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Protecting the rights of minorities in Africa: A guide for human rights activists and civil society organizations

4 December 2008

Unlike the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights (hereinafter referred to as the African Charter) and the subsequent African human rights treaties do not consider minorities as a legal category recognized in African human rights law. In a continent where most of the armed conflicts between 1963 and 1998, which affected more than 60 per cent of the population, were due to severe identity or religious differences, this seems hardly understandable. It is all the more incomprehensible if we consider that the regional human rights protection system, set up thanks to the activism of President Léopold Sédar Senghor, is aimed mainly at addressing ‘Africa’s real needs‘.

Is this omission the result of a deliberate attempt by those who drafted these various conventions to ignore the existence of minorities completely, or does it reflect the realistic approach which, in the late 1970s, required ‘a common [legal] denominator’ to be established among African countries, prior to a political, economic and social evolution that could pave the way for more effective protection of collective rights taking place?

This second option is the one which seems to have prevailed, because, as emphasized by Chairman Kéba Mbaye regarding the African Charter, ‘the writers [of the Charter] were satisfied with making vague hypotheses with regard to several aspects. This approach … was intended to avoid frightening off the representatives of the States and to give way to a dynamic action by the African Commission on Human and Peoples’ Rights.’ This implied that minorities could, by taking bold initiatives, assert before the African Commission on Human and Peoples’ Rights (ACHPR) a right to the legal status recognized to certain groups, i.e. that of ‘oppressed people’.

However, the democratization process the African States went through in the late 1990s, and in particular the advent of the African Union – which believes the development of African societies should enable Africans ‘to assume their identity and condition instead of having to be burdened by them – opened a new era for minorities, as the African States clearly committed themselves to promoting peace, safety and stability within the continent (Constitutive Act of the African Union, Article 3 (f)) and to ensuring that their actions are always based on such essential principles as respect for the sacrosanct nature of human life (Constitutive Act, Article 4 (o)), respect for democratic principles, human rights, the rule of law and good governance (Article 4 (m)), the promotion of equality between men and women (Article 4 (l)), and the condemnation and rejection of impunity.

The new environment not only creates the conditions for effective consideration of the situation of minorities by African human rights law but also, more importantly, offers the possibility to all those who are directly interested in the issue to display more creativity and imagination in using the current regional legislation in order to promote and protect the rights of minorities in Africa.

This guide is precisely designed to provide all those fighting for the recognition of the inalienable rights of minorities, including organizations created by and for minorities, human rights activists and lawyers, with legal tools that can enable them to cope with the numerous violations of their rights that they encounter on a daily basis.

It is also designed to be an effective instrument in pleading the cause of human rights before African regional or sub-regional political institutions put in place to promote human rights in general and of minorities in particular.

What is a minority? What are the rights minorities can claim, in the absence of a clear legal definition of ‘minority’, within African States? What are the regional or sub-regional bodies that can be turned to with regard to the implementation of, or advocacy for, these rights? How can the organizations promoting or defending the rights of minorities usefully employ these bodies to promote and defend their cause? How to ensure that the decisions taken by regional jurisdictions and political authorities are effectively implemented? This guide tries to provide useful insights into these questions.

The ambition of this guide is to be not only a useful instrument helping in the promotion and defence of the rights of minorities but also an invaluable tool in the training of African activists on the law regarding minorities in Africa.

Finally, MRG and its partners hope this guide will lay the foundations for a productive debate on the protection of the rights of minorities in Africa and will pave the way for the imminent elaboration of a treaty which would consider the specific rights of the legal category of minorities.

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Ibrahima Kane