Keywords: Human Rights; Right to Peace;  Africa;  Peace;

 

 

The promotion of human rights in Africa is seen against their development within the framework of international human rights.¹ This evolution is owed to the struggles within the African states in the colonial and post-independence eras. As a consequence of the struggle, “human rights have been elevated as a matter that deserves the attention of African governments and seen as a value that inform and inspire grass-roots approaches to them.”² The inspiration is deduced from the quest to uphold the inherent values in human rights norms and standards that should represent a qualitatively higher form of unity and integration for the African continent.³ It paves the way for the integration of “peace” as a central value in the general system of the rights framework in Africa. The integration further offers an opportunity for the advancement of a regional perspective towards the establishment of a value-based approach for human rights in Africa. In essence, the integration seeks to ensure effective and responsible leadership and the empowerment of people to participate and bring inputs in the decision-making process through the system of human rights which infuses “peace” as a value.⁴ This approach is likely to create an environment that is conducive for the consolidation of the state’s responsibilities by requiring legislative and other policy related programmes to provide a framework within which “peace” may be consolidated as a foundational value in the realization of human rights.

 

However, Africa is thwarted by various challenges and atrocities that have an impact on the development of “peace” as a value in the promotion and protection of human rights. These challenges are related to violence, ethnicity, corruption, disrespect for traditional value systems and other related factors.⁵ These factors threaten the stability of the African continent and the centrality of “peace” as a value in the promotion human rights in Africa. 

 

Furthermore, the concept of “peace” in developing a value-based approach in promoting human rights is also unclear. The uncertainty is derived from the extent to which it can be used to ensure its substantive translation into specific human rights. The lack of clarity about the effect of “peace” as a value is derived from its “indirect” application in the constitutional and legislative instruments which seek to protect human rights. This means that the concept of “peace” is unearthed from the interpretation of the various provisions in order to conceptualise the meaningful and effective promotion of human rights. 

 

Against this background, this paper identifies “peace” as a strategic value in promoting human rights in Africa. The objective is to juxtapose the theoretical and practical foundations of “peace” as a conceptual basis for the promotion of human rights into substantive reality. It is assumed that “peace” provides a foundation that is likely to ensure the creation of an environment that is conducive for the greater respect of all human rights. The likelihood is traced from its potential to develop a value-based approach for the promotion of human rights. In essence, the paper argues that “peace” may be used as a strategic value in the promotion of human rights. Also, the paper does not intend to delve into Africa’s political context but to concretise the argument for the use of “peace” as a value in the advancement of human rights.

 

 

 

Africa is faced with the pressing need to ensure the meaningful integration of “peace” as a value for the promotion of human rights. Human rights can be defined as those rights that impose positive or negative obligations on the states. This means that they are designed within the framework of the agreed norms, values and standards that regulate the conduct of the states towards their citizens in both public and private spheres. Without classifying these rights, the Universal Declaration of Human Rights,⁶ notwithstanding its non-binding status on the states, is the primary document that provided a conceptual framework for the globalisation of human rights. In the African continent, the African Charter on Human and Peoples Rights⁷ is another document that conceptualises human rights as inherent and inalienable rights that are guaranteed on everyone by virtue of being human which cannot be taken away whether by the state or private individuals and. These instruments may be indirectly interpreted to include a framework for the linkage of peace in the affirmation of the rights framework. “Peace” is defined as a moral compass that seeks to ensure a “sense of security and safety and harmonious relationships, without feeling a need for revenge, punishment, reparations, or apologies. It is a sense of goodwill and well-being.”⁸ This was qualified by Premier Zhou Enlai of China on December 31, 1953 when he developed the five basic elements which entail the concept of ‘peace’ as:

 

mutual respect for each nation’s territorial integrity and sovereignty.

 

mutual non-aggression.

 

mutual non-interference in each other’s internal affairs.

 

equality and mutual benefit; and peaceful co-existence.⁹

 

These elements are drawn from article 1 of the United Nations Charter¹⁰  which provides that it seeks to:

 

(1) maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; and 

 

(2) develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace, (Author’s emphasis).

 

Although these principles are more on the relationship between the states, they provide the frame of reference for the use of “peace” as a value for human rights promotion at domestic level. They legitimize the concept of “peace” in the rights framework as a “source of redress and as a standard by which to measure the reasonableness of the promotion of human rights.”¹¹ The legitimacy of “peace” into the rights domain is drawn from the following factors that it:

 

offers lively and effective means to develop the capacity to be human and prepare citizens to devise and engage on the debates of human rights promotion; is integral to human rights that without peace, there is a lack of the primary component of their core and essential substance; is the essence and arbiter of human rights, antithesis of violence, touching on multiple and complex aspects of human experience; means to cultivate transformational thinking which lies in viewing human rights norms and standards as integrated ethical system; is the sum and ethos of the values and principles of human rights taken as a whole is or would be - peace; is the specific indicator and a particular measure of progress towards the substantive translation of human rights into reality; puts flesh on the bones of the abstraction of human rights and provides details of how to bring the flesh to life.¹²

 

These principles are essential for the justifiability of “peace” as a value in the general system of human rights in Africa considering the historical context under which these rights were used as a justification of the struggle to fight colonialism which had no respect for them. For example, the Constitutive Act¹³ of the African Union endorses the contention and acknowledges the role of human rights in the struggle against colonialism. The acknowledgment is based on the following fundamental principles which are envisaged in its preamble as the Act recalls, firstly, the heroic struggles waged by our peoples and our countries for political independence, human dignity and economic emancipation. Secondly, it considers the Organization of African Unity since its inception and the role it has played in the liberation of attainment of the unity of our continent and a unique framework it has provided for our collective action in Africa and in our relations with the rest of the world. Thirdly, its determination to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law…¹⁴

 

It is in this context that the discourse of human rights cannot be undertaken in isolation from its historical context in Africa. The history is essential in evaluating the various strategies and methodologies that may strengthen the comprehensive and integrated approach in ensuring the respect for all human rights.¹⁵ In a nutshell, this history enables the “acquiring of the capacity to restore and recall the legal encounters of the state with social reality, to learn from them and modify their own functioning in order to enhance their own self-awareness and ability to assimilate past experiences.”¹⁶ 

 

 

The discourse of human rights is clouded by what appears to be the legalistic approach that has been adopted by African governments in the promotion of these rights. The inflexible approach to the evolution of the principles of human rights is for example, characterised by, firstly, the rules that highlight the need to legally recognise human rights and institutionalise their respect through the adoption of various instruments. Secondly, the structures and institutions which relate to the structural divisions of powers and resources in society and mechanisms that exists to handle conflicts that may arise in this regard. Thirdly, the relationships which refer to the relevance of rights for organising and governing the interaction between state and citizens, and amongst individuals and groups in society. Lastly, a process that underscore the importance of aiming for the legitimacy and sustainability by taking care of how issues of access, protection and identity are addressed, paying attention to dignity, participation, inclusion, protection and accountability.¹⁷ 

 

These factors are limited in deepening their approach in advancing human rights because of the less emphasis on institutional and structural conditions which are pivotal in highlighting the protracted socio-political ills that bedevil post-colonial Africa. They have not infused the values that are attached to the rights to ensure their sufficiency for the broader conceptualisation of all the rights. This is drawn from the non-inclusion of “peace” whether as a right or a value in various African instruments which seeks to protect and promote human rights.¹⁸ The significance of “peace” is indirectly unearthed from the application and interpretation of various provisions of these instruments when interpreted by the Courts.¹⁹ Even the indirect application is subject to interpretation by various scholars on the impact of a particular judgment on human rights promotion.²⁰ 

 

On the other hand, the infusion of “peace” as a foundational value to the promotion of human rights in Africa involves the:

 

analysis of the challenges from a holistic perspective of human rights and related obligations of the states; development of steps that have to be taken to ensure the implementation of the identified rights and how they can be supported and facilitated by mutual co-operation; establishment of the mechanisms to monitor the implementation of rights in recognition of the fact that human rights are not necessarily through the legalistic approach that they have to be enforced; and participation of civil society with a view to making difference in the decision-making process.²¹

 

These principles denote the several strengths of the value-based approach which include but not limited to, firstly, the establishment of specific government accountability in promoting peace. Secondly, addressing a broad range of legal, socio-political and cultural determinants of peace. Thirdly, the emphasis on the importance of setting specific goals and targets for the achievement of human rights. Fourthly, monitoring and evaluation of the progress made towards the achievement of human rights, Fifthly, insistence on good governance; and lastly, stressing the need for transparency and participation in efforts to secure human rights.²² 

 

The above principles provide a framework for “peace” as a value that can serve a vehicle for unity, solidarity and peace as well as an instrument for democracy and sustainable development which should encompass the vision of the region in order to eliminate the various factors that may compromise the promotion and protection of all human rights. Such elimination has the potential to ensure the balancing of human and sustainable development, protection of the environment and integration of the contemporary and traditional humanistic values.²³ It epitomises the particular standards that are built into the rights framework concerning the historical, civilisational, cultural and semantic connotations into the broader framework of human rights.²⁴

 

The importance of “peace” as a value in human rights promotion is indirectly derived from article 29 of the ACHPR which traces the foundations of “peace” in family structures by endorsing the duty of the person as it provides that the individual shall also have the duty to: 

 

(1)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) 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; 

 

(4) preserve and strengthen social and national solidarity, particularly when the latter is threatened; 

 

(5) 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)work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;

 

(7) 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) contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

 

The individual duties are an endorsement of a broader approach in human rights promotion which should not be limited to legalistic approaches of the rights framework but to be inclusive of other values that may enhance the development of a process that is sustainable. The interaction of the two (rights and values) is important for any sustainable development that may yield positive results for the advancement of “peace” as a value in human rights protection. Goonesekere argues that they reinforce the language of “peace” as a legitimate claim to be articulated with moral authority which other approaches lack. Secondly, it is a language which is recognized by the powerful and which stimulates deep chords of response in many. Thirdly, it is a language which has the potential to empower individuals and communities at grassroots level on the importance of human rights. These are further qualified by the genuiness of the value approach as an important goal in itself.²⁵

 

The integration of the two (rights and values) concretise an argument for the advancement of Africa in “building on its own foundations and ensure that there is much to be learned from the continent about leading a good and harmonious life, taking care of each other, respect the wisdom of older people and being one with nature and spiritual world.”²⁶ These principles are essential for the legitimacy of “peace” as a foundational value for the promotion of human rights. The affirmation of “peace” is qualified by its flexibility and the reference to the eternal values and principles of fairness, equity, justice, reasonableness and good faith in the light of public interests which should conform to the basic values of the various instruments that Africa has developed in the promotion of human rights.²⁷

 

However and as mentioned above, Africa is faced by various challenges that have a direct impact on the promotion of human rights.²⁸ These challenges further lead to the minimalistic approach to the development of various approaches to the evolution of the system of human rights.²⁹ They threaten the centrality of “peace” as a value in the general system of human rights in Africa. As mentioned above, the intention of this paper is not to delve into Africa’s political context but to acknowledge by way of an example with reference to the recent wave of attacks against black people of foreign origin in South Africa which is a clear evidence of the challenges that are faced by Africa. The underlying causes of these attacks were indirectly driven by the quest for the promotion of human rights. There is a contestation between the locals and foreign nationals over the socio-economic space which is essential for the devising of mechanisms that will assist in the determination and articulation of what would constitute the value of peace in human rights.

 

These challenges are further evident in the instability that is encountered by Lesotho (the Southern African Development Country: SADC) and Burundi (the East African Country). Lesotho has not been politically stable since the failed attempted coup in 21 August 2014. It was then forced into early election in February 2015 where the SADC played a significant role and deployed the Deputy President of the Republic of South Africa.³⁰ To shorten the background, Lesotho plunged back into turmoil after the elections with the resultant death of the Lieutenant-General Maaparankoe Mahao who, allegedly, was brutally murdered by soldiers that were sent to arrest him on suspicion of being the mutiny leader.³¹ This was the case in Burundi when violence erupted when President Pierre Nkurunziza indicated that he was still available and eligible to be elected for the third term into the high office, as he was duly elected. Again, without an extensive background, this resulted in civil unrest which resulted in the death of about 18,000 people and displacement of about 40,000 people. It further led to the brutal murder of former Burundian security chief who happened to be the closely friend of the President.³²

 

Notwithstanding Africa’s challenges which are directly or indirectly linked and attributed to the general failure of political leadership in Africa, of further and greatest concern is the role of Western countries and especially of the United States in Africa’s affairs. This role is nothing more than the interference that relegates the role of the African Union to the sphere of no international significance on matters that are affecting the continent because the United States is holding the purse and the sword over African countries. This involvement raises the question whether the promotion of fundamental values within the framework of “peace” is subject to economic and political power of the United States? Simply put, how does Africa use “peace” as a value in the promotion of human rights if the undertaking is clouded by economic and political exploitation of Africa’s situation? This question is borne by America’s prescription on how Burundi should resolve its challenges as if Burundi does not have its own political and economic “home”: (the African Union). This is evidenced by the statement released by U.S. Secretary of State John Kerry in Washington, D.C.:

 

Today’s announcement of Burundi’s presidential electoral results is the culmination of a deeply flawed electoral process marked by violence and a disregard for the civil and human rights of the citizens of Burundi. The United States is deeply disappointed by President Nkurunziza’s violation of the Arusha Agreement and use of undemocratic means to maintain power through an electoral process that was neither credible nor legitimate. It is imperative that the Government of Burundi re-engage in a meaningful, serious dialogue with opposition and civil society leaders to reach a consensus on the way forward for Burundi to regain the trust and confidence of its citizens and the international community, and prevent even greater instability, refugee flows, and violence.³³

 

The African Union had long distanced itself from the Burundi elections in order to devise some mediating and consensus lasting political solutions.³⁴ It is acknowledged that Africa falls within the framework of the community of nations but the constant interference of Western countries in Africa’s domestic affairs, undermines the ability and skill of African leaders to resolve Africa’s issues in a manner that befits the continent. The non-participation of the AU in Burundi’s elections is an awareness of Africa’s wavering support for the advancement of “peace” as a value that has the potential to promote human rights. The harmonious relationships that were likely to be established through the value based approach of “peace” in human rights promotion is being interfered with to an extent of a further likelihood of the development of a possibility of resistance not only from Burundi but in Africa generally. This in turn, may compromise the envisioned argument in this paper for “peace” as a foundational value for the promotion of human rights.

 

 

The paper has pointed out that it is evident and possible that “peace” is a strategic value that may be infused into the rights framework. Its elements provide a foundation within which Africa can aspire to achieve. Notwithstanding the various challenges that face Africa, the value-based approach of “peace” has the potential to broker the legalistic and rigid framework in the promotion of human rights. As matters stands now, “peace” is indirectly applied as a value in the interpretation of the provisions of the various instruments that Africa adopted in order to address the socio-political ills it is faced with. However, there is still an opportunity for the integration of “peace” as a value in the broader rights framework.

 

* Nomthandazo Ntlama, associate professor of Public Law attached to the School of Law, KwaZulu-Natal, Durban, South Africa.

 

1. D’Amato A, “The Concept of Human Rights in International Law,” Volume 82 No.2 Columbia Law Review, 1982, at 1110-1159.

 

2. Villa-Vicencio C, “Transitional justice and human rights in Africa,” at 48, in Diescho J and Bosl A, eds., Human Rights in Africa: legal perspectives on their protection and promotion, Macmillan Education Publishers, Namibia, 2009.

 

3. Gawanas B, “The African Union: concepts and implementation mechanisms relating to human rights,” at 139, in Diescho et al above.

 

4. Wolfgang H, “Human rights and globalisation – are human rights a ‘Western’ concept or a universality principle?” Volume 55 No 1 NGTT DEEL, 2014, at 117-137.

 

5. Williams PD, “Enhancing civilian protection in peace operations: insights from Africa,” Africa Center for Strategic Studies Research Paper No. 1, 2010.

 

6. Adopted on December 10, 1948, hereinafter referred to as the “UDHR.” The UDHR was supplemented by the International Covenant on Civil and Political Rights (ICCPR) which was adopted by the UN General Assembly on December 16, 1966 and entered into force March 23, 1976 and the International Covenant of Economic, Social and Cultural Rights (ICESCR) which was also adopted on December 16, 1966 and entered into force on January 3, 1976. Together these instruments are referred to as the “International Bill of Human Rights.”

 

7. Adopted in Nairobi on June 27, 1981 and entered into Force on October 21, hereinafter referred to as “ACHPR.”

 

10. Signed on June 26, 1945, in San Francisco and came into force on October 24, 1945.

 

11. Dugard J, International law: a South African perspective (2010), Juta publishers, at 25.

 

12. Reardon BA, “Human rights learning: pedagogies and politics of peace,” Lecture delivered for the UNESCO Chair for Peace Education Master Conference at the University of Puerto Rico, April 15, 2009.

 

13. Adopted in 2000 at the Lome Summit (Togo) and entered into force in 2001.

 

14. See preamble.

 

15. Hart B and Saed M, “Integrating Principles and Practices of Customary Law, Conflict Transformation, and Restorative Justice in Somaliland,” Volume 3 No 2 Africa Peace and Conflict Journal, 2010, at 1-17.

 

16. Zupancic BM, “Constitutional law and the jurisprudence of the European Court of Human Rights: an attempt at a synthesis,” Journal of Constitutional Law and Philosophy of Law, 2003, at 57-61.

 

17. Parlevliet, M, “Conflict Prevention in Africa: A Matter of Containment or Change? The Role of Civil Society in Preventing Deadly Conflict in Africa,” in Sidiropoulos E, ed., A Continent Apart, Kosovo, Africa and Humanitarian Intervention, Johannesburg: South African Institute for International Affairs, 2001, pp. 61-88, quoted in Dudouet V and Schmelzle B, eds., “Human rights and conflict transformation: the challenges of just peace,” No 9, Berghof Conflict Research, Germany, 2010.

 

18. See for example, the ACHPR.

 

19. Michael L, “Jurisprudential Analysis of the African Court on Human and Peoples Rights: From 2004 to 2010,” African Yearbook of International Law, 2012, at 1-32.

 

20. Cole R, “The Emerging Jurisprudence of the African Court on Human and Peoples’ Rights – African Commission on Human and Peoples’ Rights v Great Socialist Peoples’ Libyan Arab Jamahiriya (order for provisional measures),” Volume 14 University of Botswana Law Journal, 2012, at 147-154.

 

21. Goonesekere S, “A rights-based approach to realizing gender equality”.

22. Chapman A, “The foundations of human rights to health: human rights and bioethics in dialogue,” Volume 17 No 1 Health and Human Rights Journal, 2015, at 1-14.

 

23. UNESCO, “Learning to live together in peace and harmony: values education for peace, human rights, democracy and sustainable development for the Asia-Pacific Region,” 1998.

 

24. Zupancic, Supra note 16.

 

25. Goonesekere, Supra note 18.

 

26. Brock-Utne, “Peace research with diversity perspective: a look to Africa”.

 

27. See foreword by Van Zyl DH in Church J, Schulz C & Strydom H, Human rights from a comparative and international perspective, Unisa Press Pretoria, 2007.

 

28. Baimu E, “The African Union: hope for better protection of human rights in Africa?” Volume 2 African Human Rights Law Journal, 2001, at 299-314.

 

29. Yerima TF, “Comparative evaluation of the challenges of African Regional Human Rights Courts,” Volume 4 No 2, Journal of Politics and Law, 2011.

 

30. Simelane T, “Watch: Lesotho PM refutes political instability,” June 17, 2015.

 

31. Hofstatter S and Sutherland K, “Lesotho general told of death plot,” July 6, 2015.

 

32. Jorgic D, “Gunmen in uniform kill ally of Burundi President Nkurunziza,” August 2, 2015.

 

33. Released on July 24, 2015.

 

34. The African Union will not observe elections in Burundi.