meeting of Experts on the basis of Article 1.5 of the Monrovia Proposal, but with the specific proviso 118 OAU CM/817 (XXIX) Annex II/Rev.1 ‘Convention for the Elimination of Mercenarism in Africa’ (Article 12) 3 July 1977 and CAB/LEG/24.1 ‘African Convention on the Conservation of Nature and Natural Resources’ (Article XVIII) 15 September 1968.

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that the right to assign such tasks rested solely with the AHSG, and adopted unamended by the January 1981 Banjul Ministerial Meeting.119 Chapter III Procedure of the Commission Article 46 Method of investigation The article, which was not included in the ACHR, was added by the 1979 Dakar Meeting of Experts and, remarkably, given its wide remit, adopted unamended by the January 1981 Banjul Ministerial Meeting. To some extent, it may be compared to Article XVI of the OAU’s 1964 Protocol of the Commission of Mediation, Conciliation and Arbitration which provided that: ‘Subject to the provisions of this Protocol and any special agreement between the parties, the Commission shall be entitled to adopt such working methods as it deems to be necessary and expedient and shall establish appropriate rules of procedure.’ However, there are also close similarities with paragraph 5 of 1961 UNGA resolution 16/1654, which established the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples with the equally wide authority ‘to carry out its task by employment of all means which it will have at its disposal within the framework of the procedures and modalities which it shall adopt for the proper discharge of its functions’.120 Communication from States Article 47 Initial State to State communication Article 48 Resolution deadline Article 49 Communication to ACOMHPR In the handling of communications, the African states broke new ground by drawing a procedural distinction between ‘Communications from States’, that is State Parties to the ACHPR, and, what the 1979 Dakar Meeting of Experts first termed, ‘Other Communications’. Although both the ECHR and ACHR recognised a distinction of source between communications from State Parties and other persons, once a communication had been admitted, the procedure in both cases followed much the same path – although in the case of Article 45 of the ACHR, there was the nuance, adopted from Article 41 of the ICCPR, 119 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 42. 120 UN 16/1654 27 November 1961 and ‘Organization of African Unity: Protocol of the Commission of Mediation, Conciliation and Arbitration’, 1116–1124. Although the report of the January 1981 Banjul Ministerial Meeting indicates that it was adopted unamended, the Dakar draft had provided for ‘all methods of investigation’ but already at Rev.3 the change was made to ‘any appropriate method of investigation’.

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that, even though a State Party had acceded to the ACHR, it would only be entitled to communicate allegations against other State Parties if it had made a declaration recognising the competence of the Inter-American Commission on Human Rights to receive and examine communications from State Parties alleging violations. As to who or what was entitled to make ‘Other Communications’, in a subsequent, personal analysis of what he felt to be a rather vague term, M’baye argued strongly that, while it was most likely to be settled by case law before the ACOMHPR, it could not, under any circumstances, encompass communications from states that were not a party to the ACHPR. He would also describe this twin-track approach as a ‘negotiation-communication’ and a ‘complaint-communication’.121 As the starting point, the M’baye draft had adopted verbatim the procedures set out in Articles 44–51 of the ACHR.122 This approach was rejected by the 1979 Dakar Meeting of Experts in favour of the twin-track procedural approach. The ‘Communications from States’ track was designed to approach resolution of an allegation by one State Party against another State Party with the minimum of publicity and the maximum opportunity for friendly and peaceful resolution. It is, in one sense, a corollary of Article XIX of the OAU Charter in which ‘Member States pledge to settle all disputes among themselves by peaceful means’ and to that end established the Commission of Mediation, Conciliation and Arbitration. A similar tone was set in Article 48.1(f) of the ACHR, Article 42.1(a) of the ICCPR and Article 39 of the ECHR which also sought to facilitate a friendly settlement albeit irrespective of the source of the communication. The procedure provided for a three-month window in which the two State Parties might resolve the matter through bilateral communication and negotiation and the ACOMHPR would only become involved if the two State Parties failed to reach a mutually satisfactory settlement. This approach follows most closely that of Article 41 and 42 of the ICCPR but perhaps even more closely the wording proposed by the Sub-Commission to the CHR and ECOSOC in 1967 with respect to a new Article XXII for the Draft International Convention on all forms of religious intolerance (see page 356 above).123 It was adopted in principle by the January 1981 Banjul Ministerial Meeting which, according to the official report, reiterated its desire that ‘a peaceful procedure should be used’. Nonetheless, it also made some minor amendments to the Dakar draft: Firstly, it required that in Article 47 the initial State to State 121 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 40–45. 122 At this point, the M’baye draft is a little confused in that it seems to have followed Article 50 with Article 52 while continuing to refer to a non-existent Article 51. 123 ECOSOC Resolution 1233 (XLII) ‘Draft International Convention on all forms of religious intolerance’ 6 June 1967, UN ESCOR 42nd Session 1967 Supplement No. 1: Resolutions E/4393, 13–17 Annex IV Preliminary draft on additional measures of implementation transmitted to the CHR by the Sub-Commission, Article XXII.

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communication should also be addressed to the OAU Secretary-General and the Chairman of the ACOMHPR.124 Secondly, it added Article 49, which enabled a State Party to bypass the ‘friendly’ procedure of Article 47 by addressing a communication directly to the ACOMHPR, an exception with obvious parallels to Article 48.2 of the ACHR which provided for a similar direct referral in ‘serious and urgent cases’. Article 50 Local remedies The M’baye draft adopted verbatim, with respect to all communications, the expansive Article 46 of the ACHR, which was broadly similar to the more concise Article 35 of the ECHR and Article 41.1(c) of the ICCPR. The 1979 Dakar Meeting of Experts accepted the principles of the M’baye draft but drew a distinction between the twin-track procedures. In the case of ‘Communications from States’, the question of validity was limited to ‘exhaustion of local (previously domestic) remedies’ but the requirement that exhaustion should be based on ‘generally recognized rules (or principles) of international law’, as in the ECHR, ACHR and ICCPR, was dropped. It was adopted unamended by the January 1981 Banjul Ministerial Meeting other than that the measure of undue prolongation was defined in terms of being ‘obvious to the Commission’. The validity of ‘Other Communications’ was addressed in greater detail in Article 56.125 Article 51 Provision of information from State Parties The M’baye draft adopted verbatim Article 48.1(a) and (e) of the ACHR which was similar to Article 41.1(f) and (g) of the ICCPR. It was reworded by the 1979 Dakar Meeting of Experts on the basis of a slight reformulation of Article 41.1(f) and (g) of the ICCPR and adopted unamended by the January 1981 Banjul Ministerial Meeting. Article 52 Report of ACOMHPR Article 53 Recommendations of ACOMHPR The M’baye draft adopted verbatim the procedure set out in Article 50 of the ACHR which is closely related to Articles 41.1(h) and (ii) and 42.7 of the ICCPR. It was reworked by the 1979 Dakar Meeting of Experts and the requirement 124 The official report on the January 1981 Banjul Ministerial Meeting also indicated that the decision after three months to refer a violation to the ACOMHPR should also be communicated to the OAU Secretary-General but this does not seem to have led to an amendment in the on-going draft of the ACHPR. 125 At the Rev.3 to Rev.4 drafting stage, a further change not reported in the report of the January 1981 Banjul Ministerial Meeting seems to have been made so that ‘the procedure of achieving these remedies would be unduly prolonged’ was adopted instead of ‘unless … these will be ineffective or that the procedure is abused’.

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added to Article 52 that the ACOMHPR’s report should be transmitted not only to the State Parties but also to the AHSG and to Article 53 that the ACOMHPR might make recommendations not to the State Parties concerned but to the AHSG. The prohibition against publication was deleted as regards this article but included more generally in Article 59. It was adopted by the January 1981 Banjul Ministerial Meeting with the minor modification that in Article 52 the ACOMHPR’s report was also to be completed in ‘a reasonable period of time’, as opposed to the M’baye draft’s time limit which was to be established by the ACOMHPR’s Statute and the ICCPR’s twelve months, and with the addition of a further sub-clause that sought to prompt an amicable solution between the two State Parties ‘based on the respect of Human and Peoples’ Rights’. The wording of this sub-clause follows closely the wording of Article 48.1(f) of the ACHR and Articles 41.1(e) and 42.7(b) of the ICCPR. A similar requirement had also been included, almost certainly at the behest of the African states, in the 1970 1503 rules applied to a CHR ad hoc committee appointed to undertake an investigation: ‘The committee shall strive for friendly solutions before, during and even after the investigation.’126 Article 54 Report of the activities of the ACOMHPR The M’baye draft adopted verbatim Article 41(g) of the ACHR, which left the content of the annual report unspecified, as one of its seven functions assigned to the ACOMHPR. A similar obligation, although not defined as a ‘function’, was also included in Article 45 of the ICCPR in respect of the HRC and in Article 15 of the Monrovia Proposal both of which also defined the subject of the report as being ‘its activities’. The 1979 Dakar Meeting of Experts adopted the almost identical wording of the ICCPR and Monrovia Proposal but redefined the report’s subject matter as being ‘its proceedings’ only for the January 1981 Banjul Ministerial Meeting to revert to ‘activities’. Other Communications Article 55 Other communications Neither the ACHR, and therefore the M’baye draft, nor the ICCPR, touched on the process of voting on the admissibility of communications, although Article 51 of the ACHR did provide for a simple majority vote at a later stage in the communication process. It seems reasonable to assume that the validity of individual communications was therefore most likely to be determined on a simple majority basis as in the case of the CHR and Sub-Commission, and in particular the Working Group of the Sub-Commission which met to determine which communications should be referred up to the CHR – hence the odd number of 126 ECOSOC Resolution 1503 (XLVIII) 27 May 1970, UN ESCOR Resumed 48th Session 1970 Supplement No. 1A: Resolutions E/4832/Add.1, 9.

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commissioners. Articles X and XI of the OAU Charter also provided that, while AHSG resolutions required a two-thirds majority vote, questions of procedure were to be determined on a simple majority basis. The requirement for a vote was added in a rather clumsy form by the 1979 Dakar Meeting of Experts – for example, its article reference was incorrect, its placing in the text inappropriate and its wording slightly convoluted. It was tidied up by the January 1981 Banjul Ministerial Meeting, in particular, it was specified that the article was to be applied to ‘Other Communications’ and not to ‘Communications from State Parties’ and its placing in the text adjusted. The idea of a list of communications to be provided to all commission members, as required in Paragraph 1, may have originated in the procedures adopted for CHR 1503 investigations.127 Article 56 Communications – conditions to be met The M’baye draft adopted verbatim Articles 46–48 of the ACHR which essentially included five of the pre-conditions or exclusions subsequently specified by the 1979 Dakar Meeting of Experts: Identity of the complainant; Exhaustion of local remedies; Timely submission of communication; Compatibility of communication; and Prior submission of the same or similar complaint in another international proceeding. The same five pre-conditions or exclusions were essentially also included in Article 35 of the ECHR. The 1979 Dakar Meeting of Experts refined the wording of these pre-conditions and exclusions in much less detail and added three further exclusions: That the communication should not be written in ‘scrupulous’ (sic.) (amended to ‘disparaging’ by the January 1981 Banjul Ministerial Meeting) or ‘insulting language’ directed at a State Party or the OAU; Incompatibility with the OAU Charter or ACHPR; and ‘predominantly’ (amended to ‘exclusively’ by the January 1981 Banjul Ministerial Meeting) based on ‘news disseminated by the mass media’. All of the ACHPR’s finalised pre-conditions and exclusions – in some cases the wording is almost identical – had been included in the 1971 procedures adopted by the Sub-Commission at the request of ECOSOC for dealing with the question of the admissibility of communications. It was adopted by the January 1981 Banjul Ministerial Meeting with minor amendments largely of form and a re-ordering of sub-paragraphs 6 and 7.128 127 ECOSOC Resolution 1503 (XLVIII) 27 May 1970, Paragraph 4(a), UN ESCOR Resumed 48th Session 1970 Supplement No. 1A: Resolutions E/4832/Add.1, 8–9. The Dakar draft had required an ‘absolute majority’. Although the report on the proceedings of the January 1981 Banjul Ministerial Meeting did not mention an amendment to ‘simple majority’ it was included on that basis from at least Rev.3 on. 128 Sub-Commission Resolution 1 (XXIV) 13 August 1971, ‘Report of the Twenty-­ Fourth session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, New York, 2–20

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Article 57 Notification of communication It was originally included in the M’baye draft, which adopted verbatim Article 48.1(a) of the ACHR, in the form of a request for further information from the State Party against whom a violation has been alleged, but was deleted by the 1979 Dakar Meeting of Experts. However, as Jallow notes, the absence of any obligation to notify a State Party against whom a complaint has been filed was an obvious lacuna and it was therefore restored as a separate article by the January 1981 Banjul Ministerial Meeting on the basis that knowledge of the communication by the State Party had to precede any ‘substantive consideration’.129 Article 58 Serious violations The M’baye draft adopted verbatim Article 48.2 of the ACHR which allowed for admissible ‘serious and urgent cases’ to proceed to an immediate referral to the ACOMHPR with the prior consent of the State Party against whom a violation had been alleged (see also Article 49). The principle of special circumstances was accepted by the 1979 Dakar Meeting of Experts but it was redrafted so that it now applied in the case of ‘one or more exceptional situations’ which revealed ‘a series of serious or massive violations of human and peoples’ rights’. The most obvious likely source is the 1503 procedure which referred to a ‘consistent pattern of gross and reliably attested violations’ (see Volume 1, page 587). In such an event, without requiring the consent of the State Party against whom these violations were alleged, the ACOMHPR was to draw the matter to the attention of the AHSG which would decide whether to request the ACOMHPR to proceed to an ‘in-depth study’ and prepare ‘a factual report, accompanied by its finding and recommendations’. Alternatively, if the ACOMHPR regarded the violations as constituting an emergency, it could notify the OAU Chairman who would be entitled on his own authority to request an ‘in-depth study’ and, after the report from the ACOMHPR had been received, take protective measures. However, despite the efforts of the 1979 Dakar Meeting of Experts to defer to the authority of the AHSG, the January 1981 Banjul Ministerial Meeting, while adopting with only minor amendment the first two paragraphs relating to ‘serious or massive violations’, was not prepared to authorise the OAU Chairman to take protective measures in the case of an ‘emergency’; this was a step too far and a clear breach of the OAU’s principle of non-interference.130 August 1971’ UN E/CN.4/1070 6 October 1971, 50–52. 129 H.B. Jallow, The Law of the African (Banjul) Charter, 46. 130 ECOSOC Resolution 1503 (XLVIII) 27 May 1970, UN ESCOR Resumed 48th Session 1970 Supplement No. 1A: Resolutions E/4832/Add.1, 8–9. Although the report on the January 1981 Banjul Ministerial Meeting indicates that the first two paragraphs were adopted unamended, at the Rev.5 stage the first paragraph was extensively reworded so that it now read ‘one or more communications apparently relate to special cases which reveal the existence of …’.

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Article 59 Confidentiality The M’baye draft adopted verbatim Articles 50 and 51 of the ACHR which denied State Parties to a complaint the right to publish the ACOMHPR’s report but gave discretion to the ACOMHPR on a majority vote to publish its report if, after a suitable period of consideration, it was felt that the State Party against whom the complaint had been alleged had not taken the appropriate measures to remedy the situation examined (see Article 52). The 1979 Dakar Meeting of Experts, alive to the potential sensitivities this might provoke, deleted that discretion by insisting that all measures taken should remain confidential until the AHSG decided otherwise; in that respect following in the footsteps of the 1503 procedure in the design of which the African states had played such a leading part. As a half-way house, though, it allowed that a report might be published at the request of one-third of the members of the AHSG. However, even this limited breach was unacceptable to the January 1981 Banjul Ministerial Meeting which sought to retain the AHSG’s absolute control over the process and therefore determined that publication of reports was to be left to the sole discretion of the AHSG on a majority vote. It also added a further paragraph which limited publication of the ACOMHPR’s annual report on its activities until after it had been considered by the AHSG. Chapter IV Applicable Principles Article 60 International instruments Article 61 Other general or special norms The M’baye draft had followed the ACHR in not prescribing ‘Applicable Principles’ by which the ACOMHPR (and human rights court, in the case of the ACHR,) might be guided or inspired. It was, after all, not at all clear why ‘Applicable Principles’ had to be specified in the ACHPR. There was to be no African human rights court and those OAU member states which acceded to the prospective ACHPR were expecting to be doing no more than committing to its terms and not to the terms of other international human rights instruments to which they might or might not have subscribed. However, by the time of the 1979 Dakar Meeting of Experts, the 1979 UN Monrovia Seminar had already met and the Monrovia Proposal had attempted to pre-emptively settle the question by proposing ‘Applicable Standards’ in line with the UNDHR’s desire to ensure that the prospective Africa regional system would commit to the universal human rights fold. The working paper draft of the Monrovia Proposal which the UNDHR had presented to the 1979 UN Monrovia Seminar therefore included as Article 2 a range of UN human rights instruments, including, as camouflage, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, as the basis – the international law of human rights – upon which the ACOMHPR should be guided. Supplementing Article 2, Article 3 provided that, as subsidiary standards, the proposed African human rights com-

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mission ‘shall also have regard’ to ‘other international conventions’, although this time these were conventions ‘expressly recognized by the States Members of the OAU’, and, last of all, essentially African legal precedents, customs and judicial decisions and teachings of authoritative authors – this article, as Rembe points out, is clearly based on Article 38 of the 1945 Statute of the ICOJ.131 This draft was then reviewed by the Working Group. The final Monrovia Proposal which emerged as a result of that review amended Articles 2 and 3 so that, in the first instance, in Article 2 the anticipated ‘provisions of specific African instruments on human rights which may be concluded such as a declaration, a charter or a convention’ – with the prospective ACHPR clearly in mind – was now placed first in the list of human rights instruments, the OAU Charter was added after the UN Charter but before the UDHR and the UN International Convention on the Suppression and Punishment of the Crime of Apartheid, and the UN and OAU conventions on refugees and mercenaries were also added to the list which now also specified not merely UN but also ‘African instruments in the field of human rights’. Secondly, in Article 3, at M’backe’s specific insistence, ‘African practices evidencing customs generally accepted as law’ had also to be ‘consistent with international human rights standards’. To that extent, therefore, Articles 2 and 3 of the Monrovia Proposal reflected some considerable African expert input although not input that necessarily carried much political weight.132 As a result, with only a few minor changes – for example, the Declaration on the Elimination of Discrimination against Women was added to the listing of specific UN human rights instruments and the ACOMHPR was no longer to ‘be guided by’ and ‘have regard to’ but ‘draw inspiration from’ and ‘take into consideration’, ‘particularly’ as opposed to ‘including’ African instruments on human rights (‘which may be concluded’ was now clearly redundant) – the 1979 Dakar Meeting of Experts essentially adopted Articles 2 and 3 of the Monrovia Proposal in full. With no sense of irony, the list of instruments adopted by the UN and African countries in the field of human rights from which the ACOMHPR was to draw inspiration included, ‘more especially’, the International Covenants and the Optional Protocol. In fact, as of the adoption date of the ACHPR, only (the same) fourteen African states had acceded to each of the International Covenants and only five African states to the Optional Protocol. Among the fourteen African states which had acceded to the International Covenants were Guinea, Libya, Morocco, Rwanda and Zaire whose human rights records hardly inspired any confidence in the significance of their accession. When therefore the January 1981 Banjul Ministerial Meeting came to review the articles, it 131 WJB N. Rembe, Paper ‘African Charter on Human and Peoples’ Rights’ (possibly 1982), 31; see Statute of the ICOJ, https://www.icj-cij.org/en/statute, last accessed 6 November 2019. 132 B.G. Ramcharan, ‘The Travaux Préparatoires of the African Commission on Human Rights’, 307–314.

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deleted the listing of specific UN instruments and specialised agencies, except for the UN and OAU Charters and the UDHR, but otherwise adopted the two articles largely unamended. Article 62 Periodic reports by State Parties Neither the ECHR nor the ACHR required State Parties to submit periodic reports, nor were periodic reports a requirement of the Monrovia Proposal. Nonetheless, the M’baye draft included an obligation on State Parties to submit to the ACOMHPR through the OAU Secretary-General a report on the measures adopted and the progress made in achieving the observance of the rights recognised by the ACHPR with the timetable of these reports to be determined in accordance with a programme to be established by the ACOMHPR. The M’baye draft followed closely the wording of Article 40 of the ICCPR but with the critical difference that whereas Article 40 specifically provided that these reports would be studied by the HRC, which might make such comments and observations as they thought appropriate, the M’baye draft merely noted that the reports would be ‘for consideration’ by the ACOMHPR but without any further guidance as to what action might follow ‘consideration’. The 1979 Dakar Meeting of Experts abridged and reworded the M’baye draft so as to provide for a more specific two-year rolling commitment but for some reason also deleted the reference to the OAU Secretary-General or the ACOMHPR as recipients of the periodic reports. While therefore periodic reports were to be submitted, it was left open as to who would receive or consider these reports. Despite these fairly obvious lacunae, it was adopted unamended by the January 1981 Banjul Ministerial Meeting.133 Article 63 Ratification and coming into force The first two paragraphs, which, in slightly different form, were included in both the M’baye draft and the Dakar draft, follow a broad pattern of regional and international human rights instruments; for example, Article 74 of the ACHR, Article 59 of the ECHR, Articles 48 and 49 of the ICCPR, Articles 26 and 27 of the ICESCR and, in the case of OAU treaties, Articles 33 and 34 of the 1976 Cultural Charter for Africa and Articles 10 and 11 of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Paragraph 3 was the primary point of contention in that it dealt with the important question of when the ACHPR would come into force. Faced with 133 At its Third Ordinary Session in Libreville in April 1988 the ACOMHPR passed a resolution recommending to the AHSG that it should mandate the OAU General Secretariat to receive the periodic reports and pass them on to the ACOMHPR who should be specifically entrusted with the task of examining them. This recommendation was endorsed by the 1988 Addis Ababa AHSG in resolution AHG/Res. 176 (XXIV).

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the recent accession experience of the 1976 Cultural Charter of Africa, which due to the slow pace of ratification would only come into force in September 1990, and the well-established continuing opposition to the ACHPR of many OAU member states, the M’baye draft proposed that, upon the approval of the ACHPR by the AHSG, it should immediately be signed and come into force provisionally. It would enter into force for each state as and when it submitted its accession documents. As the introduction to the M’baye draft made clear: The provision is an innovation; but it is a devise (sic.) intended to reduce the negative effects of long period of time laps (sic.) before a given number of ratifications could be registered … allowing for the establishment of the Inter-African Commission on Human and Peoples’ Rights, which may get on with its duties as provided in the Charter.

In effect, M’baye’s innovation was a variation of the UNDHR’s scheme for a pre-emptive ACOMHPR, although his motivation was to get the ACHPR up and running rather than a means of infiltrating universalism into the African human rights system. This attempt to give the ACHPR a further shove was supported by the 1979 Dakar Meeting of Experts, although in line with Article 49 of the ICCPR and Article 27 of the ICESCR, but not Article 74 of the ACHR, they provided that the ACHPR would only come into force for each State Party three months after instruments of ratification had been deposited with the OAU Secretary-General. However, M’baye’s innovation was not accepted by the January 1981 Banjul Ministerial Meeting which was only prepared to concede that the ACHPR should come into force three months after instruments of ratification had been received by the OAU Secretary-General from a simple majority of OAU member states; indeed, the provisional process proposed by the M’baye draft may not have been legally possible for some African states. In terms of OAU practice, though, even the simple majority threshold might be regarded as a victory for the proponents of the ACHPR. Article XXV of the OAU Charter itself had only come into force, albeit immediately, after ratification by two-thirds of the signatory states, so too the 1976 Cultural Charter for Africa, although the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa was to come into force immediately after ratifications had been received by one-third of OAU member states. In subsequently expressing his disappointment at the threshold set by the January 1981 Banjul Ministerial Meeting, M’baye observed that it was unusually high for treaties dealing with similar subject matters. He noted, for example, that the International Covenants merely required a quorum of about a quarter of UN member states, although there would then be a three-month delay before it came into force. Unsurprisingly, too, the UN International Conventions on the Elimination of All Forms of Racial Discrimination and the Suppression and Punishment of the Crime of Apartheid merely required ratifications from approximately one-sixth and oneeighth of the UN membership before they came into force. In contrast, although

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M’baye did not include them in his expression of disapproval, both the ACHR and ECHR required far higher threshold proportions.134

Part III General Provisions Article 64 First election to and meeting of ACOMHPR Paragraph 1 simply refers to procedures laid down in other articles of the ACHPR and may, for that reason, be regarded as essentially redundant. It was most probably included as a left-over from the M’baye draft, which had followed the transitional provisions of Articles 79 and 80 of the ACHR, but had failed to state the procedure to be adopted in subsequent elections. Accordingly, that lacuna was tidied up by the 1979 Dakar Meeting of Experts, which retained the provisional coming into force of the ACOMHPR, but otherwise clarified the election procedure by simply referring to the set election process as set out in the relevant articles (see Articles 33 to 37). It was adopted unamended by the January 1981 Banjul Ministerial Meeting after deleting the reference to the ‘provisional’ coming into force which it had already rejected in Article 63. Paragraph 2 was added by the 1979 Dakar Meeting of Experts, and adopted unamended by the January 1981 Banjul Ministerial Meeting, along the lines of Article 37 of the ICCPR and Article 11 of the Monrovia Proposal, although with the added provisos that the first meeting should be convened within three months of the ‘constitution’ of the ACOMHPR and that the ACOMHPR should be convened at least once a year. Article 65 Subsequent ratifications This article was a corollary of Article 63. As with Article 63, reflecting M’baye’s ‘provisional’ innovation, the M’baye draft had provided that the ACHPR would enter into force for each State Party immediately after its instrument of accession had been received. This had been amended by the 1979 Dakar Meeting of Experts so that, for all states, entry into force would be three months after the date of the deposit of the instrument of accession, although it had otherwise retained the ‘provisional’ innovation. In turn, and in the context of its deletion of the ‘provisional’ structure, the January 1981 Banjul Ministerial Meeting therefore further amended the Dakar draft so that Article 65 applied only to those State Parties acceding after the ACHPR had come into force thereby bringing it into line with Article 63 which applied to those State Parties acceding prior to the ACHPR coming into force. The wording as amended follows closely Article 27.2 of the ICESCR and Article 49.2 of the ICCPR. 134 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 32–33 and UNGA 28/3068 30 November 1973 (International Convention on the Suppression and Punishment of the Crime of Apartheid).

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Article 66 Special protocols Article 68 Amendments The ability to supplement or amend a treaty or convention was already a fairly standard provision for international agreements not the least of which were Articles 108 and 109 of the UN Charter. The M’baye draft had adopted verbatim Articles 76 and 77 of the ACHR which provided for both protocols and amendments and in each case prescribed the process to be followed, although the scope for amendment was circumscribed by the pre-condition ‘with a view to gradually including other rights and freedoms within its system of protection’. Article 29 of the ICESCR and Article 51 of the ICCPR had also provided for a process by which amendments might be proposed and approved. Article XXXII of the OAU Charter itself and Article 12 of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa had similarly not only allowed for the prospect of an amendment but had specified the procedure that would have to be followed. In contrast, although the ECHR had seemingly not accommodated the means of amendment or of protocols, it still managed to adopt its first protocol already within eighteen months of the signing of the ECHR itself. In much the same way, even though the ICCPR had not made any apparent provision for a protocol, at the time of its adoption, the UNGA also simultaneously adopted and opened for ratification the Optional Protocol to the ICCPR. The 1979 Dakar Meeting of Experts deleted the provisions of the M’baye draft and replaced them with a simple statement that special protocols or agreements may supplement the provisions of the ACHPR but made no specific allowance for amendments. Nor did it specify the process by which a special protocol or agreement might be effected. The scope for a special protocol or agreement probably reflected the observation in the introductory explanation to the M’baye draft that a human rights court could be introduced in future by means of a protocol. Later, he would also explain that: ‘The Charter constitutes what the African states were able to accept in 1981 and was therefore only a stage. It is to be hoped that it can be improved at a later date. The provision concerning additions … is in response to this objective.’ This simplification was adopted unamended by the January 1981 Banjul Ministerial Meeting but alongside a new article dealing specifically with the process by which an amendment might be effected. This new Article 68 followed closely the pattern and wording of Article XXXII of the OAU Charter. It had to be submitted to the OAU Secretary-­ General; it could only be considered after all the State Parties had been duly informed and the opinion of the ACOMHPR obtained (the OAU Charter required a one-year grace period); approval was set at the original simple majority threshold; and it would come into force after the same original three-month period after a notice of acceptance had been received.135 135 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 33–34.

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Article 67 Communication of adherence The standard format as laid down in Article 110 of the UN Charter, Article 48.5 of the ICCPR and Article 26.5 of the ICESCR, and indeed Article XXIV of the OAU Charter, was that ratifications were only notified to existing State Parties. It was included in the M’baye draft and in slightly amended form by the 1979 Dakar Meeting of Experts on the basis, as in Article 59.5 of the ECHR, that all member states of the OAU were to be notified of ratifications, and was adopted unamended by the January 1981 Banjul Ministerial Meeting. This was not a matter of precedent but, as M’baye pointed out, the notification process had been specifically ‘intended to stimulate emulation’, although he then added, ‘but it does not appear to have achieved its objective’.136 It had been agreed by the January 1981 Banjul Ministerial Meeting in principle that the finalised text should be accepted in its entirety by all member states and that it should not be undermined by widespread reservations. The 1981 Nairobi CoM had also determined that it too would not consider any amendments but that member states would have the opportunity to express observations on the ACHPR to the OAU General Secretariat. In the event a number of states would make observations, for example, Angola, Burundi, Ethiopia, Ghana, Kenya, Mozambique and Tanzania, but on ratification only Egypt and Zambia entered reservations. Egypt reserved its position on Articles 8 and 18.3, requiring that they be implemented in accordance with the Islamic law, reservations that it had also entered in respect of the 1979 UN ‘International Convention on the Elimination of All Forms of Discrimination against Women’. Zambia reserved its position on Article 13.3, as it required greater clarification of the obligation that covered all public properties, and Article 37, on the grounds that the drawing of lots was too menial a task to be assigned to the OAU Chairman and that he should therefore merely read out the result leaving the actual drawing of lots to the OAU Secretary-General; Zambia also proposed the addition of a further article requiring that all OAU states that had not acceded to the ACHPR should also be obliged to submit reports to the ACHPR on the progress and status of their efforts to ensure that the rights and freedoms in the ACHPR were to be applied within their domestic jurisdictions.137

136 K. M’baye, ‘Keynote Address, 1985 ICJ Nairobi Conference’, 33. 137 E. Kodjo, ‘The African Charter on Human and Peoples’ Rights’, 275, UNGA 34/180 18 December 1979 ‘Convention on the Elimination of All Forms of Discrimination against Women’ and ACHPR reservations, http://www.achpr.org/instruments/ achpr, last accessed 28 October 2017; see also R. Murray/M.D. Evans (eds), Documents of the African Commission on Human and Peoples’ Rights, Vol. 2 (Oxford, 2001), 18 ‘Reservations and Declarations to the African Charter’.

Conclusion How then are the origins, political, intellectual and cultural, of the ACHPR to be explained? The starting point has to be an appreciation that the ACHPR process was a project of the OAU AHSG alone and therefore, in that it was at all times subject to the absolute discretion of African political leaders, it cannot simply be explained as a manifestation of an African desire to emulate the UDHR or to establish a regional human rights regime – either on the part of African leaders or African public opinion. On the contrary, African political leaders were consistently disdainful of the UDHR and, therefore, both pre- and post-­independence, ignored, dismissed or limited the application of the UDHR in relation to Africa. This antipathy would have to be overcome or accommodated if the ACHPR were to have any chance of being adopted by the OAU AHSG. There can be no doubt that appeals by the African colonial territories to the UDHR or to human rights as the basis of their right to independence, as in the curious incident of the dog in the night-time, were conspicuous by their absence. In the case of the French colonial territories, this absence ought perhaps to be regarded as possibly not so curious as, Algeria and, pre-dating the UDHR, Madagascar in 1947 apart, there was not so much of a struggle for independence as a step-by-step creeping negotiation over many years with deferential African leaders invariably anxious to maintain a mutually beneficial close relationship with France and alive to the consequences were they to rock the boat unduly. In such circumstances, there was little scope or need for appeals to the UDHR. However, even in the North African protectorates and the British colonial territories, where by the early 1950s independence was being pressed with far greater urgency, demands were rarely expressed in terms of the UDHR or human rights. If at all, the preferred references were the Atlantic Charter and the UN Charter. As for the Portuguese colonial territories, their prolonged and violent struggle for independence served only to alienate them from the UDHR which they perceived as hypocritical, self-serving and racist, and inappropriate for the new revolutionary society they sought to create. After independence, the diktats of the (often) life and death struggle for political power, which dominated the mindset of African political life, meant that references in African constitutions to the UDHR were little more than an inconsequential fig-leaf of respectability. The bills of rights in the independence constitutions of the former British colonial territories, when push came to shove, were also of little consequence as they were either ignored or excised after 374

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independence through constitutional amendments. The reality was that African political leaders were simply unwilling to accept constraints on their authority and deemed even the suggestion as tantamount to interference in their internal affairs. It would only be 1980, more than twenty years after independence, that President Senghor became the first post-independence African political leader voluntarily to stand down from office – a decision that was most likely decisive in his willingness in 1979 to sponsor Decision 115. In the OAU Charter, the African states also demonstrated their strictly conditional support for the UDHR and human rights in that adherence was expressed in terms of ‘the principles’ of the UDHR and with a view to the promotion of international cooperation – in essence, ring-fencing the ‘principle’ of non-discrimination and majority rule. It was also understood that one of the two key principles underpinning the on-going viability of the OAU was that of non-interference, a principle that the 1979 Monrovia AHSG and the drafting process of the ACHPR would clearly demonstrate was ingrained in the OAU member states’ understanding of the OAU polity. At the UN, too, six months after ‘unswerving loyalty’ to the UDHR was proclaimed by the 1960 Addis Ababa Conference of Independent African States (CIAS), the 1960 UN ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ made clear the extent of that endorsement of the UDHR which, they now claimed, should be observed ‘strictly … on the basis of … non-interference in the internal affairs of all States’. In their approach to the ICCPR and the CHR, and in countless other resolutions and declarations in the UN and its agencies, the African states would also consistently refuse to countenance any meaningful and effective UN human rights supervisory review or complaint competence. It would be all too easy to view this dismissive approach to the UDHR and human rights by African political leaders as no more than the natural response of dictators, but this would be to miss the point being made by African political and intellectual opinion alike. Attention was frequently drawn to the inescapable historical fact that only two African states (Ethiopia and Liberia) had participated in the deliberations attending the birth of the UDHR – Egypt, of course, was a third, but the point to which attention is intended to be drawn is the exclusion of black Africa. For that reason alone, Africa felt no ownership responsibility for the UDHR. Indeed, as with the panoply of international arrangements that together constituted the post-war settlement, the UDHR and the trope of human rights discourse were perceived by African political leaders and educated public opinion alike as simply pandering to Western interests and concerns and as having failed to take Africa into account: The UDHR had failed to denounce colonialism and apartheid, a very clear example of Western double standards; had failed to accommodate African communal values and structures of political life; and had failed to take into account, and moreover was obstructive to, the post-­independence exigencies and needs of the seriously under-­developed, newly independent states. The UDHR might therefore be

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tolerated and referenced out of convenience in support of such African interests as self-determination/majority rule and development, but under no circumstances could it be accepted as the basis of authority for outside interference in African affairs. It therefore carried no legitimacy and, in any event, having obtained political independence, the African states were not of a mind to acquiesce in the reimposition of political control by the former colonial powers by other (neo-colonialist) means. Underpinning this perception was a sense that the UDHR had also to be understood in the context of a far greater whole of Western neo-colonialist arrogance which for too long had appropriated universalism and imposed international legal and economic arrangements in its own image and in furtherance of its own interests. How could it be, Africans therefore asked, as the Christian church in Africa asked in its own sphere, that the UDHR should be considered as universal when an African perspective had not been taken into account? Now that Africa was free, Africa was intent on expressing its own personality by confronting the commanding heights of Western universalism across the spectrum of political, intellectual, cultural and economic thought and praxis in a broad African revanchist revolt determined to recover and assert black Africa’s personality and interests. When, therefore, human rights emerged in the 1970s into the consciousness of public opinion in much of the developed world as the panacea to right the wrongs of the world, there would be no corresponding echo from Africa. Every time the question of human rights came up, whether at the UN, the Lomé II negotiations or pedagogic human rights seminars, African leaders found little difficulty in either ignoring or rebuffing, and rebuffing easily, any structure that would facilitate outside scrutiny of their internal affairs. Nor were Western governments any better placed to exert pressure on the African states by threatening to withdraw aid funding. If at all, by the mid-1970s the need of Western governments for votes in the UN and for African support in resolving the problem of majority rule in Southern Rhodesia and repelling Communist incursions in Southern Africa meant that invariably it was they who were the suppliants. Indeed, such was the extent of African majority control in the UN that the African states were able to impose their revanchist agenda over human rights discourse at the UN. At the 1968 Tehran International Conference on Human Rights, in the 1977 UNGA resolution 32/130, and in the emergence of the ‘right to development’ and the NIEO, African revanchism would not only side-step the message allegedly delivered by twenty years of pedagogic UN and NGO human rights seminars but successfully subvert the historic, post-war Western interpretations of the concept and content of human rights. Van Boven had therefore very good cause to fear the prospective normative values of an ACHPR. African antipathy and increasing confidence meant that there was of course no possibility that an African regional human rights regime could be imposed on the African states from the outside. The initiative would have to come from

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the African states themselves and that in turn meant that the process would have to be conducted under the aegis of the OAU AHSG. To start the ball rolling, at least one member state would have to propose a resolution to the AHSG. It was not in the gift of the OAU General Secretariat, and, as Kodjo pointed out, leading and influential African political leaders would need to speak out in support if it was to have any chance of being adopted. The vote itself would have to achieve a consensus from an AHSG that was deeply divided and, in the case of many of the African radical states, virulently opposed to what they saw as Western notions of human rights. It is hardly surprising therefore that, prior to 1979, no African leader was prepared to risk his reputation by sponsoring a human rights proposal. The explanation often adduced by African human rights commentators that in 1979 the time was right for the ACHPR is flatly contradicted by several levels of evidence. In 1979, for example, no African political leader or commentator, probably not even President Senghor, would have been confident that the AHSG would accept a regional human rights regime. At that time, neither Nigeria, which in many ways was beginning to assume a leading role in African affairs, nor The Gambia were prepared to risk such a proposal before the AHSG and instead had sought refuge in proposals, respectively, at the UN and the Commonwealth. Indeed, President Senghor was so uncertain that a resolution would even be accepted onto the AHSG agenda that he delayed the introduction of his resolution to the last possible moment. Moreover, any doubts about the prospects for an ACHPR could only have been reinforced by the response of the 1979 Monrovia AHSG to two of Africa’s most notorious regimes, Emperor Bokassa’s CAE and President Amin’s Uganda. There is a dreadful poignancy in that 1979 had been proclaimed as the UN’s International Year of the Child. The 1979 Monrovia AHSG, which included Emperor Bokassa’s representative, had responded to this UN initiative by adopting the Declaration on the Rights and Welfare of the African Child. Almost simultaneously, the report of the 1979 Kigali Franco-African Summit meeting’s Committee of Inquiry was published in which the accusations levelled against Emperor Bokassa of having murdered schoolchildren and students were substantiated. Although, therefore, these facts would have been known to the 1979 Monrovia AHSG there seems to have been no attempt at any discussion of these findings and no apparent recognition by African political leaders of the blatant incongruity between the Declaration and the Committee of Inquiry’s report.1 On much 1

UNGA 31/169 21 December 1976 (International Year of the Child), OAU AHG/ ST.4 (XVI) Rev.1, R. Delpey, Le blanc et le noir: le hold-up du siècle, 160 and B. Titley, Dark Age: The Political Odyssey of Emperor Bokassa, 123; Titley notes that the report was only issued on 16 August 1979, that is after the 1979 Monrovia AHSG, but the report itself records that a redacted version of the report was made available in mid-July 1979 and passed to those heads of state that had attended the 1979 Kigali Franco-African Summit meeting.

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the same principle of non-interference, the initial skirmishing at the 1979 Monrovia AHSG focused on the recent Uganda/Tanzania conflict that had led to the overthrow of President Amin. However, far from condemning President Amin for his invasion of Tanzania, most African heads of state preferred to bitterly criticise Tanzania’s invasion and its involvement in President Amin’s overthrow as an unacceptable interference in Uganda’s internal affairs. At the very moment therefore that the 1979 Monrovia AHSG was being asked to authorise the ACHPR process, the principle of non-interference was shown to trump any thought of discussion of human rights violations by African political leaders. There can be little doubt therefore that the political process of the ACHPR was initiated by President Senghor’s resolution, and only as a result of his resolution, although he was certainly prompted by representations from M’baye and, most probably, OAU Secretary-General Kodjo. It was the only politically feasible means by which the ACHPR could have been initiated and, but for President Senghor’s sponsorship, which would seem to have been motivated by personal vanity as a legacy project, possibly related to the Socialist International, it is highly unlikely that an African regional human rights system would have come into being for many years to come. Far from the notion that the timing was right, it may therefore rather be thought remarkable that Decision 115 was adopted at all. Indeed, it is possible to go further and suggest that the timing should be seen as extraordinarily fortuitous in that there was only a narrow window of opportunity through which the ACHPR resolution could have jumped. It was only at the 1978 Khartoum AHSG that the moderate African states had been able to gain some semblance of control over the AHSG but by 1980 tensions between many of the OAU member states were building up again eventually leading to the quorum failure of the proposed 1982 Tripoli AHSG meeting. In such circumstances, it is hard to imagine such a proposal achieving a sufficient consensus majority. If not 1979 then, who knows when, if at all? Rejection of President Senghor’s resolution by the 1979 Monrovia AHSG was therefore a real possibility as it was a step which many of the radical states were quite prepared to contemplate, even notwithstanding its potential impact on wider African interests on the international stage. In the event, rejection was averted but only after a furious and ‘daft’ debate and on the strict basis that the conception of ‘peoples’ rights’ was added to the title and included in the content of the proposed ACHPR. It was a political surrender that, to a considerable extent, had already been anticipated by President Senghor’s AHSG resolution which had proposed that although the ‘two categories of rights (do) not have any hierarchical implications … it is nevertheless essential to give special attention to economic, social and cultural rights’. All the more so, in that it is also reasonable to assume that both OAU Secretary-General Kodjo and M’baye had assisted in the drafting of this resolution. Yet the stress placed on the priority of

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economic, social and cultural rights seem to directly contradict the conclusions that had been drawn by both M’baye’s 1978 ICJ Dakar Conference and OAU Secretary-General Kodjo’s 1979 What kind of Africa by the year 2000? Monrovia Symposium report which had argued that development had necessarily to be preceded by human rights. However, even after the surrender and adoption of Decision 115, the ACHPR had still to be from its mother’s womb torn. Rebutting, even further, the idea that the time was right or that Decision 115 represented a decisive shift and acceptance by African leaders of a regional human rights regime, opposition from the radical states continued almost unabated throughout the ACHPR process into and beyond even the creation of the ACOMHPR: In the attempts to derail quorums and meetings; in the drafting discussions; in the objections at the 1981 Nairobi CoM and AHSG; in the response to ratification; in the failure of implementation and funding; and finally and not least, in the refusal of the overwhelming majority of African states to meet reporting obligations. There was, therefore, at all times a fine line between success and failure. Although, in the event, a few continuing objections apart, adoption at the 1981 Nairobi AHSG would be relatively straightforward, as the majority of states still opposed had reconciled themselves to the ACHPR, acceptance had been predicated on a text that accommodated two key elements. Firstly, incorporation of the concept of ‘peoples’ rights’ in both the preamble and the body of the ACHPR; the importance of the preamble being that it represented the up-front ‘shop window’ where the key elements underpinning the ACHPR would be on display to the world. Secondly, that the ACHPR should be drawn up in the political image and tradition of the OAU thereby ensuring that it would have no teeth. While, therefore, the Preamble asserted that African political leaders were: ‘Firmly convinced of their duty to promote and protect human and peoples’ rights’, in practice the fine print failed to provide much more than a minimal measure of protection and, as was usual for the OAU, there were to be no enforcement procedures. Indeed, the ACOMHPR was placed in almost total dependence on the AHSG which could be relied upon to exercise its discretion in support of the principle of non-interference. In recommending the draft ACHPR, M’baye would draw particular attention to this point as he knew that it was an aspect of the ACHPR that would resonate with African leaders: ‘It will be noticed that the Commission does not take decisions. It simply reports to the Assembly of Heads of State and Government which decides what should be done with the conclusions and recommendations.’ Similarly, OAU Secretary-General Kodjo, in explaining the distinctiveness of the ACHPR, would defensively advise the June 1980 Banjul Ministerial Meeting that: ‘In the promotion and protection of the rights enshrined in the Draft Charter, the Assembly of Heads of State and Government is the final arbiter. The African Commission on Human and Peoples’ Rights assists in this task. The Commission does not take decisions. It

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makes recommendations to the Assembly of Heads of State and Government.’2 The AHSG would also be able to control the ACOMHPR by limiting its funding in such a way as to constrain its ability to carry out even its limited functions and by scrutinising any reports it wished to publish. As Takirambudde pertinently observed, ‘the OAU leaders were unprepared to commit suicide’.3 This structure meant that the splendid list of rights contained in the ACHPR were still-born and could be ignored with impunity by most African leaders. Whatever commitments were expressed in the ACHPR were therefore destined to go the way of all previous constitutional commitments to the UDHR or to a Bill of Rights. There is little evidence that the ACHPR’s adoption had any significant impact on the domestic behaviour of African leaders in the immediate aftermath (and longer) and adoption of the ACHPR can, therefore, hardly be regarded as, in any realistic sense, an acceptance by African leaders of a human rights regime or of universal human rights values. As Boutros-Ghali would point out, the failures of the Commission of Mediation, Conciliation and Arbitration and the Committee of Jurists, which never met after its creation in 1964, demonstrated that ‘the African system of human rights is but an outcome of the political will of some heads of African states rather than being a genuine need already felt by the African peoples themselves’. He therefore warned that: ‘In view of the political realities of the continent, we should be realistic and patient and not expect positive results in the near future.’4 The outcome confirmed what M’baye and others had feared at the outset, which was that anything other than a veneer of protective measures would have ensured that the ACHPR would not have been adopted. It was not only a human rights court that was unacceptable to African leaders. Indeed, how otherwise can it be imagined that among the first five states to ratify the ACHPR would be Mali, under President (formerly Lieutenant) Traoré, Guinea, under President Touré, and Liberia, under President (formerly Sergeant) Doe, or that the military governments of Upper Volta under Captain Sankara (1983) and Sudan (1985) would rush to ratify the ACHPR almost immediately upon taking over government, thereby enabling a majority of ratifications to be attained, but that Ghana and Kenya, which had supported the ACHPR at the 1979 Monrovia AHSG, would fail to ratify the ACHPR. It is, in effect, to explain why so many states under military rule felt able to adopt the ACHPR with relative equanimity. Sergeant Doe, for example, could demonstrate his acceptance of ‘civilised’ norms and democratic principles by ratifying the ACHPR, in the same way that 2 3 4

OAU (L) Secretary-General’s Report on the preliminary draft African Charter on Human and Peoples’ Rights CAB/LEG/67/6, 3. P. Takirambudde, ‘Six Years of the African Charter on Human and Peoples’ Rights: An Assessment’, Lesotho Law Journal: A Journal of Law and Development, 7/2 (1991), 40. B. Boutros-Ghali, ‘The Third World and Human Rights’, 369.

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President Nguema’s Equatorial Guinea had been able to explain to the CHR that: ‘It had repeatedly proclaimed its support for the Universal Declaration’ and that ‘its Constitution guaranteed all citizens the exercise of their fundamental rights’. On the other side, Ghana and Kenya, the one now under military rule and the other just about to adopt a one-party state system, were disinclined to ratify the ACHPR. With their civil society far in advance of many African states, to accept (even a notional) stick by which they might be publicly beaten was not a step they were prepared to take lightly. Was there, though, at least some limited consolation that, possibly, a first step had been taken, a principle established and the protection of human rights in Africa might proceed albeit by small steps? Butler, for example, felt that it was ‘better than nothing and at least a start’. However, other contemporary chatter was rather less hopeful. In his report on the IAUL’s 1980 Inaugural Meeting, Scoble described how ‘the majority interpretation was that the draft places far too much stress on promotion, and far too little on protection … this sorry situation existed because the Head of the Malagasy Republic and Colonel Mengistu of Socialist Ethiopia threatened to walk out unless the proposed draft was watered down to the least effectual level’.5 There is also a news report that suggested: ‘The final text of the Charter had … been opposed by a minority of “moderate” African governments, a Senegalese delegate having been quoted as saying that it was “a charter to licence and perpetuate oppression”.’6 Perhaps the more appropriate question was whether, longer-term, like the UN Charter, the ACHPR, whatever its original intention, would create its own apertures for human rights groups to exploit and thereby insinuate more effective protective measures. This question was debated in 1993 by yet another ICJ meeting in Dakar. On the one side were those who perceived the ACHPR as ineffective, inefficient and incoherent and its aim as ‘the generation of an innocuous instrument which would do no more than provide public catharsis’ and whose goal ‘was not enforceability but rather to “steal the opposition’s thunder”’, and for that reason it should be replaced by a more effective instrument. Ten years later, Udombana would still be making much the same point: In the area of protection … the Commission stands as a toothless bulldog. The Commission can bark … It was not, however, created to bite. After more than a decade of existence, the Commission can barely be said to have made any significant contribution to human rights protection in the African continent.7 5 6 7

WJB ‘Subject: ICJ Conference in Nairobi (undated, unsigned, probably State Department Report) and H. Scoble, ‘Visit to West Africa on the Inaugural Meeting of Inter-African Union of Lawyers, Dakar, May 1980’, 57–58. Keesing’s Contemporary Archives 1981, 31055. N.J. Udombana, ‘Towards the African Court on Human and Peoples’ Rights: Better Late than Never’, 64.

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The other perspective, that of the revisionists, agreed on the nature of the problem but were more hopeful that the ACHPR might yet develop into a ‘useful tool for further elaboration and improvement’.8 If the neutering of the ACHPR was an essential element facilitating acceptance of the ACHPR, the idea of the ACHPR as an opportunity to right Africa’s historic exclusion from the UDHR was another. As the ACHPR process progressed, it increasingly emerged as a common denominator of opinion among the African states and therefore the basis around which it proved possible to coalesce in moving the ACHPR process forward. The ACHPR as an African project would therefore be a statement of African interests, values and concerns that would stand as a permanent testimony to Africa’s regard for human dignity. It is reflected in the ACHPR’s references to the ‘historical tradition and the values of African civilisation’, the social basis of society, the obligations of the individual to the community and to the family and in the prominence of specifically African interests; hence the reference to self-determination, the right to development, the common heritage of mankind (referencing the Law of the Seas negotiations) and the right of peoples to freely dispose of their natural resources and even, for the North African states, the elimination of Zionism. M’backe, for example, argued that this notion of having been ‘inspired by Africa’, was the most important element of the ACHPR.9 It was, to that extent, no more than had been sought in the various debates on African identity and in this way the ACHPR was also enabled to become all things to all men. Whereas President Senghor and M’baye could see it as an opportunity to present their synthesis of the civilisation of the universal, the radical states could lay stress on the ACHPR, particularly the Preamble, as a reproach to the Western conception of human rights. There was the sense, too, that the outside world needed to be informed about African conditions and values. As Nguema, the first Chairman of the ACOMHPR, would point out in rather grandiose terms, the ACHPR ‘appears as one of the finest gems, designed by Africa with a view to endowing itself with proper self-awareness, creating a new image in the chain of peoples of the world, giving itself a place of choice in the concert of nations, and playing, henceforward a significant role in the management and conduct of the world’s affairs.’10

8

ICJ Background Paper, Brain-storming session on the ACHPR, Dakar, Senegal, 13–15 January 1993, quoted by R.B. Lillich/H. Hannum (eds), International Human Rights: Problems of Law, Policy, and Practice, 3rd edn (Boston, 1995), 830–832. 9 Interview with Mouhamadou Moctar M’backe, 13 September 2012, Dakar. 10 I. Nguema, ‘Africa, Human Rights and Development’, Review of the African Commission of Human and Peoples’ Rights, 7/2 (1998), 91 (reference from. N.J. Udombana, ‘Can the Leopard Change its Spots? The African Union Treaty and Human Rights’, 1207).

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The ACHPR had also followed the OAU Charter in deliberately avoiding anything other than a mean-spirited reference to the UDHR and, thereby, universal human rights. Far, therefore, from representing an adherence to universal values, whether ‘dynamic’ or of the ‘third generation’, the ACHPR should therefore also be understood, as it was intended and as van Boven realised it would, as a reproach to so-called universal human rights values. Above all, it attests to an African desire for difference in which the post-war settlement was confronted and the ideas that Africa would have wished to see in the UDHR, and which were reflected in its foreign policy goals, found expression within the convenient international discourse of human rights. Brems has therefore aptly observed that the ACHPR was ‘born out of the desire to “Africanise” human rights’ and was ‘the expression of the official “African” view on human rights’.11 The ACHPR may and should therefore also be seen as a judgement on the political theory of universal human rights in the second half of the twentieth century.

11

E. Brems, Human Rights: Universality and Diversity, 91.

Appendix 1: The OAU Charter Source: OAU, Proceedings of the Summit Conference of Independent African States, Addis Ababa, May 1963 Vol.1, Section 1, XIV: Official Text of the Charter of the Organization of African Unity.

CHARTER OF THE ORGANIZATION OF AFRICAN UNITY We, the Heads of African States and Governments assembled in the City of Addis Ababa, Ethiopia; CONVINCED that it is the inalienable right of all people to control their own destiny; CONSCIOUS of the fact that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples; CONSCIOUS of our responsibility to harness the natural and human resources of our continent for the total advancement of our peoples in spheres of human endeavour; INSPIRED by a common determination to promote understanding among our peoples and co-operation among our States in response to the aspirations of our peoples for brotherhood and solidarity, in a larger unity transcending ethnic and national differences; CONVINCED that, in order to translate this determination into a dynamic force in the cause of human progress, conditions for peace and security must be established and maintained; DETERMINED to safeguard and consolidate the hard-won independence as well as the sovereignty and territorial integrity of our States, and to fight against neo-­ colonialism in all its forms; DEDICATED to the general progress of Africa; PERSUADED that the Charter of the United Nations and the Universal Declaration of Human Rights, to the principles of which we reaffirm our adherence, provide a solid foundation for peaceful and positive co-operation among states;

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DESIROUS that all African States should henceforth unite so that the welfare and well-being of their peoples can be assured; RESOLVED to reinforce the links between our states by establishing and strengthening common institutions; HAVE agreed to the present Charter.

ESTABLISHMENT Article I 1. The High Contracting Parties do by the present Charter establish an Organization to be known as the ORGANIZATION OF AFRICAN UNITY. 2. The Organization shall include the Continental African States, Madagascar and other Islands surrounding Africa.

PURPOSES Article II 1. The Organization shall have the following purposes: a. to promote the unity and solidarity of the African States; b. to coordinate and intensify their co-operation and efforts to achieve a better life for the peoples of Africa; c. to defend their sovereignty, their territorial integrity and independence; d. to eradicate all forms of colonialism from Africa; and e. to promote international co-operation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights. 2. To these ends, the Member States shall coordinate and harmonise their general policies, especially in the following fields: a. political and diplomatic co-operation; b. economic co-operation, including transport and communications; c. educational and cultural co-operation; d. health, sanitation, and nutritional co-operation; e. scientific and technical co-operation; and f. co-operation for defence and security.

PRINCIPLES Article III The Member States, in pursuit of the purposes stated in Article II, solemnly affirm and declare their adherence to the following principles: 1. the sovereign equality of all Member States; 2. non-interference in the internal affairs of States;

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3. respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence; 4. peaceful settlement of disputes by negotiation, mediation, conciliation or arbitration; 5. unreserved condemnation, in all its forms, of political assassination as well as of subversive activities on the part of neighbouring States or any other State; 6. absolute dedication to the total emancipation of the African territories which are still dependent; 7. affirmation of a policy of non-alignment with regard to all blocs.

MEMBERSHIP Article IV Each independent sovereign African State shall be entitled to become a Member of the Organization.

RIGHTS AND DUTIES OF MEMBER STATES Article V All Member States shall enjoy equal rights and have equal duties.

Article VI The Member States pledge themselves to observe scrupulously the principles enumerated in Article III of the present Charter.

INSTITUTIONS Article VII The Organization shall accomplish its purposes through the following principal institutions: 1. the Assembly of Heads of State and Government; 2. the Council of Ministers; 3. the General Secretariat; 4. the Commission of Mediation, Conciliation and Arbitration.

THE ASSEMBLY OF HEADS OF STATE AND GOVERNMENT Article VIII The Assembly of Heads of State and Government shall be the supreme organ of the Organization. It shall, subject to the provisions of this Charter, discuss matters of common concern to Africa with a view to co-ordinating and harmonising the general policy of the Organization. It may in addition review the structure, functions and acts of all the organs and any specialized agencies which may be created in accordance with the present Charter.

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The Assembly shall be composed of the Heads of State and Government or their duly accredited representatives and it shall meet at least once a year. At the request of any Member State and on approval by a two-thirds majority of the Member States, the Assembly shall meet in extraordinary session.

Article X 1. Each Member State shall have one vote. 2. All resolutions shall be determined by a two-thirds majority of the Members of the Organization. 3. Questions of procedure shall require a simple majority. Whether or not a question is one of procedure shall be determined by a simple majority of all Member States of the Organization. 4. Two-thirds of the total membership of the Organization shall form a quorum at any meeting of the Assembly.

Article XI The Assembly shall have the power to determine its own rules of procedure.

THE COUNCIL OF MINISTERS Article XII 1. The Council of Ministers shall consist of Foreign Ministers or such other Ministers as are designated by the Governments of Member States. 2. The Council of Ministers shall meet at least twice a year. When requested by any Member State and approved by two-thirds of all Member States, it shall meet in extraordinary session.

Article XIII 1. The Council of Ministers shall be responsible to the Assembly of Heads of State and Government. It shall be entrusted with the responsibility of preparing conferences of the Assembly. 2. It shall take cognisance of any matter referred to it by the Assembly. It shall be entrusted with the implementation of the decision of the Assembly of Heads of State and Government. It shall coordinate inter-African co-operation in accordance with the instructions of the Assembly and in conformity with Article II (2) of the present Charter.

Article XIV 1. Each Member State shall have one vote. 2. All resolutions shall be determined by a simple majority of the members of the Council of Ministers. 3. Two-thirds of the total membership of the Council of Ministers shall form a quorum for any meeting of the Council.

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Article XV The Council shall have the power to determine its own rules of procedure.

GENERAL SECRETARIAT Article XVI There shall be an Administrative Secretary-General of the Organization, who shall be appointed by the Assembly of Heads of State and Government. The Administrative Secretary-General shall direct the affairs of the Secretariat.

Article XVII There shall be one or more Assistant Secretaries-General of the Organization, who shall be appointed by the Assembly of Heads of State and Government.

Article XVIII The functions and conditions of services of the Secretary-General, of the Assistant Secretaries-General and other employees of the Secretariat shall be governed by the provisions of this Charter and the regulations approved by the Assembly of Heads of State and Government. 1. In the performance of their duties the Administrative Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. 2. Each member of the Organization undertakes to respect the exclusive character of the responsibilities of the Administrative Secretary-General and the Staff and not to seek to influence them in the discharge of their responsibilities.

COMMISSION OF MEDIATION, CONCILIATION AND ARBITRATION Article XIX Member States pledge to settle all disputes among themselves by peaceful means and, to this end decide to establish a Commission of Mediation, Conciliation and Arbitration, the composition of which and conditions of service shall be defined by a separate Protocol to be approved by the Assembly of Heads of State and Government. Said Protocol shall be regarded as forming an integral part of the present Charter.

SPECIALIZED COMMISSIONS Article XX The Assembly shall establish such Specialized Commissions as it may deem necessary, including the following: 1. Economic and Social Commission; 2. Educational and Cultural Commission;

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3. Health, Sanitation and Nutrition Commission; 4. Defence Commission; 5. Scientific, Technical and Research Commission.

Article XXI Each Specialized Commission referred to in Article XX shall be composed of the Ministers concerned or other Ministers or Plenipotentiaries designated by the Governments of the Member States.

Article XXII The functions of the Specialized Commissions shall be carried out in accordance with the provisions of the present Charter and of the regulations approved by the Council of Ministers. THE BUDGET Article XXIII The budget of the Organization prepared by the Administrative Secretary-General shall be approved by the Council of Ministers. The budget shall be provided by contributions from Member States in accordance with the scale of assessment of the United Nations; provided, however, that no Member State shall be assessed an amount exceeding twenty percent of the yearly regular budget of the Organization. The Member States agree to pay their respective contributions regularly.

SIGNATURE AND RATIFICATION OF CHARTER Article XXIV 1. This Charter shall be open for signature to all independent sovereign African States and shall be ratified by the signatory States in accordance with their respective constitutional processes. 2. The original instrument, done, if possible in African languages, in English and French, all texts being equally authentic, shall be deposited with the Government of Ethiopia which shall transmit certified copies thereof to all independent sovereign African States. 3. Instruments of ratification shall be deposited with the Government of Ethiopia, which shall notify all signatories of each such deposit.

ENTRY INTO FORCE Article XXV This Charter shall enter into force immediately upon receipt by the Government of Ethiopia of the instruments of ratification from two thirds of the signatory States.

REGISTRATION OF THE CHARTER Article XXVI This Charter shall, after due ratification, be registered with the Secretariat of the United Nations through the Government of Ethiopia in conformity with Article 102 of the Charter of the United Nations.

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INTERPRETATION OF THE CHARTER Article XXVII Any question which may arise concerning the interpretation of this Charter shall be decided by a vote of two-thirds of the Assembly of Heads of State and Government of the Organization.

ADHESION AND ACCESSION Article XXVIII 1. Any independent sovereign African State may at any time notify the Administrative Secretary-General of its intention to adhere or accede to this Charter. 2. The Administrative Secretary-General shall, on receipt of such notification, communicate a copy of it to all the Member States. Admission shall be decided by a simple majority of the Member States. The decision of each Member State shall be transmitted to the Administrative Secretary-­ General, who shall, upon receipt of the required number of votes, communicate the decision to the State concerned.

MISCELLANEOUS Article XXIX The working languages of the Organization and all its institutions shall be, if possible African languages, English and French.

Article XXX The Administrative Secretary-General may accept on behalf of the Organization gifts, bequests and other donations made to the Organization, provided that this is approved by the Council of Ministers.

Article XXXI The Council of Ministers shall decide on the privileges and immunities to be accorded to the personnel of the Secretariat in the respective territories of the Member States.

CESSATION OF MEMBERSHIP Article XXXII Any State which desires to renounce its membership shall forward a written notification to the Administrative Secretary-General. At the end of one year from the date of such notification, if not withdrawn, the Charter shall cease to apply with respect to the renouncing State, which shall thereby cease to belong to the Organization.

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The African Charter on Human and Peoples’ Rights: Volume 2 AMENDMENT OF THE CHARTER Article XXXIII

This Charter may be amended or revised if any Member State makes a written request to the Administrative Secretary-General to that effect; provided, however, that the proposed amendment is not submitted to the Assembly for consideration until all the Member States have been duly notified of it and a period of one year has elapsed. Such an amendment will not be effective unless approved by at least two-thirds of all the Member States. IN FAITH WHEREOF, We, the Heads of African State and Government, have signed this Charter. Done in the City of Addis Ababa, Ethiopia this 25th day of May, 1963.

Appendix 2: The ACHPR Source: OAU CAB/LEG/67/3/Rev.5.

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS PREAMBLE The African States members of the Organization of African Unity, parties to the present convention entitled “African Charter on Human and Peoples’ Rights”, Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of “a preliminary draft on an African Charter on Human and Peoples’ Rights providing inter alia for the establishment of bodies to promote and protect human and peoples’ rights”; Considering the Charter of the Organization of African Unity, which stipulates that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples”; Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights; Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights; Recognizing on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their international protection and on the other hand that the reality and respect of peoples rights should necessarily guarantee human rights; Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone; Convinced 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,

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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; Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, color, sex, language, religion or political opinions; Reaffirming their adherence to the principles of human and peoples’ rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations; Firmly convinced of their duty to promote and protect human and peoples’ rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa;

HAVE AGREED AS FOLLOWS:

PART I: RIGHTS AND DUTIES CHAPTER I HUMAN AND PEOPLES’ RIGHTS ARTICLE 1 The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.

ARTICLE 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

ARTICLE 3 1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law.

ARTICLE 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

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ARTICLE 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degredation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

ARTICLE 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

ARTICLE 7 1. Every individual shall have the right to have his cause heard. This comprises: a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; b) the right to be presumed innocent until proved guilty by a competent court or tribunal; c) the right to defence, including the right to be defended by counsel of his choice; d) the right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

ARTICLE 8 Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.

ARTICLE 9 1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.

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ARTICLE 10 1. Every individual shall have the right to free association provided that he abides by the law. 2. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association.

ARTICLE 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

ARTICLE 12 1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.

ARTICLE 13 1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2. Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

ARTICLE 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

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ARTICLE 15 Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.

ARTICLE 16 1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

ARTICLE 17 1. Every individual shall have the right to education. 2. Every individual may freely, take part in the cultural life of his community. 3. The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.

ARTICLE 18 1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community. 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.

ARTICLE 19 All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.

ARTICLE 20 1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.

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The African Charter on Human and Peoples’ Rights: Volume 2 3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

ARTICLE 21 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.

ARTICLE 22 1. 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. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

ARTICLE 23 1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter.

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ARTICLE 24 All peoples shall have the right to a general satisfactory environment favourable to their development.

ARTICLE 25 States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.

ARTICLE 26 States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

CHAPTER II DUTIES ARTICLE 27 1. Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community. 2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

ARTICLE 28 Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

ARTICLE 29 The individual shall also have the duty: 1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need; 2. To serve his national community by placing his physical and intellectual abilities at its service; 3. Not to compromise the security of the State whose national or resident he is;

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4. To preserve and strengthen social and national solidarity, particularly when the latter is threatened; 5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law; 6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society; 7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society; 8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

PART II - MEASURES OF SAFEGUARD CHAPTER I ESTABLISHMENT AND ORGANIZATION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS ARTICLE 30 An African Commission on Human and Peoples’ Rights, hereinafter called “the Commission”, shall be established within the Organization of African Unity to promote human and peoples’ rights and ensure their protection in Africa.

ARTICLE 31 1. The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience. 2. The members of the Commission shall serve in their personal capacity.

ARTICLE 32 The Commission shall not include more than one national of the same State.

ARTICLE 33 The members of the Commission shall be elected by secret ballot by the Assembly of Heads of State and Government, from a list of persons nominated by the States parties to the present Charter.

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ARTICLE 34 Each State party to the present Charter may not nominate more than two candidates. The candidates must have the nationality of one of the States parties to the present Charter. When two candidates are nominated by a State, one of them may not be a national of that State.

ARTICLE 35 1. The Secretary General of the Organization of African Unity shall invite States parties to the present Charter at least four months before the elections to nominate candidates; 2. The Secretary General of the Organization of African Unity shall make an alphabetical list of the persons thus nominated and communicate it to the Heads of State and Government at least one month before the elections.

ARTICLE 36 The members of the Commission shall be elected for a six year period and shall be eligible for re-election. However, the term of office of four of the members elected at the first election shall terminate after two years and the term of office of three others, at the end of four years.

ARTICLE 37 Immediately after the first election, the Chairman of the Assembly of Heads of State and Government of the Organization of African Unity shall draw lots to decide the names of those members referred to in Article 36.

ARTICLE 38 After their election, the members of the Commission shall make a solemn declaration to discharge their duties impartially and faithfully.

ARTICLE 39 1. In case of death or resignation of a member of the Commission, the Chairman of the Commission shall immediately inform the Secretary General of the Organization of African Unity, who shall declare the seat vacant from the date of death or from the date on which the resignation takes effect. 2. If, in the unanimous opinion of other members of the Commission, a member has stopped discharging his duties for any reason other than a temporary absence, the Chairman of the Commission shall inform the Secretary General of the Organization of African Unity, who shall then declare the seat vacant.

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ARTICLE 40 Every member of the Commission shall be in office until the date his successor assumes office.

ARTICLE 41 The Secretary General of the Organization of African Unity shall appoint the Secretary of the Commission. He shall also provide the staff and services necessary for the effective discharge of the duties of the Commission. The Organization of African Unity shall bear the costs of the staff and services.

ARTICLE 42 1. The Commission shall elect its Chairman and Vice Chairman for a twoyear period. They shall be eligible for re-election. 2. The Commission shall lay down its rules of procedure. 3. Seven members shall form a quorum. 4. In case of an equality of votes, the Chairman shall have a casting vote. 5. The Secretary General may attend the meetings of the Commission. He shall neither participate in deliberations nor shall he be entitled to vote. The Chairman of the Commission may, however, invite him to speak.

ARTICLE 43 In discharging their duties, members of the Commission shall enjoy diplomatic privileges and immunities provided for in the General Convention on the Privileges and Immunities of the Organization of African Unity.

ARTICLE 44 Provision shall be made for the emoluments and allowances of the members of the Commission in the Regular Budget of the Organization of African Unity.

CHAPTER II MANDATE OF THE COMMISSION ARTICLE 45 The functions of the Commission shall be: 1. To promote Human and Peoples’ Rights and in particular: a) To collect documents, undertake studies and researches on African

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problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights, and should the case arise, give its views or make recommendations to Governments. b) to formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations. c) co-operate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights. 2. Ensure the protection of human and peoples’ rights under conditions laid down by the present Charter. 3. Interprete [sic] all the provisions of the present Charter at the request of a State Party, an institution of the OAU or an African organization recognized by the OAU. 4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.

CHAPTER III PROCEDURE OF THE COMMISSION ARTICLE 46 The Commission may resort to any appropriate method of investigation; it may hear from the Secretary-General of the Organization of African Unity or any other person capable of enlightening it.

COMMUNICATION FROM STATES ARTICLE 47 If a State party to the present Charter has good reasons to believe that another State party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter. This communication shall also be addressed to the Secretary- General of the OAU and to the Chairman of the Commission. Within three months of the receipt of the communication, the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible relevant information relating to the laws and rules of procedure applied and applicable and the redress already given or course of action available.

ARTICLE 48 If within three months from the date on which the original communication is received by the State to which it is addressed, the issue is not settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful

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procedure, either State shall have the right to submit the matter to the Commission through the Chairman and shall notify the other States involved.

ARTICLE 49 Notwithstanding the provisions of Article 47, if a State party to the present Charter considers that another State party has violated the provisions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary-General of the Organization of African Unity and the State concerned.

ARTICLE 50 The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.

ARTICLE 51 1. The Commission may ask the States concerned to provide it with all relevant information. 2. When the Commission is considering the matter, States concerned may be represented before it and submit written or oral representation.

ARTICLE 52 After having obtained from the States concerned and from other sources all the information it deems necessary and after having tried all appropriate means to reach an amicable solution based on the respect of Human and Peoples’ Rights, the Commission shall prepare, within a reasonable period of time from the notification referred to in Article 48, a report stating the facts and its findings. This report shall be sent to the States concerned and communicated to the Assembly of Heads of State and Government.

ARTICLE 53 While transmitting its report, the Commission may make to the Assembly of Heads of State and Government such recommendations as it deems useful.

ARTICLE 54 The Commission shall submit to each Ordinary Session of the Assembly of Heads of State and Government a report on its activities.

OTHER COMMUNICATIONS ARTICLE 55 1. Before each Session, the Secretary of the Commission shall make a list of the communications other than those of States parties to the present

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Charter and transmit them to the Members of the Commission, who shall indicate which communications should be considered by the Commission. 2. A communication shall be considered by the Commission if a simple majority of its members so decide.

ARTICLE 56 Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission, shall be considered if they: 1. indicate their authors even if the latter request anonymity, 2. are compatible with the Charter of the Organization of African Unity or with the present Charter, 3. are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4. are not based exclusively on news disseminated through the mass media, 5. are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6. are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7. do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

ARTICLE 57 Prior to any substantive consideration, all communications shall be brought to the knowledge of the State concerned by the Chairman of the Commission.

ARTICLE 58 1. When it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples’ rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases. 2. The Assembly of Heads of State and Government may then request the Commission to undertake an in-depth study of these cases and make a factual report, accompanied by its findings and recommendations. 3. A case of emergency duly noticed by the Commission shall be submitted by the latter to the Chairman of the Assembly of Heads of State and Government who may request an in-depth study.

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ARTICLE 59 1. All measures taken within the provisions of the present Chapter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide. 2. However, the report shall be published by the Chairman of the Commission upon the decision of the Assembly of Heads of State and Government. 3. The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.

CHAPTER IV - APPLICABLE PRINCIPLES ARTICLE 60 The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the parties to the present Charter are members.

ARTICLE 61 The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognized by member states of the Organization of African Unity, African practices consistent with international norms on human and peoples’ rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine.

ARTICLE 62 Each State party shall undertake to submit every two years, from the date the present Charter comes into force, a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized and guaranteed by the present Charter.

ARTICLE 63 1. The present Charter shall be open to signature, ratification or adherence of the member states of the Organization of African Unity. 2. The instruments of ratification or adherence to the present Charter shall be deposited with the Secretary General of the Organization of African Unity.

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3. The present Charter shall come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority of the member states of the Organization of African Unity.

PART III GENERAL PROVISIONS ARTICLE 64 1. After the coming into force of the present Charter, members of the Commission shall be elected in accordance with the relevant Articles of the present Charter. 2. The Secretary General of the Organization of African Unity shall convene the first meeting of the Commission at the Headquarters of the Organization within three months of the constitution of the Commission. Thereafter, the Commission shall be convened by its Chairman whenever necessary but at least once a year.

ARTICLE 65 For each of the States that will ratify or adhere to the present Charter after its coming into force, the Charter shall take effect three months after the date of the deposit by that State of its instrument of ratification or adherence.

ARTICLE 66 Special protocols or agreements may, if necessary, supplement the provisions of the present Charter.

ARTICLE 67 The Secretary General of the Organization of African Unity shall inform member states of the Organization of the deposit of each instrument of ratification or adherence.

ARTICLE 68 The present Charter may be amended if a State party makes a written request to that effect to the Secretary General of the Organization of African Unity. The Assembly of Heads of State and Government may only consider the draft amendment after all the States parties have been duly informed of it and the Commission has given its opinion on it at the request of the sponsoring State. The amendment shall be approved by a simple majority of the States parties. It shall come into force for each State which has accepted it in accordance with its constitutional procedure three months after the Secretary General has received notice of the acceptance.

Select Bibliography PRIMARY SOURCES Interviews and e-mail correspondence Interviews Moulaye Aly Kalil Ascofare, 12 September 2012, Dakar William Butler, 1 November 2007, New York Abdulai Conteh, 16–17 February 2011, Nassau (telephone) Mariam Coulibaly Ndiaye, 12 August 2009, Paris Adama Dieng, 12 November 2007, Paris Ousmane Tanor Dieng, 17 February 2009, Dakar Abdou Diouf, 22 December 2014, Paris Ibrahima Fall, 7 May 2008, Dakar (Telephone) Hassan Jallow, 7 October 2008, London Edem Kodjo, 10 December 2007, Lomé John MacDermot, 8 December 2008, London (telephone) Peter Mathanjuki, 22 April 2009, Nairobi Mouhamadou Moctar M’backe, 13 September 2012, Dakar Eli Mtango, 26 April 2009, Dar es Salaam Moustapha Niasse, 14 September 2012, Dakar Youssoupha N’diaye, 16 February 2009, St Louis John Pace, 15 April 2009, Ain (telephone) Alexander Sokan, 18 August 2009, London Ludwig Sondashi, 11 December 2012, Lusaka (telephone) Ebou Taal, 4 August 2012, London Karel Vasak, 15 June 2011, Strasbourg Amos Wako, 23 July 2012, Geneva Joseph Warioba, 28 April 2009, Dar es Salaam With the exception of the telephone interviews with Abdulai Conteh, Ibrahima Fall, John Pace, Ludwig Sondashi and the brief conversation with John MacDermot concerning his father’s papers, all interviews were conducted in direct face-to-face meetings. The purpose of the interview was explained in advance and hand-written notes taken; the interviews were not recorded so as to encourage greater openness. In the case of the interviews with Ousmane Tanor Dieng, Youssoupha N’diaye and Abdou Diouf the interview was conducted with the assistance of a local French-­ English interpreter.

409

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E-mail correspondence Theo van Boven, January 2008 David Owen, September–December 2016 Bertrand Ramcharan, January 2008

Asian-African Conference, Bandung, 1955 Centre for the Study of Asian-African and Developing Countries, Collected Documents of the Asian-African Conference April 18–24, 1955 ( Jakarta, 1983) Foreign Languages Press, China and the Asian-African Conference (Documents) (Peking, 1955) The League of Arab States, The First Asian-African Conference held at Bandung, Indonesia (April 18–24, 1955), Report submitted by Mohamed Abdel Khalek Hassouna, Secretary of the League of Arab States to the League Council (Cairo, 1955) Ministry of Foreign Affairs, Republic of Indonesia, Asia-Africa Speaks from Bandung (Djakarta, 1955) National Council of Azerbaijan, North-Caucasia, Idil-Ural, Crimea and Turkestan, Nations under the URSS Imperialism (Bandung, 1955) Permanent Mission of the Republic of Indonesia to the United Nations, The Final Communiqué of the Asian-African Conference Press Release 24 April 1955 Republic of Indonesia, Asian-African Conference, Bandung – Indonesia, 18th–24th April 1955, Speeches and Communiques Uncorrected Verbatim Record of the Proceedings of the meeting of heads of delegations, Asian-African Conference 1955, Papers presented to St Antony’s College, Oxford by G.H. Jansen

African unity conferences All-African People’s Conference, Conference Resolution on Imperialism and Colonialism (Accra, 1959) Bureau of African Affairs (A.K. Barden), Awakening Africa: Conferences of Independent African States (Accra, 1962) ‘Charter for the Union of African States’, Ghana Press Release No. 615/61 1 July 1961 CIAS Secretariat, CIAS Confidential Report: Speeches, Resolutions, Meeting Reports and Ambassadors Minutes, SOAS, University of London, Microfiche Federal Ministry of Information, African Summit in Monrovia (Lagos, 1961) Federal Ministry of Information, Lagos Conference of Heads of African and Malagasy States 25th–30th January 1962 (Lagos, 1962) Federal Ministry of Information, Conference of Heads of African and Malagasy States 25–30 January 1962, Proposed Charter of the Inter-African and Malagasy States Organisation (Lagos, 1962) Federal Ministry of Information, Nigeria, Solidarity in Africa: A Record of the Conference of the Heads of African and Malagasy States held in Lagos from January 25–30 1962 (Lagos, 1962) Government Printer, Conference of Independent African States, Speeches delivered at the Inaugural Session, 15th April 1958 (Accra, 1958)

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411

Government Printer, Conference of Independent African States Speeches delivered at the close of the Conference, 22nd April 1958 (Accra, 1958) Government Printer, Conference of Independent African States, Declarations and Resolutions, 22nd April 1958 (Accra, 1958) Kingdom of Morocco, Ministry of Foreign Affairs, African Conference of Casablanca January 1961, Morocco (Rabat, 1961) Liberian Information Services, Conference of Heads of African and Malagasy States, Monrovia, Liberia, 8–12 May 1961, Resolutions of the Plenary Sessions (Monrovia, 1961) Liberian Information Service, The First West African Summit Conference, Held at Sanniquellie, Coastal Province, Liberian Hinterland, July 15–19, 1959 (Monrovia, 1959) Ministry of Information of the Imperial Ethiopian Government, Second Conference of Independent African States, Addis Ababa, 14–26 June 1960 (Addis Ababa, 1960) Permanent Secretariat, All-African People’s Conference, Tunis, 25th–30th January 1960 (Accra, 1960) Press Release from Nigeria House ‘Resolutions adopted at Lagos Conference of Heads of African and Malagasy States and Governments 25th to 30th January 1962’ République Malgache, Conférence des chefs d’état et de gouvernement africains et malgache, Tananarive, 6–12 septembre 1961 (Tananarive, 1962) UAR Information Department, All-African Peoples’ Conference ‘Africa on the March!’ (Cairo, 1961)

Organization of African Unity Adu, A.L., Review of the Structure of the General Secretariat of the Organization of African Unity (Addis Ababa, 1972) OAU, ‘Organization of African Unity: Protocol of the Commission of Mediation, Conciliation and Arbitration’, International Legal Materials, 3/6 (1964), 1116– 1124 OAU, Report of the OAU Consultative Committee on Nigeria (Addis Ababa, 1968) OAU, OAU Special 9th Summit September 1972 (Addis Ababa, 1972) OAU, OAU: What it is How it Works What it Does (Addis Ababa, 1973) OAU, Resolutions, Recommendations and Statements adopted by the Ordinary and Extra-ordinary sessions of the Council of Ministers (Tenth to the Twentieth ordinary sessions) Seventh Extra-ordinary session (1968–1973) Vol. Two (Addis Ababa, 1973) OAU, What kind of Africa by the year 2000? Final report of the Monrovia Symposium on the future development prospects of Africa towards the Year 2000 (Addis Ababa, 1979) OAU, Lagos Plan of Action for the Economic Development of Africa, 1980–2000, 2nd edn (Lagos, 1980) OAU, OAU CM/1767 (LVIII), ‘Report of the Secretary-General, Report on the Establishment, within the OAU, of a Mechanism for Conflict Prevention, Management and Resolution, presented to the OAU CoM and AHSG, Cairo, June 1993’.

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Reservations to the ACHPR were taken from http://www.achpr.org/instruments/achpr but can also be found in ‘Reservations and Declarations to the African Charter’, R. Murray/M.D. Evans (eds), Documents of the African Commission on Human and Peoples’ Rights, Vol. 2 (Oxford, 2001), 18. Unless otherwise indicated, all OAU AHSG and CoM resolution references are sourced directly from the current AU website.

The 1963 founding conference of the OAU and the 1964 first AHSG Preparatory Conference of Foreign Ministers, Addis Ababa, May 1963 Proceedings of the Summit Conference of Independent African States Verbatim Record Preparatory Conference of Foreign Ministers, Addis Ababa, May 1963 Verbatim Record Committee 1 Summary record of the Second Meeting Comm.1/SR/2–5 Preparatory Conference of Foreign Ministers, Addis Ababa, May 1963 Verbatim record Sub-Committee 1 of Committee 1 Sub-Com 1/SR/1 Proceedings of the Summit Conference of Independent African States, Addis Ababa, May 1963 Vol. 1, Sections 1 and 2 Proceedings of the Summit Conference of Independent African States, Addis Ababa, May 1963 Verbatim Record Transcript of audio tape of Heads of State Boaten, F.E., The Accra Assembly, Memorandum to the Conference of the Heads of Independent African States Addis Ababa, 22nd–25th May, 1963 (Accra, 1963) AHSG/PV.1–3 Speeches AHSG/PV/SR (1) Verbatim and Summary Records of the Meetings of the First Session of the AHSG 17–21 July 1964 DV/SR (1) Verbatim and Summary Records of the Meeting of the First Session of the AHSG 17–21 July 1964

Principal ACHPR documents 1979 AHG/91 (XVI) Rev.1 Draft Agenda and Add.1 Annex I, Draft Resolution AHG/Dec.115 (XVI) Rev.1 CAB/LEG/67/1 M’baye Draft of ACHPR and various correspondence relating to ACHPR process CAB/LEG/67/3 Initial Dakar Draft of ACHPR (French language version) CAB/LEG/67/3/Rev.1 Dakar Draft of ACHPR CAB/LEG/67/4 OAU Secretary-General Kodjo’s opening address to the 1979 Dakar Meeting of Experts CAB/LEG/67/5 President Senghor’s opening address to the 1979 Dakar Meeting of Experts CM/966 (XXXIII) Rev.4 (Agenda) and Add.1 (Universal Declaration of Human Duties) CM/Plen./Rapt.Rpt (XXXII) CM/Plen/Rapt.Rpt. (XXXIII), Report of the U.N. Seminar on the establishment of regional commissions on

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Human Rights with Special reference to Africa, Monrovia, 1st–20th September 1979, OAU General Secretariat 1 October 1979

1980 AHG/98 (XVII) Introductory Note of the Secretary-General CM/1068 (XXXV) Interim Report of the Secretary-General on the ACHPR CM/Plen/Rapt.Rpt (XXXV) Rev.1 CM/Res.792 (XXXV) Resolution on Human and Peoples’ Rights 1981 AHG/101 (XVIII) Rev.1 Draft Agenda CAB/LEG/67/3/Rev.3 Banjul draft of ACHPR CAB/LEG/67/3/Rev.4 Revised Banjul draft of ACHPR CAB/LEG/67/3/Rev.5 Final draft of ACHPR CAB/LEG/67/Draft. Rapt.Rpt. (II) Rev.4 Report of the Rapporteur to Banjul Meetings CAB/LEG/67/6 OAU Secretary-General’s Report on the Preliminary draft of ACHPR CAB/LEG/67/3/Draft Rapt.Rpt. (II) Report of the Rapporteur to first Banjul Meeting CM/Plen.Rapt.Rpt (XXXVII) CM/1149 (XXXVII) Annex II: Rapporteur’s report draft African Charter on Human and Peoples’ Rights and Annexe III: Draft African Charter on Human and Peoples’ Rights

OAU-related documents Government Printer, Fifth Summit Conference of East and Central African States, Manifesto on Southern Africa, Lusaka, 14th–16th April 1969 (Lusaka, 1969) Ministry of Information and Broadcasting, The O.A.U. Meeting in Kampala: An official statement 25 July 1975, Dar es Salaam. The O.A.U. and the Freedom Struggle, Paper by Government of the United Republic of Tanzania presented to the O.A.U. Heads of Government meeting in Addis Ababa, June 1971. The Principles of the OAU Charter, the Lusaka Manifesto, Dialogue and Future Strategy, Addis Ababa, June 1971, Déclaration de Son Excellence Monsieur Félix HouphouëtBoigny, Président de la République de Côte-d’Ivoire 1 July 1971 (Abidjan, 1971) The Republic of Uganda, Uganda and the Organization of African Unity (Kampala, 1971) The Contributions by His Excellency the President of the Republic of Uganda, Al-Hajji General Idi Amin Dada, at the OAU Tenth Annual Summit, Addis Ababa, May 1973 (Kampala, 1974)

United Nations Unless otherwise indicated, resolutions adopted by the UN General Assembly have been taken from https://www.un.org/en/sections/documents/general-assemblyresolutions/index.html and by the UN Security Council from https://www.un.org/ securitycouncil/content/resolutions, both last accessed 29 May 2023.

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Other UN documentation was obtained either online or at the UN’s Geneva and New York archives or the University of Cambridge and LSE UN depository libraries; also, some limited documentation of in-camera meetings was accessible from the UK National Archives.

UN Conference documentation Comments and Proposed Amendments concerning the Dumbarton Oaks proposals: Submitted by the delegations to the United Nations Conference on International Organization (San Francisco, 1945) The United Nations Archives Reference Guide No. 10, Guide to the Records of the United Nations Conference on International Organization, San Francisco, 1945 Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York, 1945–54) A/Conf.32/41 Final Act of the International Conference on Human Rights, Tehran 1968 Proceedings of the United Nations Conference on Trade and Development Third Session Santiago de Chile, 13 April–21 May 1972 Vol. 1: Report and Annexes ST/TAO/HR/25 1966 Dakar Seminar SO 216/3 (7) Memoranda and working papers of 1966 Dakar Seminar ST/TAO/HR/38 1969 Cairo Seminar SO 216/3 (17) Memoranda and working papers of 1969 Cairo Seminar ST/TAO/HR/38 WP and BP 1969 Cairo Seminar ST/TAO/HR/40 1970 Lusaka Seminar SO 216/3 (19) Memoranda and working papers of 1970 Lusaka Seminar E/CN.14/521 1971 Conference Addis Ababa ST/TAO/HR/48 1973 Dar es Salaam Seminar ST/HR/SER.A/4 1979 Monrovia Seminar HR/Liberia/1979/BP1-3 (BP.1 Elias; BP.2 M’baye; BP.3 Eze); WP1-10 G/SO 211 and 216 files, Administrative arrangements for 1979 Monrovia Seminar Yearbook of the United Nations (1949, 1957–1961, 1964, 1974, 1976, 1978–1980) United Nations Treaty Series, Treaties and International Agreements Registered or Filed and Recorded with the Secretariat of the United Nations Vol. 299 (1958)

UNESCO ‘Declaration of the Principles of International Cultural Cooperation’, UNESCO/ OAU SHC.75/Conf.201/Col.4 Records of the General Conference Eleventh Session: Resolutions (Paris, 1960) Thirteenth Session: Resolutions (Paris 1964) Fourteenth Session: Resolutions (Paris 1966) Sixteenth Session: Resolutions (Paris, 1970) Nineteenth Session: Resolutions (Paris, 1977) Twenty-first Session: Resolutions (Belgrade, 1980) Resolutions and Decisions adopted by the Executive Board at its Sixty-Seventh Session (Paris, 4 May – 6 June 1964)

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415

Seventy-eighth Session (Paris, 13 May–21 June 1968) Eighty-first Session (Paris, 21–22 November 1968)

Online archives Comité sur les principes philosophique des droits de l’homme Part 1 https://atom.archives.unesco.org/uploads/r/5c00m/1/1/11494/ag08sf0000 7m_compressed.pdf, last accessed 13 March 2023 Part 2 https://atom.archives.unesco.org/uploads/r/5c00m/1/1/11495/ag08sf0000 8m_compressed.pdf, last accessed 13 March 2023 SHSVIEWS, UNESCO, UDHR 60th anniversary news release, 2008 https://unesdoc.unesco.org/ark:/48223/pf0000154277, last accessed 13 March 2023

International Commission of Jurists African Conference on the Rule of Law: A Report on the Proceedings of the Conference (Geneva, 1961) The Cassell Case: Contempt in Liberia (Geneva, 1961) Violations of Human Rights and the Rule of Law in Uganda (Geneva, 1974) For the Rule of Law, The International Commission of Jurists –objectives – organisation – activities, 1975 (Geneva 1975/1983) Uganda and Human Rights: report of the International Commission of Jurists to the United Nations (Geneva, 1977) Human Rights in a One-Party State (London, 1978) States of Emergency: Their Impact on Human Rights, A Study prepared by the International Commission of Jurists (Geneva, 1983) Human and Peoples’ Rights in Africa and THE AFRICAN CHARTER: Report of a Conference held in Nairobi from 2 to 4 December 1985 convened by the ICJ (Geneva, 1986) Unless otherwise indicated all ICJ reports, minutes, notes and correspondence were obtained from the ICJ Archives, Geneva and the Papers of William J. Butler, Robert S. Marx Law Library, College of Law, University of Cincinnati.

ICJ Executive Committee Minutes Report of the ICJ’s Activities 1966–1971 Report on the Activities of the ICJ 1971–1977 Report on Activities 1977–1980, 1981–1985 and 1986–1988 Report on Current Activities of the ICJ July 1973–June 1974; July 1974–June 1975; and July 1975–June 1976 Secretary-General’s Report No. 28, 1 July–30 September 1978 Report of the Twenty-Fifth Anniversary Meeting of the ICJ held in Vienna, April 1977 ICJ Newsletter Quarterly Report No 1 1st April–30th June 1979 and No 2 1st July–30th September 1979 Newsletter of the ICJ ICJ The Review ICJ Newsletter

416

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Journal of the ICJ Bulletin of the ICJ CIJL Bulletin ‘Extract from Bulletin of the ICJ No. 20, September 1964’, Transition, 18 (1965), 19 Congrès de juristes africaines francophones La fonction du droit dans l’évolution des communautés humaines Document de travail (Geneva, 1967): Programme https://www.icj.org/congres-de-juristes-africains-francophones-programmedakar-5-9-janvier-1967 Déclaration de Dakar Conclusions https://www.icj.org/declaration-de-dakarconclusions-dakar-5-9-janvier-1967 Report of the follow-up mission to the Dar es Salaam Seminar on Human Rights, their protection and the rule of law in a one-party state (1978) http://icj2. wpengine.com/wp-content/uploads/2013/06/Dar-es-salaam-human-rightsrule-of-law-seminar-follow-up-mission-1978-eng.pdf Press Release ‘ICJ comment on Mr. van Boven’s departure’ 11 February 1982 MacDermot on behalf of 40 NGOs to UN Secretary-General Perez de Cuellar et alia, 17 February 1982 enclosing ‘Statement by NGOs on Mr van Boven’s Departure’

All Africa Conference of Churches The Church in Changing Africa: Report of the All-Africa Church Conference: Ibadan, Nigeria, January 1958 (New York, 1958) Drumbeats from Kampala: Report of the First Assembly of the All Africa Conference of Churches held at Kampala April 20 to April 30, 1963 (London, 1963) Engagement: The Second AACC Assembly “Abidjan 1969” (Nairobi, 1970) The Struggle Continues: Official Report Third Assembly All Africa Conference of Churches, Lusaka, Zambia 12–24 May 1974 (Nairobi, 1975) AACC/WCC, Human Rights Consultation (Khartoum, 1975) Follow me - feed my lambs: Official Report Fourth Assembly All Africa Conference of Churches, Nairobi, Kenya, 2–12 August, 1981 (Nairobi, 1982)

World Council of Churches (Archives, Geneva) Notes for Sections, Fifth Assembly, Nairobi 1975 Section V: Structures of Injustice and Struggles for Liberation, including three background papers Post-event Follow-up report, Nairobi 1975 WCC Central Committee Minutes 1972–1980

Parliamentary and Legislative Council debates Gold Coast, Legislative Council Debates Session 1941, Issue No.1 and Session 1943, Issue No.1 Southern Rhodesia Colony, Debates of the Legislative Assembly, Fifth Session 1943 Vol. 23 Sierra Leone Colony, Legislative Council Debates No 1 of Session 1943–1944 and 1944–1945 Advisory Council for the Northern Sudan, Proceedings of the Session, First to Eighth Sessions May 1944 – March 1948

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417

Northern Rhodesia, Legislative Council Debates 1945 and 1963 Colony and Protectorate of Kenya, Legislative Council Debates, Official Report Second series Vol. XXIV 1946 Tanganyika Territory, Proceedings of the Legislative Council 1947 Debates in the Legislative Council of Nigeria 1943–1948 Legislative Assembly of the Sudan Weekly Digest of Proceedings 1950 Nigeria, House of Representatives Debates 1953 Gold Coast Legislative Assembly Debates, 1956–57, Official Report, First Series Vol. I Tanganyika, Legislative Council, Council Debates (Hansard) Official Report 29th (1954–55), 31st (1956–57), 34th (1958–59) and 36th (1960–61) Session Nigeria, House of Representatives Debates Official Report Session 1957–58 and 1960–61 Nigeria, Debates of the Senate Official Report 1/3 1960 Tanganyika, Parliamentary Debates (Hansard), National Assembly Official Report 1962

Reports in the British colonial territories Prime Minister and Minister of Native Affairs Huggins, Statement on Native Policy in Southern Rhodesia (Salisbury, 1941) Special Legislative Supplement to Sudan Government Gazette No. 731 1 September 1943, No. 791 19 June 1948 and No. 854 21 March 1953 Government Printer, Report of the Commission of Inquiry into the Disturbances which occurred in Uganda during January, 1945 (Entebbe, 1945) Government Printer, Review of the Constitution: Regional Recommendations (Lagos, 1949) Government Printer, Report of the Drafting Committee on the Constitution (Lagos, 1949) Nigeria, Proceedings of the General Conference on Review of the Constitution January, 1950 (Lagos, 1950) Uganda Protectorate, Report of the Commission of Inquiry into the Disturbances in Uganda during April, 1949 (Entebbe, 1950) Government Printer, Administration of Tanganyika: Legislative and Administrative System (Dar es Salaam, 1950) Government Printer, Report (with the Legislative Council Decisions thereon) of The Select Committee of the Legislative Council appointed to examine the question of Elections and Constituencies (Accra, 1950) CPP, Election Manifesto ‘Vote for Independence Now’ (Accra, 1950) Report on the work of the Constitution Amendment Commission up to the date of its dissolution by the Chairman Mr. Justice R.C. Stanley-Baker (Khartoum 1951) Government Printing Office, Accelerated Development Plan for Education (Accra, 1951) Government Printer, Tanganyika: Report of the Committee on Constitutional Development 1951 and Despatch of 22nd March, 1951, from His Excellency the Governor to the Secretary of State for the Colonies AND Despatch of 25th July, 1951 from the Secretary of State for the Colonies to His Excellency the Acting Governor (Dar es Salaam, 1951)

418

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Government Printer, Tanganyika: The Constitutional Debate 1951 (Dar es Salaam, 1951) Government Printer, Tanganyika Constitutional Development Commission: Report of the Special Commissioner appointed to examine matters arising out of the Report of the Committee on Constitutional Development (Dar es Salaam, 1952) Government Printer, The Meru land problem (Dar es Salaam, 1952) Gold Coast, The Government’s Proposals for Constitutional Reform (Accra, 1953) Government Printer, Report of the Commission of Enquiry into Representational and Electoral Reform (Accra, 1953) CPP, Election Manifesto ‘Forward to Freedom with the Common People’ (Accra, 1954) McCorquodale & Co, The Transitional Constitution of Sudan (Khartoum, 1955) Government Printer, Self-Government for the Western Region (Ibadan, 1955) Government Printer, Report from the Select Committee on Federal System of Government and Second Chamber for The Gold Coast (Accra, 1955) Government Printer, Report of the Constitutional Adviser (Accra, 1955) Government Printer, Report of the Achimota Conference (Accra, 1956) Government Printer, Secret, Proposals for the Constitution of Ghana (Accra, 1956) Government Printer, The Government’s Revised Constitutional Proposals for Gold Coast Independence (Accra, 1956) Government Printer, Constitutional Proposals for Gold Coast Independence and Statement on the Report of the Constitutional Adviser and the Report of the Achimota Conference (Accra, 1956) Government Printer, Proceedings of the Tribunal appointed to enquire into Allegations of improper conduct by the Premier of the Eastern Region of Nigeria in connection with the affairs of the African Continental Bank, Limited, and other relevant matters, August-November 1956 (Lagos, 1957) Government Printer, Some Comments on Mr. Nyerere’s speech at the Fourth Committee of the United Nations (Dar es Salaam, 1957) TANU, That Notorious Speech (Kilio Cha Uhuru) (Dar es Salaam, 1957) Government Printer, Proposals for Constitutional Change in Northern Rhodesia, Presented to the Northern Rhodesia Legislative Council 28th March, 1958 (Lusaka, 1958) Government Printer, Report of the Post Elections Committee 1959 (Dar es Salaam, 1959) ‘Forward to Freedom Action Group’, Action Group Manifesto for the first Federal Elections under the Amended Constitution (Lagos, 1959) KANU, The KANU Manifesto for Independence, Social Democracy and Stability (Nairobi, 1960) Election Manifesto, What a KANU Government Offers You (Nairobi, 1963) Government Printer, Report of the Constitutional Commissioner Zanzibar 1960 (Zanzibar, 1960) Government Printer, An Account of the Disturbances in Northern Rhodesia, July to October, 1961 (Lusaka, 1961) Official Printer, South Cameroons Plebiscite, 1961: The Two Alternatives (Cameroon, 1961) UNIP, Northern Rhodesia, Constitutional Proposals and Policies (Lusaka, 1961) UNIP, UNIP Policy (undated, Lusaka) Government Printer, The Constitution of Tanganyika (Dar es Salaam, 1961) KADU, Election Policy 1963 (Nairobi, 1963)

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419

UK HMSO Command papers House of Commons questions and statements, unless indicated otherwise, are referenced from https://api.parliament.uk/historic-hansard/sittings/C20, the official Hansard website. HMSO Cmd. 5270, Egypt No. 1 (1936), Treaty of Alliancee between His Majesty, in respect of the United Kingdom, and His Majesty the King of Egypt [with an Agreed Minute thereto, three Notes, Notes exchanged in Egypt on August 12, 1936, and an Oral Declaration made by the President of the Egyptian Council of Ministers on August 10, 1936] and a Convention concerning the Immunities and Privileges to be enjoyed by the British Forces in Egypt London, August 26, 1936 (London, 1936) HMSO Cmd. 6315, Inter-Allied Meeting, London 24 September, 1941 Report of Proceedings (London, 1941) HMSO Colonial 191, Inter-Territorial Organisation in East Africa (London, 1945) HMSO Cmd. 6584, Ethiopia No. 1 Agreement between His Majesty in respect of the United Kingdom and His Imperial Majesty the Emperor of Ethiopia, Addis Ababa, 19th December, 1944 (London, 1945) HMSO Cmd. 6599, Proposals for the Revision of the Constitution of Nigeria (London, 1945) HMSO Cmd. 6935, Trusteeship Territories in Africa under United Kingdom Mandate (London, 1946) HMSO Colonial 204, W. Tudor Davies, Enquiry into the cost of living and the control of the cost of living in the Colony and Protectorate of Nigeria (London, 1946) HMSO Cmd. 7081, Treaty Series No. 19 (1947), Tanganyika, Text of Trusteeship Agreement as approved by the General Assembly of the United Nations (London, 1947) HMSO Colonial 210, Inter-Territorial Organisation in East Africa. Revised proposals (London, 1947) HMSO Colonial 231, Report of the Commission of Enquiry into Disturbances in the Gold Coast (London, 1948) HMSO Colonial 248, Gold Coast: Report to His Excellency the Governor by the Committee on Constitutional Reform 1949 (London, 1949) HMSO Colonial 250, Gold Coast: Statement by His Majesty’s Government on the Report of the Committee on Constitutional Reform, Despatch of 14th October 1949 from the Secretary of State for the Colonies to His Excellency the Governor (London, 1949) HMSO Cmd. 8767, Egypt No. 2 (1953) Documents concerning Constitutional Development in the Sudan and the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Egyptian Government concerning Self-Government and Self-Determination for the Sudan (London, 1953) HMSO Cmd. 8934, Report by the Conference on the Nigerian Constitution held in London in July and August, 1953 (London, 1953) HMSO Cmd. 8969, Treaty Series No. 71 (1953), Convention for the Protection of Human Rights and Fundamental Freedoms (London, 1953) HMSO Colonial 302, Gold Coast: Despatches on the Gold Coast Government’s Proposals for Constitutional Reform exchanged between the Secretary of State for the Colonies and H.E. the Governor 24th August, 1953 to 15th April, 1954 (London, 1954)

420

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HMSO Cmd. 9059, Report by the Resumed Conference on the Nigerian Constitution held in Lagos in January and February, 1954 (London, 1954) HMSO Cmd. 9829, Sudan No. 3 (1956) Self-Determination in the Sudan Résumé of Developments November 15, 1951 – January 1, 1956 (London, 1956) HMSO Cmnd. 51, Nigerian Tribunal of Inquiry appointed by warrant of appointment dated the Fourth Day of August, 1956: Report of the Tribunal appointed to inquire into allegations reflecting on the Official Conduct of the Premier of, and certain persons holding Ministerial and other Public Offices in, the Eastern Region of Nigeria (London, 1957) HMSO Cmnd. 71, The Proposed Constitution of Ghana (London, 1957) HMSO Cmnd. 207, Report by the Nigeria Constitutional Conference held in London in May and June, 1957 (London, 1957) HMSO Cmnd. 309, Kenya: Proposals for New Constitutional Arrangements (London, 1957) HMSO Cmnd. 369, Kenya: Despatch on the New Constitutional Arrangements (London, 1958) HMSO Cmnd. 505, Nigeria: Report of the Commission appointed to enquire into the fears of minorities and the means of allaying them (London, 1958) HMSO Cmnd. 530, Northern Rhodesia: Proposals for Constitutional Change (London, 1958) HMSO Cmnd. 569, Report by the Resumed Nigeria Constitutional Conference held in London in September and October, 1958 (London, 1958) HMSO Cmnd. 814, Report of the Nyasaland Commission of Inquiry (London, 1959) HMSO Cmnd. 960, Report of the Kenya Constitutional Conference held in London in January and February, 1960 (London, 1960) HMSO Cmnd. 1030, F.D. Corfield, Historical Survey of the Origins and Growth of Mau Mau (London, 1960) HMSO Cmnd. 1063, Nigeria constitutional discussions, May 1960 held in London, (London, 1960) HMSO Cmnd. 1132, Report of the Nyasaland Constitutional Conference, Held in London in July and August, 1960 (London, 1960) HMSO Cmnd. 1148, Report of the Advisory Commission on the Review of the Constitution of the Federation of Rhodesia and Nyasaland (Report by Committee of Officials) (London, 1960) HMSO Cmnd. 1149, Appendix VI Survey of Developments since 1953 (London, 1960) HMSO Cmnd. 1150, Report – Appendix VII Possible Constitutional Changes (Report by Committee of Officials) (London, 1960) HMSO Cmnd. 1151, Report – Appendix VIII Evidence Vols I–V (London, 1960) HMSO Cmnd. 1295, Northern Rhodesia Proposals for Constitutional Change (London, 1961) HMSO Cmnd. 1301, Northern Rhodesia Statement by the Secretary of State for the Colonies on Proposals for Constitutional Change (London, 1961) HMSO Cmnd. 1360, Report of the Tanganyika Constitutional Conference, 1961 Held in Dar es Salaam March, 1961 (London, 1961) HMSO Cmnd. 1423, Northern Rhodesia Proposals for Constitutional Change (London, 1961)

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421

HMSO Cmnd. 1433, The Future of East Africa High Commission Services, Report of the London Discussions, June 1961 (London, 1961) HMSO Colonial 353, Report of a Commission of Inquiry into the Disturbances in Zanzibar during June 1961 (London, 1961) HMSO Cmnd. 1699, Report of the Zanzibar Constitutional Conference, 1962 Held in London March and April, 1962 (London, 1962) HMSO Cmnd. 1700, Report of the Kenya Constitutional Conference, 1962 (London, 1962) HMSO Cmnd. 1887, Report of the Nyasaland Constitutional Conference Held in London in November, 1962 (London, 1962) HMSO Cmnd. 1970, Kenya Constitution: Summary of the Proposed Constitution for Internal Self-Government (London, 1963) HMSO Cmnd. 2093, Report of the Central Africa Conference, 1963 (London, 1963) HMSO Cmnd. 2156, Kenya Independence Conference (London, 1963) HMSO Cmnd. 2157, Zanzibar Independence Conference, 1963 (London, 1963) HMSO Cmnd. 2365, Report of the Northern Rhodesia Independence Conference, 1964 (London, 1964) HMSO Cmnd. 6270, Overseas Development: The Changing Emphasis in British Aid Policies: More Help for the Poorest (London, 1975) HMSO Cmnd. 6702, Treaty Series No. 6 (1977), International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights (London, 1977) HMSO Cmnd. 7397, Miscellaneous No. 34 (1978), Second Report from the Select Committee on Overseas Development Session 1977–78: The Renegotiation of the Lomé Convention Observations by the Secretary of State for Foreign and Commonwealth Affairs, the Secretary of State for Trade, the Minister of Agriculture, Fisheries and Food, and the Minister for Overseas Development (London, 1978)

UK HMSO Reports FCO, Report on the Supply of Petroleum and Petroleum Products to Rhodesia (London, 1978) HMSO, Colonial Office Annual Reports, Nyasaland 1946 (London, 1948) HMSO Reference Pamphlet, Tanganyika: The Making of a Nation (1961) HMSO, OD Paper No. 3: Administering an Aid Programme in a Year of Change – a Personal Diary, Address to the Royal Commonwealth Society by the Rt Hon. Judith Hart MP, Minister of Overseas Development, London, 20 February 1975 (London, 1975) HMSO, British policy towards the United Nations (London, 1978) HMSO, OD Paper No. 12: Realities: Development, Basic Needs and Human Rights, Lecture delivered at the University of Guyana on 10 January 1978 by the Rt Hon. Judith Hart MP, Minister for Overseas Development (London, 1978) HMSO, Report on the Supply of Petroleum and Petroleum Products to Rhodesia by T.H. Bingham, QC S.M. Gray, FCA (London, 1978) HMSO, Second Report from the Select Committee on Overseas Development Session 1977–78: The Renegotiation of the Lomé Convention Vol. 1 Report (together with the Proceedings of the Committee) 12 July 1978

422

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Parliamentary debates and political reports in the former British colonial territories Government Printer, Regional Assemblies: Report to His Excellency the Governor-General by the Regional Constitutional Commission (Accra, 1958) Government Printer, Statement of the Ghana Government on the Report of the Regional Constitutional Commission (Accra, 1958) Government Printer, Proceedings of the Constituent Assembly: Official Report 14th March–29th June, 1960 (Accra, 1960) Government Printer, Proposals of the Tanganyika Government for a Republic (Dar es Salaam, 1962) Ministry of Information and Broadcasting, ‘Speech by Osagyefo the President at the Opening of the Institute of African Studies on 25th October, 1963’ (Accra, 1963) Ministry of Information and Broadcasting, ‘The Role of our Universities: Speech delivered by Osagyefo the President at university dinner on Sunday, 24th February, 1963’ (Accra, 1963) Federation of Nigeria, Sessional Paper No. 3 of 1963 Proposals for The Constitution of the Federal Republic of Nigeria (Lagos, 1963) Northern Rhodesia, Hansard Official Verbatim Report of the debates of the Legislative Council First Session of the Twelfth Legislative Council (Resumed) (1963) Government of Kenya, Official Report, House of Representatives, The National Assembly, First Parliament Second Session (cont), Vol. III 1964 In the Parliament of Malawi Official Report of the Proceedings First Session-Third Meeting (1964) Afro-Shirazi Headquarters, The History of Zanzibar Africans and the formation of the Afro-Shirazi Party (Dar es Salaam, c1964–65) Government of Malawi, Proposals for the Republican Constitution of Malawi (Zomba, 1965) Minister of Economic Planning and Development, Sessional Paper No.10 African Socialism and its Application to Planning in Kenya (Nairobi, 1965) Government Printer, Report of the Presidential Commission on the Establishment of a Democratic One Party State (Dar es Salaam, 1965) K.P.U. Manifesto for 1966 By-Elections: Bull! – Freedom! – Socialism! (Nairobi, 1966) Government Printer, The North and Constitutional Development in Nigeria (Enugu, 1966) KPU, Wananchi Declaration: The Programme of the KENYA PEOPLE’S UNION (no date, Nairobi) TANU, The Arusha Declaration and TANU’s policy on socialism and self-reliance (Dar es Salaam, 1967) National Committee for the Constitution, Summary of the Proceedings Sittings No 1–60 12 February 1967 to 12 November 1967 (Khartoum 1967) Ghana Publishing Corporation, The Proposals of the Constitutional Commission for a Constitution for Ghana (Accra, 1968) Minister of Information, Broadcasting and Tourism Wina, Why the Referendum??? (Lusaka, 1969)

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423

Zambia Information Services, Background No 32/69: The President Explains the Referendum (Lusaka, 1969) Government Printer, The Common Man’s Charter with appendices (Entebbe, 1970) Government Printer, Report of the National Commission on the Establishment of a One-Party Participatory Democracy in Zambia (Lusaka, 1972) Government Printer, Government Paper No. 1 of 1972: Report of the National Commission on the Establishment of a One-Party Participatory Democracy in Zambia: Summary of Recommendations accepted by Government (Lusaka, 1972) Federal Government Printer, An Address by the Head of the Federal Military Government, Commander-in-Chief of the Armed Forces at the Inaugural Session of the Nigerian Constitutional Drafting Committee on Saturday 18th October, 1975 (Lagos, 1975) Federal Ministry of Information, Report of the Constitution Drafting Committee containing the Draft Constitution Vols1 and 2 (Lagos, 1976) Resolutions of the Eighth National Council Meeting of the United National Independence Party held at Mulungushi Hall, Lusaka from 27th to 29th April 1976, British Library Endangered Archives Programme Federal Ministry of Information, National Policy on Education (Lagos, 1977) Ghana Publishing Corporation, Report of the Ad Hoc Committee on Union Government (Accra, 1977) Ghana Publishing Corporation, The Proposals of the Constitutional Commission for a Constitution for the Establishment of a Transitional (Interim) National Government for Ghana (Accra, 1978) Department of Propaganda and Mass Mobilisation, Chama Cha Mapinduzi, 1983 National Executive Council proposed amendments to the Union Constitution and the Zanzibar Revolutionary Government Constitution (Dar es Salaam, 1983)

Documents, reports and debates with respect to the (former) French colonial territories Journal officiel de la République française. Débats parlementaires: Chambre des deputes Journal officiel de la République française: Lois et décrets, Ministère des Colonies, Conférence africaine française, Brazzaville, 30 janvier 1944 – 8 février 1944 (Paris, 1945) Journal officiel de la République française: Débats de l’Assemblée nationale constituante (1946) Ordonnance n° 16 du 24 septembre 1941, portant organisation nouvelle des pouvoirs publics de la France libre et créant le Comité national français and ‘Décret portant nomination de commissaires nationaux’ University of Perpignan http://mjp.univ-perp.fr/france/co1940fl-cnf.htm Les recommandations de la conférence de Brazzaville and Le discours de Brazzaville (30 janvier 1944), https://histoire.ac-versailles.fr/IMG/pdf/Brazzaville.pdf, last accessed 15 March 2023 Manifeste de Brazzaville, 27 octobre 1940 http://www.charles-de-gaulle.org/wpcontent/uploads/2017/03/Manifeste-de-Brazzaville.pdf, last accessed 4 June 2018

424

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French Embassy, Press and Information Division, The French Constitution: Adopted by the Referendum of September 28, 1958 and Promulgated on October 4, 1958 French Text and English Translation (1958) La Documentation Française, Chroniques d’Outre-Mer No. 49 October 1958, 3–36 Journal officiel de la République de Guinée Numéro Special 12 November 1958 Parti de la fédération africaine, Congrès constitutif du Parti de la fédération africaine, Dakar, les 1er, 2 et 3 juillet 1959 (Dakar, 1959) Agreement for the establishment of the Council of the Entente, Abidjan, May 1959, Niger, Journal officiel 15 June 1959 Travaux préparatoires de la constitution: Avis et debats du Comité consultatif constitutionnel (Paris, 1960) Conférence des chefs d’états de l’Afrique équatoriale, Secrétariat-général, recueil des conventions relatives aux organismes communs aux quatre états de l’Afrique équatoriale (1963) Deuxième constitution de la République populaire et révolutionnaire de Guinée (Conakry, 1982)

Political and constitutional reports in the North African colonial and independent territories Histoire du mouvement national tunisien, Pour préparer la troisième épreuve, 1. Le Néo Destour brise le silence 1944/49 (Algiers, 1948) Constitution of the United Kingdom of Libya, The Official Gazette of the United Kingdom of Libya No. Extraordinary 7 October 1951 Electoral Law for the election of the Libyan Federal House of Representatives, Law No. 5 of 6 November 1951, The Official Gazette of the United Kingdom of Libya 3/1 6 November 1951 Jabhat al-Tahrir al-Qawmi, La charte d’Alger: Ensemble des textes adoptés par le 1er Congrès du Parti du Front de libération nationale (probably Algiers, 1964) Ministry of Information, Draft Constitution of the Confederation of Arab Republics August 20, 1971 (Cairo, 1971) ‘Charte nationale’, Journal officiel de la République algérienne démocratique et populaire, 15e année, no 61 du 30 juillet 1976, 714–770 Front de libération nationale, Charte nationale (Algiers, 1976) Ministry of Culture and Information, National Charter (Algiers, 1981)

Political and constitutional reports in the Portuguese colonial and independent territories Executive Committee of the Mouvement Populaire de Libération de l’Angola, Appeal to the Member States of the United Nations ( June 1960) Mouvement populaire de libération de l’Angola, Constitution and Programs (early 1960s); ICOM Special Collections, Senate House, University of London, identify it as an English translation of Mouvement populaire de libération de l’Angola, Statuts et programme (Paris, undated). FRELIMO, First Congress, Dar es Salaam, 23 – 28 September 1962: Documents (Paris, 1962)

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425

Mozambique, Angola and Guiné Information Centre, Movimento Popular de Libertação de Angola, Documents of the plenary meeting of the MPLA Central Committee, 23–29 October, 1976 (London 1976) People’s Power in Mozambique and Guinea-Bissau Number 5 (London, 1976) FRELIMO, Central Committee Report to the Third Congress of Frelimo (London, 1978) Principles of Revolutionary Justice: The Constitution: Documents on Law and State in the People’s Republic of Mozambique (London, 1979) Movimento Popular de Libertação de Angola, First Congress of MPLA, Luanda, 4–10 December 1977: Report of the Central Committee: Theses on Education (London, 1979)

US reports and documents Department of State Bulletin Foreign Affairs Oral History Project Association for Diplomatic Studies and Training, Arlington, VA, www.adst.org. Foreign Relations of the United States Series Office of the Historian https://history.state.gov/historicaldocuments Congressional Record Vol. 103, Part 8 (JUNE 21, 1957 TO JULY 10, 1957), 10780–10792 United States Foreign Policy, Africa, A study prepared at the request of the Committee on Foreign Relations United States Senate by Program of African Studies, Northwestern University Washington, 23 October 1959 Report to the President of the United States from The Committee to Strengthen the Security of The Free World: The Scope and Distribution of United States Military and Economic Assistance 20 March 1963 U.S. Foreign Assistance in the 1970s: A New Approach – Report to the President from the Task Force on International Development, March 1970 United Nations and Africa: Joint Hearing before the Subcommittee on Africa and the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs, House of Representatives 92nd Congress 2nd Session 1 March 1972 International Protection of Human Rights: The Work of International Organizations and the Role of U.S. Foreign Policy, Hearings before the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs, House of Representatives, 93rd Congress, 1st Session (1973) Nomination of Henry A. Kissinger, Hearings before the Committee on Foreign Relations, United States Senate 93rd Congress, 1st Session Part 1 (1973) The Reorganization of U.S. Development Aid: Comparison and Summary Analysis of some Official and Unofficial Proposals prepared for the Committee on Foreign Affairs by the Foreign Affairs Division, Congressional Research Service, May 1973 Committee on International Relations, Africa: Report from the Continent: Report of Special Study Missions to Africa, November 14 – December 16, 1972, November 10–December 8, 1973, and report of Special Study Mission to Oslo, Norway, April 7–14, 1973 (1974) Human Rights in the World Community: A Call for U.S. leadership, Report of the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs House of Representatives (1974)

426

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Moskowitz, M., ‘Implementing Human Rights: Present Status and Future Prospects’, B.G. Ramcharan (ed.), Human Rights: Thirty Years after the Universal Declaration, Commemorative Volume on the Occasion of the Thirtieth Anniversary of the Universal Declaration of Human Rights (The Hague, 1979), 109–130 Mphahlele, E., ‘African Literature’, L. Bown/ M. Crowder (eds), The Proceedings of the First International Congress of Africanists, Accra 11th–18th December 1962 (London, 1964), 220–232 Mphahlele, E., ‘A Reply’, G. Moore (ed.), African Literature and the Universities (Ibadan, 1965), 22–26 Msekwa, P., ‘Keynote Address’, ICJ, Human Rights in a One-Party State (London, 1978), 21–37 Mulago, V., ‘Le Problème d’une théologie africaine revu à la lumière de Vatican II’, Renouveau de l’Eglise et Nouvelles Eglises: Colloque sur la Théologie Africaine: Quatrième Semaine théologique de Kinshasa organisée par la Faculté de Théologie de l’Université Lovanium (22–27 juillet 1968) (Inkisi, 1969), 115–152 Murphy, D., ‘Introduction. The Performance of Pan-Africanism: Staging the African Renaissance at the First World Festival of Negro Arts’, D. Murphy (ed.), The First World Festival of Negro Arts, Dakar 1966: Contexts and Legacies (Liverpool, 2016), 1–42 Mushete, N., ‘The History of Theology in Africa: From Polemics to Critical Irenics’, K. Appiah-Kubi/S. Torres (eds), african theology en route (Maryknoll, 1979), 23–35 Mveng, E., ‘The Historical Background of the African Synod’, African Faith & Justice Network under the direction of Maura Browne, The African Synod: Documents, Reflections, Perspectives (Maryknoll, 1996), 20–31 Mwakyembe, H.G., ‘The Parliament and the Electoral Process’, I.G. Shivji (ed.), The State and the Working People in Tanzania (Dakar, 1986), 16–57 Nation, R.C., ‘Soviet Engagement in Africa: Motives, Means and Prospects’, R.C. Nation/M.V. Kauppi (eds), The Soviet Impact in Africa (Lexington, 1984), 27–57 Ndiaye, B., ‘The Place of Human Rights in the Charter of the Organization of African Unity’, K. Vasak (ed.), The International Dimension of Human Rights Vol. 2 revised and edited for the English edn by P. Alston (Westport, 1982), 601–614 Nguema, I., ‘Introduction’, United Nations, Human Rights: The African Charter on Human and Peoples’ Rights (New York, 1990), 1–3 Nguema, I., ‘Report on “Legal and Infrastructural Constraints on the Commission”’, Conference on The African Commission on Human and Peoples’ Rights June 24–26, 1991, Sponsored by The Friedrich Naumann Foundation (New York, 1991), 12–15 Ngũgĩ wa Thiong’o, ‘Introduction’, E. Gachukia/S.K. Akiwaga (eds), Teaching of African Literature in Schools (Nairobi, 1978), i–iii Nketia, J.H., ‘National Development and the Role of African Studies Institutes: A Case Study’, R.W. July/P. Benson (eds), Conference Report, African Cultural and Intellectual Leaders and the Development of the New African Nations (Ibadan, 1992), 54–78

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President Nkrumah, ‘Address Delivered to Mark the Opening of the First International Congress of Africanists’, L. Bown/M. Crowder (eds), The Proceedings of the First International Congress of Africanists, Accra 11th–18th December 1962 (London, 1964), 6–15 Nobel, P. ‘Notes on the Right to Development’, P. Nobel (ed.) Refugees and Development in Africa, Seminal Proceedings No. 49 Scandinavian Institute of African Studies (Uppsala, 1987), 47–52 Nolutshungu, S.C., ‘Constitutionalism in Africa: Some Conclusions’, D. Greenberg et alia (eds), Constitutionalism & Democracy: Transitions in the Contemporary World (Oxford, 1993), 366–378 Nouaydi, A., ‘Morocco: The Imperative of Democratic Transition’, A.A. Na’im (ed.), Human Rights under African Constitutions: Realizing the Promise for Ourselves (Philadelphia, 2003), 152–181 Ntakarutimana, E., ‘Msgr Tharcisse Tshibangu: Champion of an “African-coloured” Theology’, B. Bujo/J.I. Muya (eds) (trans. S. Borruso), African Theology in the 21st Century: The Contribution of the Pioneers Vol. 1 (Nairobi, 2003), 47–63 Nwoga, D., ‘Plagiarism and Authentic Creativity in West Africa’, B. Lindfors (ed.), Critical Perspectives on Nigerian Literatures (London, 1979), 155–164 Nyagava, S.I., ‘The Influence of WASU in East Africa’, UNESCO, The Role of African Student Movements in the Political and Social Evolution of Africa from 1900 to 1975 (Paris, 1994), 67–79 Nyamiti, C., ‘Approaches to African Theology’, S. Torres/V. Fabella (eds), The Emergent Gospel: Theology from the Developing World: Papers from the Ecumenical Dialogue of Third World Theologians, Dar es Salaam, August 5–12, 1976 (London, 1980), 31–45 Nyerere, J.K., ‘Education for Liberation’ 20 May 1974 Dag Hammarskjold Seminar, Dar es Salaam, E. Lema/M. Mbilinyi/R. Rajani (eds), Nyerere on Education: Selected Essays and Speeches, 1954–1998 (Dar es Salaam, 2004), 121–132 Ofoegbu, R., ‘Foreign Policy and Military Rule’, O. Oyediran (ed.), Nigerian Government and Politics under Military Rule, 1966–79 (London, 1979), 124–149 Okoth-Ogendo, H.W.O., ‘Constitutions without Constitutionalism: Reflections on an African Political Paradox’, D. Greenberg et alia (eds), Constitutionalism & Democracy: Transitions in the Contemporary World (Oxford, 1993), 65–87 Olasope, B., ‘The Nonaligned News Agencies Pool and the Free Flow of Meaningful News: An African Viewpoint’, P. Horton (ed.), The Third World and Press Freedom (New York, 1978), 162–172 Omotoso, K., ‘The Missing Apex: A Search for the Audience’, E. Oluwasanmi/E. McLean/H. Zell (eds), Publishing in Africa in the Seventies: Proceedings of an International Conference on Publishing and Book Development held at the University of Ife, Ife, Nigeria, 16–20 December 1973 (Ife, 1975), 251–261 Ottaway, M., ‘The Theory and Practice of Marxism-Leninism in Mozambique and Ethiopia’, D.E. Albright (ed.), Communism in Africa (Indiana, 1980), 118–144 Ottaway, M., ‘State Power Consolidation in Ethiopia’, E.J. Keller/D. Rothchild (eds), Afro-Marxist Regimes: Ideology and Public Policy (Boulder, 1987), 25–42 Parsons, T., ‘The Military Experiences of Ordinary Africans in World War II’, J.A Byfield/C.A. Brown/T. Parsons/A.A. Sikainga (eds), Africa and World War II (Cambridge, 2015), 3–23

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Pithon, R., ‘French Film Propaganda, July 1934–June 1940’, K.R.M. Short (ed.), Film and Radio Propaganda in World War II (London, 1983), 78–93 Polomé, E., ‘The choice of official languages in the Democratic Republic of the Congo’, J.A. Fishman/C.A. Ferguson/J. Das Gupta (eds), Language Problems of Developing Nations (New York, 1968), 295–312 Ramcharan, B.G., ‘The Role of Regional, National and Local Institutions: Future Perspectives’, B.G. Ramcharan (ed.), Human Rights: Thirty Years after the Universal Declaration, Commemorative Volume on the Occasion of the Thirtieth Anniversary of the Universal Declaration of Human Rights (The Hague, 1979), 233–248 Ramcharan, B.G., ‘Human Rights: Universality and Cultural Diversity’, F. Coomans et alia (eds), Rendering Justice to the Vulnerable: Liber Amicorum in Honour of Theo van Boven (The Hague, 2000), 239–258 Ramognino, P., ‘L’Afrique de l’Ouest sous le proconsulat de Pierre Boisson (juin 1940– juin 1943)’, E. Jennings/J. Cantier (eds), L’Empire Colonial sous Vichy (Paris, 2004), 69–88 Ramphal, S., ‘Preface’, ICJ, Human Rights in a One-Party State (London, 1978), 7–8 Rathbone, R., ‘Casting “the Kingdome into another mold”: Ghana’s Troubled Transition to Independence’, R. Holland/S. Williams/T. Barringer (eds), The Iconography of Independence: ‘Freedoms at Midnight’ (London, 2010), 57–70 Rees, E., ‘Exercises in Private Diplomacy: Selected Activities of the Commission of the Churches on International Affairs’, M.R. Berman/J.E. Johnson (eds), Unofficial Diplomats (New York, 1977), 111–129 Reynolds, D., ‘The Atlantic “Flop”: British Foreign Policy and the Churchill-­ Roosevelt Meeting of August 1941’, D. Brinkley/D.R. Facey-Crowther (eds), The Atlantic Charter (Basingstoke 1994), 129–150 Rigaux, F., ‘The Algiers Declaration of the Rights of Peoples’, A. Cassese (ed.), UN Law/ Fundamental Rights: Two Topics in International Law (Alphen aan den Rijn, 1979), 211–223 Salzberg, J.P., ‘A View from the Hill: U.S. Legislation and Human Rights’, D.D. Newsom (ed.), The Diplomacy of Human Rights (London, 1986), 13–20 Sarris, L.C., ‘Soviet Military Policy and Arms Activity in Sub-Saharan Africa’, W.J. Foltz/H.S. Bienen (eds), Arms and the African: Military Influences on Africa’s International Relations (New Haven, 1985), 29–57 Sartre, J.P., ‘Orphée Noir’, L.S. Senghor, Anthologie de la nouvelle Poésie Nègre et Malgache de Langue Française (Paris, 1948), ix–xliv Saul, J.S., ‘Development and Counterdevelopment Strategies in Mozambique’, E.J. Keller/D. Rothchild (eds), Afro-Marxist Regimes: Ideology and Public Policy (Boulder, 1987), 109–153 Schneider, M.L., ‘A New Administration’s New Policy: The Rise to Power of Human Rights’, P.G. Brown/D. MacLean (eds), Human Rights and U.S. Foreign Policy: Principles and Applications (Massachusetts, 1979), 3–13 Senghor, L.S., ‘Negritude and African Socialism’, K. Kirkwood (ed.), African Affairs Number Two, St Antony’s Papers No. 15 (London, 1963), 9–22 Senghor, L.S., ‘Opening Address’, G. Moore (ed.), African Literature and the Universities (Ibadan, 1965), 13–17 Senghor, L.S., ‘Postface: Des prêtres noirs s’interogent et suggèrent’, Présence Africaine, Personnalité africaine et Catholicisme (Paris, 1963), 283–293

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Senghor, L.S., ‘The Problem of Culture in French West Africa’, C. Becker/S. M’baye/I. Thioub (eds), AOF: réalités et héritages: sociétés ouest-africaines et ordre colonial, 1895–1960 Tome 2 (Dakar, 1997), 682–696 Senghor, L.S., (trans. D. L. Schalk), ‘Edward Wilmot Blyden, Precursor of Negritude’, H.R. Lynch (ed.), Selected Letters of Edward Wilmot Blyden (Millwood, 1978), xv–xxii Senghor, L.S., ‘Introduction’, F. Axt/ E.H.M.B. Sy (eds), Anthology of Contemporary Fine Arts in Senegal (Frankfurt, 1989), 19–20 Senghor, L.S., ‘Vues sur l’Afrique Noire, ou assimiler, non être assimilés’, R. Lemaignen/L.S. Senghor/Prince S. Youtévong, La Communauté Impériale Française (Paris, 1945) Shipway, M., ‘Reformism and the French “Official Mind”: The 1944 Brazzaville Conference and the Legacy of the Popular Front’, T. Chafer/A. Sackur (eds), The French Colonial Empire and the Popular Front: Hope and Disillusion (London, 1999), 131–151 Sikainga, A.A., ‘Sudanese Popular Response to World War II’, J.A. Byfield/C.A. Brown/T. Parsons/A.A. Sikainga (eds), Africa and World War II (Cambridge, 2015), 462–479 Silberman, M. ‘Discussant: Murray Silberman’, H.D. Rosenbaum/A.Ugrinsky (eds), Jimmy Carter: Foreign Policy and Post-presidential Years (Westport, 1994), 291–293 Simpson, A./Akíntúnde Oyètádé, B., ‘Nigeria: Ethno-linguistic Competition in the Giant of Africa’, A. Simpson (ed.), Language and National Identity in Africa (Oxford, 2008), 171–198 Smith, A.W.M./Jeppesen, C., ‘Introduction: Development, Contingency and Entanglement: Decolonization in the Conditional’, A.W.M. Smith/C. Jeppesen (eds), Britain, France and the Decolonization of Africa: Future Imperfect? (London, 2017), 1–14 Soyinka, W., ‘The Scholar in African Society’, Second World Black and African Festival of Arts and Culture, Colloquium on Black Civilization and Education (Lagos, 17th–31st January, 1977) Colloquium Proceedings Vol. 1 (Lagos, 1977), 44–53 Stark, F.M., ‘Federalism in Cameroon: The Shadow and the Reality’, N. Kofele-Kale (ed.), An African Experiment in Nation Building: The Bilingual Cameroon Republic since Reunification (Boulder, 1980), 101–132 Tangri, R.K., ‘The Rise of Nationalism in Colonial Africa: The Case of Colonial Malawi’, B. Pachai/G.W. Smith/R.K. Tangri (eds), Malawi Past and Present, Studies in Land and Regional History: Papers presented at the University of Malawi History Conference June 1967 (Malawi, 1968), 95–113 Temu, A.J., ‘The Rise and Triumph of Nationalism’, I.N. Kimambo/A.J. Temu (eds), A History of Tanzania (Nairobi, 1969), 189–213 Thompson, W.S./Zartman, I.W., ‘The Development of Norms in the African System’, Y. El-Ayouty (ed.), The Organization of African Unity After Ten Years: Comparative Perspectives (New York, 1975), 3–46 Tomuschat, C., ‘Is Universality of Human Rights Standards an Outdated and Utopian Concept?’, R. Bieber/D. Nickel (eds), Das Europa der Zweiten Generation: Gedächtnisschrift für Christoph Sasse (Kehl am Rhein, 1981), 585–609 Torres, S., ‘Introduction’ and ‘Opening Address’, S. Torres/V. Fabella (eds), The

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Emergent Gospel: Theology from the Developing World: Papers from the Ecumenical Dialogue of Third World Theologians, Dar es Salaam, August 5–12, 1976 (London, 1980), vii–6 Towa, M., ‘Conditions for the affirmation of a modern African philosophical thought’, T. Serequeberhan (ed.), African Philosophy: The Essential Readings (New York, 1991), 187–200 Tshibangu, T., ‘Towards an African-coloured Theology?’, B. Bujo/J.I. Muya (eds) (trans. S. Borruso), African Theology in the 21st Century: The Contribution of the Pioneers Vol. 1 (Nairobi, 2003), 183–194 Vanneste, A., ‘A True Theology to Begin With’, B. Bujo/J.I. Muya (eds) (trans. S. Borruso), African Theology in the 21st Century: The Contribution of the Pioneers Vol. 1 (Nairobi, 2003), 195–199 Vasak, K., ‘Pour une troisième génération des droits de l’homme’, C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles (The Hague, 1984), 837–850 Vasak, K., ‘Revisiter la troisième génération des droits de l’homme avant leur codification’, Hector Gros Espiell Amicorum Liber (Brussels, 1997), 1649–1679 Verwey, W.D., ‘Decolonization and Ius ad Bellum: A Case Study on the Impact of the United Nations General Assembly on International Law’, R.J. Akkerman/P.J. van Krieken/C. O. Pannenborg (eds), Declarations on Principles: A Quest for Universal Peace (Leyden, 1977), 121–140 Viljoen, F., ‘Strengthening the African Commission on Human and Peoples’ Rights: Procedures, Mechanisms, Partnerships and Implementation’, L. Wohlgemuth/E. Sall (eds), Human Rights, Regionalism, and the Dilemmas of Democracy in Africa (Dakar, 2006), 112–153 Vincent, C., ‘“The Real Heart of the Festival”: The Exhibition of L’Art nègre at the Museé Dynamique’, D. Murphy (ed.), The First World Festival of Negro Arts, Dakar 1966: Contexts and Legacies (Liverpool, 2016), 45–63 Le Vine, V.T., ‘Cameroons, Togo, and the States of Formerly French West Africa’, P. Duignan/R.H. Jackson (eds), Politics and Government in African States 1960–1985 (London, 1986), 78–119 Wai, D.M., ‘Human Rights in Sub-Saharan Africa’, A. Pollis/P. Schwab (eds), Human Rights: Cultural and Ideological Perspectives (New York, 1979), 115–144 Ward, K. ‘African Nationalism, Christian Democracy and “Communism”’ – The Rise of Sectarian Confessional Politics in Uganda 1952–1962’, K. Kunter/J.H. Schjorring (eds), Changing Relations between Churches in Europe and Africa: The Internationalization of Christianity and Politics in the 20th Century (Wiesbaden, 2008) Weinstein, B., ‘Governor-General Felix Éboué (1884–1944)’, L.H. Gann/P. Duignan (eds), African Proconsuls: European Governors in Africa (New York, 1978), 157–184 Welch, Jr., C.E., ‘The OAU and International Recognition: Lessons from Uganda’, Y. El-Ayouty (ed.), The Organization of African Unity after Ten Years (New York, 1975), 103–117 Whiteley, W.H., ‘Language Policies of Independent African States’, T.A. Sebeok (ed.), Current Trends in Linguistics, VII: Linguistics in Sub-Saharan Africa (The Hague, 1971), 548–558

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Willetts, P., ‘Consultative Status for NGOs at the United Nations’, P. Willetts (ed.), The Conscience of the World: The Influence of Non-Governmental Organisations in the UN System (London, 1996), 31–62 Wilson, T.A., ‘The First Summit: FDR and the Riddle of Personal Diplomacy’, D. Brinkley/D.R. Facey-Crowther (eds), The Atlantic Charter (Basingstoke 1994), 1–31 Wiredu, K., ‘Problems in Africa’s Self-Identification in the Contemporary World’, A. Diemer (ed.) in conjunction with J.P. Hountondji, Africa and the Problem of its Identity, International Philosophical Symposium on Culture and Identity of Africa 1982 Dusseldorf (Frankfurt/New York, 1985), 213–222 Wiredu, K., ‘An Akan Perspective on Human rights’, A.A. An-Na‘im/F. M. Deng (eds), Human Rights in Africa: Cross-Cultural Perspectives (Washington, 1990), 243–260 Wiseberg, L.S./Scoble, H.M., ‘Recent Trends in the Expanding Universe of NGOs Dedicated to the Protection of Human Rights’, V.P. Nanda/J.R. Scarritt/G.W. Shepherd, Jr. (eds), Global Human Rights: Public Policies, Comparative Measures, and NGO Strategies (Boulder, 1981), 229–260 Wohlgemuth, L./Sall, E., ‘Introduction: Human Rights, Regionalism, and the Dilemmas of Democracy in Africa’, L. Wohlgemuth/E. Sall (eds), Human Rights, Regionalism, and the Dilemmas of Democracy in Africa (Dakar, 2006), 1–18 Young, C., ‘The Zairian Crisis and American Foreign Policy’, G.J. Bender/J.S. Coleman/R.L. Sklar (eds), African Crisis Areas and U.S. Foreign Policy (Berkeley, 1985), 209–224 Zolberg, A.R., ‘The Dakar Colloquium: The Search for a Doctrine’, W.H. Friedland/C.G. Rosberg, Jr (eds), African Socialism (Stanford, 1964), 113–127 Zolberg, A.R., ‘Ivory Coast’, J.S. Coleman/C.G. Rosberg (eds), Political Parties and National Integration in Tropical Africa (Berkeley, 1964), 65–89

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‘Conférence Internationale de Dakar sur la Namibie et les droits de l’homme: d’hier à demain’, Revue des droits de l’homme, 9/2–3 (1976), 209–569 Convention and Statute of the Commission of African Jurists, L.B. Sohn (ed.), Basic Documents of African Regional Organizations Vol. I (Dobbs Ferry, 1971), 98–104 ‘The Convention at Work: Negotiations Open on New ACP-EEC Convention’, Courier, 51 September–October 1978, I–III ‘The Convention at Work: Negotiations, ACP-EEC Ministerial Meeting in Brussels: Issues “Discussed in Depth”’, Courier, 53 January–February 1979, I–V ‘Death of Christopher Okigbo’, Transition, 33 (1967), 18 ‘Developments in Angola, Cape Verde and Sao Tome and Principe’, UN, Decolonization, 2/4 (1975), 17–30 ‘Economic and Social Council’, International Organization, 18/1 (1964), 132–167 ‘Edem Kodjo: un optimiste incorrigible reçu par Jeune Afrique/J.A. fait parler Edem Kodjo’, Jeune Afrique, 966 11 July 1979, 80–89 Editor, ‘In Retrospect: FESTAC ’77’, The Black Perspective in Music, 5/1 (1977), 104–117 Editor’s Introduction, ‘The Cold War in the Third World and the Collapse of Détente in the 1970s’, Cold War International History Project Bulletin, 8–9 (1996/1997), 1–2, 4 ‘Editorial’, Daily Herald, 15 August 1941, 2 ‘Editorial: van Boven Forced Out for Naming Names’, Human Rights Internet Reporter, 7/3 (1982), 1 ‘The First World Festival of Negro Arts at Dakar, Senegal’, Cultural Events in Africa, 17 (1966), 1–3 ‘The Franco-German Armistice Terms’, Bulletin of International News, 17/13 (1940), 779–780 ‘The Franco-Italian Armistice’, Bulletin of International News, 17/14 (1940), 852–854 ‘The Freetown Declaration on Human Rights’, Index on Censorship, 8/2 (1979), 21 ‘Interview, P. J. Patterson, Chairman of the ACP Council of Ministers’, Courier, 49 May–June 1978, 3–7 ‘Les accords concernant l’Afrique du Nord française (de l’Armistice de juin 1940 au Mémorandum d’Anfa de janvier 1943)’, Cahiers d’histoire de la guerre, II (Oct., 1949), 1–30 ‘Libya: Law On Nationalization of Oil Companies’, International Legal Materials, 13/ 1 (1974), 60–63 ‘Meeting of African Writers, Accra, June 1975’, Transition, 50 (1975–76), 14–15 ‘Monrovia Powers’, International Organization, 16/2 (1962), 439–443 ‘The Negro Theatre at the Theatre of the Nations: Roundtable Conference’, World Theatre, 9/4 (1960), 344–351 ‘The New Nigerian Constitution: WASU’s Criticism of the Proposals’, West African Review 16/213 (1945), 103–109 ‘News Round-Up, The Convention at Work: Human Rights in Lomé II?’, Courier, 46, November–December 1977, I ‘News Round-Up: The Convention at Work’, Courier, 47 January–February 1978, I–VI ‘Notes, ‘Expulsion, Suspension, Forced Withdrawal, and Forced Nonparticipation’, Digest of International Law, 13 (1968), 236–249

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‘OAU Secretariat Statement on Human and Peoples’ Rights 21 June 1981’, Africa Contemporary Record: Annual Survey and Documents Vol. XIV (1981/82), C-28-29 ‘Pan-African Cultural Manifesto’, Africa Today, 17/1 (1970), 25–28 ‘Pan-African Freedom Movement of East and Central Africa (PAFMECA)’, International Organization, 16/2 (1962), 446–448 ‘Relatif au Colloque de Dakar sur le développement et les droits de l’homme’, Revue sénégalaise de droit, numéro special: (22 December 1977) (September 1978) ‘Resolution adopted by Helsinki Council’, Socialist Affairs, 5–6 (1971), 167 ‘Specificity and Universality in Human Rights – An ACP-EEC Cultural Foundation Seminar’, Courier, 114 (1989), 9–10 ‘The Tunisian Constitution’, Middle East Journal, 13/4 (1959), 443–448 AACC/WCC, ‘Factors Responsible for the Violation of Human Rights in Africa: All African Council of Churches and World Council of Churches Human Rights Consultation, Khartoum, Sudan, Feb. 16–22, 1975’, Issue: A Journal of Opinion, 6/4 (1976), 44–46 Abbott, A./Augusti, F./Brown, P./Rode, E., ‘The General Assembly, 29th Session: The Decredentialization of South Africa’, Harvard International Law Journal, 16/3 (1975), 576–588 Abdelmoula, A.M., ‘The “Fundamentalist” agenda for human rights: The Sudan and Algeria’, Arab Studies Quarterly, 18/1 (1996), 1–28 Abushouk, A.I., ‘The Anglo-Egyptian Sudan: From Collaboration Mechanism to Party Politics, 1898–1956’, Journal of Imperial and Commonwealth History, 38/2 (2010), 207–236 Achebe, C., ‘English and the African writer’, Transition, 18 (1965), 27–30 Adar, K.G./Munyae, I.M., ‘Human Rights Abuse in Kenya under Daniel Arap Moi, 1978–2001’, African Studies Quarterly, 5/1 (2001), 1–17 Adelman, K.L., ‘The Recourse to Authenticity and Négritude in Zaire’, Journal of Modern African Studies, 13/1 (1975), 134–139 Adjei, A., ‘Imperialism and Spiritual Freedom: An African View’, American Journal of Sociology, 50/3 (1944), 189–198 Adjei, A., ‘African Students in America’, WASU Magazine, XII/1 (March 1945), 14–17 Afigbo, A.E., ‘Background to Nigerian Federalism: Federal Features in the Colonial State’, Publius, 21/4 (1991), 13–29 Afshari, R., ‘On Historiography of Human Rights: Reflections on Paul Gordon Lauren’s The Evolution of International Human Rights: Visions Seen’, Human Rights Quarterly, 29/1 (2007), 1–67 Aglion, R., ‘French Colonial Policy’, World Affairs, 107/2 (1944), 78–81 Aihe, D.O., ‘Fundamental Human Rights and the Military Regime in Nigeria: What Did the Courts Say?’, Journal of African Law, 15/2 (1971), 213–224 Akinyemi, A.B., ‘Organisation of African Unity: The Practice of Recognition of Governments’, The Indian Journal of Political Science, 36/1 (1975), 63–79 Akinyemi, A.B., ‘The African Charter on Human and Peoples’ Rights: An Overview’, The Indian Journal of Political Science, 46/2 (1985), 207–238 Akiwumi, A.H., ‘The Economic Commission for Africa’, Journal of African Law, 16/3 (1972), 254–261 Alalade, F.O., ‘Senghor, the Rise of the Dominant Party and Return to Limited

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501

Wiseberg, L.S., ‘Human Rights in Africa: Towards the Definition of the Problem of a Double Standard’, Issue: A Journal of Opinion, 6/4 (1976), 3–13 Wiseberg, L.S., ‘The African Commission on Human and Peoples’ Rights’, Issue: A Journal of Opinion, 22/2 (1994), 34–41 Wiseberg, L.S./Scoble H.M., ‘The International League for Human Rights: The Strategy of a Human Rights NGO’, Georgia Journal of International and Comparative Law, Supplement Issue 7 (1977), 289–314 Wiseberg, L.S./Scoble H.M., ‘Recent Trends in the Expanding Universe of Nongovernmental Organizations Dedicated to the Protection of Human Rights’, Denver Journal of International Law and Policy Special Issue, 8 (1979), 627–658 Wolfe, T.R., ‘A New International Information Order: The Developing World and the Free Flow of Information Controversy’, Syracuse Journal of International Law and Commerce, 8/1 (1980), 249–264 Yates, B., ‘The Origins of Language Policy in Zaire’, Journal of Modern African Studies, 18/2 (1980), 257–279 Young, C., ‘Zaïre: The Unending Crisis’, Foreign Affairs, 57/1 (1978), 169–185 Young-Anawaty, A., ‘Human Rights and the ACP-EEC Lomé II Convention: Business as Usual at the EEC’, New York University Journal of International Law and Politics, 13/1 (1980), 63–100 Zamir, M., ‘De Gaulle and the Question of Syria and Lebanon during the Second World War: Part I’, Middle Eastern Studies, 43/5 (2007), 675–708 Zang, L., ‘The Contribution of African Diplomacy to the Non-Aligned Movement and the Group of 77’, African Journal of International Affairs, 1/1 (1998), 1–16 Zartman, I.W., ‘The Politics of Boundaries in North and West Africa’, Journal of Modern African Studies, 3/2 (1965), 155–173 Zebel, S.H., ‘Harold Macmillan’s Appointment as Minister at Algiers 1942: The Military, Political, and Diplomatic Background’, Journal of the Rutgers University Libraries, 41/2 (1979), 79–103

Index Acheampong, Ignatius Kutu, 170 Addis Ababa Agreement (1972), 160 Adefope, Henry Olufemi, 80 Ademola, Adetokunbo, 171 African Bar Association (ABA), 148, 213–216, 241, 250, 252, 276–277 African Bar Association Freetown Meeting (1978), 214–216 African, Caribbean, Pacific states (ACP), 93–94, 96–122, 127 African Charter on Human and Peoples’ Rights (ACHPR), 1–3, 9–10, 23, 30, 54, 57–58, 69, 74–75, 131, 135, 147, 152–154, 156–158, 160–161, 175, 180–181, 202–203, 205–207, 219, 226–228, 230, 232–233, 235–238, 244–251, 253–255, 257, 259, 261, 263–264, 268–269, 272–282, 284–287, 289–303, 307, 311, 315, 317, 319, 322, 325, 328, 337–338, 340, 343, 347–348, 354–356, 358–362, 365, 367–383 African Commission on Human and Peoples’ Rights (ACOMHPR), 153–154, 244–245, 257, 265, 272–273, 275, 281–286, 290–292, 296–297, 310–311, 338, 341, 343, 348, 351–352, 355–364, 366–372, 379–380, 382 African Group (at the UN), 187, 235, 315 African Institute of Human Rights, 214, 277 Agency for International Development (AID), 20, 37, 41, 45, 54, 57, 60, 65, 214, 250 Ahanhanzo, Maurice Glèlè, 253, 281, 290, 304–305, 322, 342, 345, 347 Ahidjo, Ahmadou Babatoura, 209, 231 Algeria, 36, 86, 89, 91–92, 374 Algiers Universal Declaration of the

Rights of Peoples (1976), 291, 295, 297, 329, 331–332, 336, 338 All-Africa Conference of Churches (AACC), 160–161, 277 Allende, Hortensia, 166 Allende, Salvador, 46 Amega, Atsu-Koffi, 211 American Convention on Human Rights (ACHR), 8, 19, 243, 290–291, 294, 300–301, 303–305, 308, 311–317, 319–327, 341–343, 346, 351–367, 369–372 American Declaration of the Rights and Duties of Man (1948), 304–305, 343, 347, 349 Amin, Idi, 23–24, 31, 51, 65–68, 94, 96, 159, 170, 191–196, 205–206, 218, 220, 224–226, 234, 343, 377–378 Amnesty International (AI), 7, 28–29, 87, 92, 123, 152, 158–160, 167, 170, 215, 231, 284 Amorin, François, 171–173 Angola, 46–47, 52, 59, 67, 86, 223, 225, 232, 265, 314, 324, 373 Apartheid, 48, 51, 75, 132, 135, 138, 141, 191, 228, 235, 248, 265, 280, 308–309, 315, 319, 328, 332, 337, 339, 370, 375 Argentina, 18, 32, 87 Asante, Kwaku, 100, 107 Ascofare, Moulaye Aly Kalil, 276 Asian-African Conference, Bandung (1955), 301, 332–333 Australia, 199–200, 203 Azikiwe, Nnamdi (Zik), 175, 321 Bandaranaike, Sirimavo, 194 Banjul draft, 287, 294 Barbados, 120, 195

503

504

Index

Baroody, Jamil, 149–150 Bedjaoui, Mohammed, 332 Belgium, 65, 101–102, 105, 119, 210 Benin (see also Dahomey), 17–18, 58, 97, 212, 220, 223, 249, 253, 274, 327, 342, 349–350 Benson, Babatunde, 250, 252–253 Biafra, 41, 48, 225 Binaisa, Godfrey, 170, 186, 201, 224–225, 235 Boganda, Barthélemy, 127 Bokassa, Jean-Bédel, 23–24, 31, 91–92, 96–97, 127–130, 159, 231, 234–235, 377 Bolivia, 90 Botswana, 86, 100, 192, 232, 250, 268, 297, 309 Boumédiène, Houari, 92, 231 Bourguiba, Habib, 270 Brandt, Willy, 229 Brazil, 9, 32, 87 Britain (see also United Kingdom (UK)), 75, 80, 91, 194–195 Brooks-Randolph, Angie, 252 Brzezinski, Zbigniew, 26, 31, 52 Bulgaria, 165 Bureau of African Affairs, 34 Bureau of Human Rights and Humanitarian Affairs, 13, 19–20, 26–28, 33 Burundi, 11, 86, 169, 212, 248, 272, 360, 373 Bush, George, 45 Butler, William, 181, 381 Callaghan, James, 88, 102, 194, 196 Camara, Assan Musa, 270 Cameroon, 100, 209, 212, 231, 248, 271 Canada, 55, 72, 82, 195, 199–200, 203, 278 Cape Verde, 280, 314, 324 Carr, Burgess, 160 Carrington, Peter, 122 Carter, Jimmy, 8, 18–20, 22–26, 32–33, 48–54, 59–60, 63–65, 67–68, 72–75, 77, 82, 130–131, 216, 219, 231–232, 254, 276 Cassell, Christian Abayomi, 175 Central African Empire (CAE) (see also Central African Republic (CAR)), 17,

24, 30–31, 58, 86, 92, 96, 128–130, 225, 235, 377 Central African Republic (CAR) (see also Central African Empire (CAE)), 17, 24, 30–31, 58, 79, 85–87, 89, 91–92, 96, 98, 110, 127–128 Central Intelligence Agency (CIA), 23, 35, 61–62, 164, 177–178, 181, 249 Chad, 220, 223, 269 Cheysson, Claude, 94–96, 99–100, 102–103, 108, 114–116, 119–121 Chile, 14, 16, 18, 46, 87, 90, 166 China, 62, 72, 128–129, 163 Chipeta, Buxton, 343 Chomba, Frederick Mwela, 186, 253 Christopher, Warren, 20, 33 Civilisation of the Universal, 210, 335, 382 Clay, Lucius, 38–39 Cold War, 34, 43, 63, 71, 130–131, 164, 181, 233 Colloquium on Human Rights and Economic Development in Francophone Africa, Butare (1978), 158, 207, 253 Committee of EEC Permanent Representatives (COREPER), 99, 101–103, 105, 114, 118–119 Commonwealth Heads of Government Meeting (CHOGM), 192–193, 195, 205 London, 1977, 191–192, 194, 196–197, 199, 201, 215 Lusaka, 1979, 120, 197, 200–201 Melbourne, 1981, 204 Communist/communism, 34–38, 42–43, 52–53, 126, 162, 299, 376 Conference of Independent African States (CIAS), 375 Congo (see also Zaire), 41 Congo-Brazzaville, 126 Conteh, Abdulai, 201, 223 Coordinating Board of Jewish Organizations (CBJO), 165 Coulibaly Ndiaye, Mariam, 219, 252, 254, 258–259, 328 Crosland, Anthony, 76, 82, 85 Cuba, 47, 52–53, 220

Index Cultural Charter for Africa, 300, 326, 350, 369–370 Dacko, David, 128, 130 Dahomey (see also Benin), 131 Dakar draft, 287, 289, 293–294, 296–297, 302, 306, 310–311, 316, 320, 328, 332, 337, 340, 343, 345, 347, 354, 356, 359, 362, 369, 371 Dakar Institute for Human Rights Education, 149, 213–214, 238 Danquah, Joseph Boakye, 171, 175–176 D’Arboussier, Gabriel, 173 Decision 115, 3, 74, 119, 122, 125, 154–157, 170, 196, 205–207, 212, 216, 219, 229, 231–237, 239, 241, 243–244, 246, 248–250, 252, 257, 261–263, 275, 291–295, 299–302, 306, 310–311, 334, 340, 358, 375, 378–379 Democratic Republic of the Congo (see also Zaire), 131–132 Denmark, 102, 105, 119 Derg, 58–59, 91, 263 Derian, Patricia, 19, 25–26, 57, 60, 85 Dia, Mamadou, 228 Diaite, Ibou, 252 Diawara, Mamadi, 252 Dieng, Adama, 184, 208, 211, 227, 233, 263–264, 278, 280 Dieng, Ousmane Tanor, 207, 219, 227, 231–233, 252, 257–258, 263, 268–269 Diori, Hamani, 126 Diouf, Abdou, 89, 207, 280–281 Djibouti, 223 Doe, Samuel, 269–270, 380 East Germany, 70 Economic Community of West African States (ECOWAS), 270 Egbunike, Christopher, 242–244, 247, 262, 270, 277 Egypt (see also United Arab Republic (UAR)), 34, 123, 143, 167–168, 223, 248, 250–251, 266, 269, 279, 343, 347, 349, 373, 375 Eisenhower, Dwight, 36

505

Elias, Taslim Olawale, 176–177, 239–240, 278, 342 El Salvador, 32 Equatorial Guinea, 17, 58, 79, 85–87, 89, 91–92, 96–97, 169, 191, 205, 207, 225, 235, 243, 381 Ethiopia, 17, 27, 32, 34, 38, 40, 52–53, 55–56, 58–60, 74, 86–87, 91–93, 96–97, 109–110, 123, 125, 179, 220, 232, 250, 252, 261–266, 297, 324, 373, 375, 381 European Commission, 95–96, 99, 103–105, 112, 116–117, 122, 137 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 8, 76, 95, 152, 198, 257, 291, 294, 300, 311–313, 316–317, 319–324, 341–342, 352–353, 361–363, 365, 369, 371–373 European Economic Community (EEC), 82, 92–111, 113–122, 126, 130, 210 Eyadéma, Gnassingbé, 269 Fall, Ibrahima, 206, 242, 245, 252, 255, 257, 291, 352 FESTAC (Second World African Festival of Arts and Culture), 185 Food and Agricultural Organization (FAO), 245 Ford Foundation, 148, 178–179, 184–186, 208–210, 278 Ford, Gerald, 12, 15, 42, 46–48, 58–59, 67 Foreign Office (FO/FCO), 76–78, 80–86, 89–91, 96, 100, 125, 127, 176, 193–194, 198–199, 203, 206, 209, 220–221, 237, 244, 248, 275 Forster, Isaac, 171, 181 France, 8, 36, 55, 65, 91, 94, 98, 101–105, 111, 118–119, 122, 125–131, 210, 229, 231, 257, 374 Fraser, Donald, 10, 12–14, 159 Gabon, 126, 212, 280 Gambia, 57, 86, 88, 196–200, 202–203, 205, 207, 219, 222–223, 231–233, 252, 261, 264, 269–274, 278, 282, 284, 377 Gandhi, Mahatma, 345

506

Index

Garba, Joseph Nanven, 46, 49, 193 Gardiner, Robert, 139 al-Ghadaffi, Muammar, 55, 231, 309 Ghana, 34–35, 48, 55, 57, 100, 144, 168, 170–171, 175–176, 179, 192, 199, 216, 232, 245, 252, 275, 294, 327–328, 347, 373, 380–381 Giscard d’Estaing, Valéry, 126–128, 130 Gowon, Yakubu, 193 Grenada, 87, 108 Guatemala, 32 Guillabert, Andrè, 98–99, 108–111 Guinea, 17, 58, 71, 85–87, 89, 91–92, 96–97, 109, 161, 174, 232–233, 249–250, 252, 261–262, 264, 272, 303, 349–350, 368, 380 Guinea-Bissau, 87, 274, 314 de Guiringaud, Louis, 101, 126 Hart, Judith, 76–79, 86–87, 89–90, 102, 112, 123, 200 Hayfron-Benjamin, Robert John, 250, 268 Hitler, Adolf, 66, 193 Houphouet-Boigny, Felix, 38, 71, 220, 269 Humphrey, Hubert, 40 Humphrey, John, 155 Hurd, Douglas, 116 India, 193, 195 Indonesia, 87 Inter-African Union of Lawyers (IAUL), 213–214, 238, 277, 381 International Association of Democratic Lawyers (IADL), 151, 163–164, 166 International Commission of Jurists (ICJ), 2–3, 10, 139, 145, 148, 151, 154–155, 157, 164, 168–186, 202, 208–212, 214–216, 238–239, 242, 253, 278–279, 281–282 1961 Lagos Conference, 171–173, 177, 183, 215, 341 1967 Dakar Conference, 177–178, 183, 186, 210 1976 Dar es Salaam Seminar, 185, 207, 209 1978 Dakar Colloquium, 186, 206–207, 209–211, 213, 219, 223, 232, 239–240, 253–255, 293, 307

1985 Nairobi Conference, 236, 278–281, 290, 296, 322, 348, 360 1987 Dakar Colloquium, 281, 296 1993 Dakar Brain-storming session, 381 International Court of Justice (ICOJ), 281, 356, 368 International Institute of Human Rights (IIHR), 151 International Labour Organization (ILO), 245 International League for Human Rights (ILHR), 166, 168 International Monetary Fund (IMF), 20, 91 Iran, 143, 167 Ireland, 105, 118, 120 Israel, 62, 115, 163, 223, 309 Italy, 72, 105 Ivory Coast, 100, 129, 212, 248, 342 Jack, Homer, 166 Jallow, Hassan, 219, 233, 252–253, 260, 262, 265, 267–268, 271, 290, 293, 303, 307, 320, 324, 338, 348, 358, 366 Jamaica, 101, 193 Japan, 82 Jawara, Dawda, 196–197, 199–201, 227, 234, 256, 260, 264–265, 270, 272, 292, 295, 303, 305, 315, 345 Johnson, Lyndon, 36, 39–41, 56, 61 Kambona, Oscar, 70 Katanga, 61 Kaunda, Kenneth, 47, 70, 186, 193, 201 Kavaruganda, Joseph, 250, 253 Keita, Modibo, 126 Kennedy, John, 20, 35–38, 40, 61, 71 Kenya, 29–30, 55–56, 91, 98, 100, 145, 148, 179, 185, 192, 214, 225, 238, 250, 252, 271–272, 274, 279, 324, 327–328, 347, 360, 373, 380–381 Kenyatta, Jomo, 11, 103 Kérékou, Mathieu, 274 Khrushchev, Nikita, 37 Kigali Franco-African Summit Meeting (1979), 103, 129, 377

Index Kigali Committee of Inquiry, 96 (Report), 129, 158, 252, 377 Kissinger, Henry, 12–15, 17–19, 25, 27, 41–42, 45–47, 54, 56, 58, 63, 66, 82 Kodjo, Edem, 154, 157, 159, 210, 213, 216–220, 222, 227, 231–232, 234–236, 242, 247–251, 254–255, 258–259, 261–266, 269–271, 273, 275, 277, 285–286, 291, 298, 301–302, 306, 322, 334, 340, 343, 377–379 de Koning, Jan, 107–108 Korey, William, 142, 168 Korry, Edward/Korry Report, 40–41, 44 Lagos Charter (1962) (Charter of the Inter-African and Malagasy States Organisation), 293 Lagos Plan of Action for the Economic Development of Africa, 334, 340 Lalive, Jean-Flavien, 173–174 Lallah, Rajsoomer, 253 Lamptey, George, 252, 254 League of Arab States, 88 Lesotho, 32, 98, 145 Liberia, 34, 38, 55–57, 100, 129, 145, 175, 233, 235, 252, 268–270, 274, 375, 380 Libya, 38, 55–56, 164, 220, 223, 251, 265–266, 268, 285, 303, 309, 334, 368 Lomé Convention, I 1975, 80, 93–96, 98–99 II 1979, 92–94, 96, 98, 100, 103–104, 109–110, 112, 114, 118, 121–122, 127, 219, 235, 376 Luard, Evan, 77, 79–81, 83, 85, 87, 90, 92, 123–124, 197 Lule, Yusuf, 170 Lumumba, Patrice, 61 Lusaka Manifesto, 47 Luwum, Archbishop Janani, 23, 95 Luxembourg, 105 MacBride, Seán, 151, 169, 178–179, 181, 185, 319 MacDermot, Niall, 10, 148, 151, 156, 160, 166, 169–170, 179–181, 184, 186–187, 202, 208–209, 211, 240, 242–244, 257, 278–279

507

Machel, Samora, 79, 126, 232 Madagascar, 98, 223, 232–233, 252–253, 293, 327, 346, 349, 374, 381(Malagasy Republic) Malawi, 57, 91, 123, 203, 271 Mali, 126, 146, 212, 219, 252, 254, 276, 309, 317, 324, 350, 380 Mancham, James, 194 Mandela, Winnie, 126 Marxist/Marxist-Leninist, 32, 167, 226, 229, 325 Maseru Declaration, 99, 110 Mathanjuki, Peter, 252–253, 258, 271 Mauritania, 57, 126, 133, 233, 252, 288 Mauritius, 69, 86, 100, 200, 203, 221–222, 234, 252–253, 274, 278, 280, 305, 341–343, 345, 347 M’Ba, Léon, 125 M’Backe, Mohamadou, 207, 229, 252, 255, 258, 276, 291, 352, 368, 382 M’baye, Kéba, 3, 129, 143–145, 154, 156–157, 169, 171, 174, 181–182, 184, 187, 191, 205, 207–213, 216, 219, 228–230, 232–233, 236, 238–240, 243–244, 246–247, 250–261, 263, 265, 268–269, 271, 276, 278, 280–281, 288–291, 296–297, 299, 301–303, 306–307, 313, 322, 335, 337, 342, 346, 351–352, 360, 362, 370–371, 373, 378–380, 382 M’baye draft, 257, 260, 287, 289–291, 293–294, 299, 301–303, 305–308, 311–317, 320–327, 329, 331, 337, 340–341, 346, 351–360, 362–367, 369–373 Mboumou, William Eteki, 194 Mbouyom, François-Xavier, 211 Melady, Thomas, 66 Mengistu, Haile Mariam, 59, 381 Micombero, Michel, 11 Minah, Francis, 215 Mitterand, François, 229 Mobutu, Sese Seko, 11, 29, 61–65, 129, 326 arap Moi, Daniel, 29, 201, 224, 279 Mokodopo, Jean-Paul, 235 Moli, John, 252 Monrovia Declaration of Commitment, 334, 340 Monrovia Symposium Report, 213, 217, 379

508

Index

Morocco, 38, 53, 55–57, 134, 159, 223, 230, 243, 269, 343, 347, 368 Mozambique, 27, 58, 74, 87, 174, 223, 232–233, 314, 324, 327, 350, 373 Mtango, Eli, 236, 252–253, 258–259, 265 Mugabe, Robert, 315 Muhammed, Murtala, 47 Mutsinzi, Jean, 284 Namibia, 47, 151, 214, 236, 332–333 National Council of Nigeria and the Cameroons (NCNC), 321 Nchema, Eya, 243 Ndiaye, Youssoupha, 129, 281–282 Négritude, 344 Netherlands, 8, 72, 82, 101, 104–105, 107–108, 113, 115–117, 119, 121–122, 133–134, 146 New International Economic Order (NIEO), 138, 295–296, 307, 318–319, 332, 336–337, 376 New World Information Order (NWIO), 318 New Zealand, 199–200, 203 Ngouabi, Marien, 126 Nguema, Francisco Macías, 91, 159, 205, 234–235, 381 Nguema, Isaac, 283, 286, 382 Niasse, Moustapha, 228–229, 232, 258 Niger, 55, 126, 212, 248 Nigeria, 27, 34, 38, 46–50, 53, 55–57, 62, 69, 80, 100, 103, 131–132, 145–147, 171, 176, 179, 191–193, 195, 199, 205–207, 223, 225, 231, 233, 235, 237, 239, 248, 250, 252, 270, 274, 279, 285, 303, 315, 317, 321, 334, 347, 353, 377 Niilus, Leopoldo, 160 an-Nimeiri, Jaafar Muhammad, 160, 224 Nixon, Richard, 9, 12, 35–36, 42–66 Nkrumah, Kwame, 37, 55, 175, 323 Non-Aligned Movement (NAM), 194, 310 (Movement of non-aligned countries) Non-governmental organizations (NGOs), 2, 7–10, 13, 86, 90, 92, 135–136, 138–140, 142, 148–149, 157–158, 160–168, 170, 178, 186–187, 205, 213, 237–238, 242, 282, 284

Norway, 72, 210, 278 Ntoka, Matunga, 250 Nyamekye, Kwado, 144 Nyerere, Julius, 11, 70, 72, 79, 86, 103, 126, 159–160, 170, 185, 192, 194–195, 205, 224–225, 232, 235–236 Organization of American States (OAS), 244, 356 Organisation of African Unity (OAU), 1, 7, 11, 40, 46–47, 51, 53, 65, 77, 88, 118, 133–134, 137, 139–140, 142, 146–147, 152–155, 159, 174, 177, 191–192, 197, 201, 206, 210–213, 215–218, 220–228, 231–235, 239–247, 250–256, 261–266, 268–271, 273–284, 287–289, 291–294, 297–301, 304–305, 307, 309–310, 315, 322, 329, 334, 338, 351–352, 354–355, 357–360, 363, 365–370, 372–373, 375, 377–380 OAU African Declaration on Cooperation, Development and Economic Independence (1973), 333 OAU African Heads of State and Government (AHSG), 2–3, 135, 139, 155, 187, 205, 216–221, 225, 231–233, 235, 244, 257, 261, 265, 270, 272–273, 277, 281–282, 295, 300–301, 306, 309, 323, 333–334, 337–338, 354–357, 360–361, 364–367, 370, 374, 377–380 OAU AHSG Meetings 1964 Cairo, 177 1966 Addis Ababa, 177 1972 Rabat, 11 1976 Addis Ababa (Extraordinary Summit), 47 1977 Libreville, 219–220, 309, 323 1978 Khartoum, 53, 216, 220, 231, 378 1979 Monrovia, 3, 29, 74, 118–120, 122, 200, 205, 217–219, 221–224, 226–227, 231, 235, 239, 250, 263, 292, 296, 299, 302, 334, 340, 375, 377–378, 380 1980 Lagos (Second Extraordinary Session), 334 1980 Freetown, 261–262, 268–271, 273, 357

Index 1981 Nairobi, 272–275, 277, 281, 287, 294, 299, 319, 379 1982 Tripoli, 269, 378 1987 Addis Ababa, 281 1993 Cairo, 284 OAU Charter, 40, 174, 218, 221, 224–225, 227, 243–246, 257, 259, 263, 266, 273, 275, 291, 293, 300–301, 308, 310–311, 323, 329, 333, 337–338, 350, 359–360, 362, 365, 368–370, 372–373, 375, 383 OAU Commission of Jurists, 176–177, 213, 380 OAU Commission of Mediation, Conciliation and Arbitration, 360, 362, 380 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 237, 272, 322, 369–370, 372 OAU Council of Ministers (COM), 137, 222, 227, 264, 309 OAU COM Meetings 1964 Lagos, 177 1971 Addis Ababa, 65 1977 Libreville, 219 1979 Nairobi, 221, 224 1979 Monrovia, 221 1980 Freetown, 266, 269, 271, 343, 357 1981 Nairobi, 245, 273, 281–282, 293–294, 299, 301, 309, 319, 373, 379 Banjul Ministerial Meetings, 207, 268, 288, 290, 351 1980 Banjul Ministerial Meeting, 227, 234, 251, 256, 260, 264, 266, 268, 271, 276, 287–288, 290, 292–293, 295–297, 300, 302–306, 308, 310–317, 320–321, 345, 379 1981 Banjul Ministerial Meeting, 75, 203, 268, 270, 273, 275–277, 287, 289, 291, 299, 309, 321–329, 332–333, 335, 337–338, 341–342, 346–347, 351–373 OAU Meeting of Experts, Dakar (1979), 139, 157, 207, 210, 214, 219, 229–230, 236, 246–247, 252, 254, 261, 287–289, 291–293, 295, 300–305, 307, 310–317, 320–329, 331, 333, 335–338, 340–342, 345–349, 351–373

509

OAU Protocol of the Commission of Mediation, Conciliation and Arbitration, 353–354, 356–357, 361 Obasanjo, Olusegun, 49–51, 53, 220, 223–225 Obote, Apollo Milton, 170 Ogaden, 266, 297 Olympio, Sylvanus, 125 Onu, Peter, 227, 235, 274, 298 Ould Daddah, Moktar, 126 Owen, David, 57, 76–78, 80, 82, 85, 87–90, 92–93, 102–103, 106, 112–113, 116, 123–124, 126, 195–198 Pan-African Freedom Movement of East and Central Africa (PAFMECA), 314 Parti démocratique Sénégalais, 229 Parti Socialiste (Senegal), 229 Patterson, Percival, 101, 106 People’s Movement for the Liberation of Angola (MPLA), 59 Philippines, 131 Polisario, 53, 274 Pope John XXIII, 343 Portugal, 42 Pratt, Solomon, 151 Prescott, John, 97, 110–111 Pump, Ronald, 148, 153, 155, 244, 247–249 Rafransoa, Victory, 277 Rajaonson, Guy, 253 Rakotomanana, Honoré, 252 Ramcharan, Bertrand, 153–154, 239–244, 247, 291 Ramphal, Shridath, 194, 196, 201–202, 205 Ramphul, Radha, 69 Ratsiraka, Didier, 253 Rawlings, Jerry 216 Reagan, Ronald, 65, 72, 75, 125, 276 Republic of the Congo (CongoLeopoldville) (see also Zaire), 61 Riad, Mahmoud, 194 Right to Development, 2, 111, 140, 207–208, 228, 237, 253, 255, 257, 260, 265, 295–296, 306–307, 335–337, 376, 382 de Robillard, Edwin, 221

510

Index

Rogers, William, 43–45 Rusk, Dean, 39 Rwanda, 57, 108, 129, 158, 212, 250, 252, 314–315, 317, 324–325, 327, 368 el-Sadat, Anwar, 223, 250 Saho, Momadou Lamin, 271, 273 Said Osman, Abdillahi, 252 Sankara, Thomas, 380 Sanon, Pierre, 144, 148, 249 Schmidt, Helmut, 102 Schreiber, Marc, 143, 150–152, 155 Seck, Moustapha, 89, 213–214, 250, 252 Selassie, Emperor Haile, 58 Seminega, Fulgence, 158, 252–253 Senegal, 57, 89, 96, 98, 100, 108–109, 119, 129, 131, 138, 140, 168, 171–173, 177, 181, 207–208, 214, 222–223, 227–228, 230, 232, 239, 241, 250, 252, 258, 264, 269, 274, 279–280, 284, 288, 293–294, 312–314, 317, 320, 324, 327, 331, 343, 350 Senghor, Léopold Sédar, 9, 88–89, 98, 154, 157, 184, 197, 207–208, 210–212, 216–217, 219–220, 222, 226–233, 235–236, 238–239, 252, 254–259, 268–269, 281, 292, 295, 302, 305–307, 313, 326, 335–338, 340, 343–345, 348, 375, 377–378, 382 Seychelles, 194–195 Shaba, 52, 63–64, 126, 220 Sidi, Taki Ould, 252 Sierra Leone, 98, 110, 151, 164, 168, 192, 201, 215, 250, 270, 274 Singapore Declaration of Commonwealth Principles (1971), 196–197 Smuts, Jan, 344 Socialist International (SI), 229–230, 378 Sokan, Alexander, 252–253 Somalia, 53, 55–56, 58–60, 73–74, 220, 223, 252, 262, 264–266, 273, 280, 297, 317, 349 Sondashi, Ludwig, 271 South Africa, 18, 34, 42, 47–48, 51, 79, 86, 90, 93, 98, 103, 110–112, 115, 122, 126–127, 130, 135, 163–164, 205, 214, 236, 279, 298, 323, 332, 334 South Korea, 57

Southern Rhodesia, 47, 61, 75, 77, 79–80, 86, 195, 376 Soviet Union, 37, 48–49, 52–53, 55, 59–60, 71, 74, 77, 80, 93, 103, 132, 143, 163–165, 268 Stevens, Siaka, 269–270 St John, Bernard, 120 Sudan, 38, 55–57, 91, 123, 160, 165, 223, 230, 235, 250, 317, 347, 380 Surinam, 108 Swaziland, 123, 145 Sweden, 82, 184 Taal, Ebou, 196, 232 Tanzania, 38 (Tanganyika), 55, 57–58, 70, 72, 86–87, 100, 123, 131, 159, 164, 168, 170, 178–179, 181, 184, 192, 194–195, 203, 218, 224–226, 233–235, 248, 250, 252, 272, 279, 360, 373, 378 Tapa, Sione, 109 Thatcher, Margaret, 80, 125, 276 Togo, 23, 125, 129, 211–212, 216, 271, 303, 349–350 Tolbert, William, 155, 221–222, 224–225, 247 Touré, Sékou, 37, 71, 87, 174, 220, 226, 232, 252, 269, 276, 380 Traoré, Moussa, 254, 380 Tshombe, Moïse, 61 Tunisia, 32, 38, 55–56, 230, 250–251, 270–271, 347 UDI, 79 Uganda, 18, 23–24, 51, 55, 57–58, 65–68, 74, 80, 85–87, 89–90, 92, 94–99, 103, 109–110, 113, 115, 119, 122–123, 125, 161, 169–170, 179, 191–194, 196–197, 205, 224–226, 233–235, 252, 353, 377–378 Uganda Guidelines, 95–97, 99, 105, 118, 122 Uganda Human Rights Committee, 343 United Arab Republic (UAR) (see also Egypt), 131–133 United Kingdom (UK) (see also Britain), 7–8, 31, 57, 65–66, 72, 75–76, 79–80, 82–83, 85, 87–88, 90–97, 99, 101–102, 105–108, 111–112, 114–117, 119, 121–123, 125–128, 130–131, 134, 143, 166, 192–195,

Index 198–200, 206, 224, 226, 276, 319, 334 UK Country Reports (Human Rights Comparative Assessment), 80–92, 128 United Nations (UN), 1–2, 7–11, 13, 18–19, 31, 38, 40, 42, 45–46, 48, 66–70, 88, 106, 110–111, 117, 120, 131–140, 142–147, 149–158, 161–166, 168, 183, 187, 193, 198, 200, 203–208, 210, 215, 232, 240–243, 245–248, 259, 280, 282, 291–292, 295, 307, 310, 315, 328, 330, 336, 339, 341–342, 345, 355–356, 367–370, 375–377 UN Charter, 19, 51, 93, 99, 102, 105–106, 113, 115–116, 120, 161, 165, 227, 245, 273, 295, 297, 329–330, 337, 368, 372–374, 381 UN Charter of Economic Rights and Duties of States, 332–333, 336, 339 UN Commission on Human Rights (CHR), 2, 8, 67, 88, 92, 109, 111, 131–134, 136, 142–145, 147, 149, 151, 166–169, 187, 191, 205, 207, 229, 237, 239, 317, 342–343, 347, 353, 362, 364–365, 375, 381 UN Conferences/Seminars 1966 Dakar Seminar, 134–135, 155 1969 Cairo Seminar, 133–134, 136, 139, 152, 156, 183 1970 Lusaka Seminar, 138, 148 1971 Addis Ababa Conference of African Jurists, 139–140, 342 1973 Dar es Salaam Seminar, 140–142 1976 Dakar International Conference on Namibia and Human Rights, 151 1979 Monrovia Seminar, 146–149, 153–154, 156–157, 187, 200, 202, 205–206, 210, 236–242, 244, 247, 249, 254, 275, 291, 301, 341–343, 367 1979 Monrovia Proposal, 242–243, 246–247, 249, 291, 310, 351–360, 364, 367–369, 371 UN Declaration on/of the Elimination of All Forms of Racial Discrimination, 323, 341 Granting of Independence to Colonial Countries and Peoples, 295, 329, 335, 361, 375 Principles Governing the Sea-Bed

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and the Ocean Floor, and the Subsoil Thereof, beyond the limits of National Jurisdiction, 336 Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 160, 170 UN Division of Human Rights (UNDHR), 10, 138, 142–146, 148–149, 153–155, 168, 238–239, 241–244, 246–247, 249, 258, 275, 291, 305, 310, 352, 367, 370 UN Economic and Social Council (ECOSOC), 8, 15, 131, 142–143, 147–148, 161–168, 237, 362, 365 UN Economic Commission for Africa (ECA), 135, 139 UN General Assembly (UNGA), 18–19, 69, 142, 145–147, 165, 187, 191, 237–238, 249, 301, 307–308, 310, 315, 330–331, 336, 341–343, 356, 361, 372, 376 UN Human Rights Committee (HRC), 8, 76, 158, 253, 292, 342, 352–353, 355, 364, 369 UN International Convention on the Elimination of All Forms of Racial Discrimination 1965, 19, 308, 315, 324, 341, 347, 353, 355, 357, 367, 370 Suppression and Punishment of the Crime of Apartheid 1973, 315 Elimination of All Forms of Discrimination against Women 1979, 328, 368 (Declaration), 373 UN International Covenants, 19, 76, 131, 151, 158, 222, 245, 292, 295, 304, 310–311, 324, 329, 331–332, 335, 347, 368, 370 International Covenant on Civil and Political Rights (ICCPR), 19, 76, 253, 311–317, 320–323, 326–327, 341–343, 346, 352–358, 361–364, 369–373, 375 International Covenant on Economic, Social and Cultural Rights (ICESCR), 138, 290, 301, 312, 320, 325–328, 340, 369–373 Optional Protocol, 245, 368, 372

512

Index

UN Security Council, 45, 163 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (Sub-Commission), 59, 92, 142–144, 191, 315, 347, 352, 362, 364–365 UN Tehran International Conference on Human Rights, 2, 306–307, 376 UN Third Conference on the Law of the Sea, 336 UN Universal Declaration of Human Rights (1948) (UDHR), 1, 3, 7, 30, 51, 76, 98–99, 102, 104–106, 114–115, 117, 120, 134–138, 146, 153, 155–158, 171, 173, 183, 214, 219, 221–222, 227, 229, 237, 245–246, 259, 273, 290, 293–294, 301–304, 308–317, 320–328, 338, 341–343, 345–348, 368–369, 374–376, 380–383 UNESCO, 149, 156, 207–208, 214, 245, 318–319, 344–345 UNESCO Declaration of the Intergovernmental Conference on Cultural Policies in Africa (1975), 350 Principles of International Cultural Co-operation, 335 UNESCO Meeting of Experts (1978), 208 United States (US), 7–19, 21–24, 26–50, 52–77, 79–80, 82, 85–86, 90, 92, 123, 125–128, 130–131, 139, 178, 238, 250, 254, 266, 318–319 US Congress, 9, 12–20, 27, 29–31, 38–39, 41, 44, 54–55, 58, 63–64, 67–68, 79, 82, 153, 169 US Country Reports, 20, 26–32, 64, 82, 85–87, 128 US House of Representatives, 10, 27, 45, 64, 159 US Senate, 12, 19, 24, 27, 36, 39, 63 US State Department, 9–15, 19–22, 24–28, 31, 33–34, 44, 56, 58, 62, 67, 69 Universal Declaration of Human Duties, 201, 221, 305, 341–343, 345, 347 Upper Volta, 57, 98, 144, 168, 268, 380 Uruguay, 18, 32

U Thant, 149 Van Boven, Theo, 143–146, 153–156, 168, 238–242, 246, 249, 251, 376, 383 Vance, Cyrus, 17, 24–25, 49, 63, 77 Vasak, Karel, 149, 156, 175, 207, 257, 298, 336–338 Vienna Conference on Succession of States, 332 Vietnam, 9 (war), 39 (war), 41, 66, 85 Wade, Abdoulaye, 138, 172, 229 Waiyaki, Munyua, 192 Wako, Amos, 148, 213–216, 238, 242, 245, 247, 250–253, 257–258, 261, 277, 279, 306, 335 Waldheim, Kurt, 66, 128, 143, 194 Warioba, Joseph, 236–237, 257, 267, 271 West African Editors Memorandum, 321 Western Sahara, 53, 220, 223, 269 West Germany, 55, 70, 82, 101–102, 105–106, 119, 121–122, 229, 237 Wilson, Dashward, 175 Wiredu, Edward Kwame, 242–243 Women’s International Democratic Federation (WIDF), 163–164, 166 World Bank, 16–18, 41, 123 World Conference on Religion and Peace (WCRP), 166–167 World Council of Churches (WCC), 144, 160–161 World Federation of Trade Unions (WFTU), 162 Young, Andrew, 48–49, 70 Zaire, 27, 29–30, 34, 52, 55–56, 58, 61–65, 124–126, 168, 220, 250, 368 Zambia, 34, 44, 53, 58, 70, 87, 91, 123, 136, 138, 179, 184, 186, 192, 251, 271–272, 373 Zanzibar, 70, 195 Zerbo, Saye, 268 Zimbabwe (see also Rhodesia), 214, 236, 264, 315 Zionism, 69, 308–309, 382

The African Charter on Human and Peoples’ Rights Volume 1: Political, Intellectual and Cultural Origins

Contents Introduction 1 The Emergence of African Discontent Wartime propaganda in the British colonial territories Wartime propaganda in the French colonial territories The Atlantic Charter Part One: The Origins of the ACHPR 2 The Atlantic Charter and the Post-war International Settlement Africa and the Atlantic Charter The UN Charter, UDHR and UNESCO – the post-war international settlement 3 African Political and Economic Revanchism and the Emergence of the OAU The emergence of the African Group at the UN The creation of the OAU The OAU polity 4 African Intellectual and Cultural Revanchism – the Predicament of Black Disalienation The universal Christian church in Africa 513

African literature, négritude, education and language African socialism The political rhetoric and praxis of intellectual and cultural revanchism Part Two: The OAU and Human Rights 5 The OAU Polity and the Domestic Praxis of Human Rights British colonial territories French colonial territories North African colonial territories Portuguese and Spanish colonial territories 6 The OAU Polity and the International Praxis of Human Rights The African states and the UDHR The OAU and the CHR The OAU and human rights at the UN beyond the CHR The African revanchist reinterpretation of the canons of universal human rights The right to development and the prioritisation of human rights Conclusion Index

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