PROTECTION OF THE RIGHT TO DEVELOPMENT BY A REGIONAL INSTITUTION: THE AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHT

CHAPTER ONE

GENERAL INTRODUCTION

BACKGROUND TO THE STUDY

The African Commission on Human and People’s Rights established by the African Charter on Human and People’s Rights is a quasi-judicial regional body charged with the functions of promoting and protecting human rights in Africa including economic, social and cultural rights. The Commission was the third regional human rights body after the European and American regional bodies. It is empowered to interpret Africa’s key regional human rights treaty, the African Charter adopted in 1981. The Commission observed that there is inadequate recognition by the African states of the right to development that results in the continuous marginalization of this right, which excludes the majority of Africans from the full enjoyment of human rights. Not surprisingly, the commission has found several states in violation of the right to development. [1]Article 22 of the African Charter, one of the precious few hard law guarantees of a right to development that currently exist in the realm of international human rights. As is now fairly well known, the concept of the right to development is thought to be originally African, as it was first stated as such by Doudou Thiam, Minister of foreign Affairs of Senegal, in Algiers in 1967. The then minister referred to the right to development as a right that must be proclaimed “loud and clear for the Nations of the Third World”. The topic began to attract interest after keba M’Baye, Chief Justice of the supreme court of Senegal, lectured on the topic at the International institute of Human Rights in Strasbourg, France, in 1972. Justice M’Baye, argued that “in the name of justice and peace, it is necessary to double efforts to re-encounter the true foundations and sources of the inalienable right that every human being has- and that all human beings collectively have- to live and to live better, that is, to equally benefit from the goods and services produced by the international and national community they belong to”. In this connection, it is also worth noting the contribution of the Algerian scholar [2]Mohammed Bedjaoui on the international dimension of the right to development, declaring the real obligation of the advanced countries for the development of the less economically advanced ones within the framework of a new international law. It is also worth noting the concomitant call for an international social law that acknowledges the proletarian position of some nations within the international community.

This germinal African contribution to what Upendra Baxi has referred to as “the development of the right to development” is traceable in part to the historical experience of exploitation and underdevelopment that has been widely and intensely experienced by Africans, and to the conviction among not a few African legal thinkers and political leaders (reflected even in global documents) that international law must play an important role in the struggle to ameliorate those circumstances.

The widespread affirmation of the right to development among African thinkers and leaders did not however, mean that the kind of effusive enthusiasm for the recognition of the right to development that was expressed by prominent Africans such as Mohammed Bedjaoui was warmly received in all circles[3]. As Baxi has noted, positive responses to the recognition of this right, such as Judge Bedjaoui’s famous valorization of the right as “the alpha and omega of human rights”, have frequently been met with deep skepticism among scholars like Yash Ghai, who view any attempt to recognize or protect the right to development as diversionary and as capable of providing increasing resources and support for State manipulation and repression of civil society.

In any case, ever since the conclusion of the World Conference on Human Rights, held in Vienna in 2003, it has been clear to the discerning observer that, even on the global plane, what Baxi has referred to as the jurispotency of the right to development can no longer be in doubt. Part I, paragraph 10, of the Vienna Declaration and program of action (which was adopted by 171 countries, including the United States of America and every Western State) declared quite clearly that the right to development is a universal and inalienable right and an integral part of the corpus of fundamental human rights.[4] What is more, the existence of article 22 of the African Charter is positive proof that this right transcends the realm of soft international human rights law, albeit only at a regional, African level. As interesting in this connection is the fact that, whatever its formal legal status, the right to development has certainly exhibited what I have long referred to elsewhere as the tripartite properties of law generation (helping to catalyze new norms); law regulation (shaping the meaning and limits of already existing and new norms); and law (de) legitimation (helping render existing or proposed norms untenable in the popular and/or state consciousness).

Nevertheless, the fact remains that despite the important, if admittedly limited-value that hard law norms can add to the development struggle, no global treaty exists as yet to frame and regulate, as much as is possible, the relations in this regard between the states of the North (who by and large control the means of development) and the states of the south (who by and large require the infusion of those resources). It is against this background, that is, within the context of the existence of a normative gap, that this globally contextualized analysis of article 22 of the African Charter (a region-specific treaty), and of the lessons for global norm-making that might be learned from its particular normative character, makes sense.

Despite the fact that the character of the particular conception or model of development that is adopted (neoliberal or social democratic) is key to the success or failure of the effort to secure the enjoyment of the right to development, article 22 and the other documents that recognize and articulate that right are hardly clear as to the identity of their preferred development conceptions or models.

However, certain conceptual guideposts are available to inform our understanding of the meaning of development. These are so relatively well established as not to require lengthy discussion in this short chapter. They are that development should no longer be conceived solely in terms of economic growth; that development at its core involves the fostering of equity within and among states; that gender interests must be “mainstreamed” into the development design and practice; that participatory development is to be much favored over the top-down model; and that a rights-based approach is useful.[5] In addition, article 22 explicitly disaggregates its concept of development into economic, social and cultural components.

At the historic UN General Assembly Summit in September 2015, the 2030 Agenda for sustainable development was adopted by the UN’s 193 member states. The 17 sustainable Development Goals and their 169 targets are part of this agenda.

The Sustainable Development Goals are a bold, universal agreement to end poverty and all its dimensions and craft an equal, just and secure world for people, planet and prosperity.

The SDGs have been developed through an unprecented consultative process that brought national governments and millions of citizens from the globe together to negotiate and adopt this ambitious agenda.

FAO(Food and Agriculture Organisation) has played a key role in the post 2015 development agenda process and has been active contributor to the inter-agency and Expert Group on Sustainable Development Goal indicators. Its Strategic Objectives are aligned to achieving the SDGs relevant to its work.

FAO focuses on monitoring of six goals: SDGs 2, 5, 6, 12, 14 and 15. Compiling the globally agreed indicators to monitor the progress on the SDGs is a great challenge for member countries with regard to their current data availability, statistical capacity and resource capability.

FAO is therefore assisting countries through actions that will help mainstream the goals in national development planning, implement activities to achieve them, and monitor and report progress through globally agreed indicators.

Indicators and a sample of FAO actions for these six goals are included in this work. As custodian of the 21 indicators attached to the goals, FAO is engaged in methodological development and providing technical assistance to countries to build their statistical capacity. A dedicated web portal will be established to report national data on indicators under this custodianship.

In addition, FAO flagship publications are being upgraded to meet the SDG global reporting requirements. There are 17 sustainable development goals:

-End poverty in all its forms everywhere

-End hunger, achieve food security and improved nutrition and promote sustainable agriculture.

-Ensure healthy lives and promote well-being for all at all age

-Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all.

-Achieve gender equality and empower all women and girls.

-Ensure availability and sustainable management of water and sanitation for all

-Ensure access to affordable, reliable, sustainable and modern energy for all

-promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all

-Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation

-Reduce inequality within and among countries

-Make cities and human settlements inclusive, safe, resilient and sustainable

-Ensure sustainable consumption and production patterns

-Take urgent action to combat climate change and its impacts

-Conserve and sustainably use the oceans, seas and marine resources for sustainable development

-Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss

-Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels

-Strengthen the means of implementation and revitalize the Global Partnership for sustainable Development.

• STATEMENT OF THE PROBLEM

The protection of the right to development in Africa is a critical issue, given the continent’s history of underdevelopment and poverty, and the recognition of the right to development as a fundamental human right by the international community.