The Human Rights Implications of Transforming the OAU into the AU

Ghetnet Metiku Woldegiorgis
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The Human Rights Implications of the Transformation of the OAU into the AU
Tuesday, July 22, 2014
Contents
Acronyms ...................................................................................................................................................... 2
1 Introduction ........................................................................................................................................... 3
2 The Organization of African Unity ....................................................................................................... 3
2.1 Establishment and Objectives ....................................................................................................... 3
2.2 The OAU and Human Rights ........................................................................................................ 4
3 The African Union ................................................................................................................................ 5
3.1 Establishment and Objectives ....................................................................................................... 5
3.2 The AU and Human Rights ........................................................................................................... 6
4 Points of Comparison ............................................................................................................................ 7
4.1 Recognition of Human Rights....................................................................................................... 7
4.2 Normative Framework .................................................................................................................. 7
4.3 Institutional Arrangements ............................................................................................................ 8
4.4 The Impact on the Ground ............................................................................................................ 9
5 Conclusions ......................................................................................................................................... 10
List of References ....................................................................................................................................... 11
List of Instruments ...................................................................................................................................... 13

Acronyms
ACHPR
African Charter on Human and Peoples’ Rights
ACRWC
African Charter on the Rights and Welfare of the Child
AEC
African Economic Community
AU
African Union
IDPs
Internally Displaced Persons
NEPAD
New Partnership for African Development
OAU
Organization of African Unity
UDHR
Universal Declaration on Human Rights

1 Introduction
The establishment of the Organization of African Unity (OAU) in 1963 was a watershed moment in the history of the African continent. While the institution was established in the context of Pan-Aficanism and calls for decolonization and economic development, the human rights agenda was not completely absent from its organization and operations. In fact, the right to self determination and the violations of the rights of people under colonial rule constituted an essential part of the struggle. Yet, human rights issues have only come to the front in Africa in more recent decades. The transformation of the OAU in to the African Union (AU) is often seen as necessitated by this consideration among others.
This brief paper seeks to explore the implications of the transition from the OAU to the AU in terms of its impact on the promotion and protection of human rights in Africa. The paper is organized in four parts. The first two parts provide brief overview of the OAU and AU and approaches to human rights in each organization. Then, the two organizations are compared in terms of their human rights regimes. This is followed by the last part presenting conclusions drawn from the foregoing discussion.
2 The Organization of African Unity
2.1 Establishment and Objectives
The Organization of African Unity (OAU) was established by 32 African countries on May 25, 1963, and based in Addis Ababa, Ethiopia, it became operational on September 13, 1963, when the OAU Charter, its basic constitutional document, entered into force. The membership of the OAU came to include membership eventually encompassed all but one of African states.1 The OAU was dissolved in 2002, when it was replaced by the African Union.
The purposes of the OAU as stipulated in the OAU Charter included the promotion of the unity and solidarity of African states; defense of their sovereignty, territorial integrity, and
1 The exception is Morocco, which withdrew in 1984 to protest the admission of the Saharan Arab Democratic Republic, or Western Sahara.

independence; and the eradication of all forms of colonialism from Africa.2 To this end, member states were to coordinate and harmonize their policies in various areas, including politics and diplomacy, economics, transportation, communications, education, health, and defense and security. The Charter also outlined the guiding principles of the OAU including the sovereign equality of all member states, non-interference in the internal affairs of states, respect for sovereignty and territorial integrity, the peaceful settlement of disputes, and the emancipation of dependent African territories3. Although the organization’s primary motivation initially was the liberation struggle and the defense of the independence and territorial integrity of African states, the OAU later expanded its scope of activities to encompass economic cooperation and the protection of human rights.
The OAU has registered a number of significant achievements during its life-time. Among these are decolonization of the continent, the end of apartheid and the establishment of majority rule in South Africa, the establishment of the African Economic Community (AEC) in 1997, and mediation of several boarder and internal disputes in the continent. However, the OAU faced significant challenges from disputes and conflict among member states, separatist movements and the collapse of law and order in some member states. The credibility of the OAU was also undermined by its failure to advance democracy, tendency to tolerate dictatorships and inability to prevent and respond to gross human rights violations.
2.2 The OAU and Human Rights
Human rights did not have a central place in the OAU Charter, which did not provide for human rights as a continental objective despite the reference to the UN Charter and the UDHR in its preamble. The Grand Bay Declaration and Plan of Action, adopted by the First OAU Ministerial Conference on Human Rights in Africa, held in Grand Bay, Mauritius, from April 12 to 16, 1999, was the first instrument to recognize the critical importance of human rights as cross- cutting issues in Africa. This non binding declaration comes short of formal recognition of human rights in the OAU framework.
2 Article 2 of the OAU Charter
3 Article 3 of the OAU Charter

However, the OAU is credited with significant achievements in relation to human rights. Most notably, the African Charter on Human and Peoples’ Rights (ACHPR) was adopted under the auspices of the OAU. The ACHPR is still the primary normative instrument on human rights at the regional level.4 Other important OAU human rights instruments include the OAU Refugee Convention5, the African Children’s Charter6 and several declarations relevant to human rights. Although the OAU was dissolved before achieving this goal, the establishment of a court of human rights was envisaged during the OAU.7
3 The African Union
3.1 Establishment and Objectives
The Assembly of Heads of State and Government of the OAU declared the establishment of the African Union (AU) during their extraordinary session held in Sirte, Libya in March 2001. The newly established body was designed as a successor organization to the OAU. The Constitutive Act (Act) of the Union entered into force on 26 May 2001 and the AU finally replaced the OAU in 2002 after a period of transition.
Unlike the OAU, the AU was devoted to the political and economic integration of Africa based on respect for democratic values, good governance, the rule of law, and human rights. The promotion and protection of human rights figures clearly in the preamble of the AU Constitutive Act and statement of its objectives. While maintaining most of the objectives stipulated in the OAU Charter, the Act includes objectives relating to the democracy, good governance and human rights.8 This more expansive list of objectives reflects a realization of the need for political, social and economic integration based on the principles of democracy, popular participation, good governance, and protection of human rights.9 The Constitutive Act of the AU also reiterates many of the principles identified under the OAU Charter and introduces additional
4 Vincent O. Nmehielle, Development of the African Human Rights System in the Last Decade, 2007, p. 6
5 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 1969 and came into force 1974)
6 African Charter on the Rights and Welfare of the Child (adopted 1990 and came into force 1999)
7 ACHPR Protocol on the African Human Rights Court (adopted 1998 and came into force 2004
8 Article 3 of the Act
9 Konstantinos D. Magliveras and Gino J Naldi, The African Union—A New Dawn for Africa? International and Comparative Law Quarterly, 51, pp 415-425, 2002, p. 416

principles.10 The newly introduced principles relate to participation of the African peoples in the activities of the Union; establishment of a common defence policy for the African Continent; prohibition of the use of force or threat to use force; the right of the Union to intervene in a Member State in respect of grave circumstances; promotion of gender equality; respect for democratic principles, human rights, the rule of law and good governance; promotion of social justice; respect for the sanctity of human life; and, condemnation and rejection of unconstitutional changes of governments.11
3.2 The AU and Human Rights
The Constitutive Act of the AU gives human rights a prominent place. This is evident from the preamble to the Act, its objectives and principles. The preamble to the Act refers to the determination of member states to promote and protect human and peoples’ rights in an explicit manner while the same is included in the objectives of the AU12. The promotion of gender equality and protection of human rights are also identified among the principles of the AU.13 Thus, the AU’s Constitutive Act is different from the OAU Charter in a number of ways, including:14
“moving from non-interference to non-indifference, including the right of the AU to intervene in any member state’s affairs; explicit recognition of human rights; promotion of social, economic and cultural development; an approach based on human-centred development; and, gender equality”.
The Kigali Declaration adopted by the First African AU Ministerial Conference on Human Rights in Africa on May 8, 2003, in Kigali, Rwanda endorses the Grand Bay Declaration and calls on states parties to support African human rights initiatives.
10 Article 4 of the Act
11 See: John Akokpari, The OAU, AU, NEPAD and the Promotion of Good Governance in Africa, EISA Occasional Paper Number 14, November 2003
12 Article 3(h) of the Act
13 Articles 4(l) and (m) of the Act
14 Bience Gawanas, The African Union: Concepts and implementation mechanisms relating to human rights, pp. 135-163, 2010, p. 128

4 Points of Comparison
This section compares the OAU and the AU to see if there have been changes in the human rights regime under the two organizations. The comparison is structured in three sub-sections relating to recognition of human rights as a regional agenda, the normative content of the regional human rights instruments and the impact on the ground in terms of implementation and enforcement.
4.1 Recognition of Human Rights
The OAU Charter mainly focused on issues of development and stability to the exclusion of human rights concerns. This is evident from the fact that the preamble and first provisions of the Charter emphasize issues of ‘unity, non-interference and liberation’ and conception of rights as peoples’ rights.15 Thus, the contribution of the OAU Charter to the human rights regime in Africa is at best doubtful.16 The Constitutive Act of the AU, on the other hand, expressly addressed human rights in its preamble and provisions. This reflects a recognition of the crucial importance of human rights in the organization and operations of the regional body.
4.2 Normative Framework
In relation to the normative framework for human rights in Africa, the ACHPR adopted during the tenure of the OAU remains to be the most important regional instrument.17 The ACRWC and the refugee convention are also important today as they were upon their adoption by the OAU.
The establishment of the AU was followed by the adoption of various instruments contributing towards the enrichment of the normative framework for human rights. Most notably, the Protocol on the Rights of Women (Maputo Protocol)18 and the IDPs Convention19 The coming into being
15 EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, Human Rights in Africa -A New Perspective on Linking the Past to the Present, 41 McGill Law Journal, pp. 219-854, 1996, p. 827
16 Vincent O. Nmehielle, 2007, p. 6
17 See: Michelo Hansungule, Towards a More Effective African System of Human Rights: “Entebbe Proposals”, paper presented at the First International Conference on: The Application of the Death Penalty in Commonwealth Africa organized by the British Institute of International and Comparative Law held on 10th to 11th May 2004 Entebbe, Uganda, 2004
18 Protocol to the ACHPR on the Rights of Women in Africa (adopted 2003 and came into force 2005)
19 AU Convention for the Protection and Assistance of Internally Displaced Persons (adopted 2009 and came into force 2012)

of the Maputo Protocol is important not only in terms of providing for the rights of African women at the regional level but also in relation to its emphasis on individual rights. This is an exception to the overall trend in African regional instruments to emphasize the collective over the individual20. The AU has also re-affirmed its commitment to human rights in the framework of the NEPAD, especially the NEPAD Declaration on Democracy, Political, Economic and Corporate Governance adopted by member states of the AU in July 200221.
4.3 Institutional Arrangements
One of the recurrent criticisms of the OAU relates to the inability and indeed impotence of the organization to respond to gross human rights violations occurring in member states.22 The principle of ‘non-interference in the internal affairs of States’ precluded the engagement of the organization in this crucial function.23 While recognizing the same principle, the AU Constitutive Act mandates the Union to intervene in a Member State where ‘grave circumstances’, namely war crimes, genocide and crimes against humanity, are evident in accordance with a decision of the Assembly.24 The importance of this provision to addressing grave human rights violations occurring under the identified circumstances cannot be overstated25. Countries across the continent including Sierra Leone, Liberia, Sudan just to mention a few have faced these same circumstances leading to gross human rights violations. One critic of the OAU was its failure to address human rights violations in the context of armed conflict despite the establishment of the OAU Mechanism for Conflict Prevention, Management and Resolution in 1993.
The ACHPR did not envisage the establishment of a court; that was achieved through a separate protocol. The Protocol on the establishment of the African Court on Human and Peoples’ Rights
20 EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, p. 837
21 John C Mubangizi, Some reflections on recent and current trends in the promotion and protection of human rights in Africa: The pains and the gains, African Human Rights Law Journal, Volume 6 Number 1, 2006, pp. 146-165, p. 154
22 Article 58 of the ACHPR mandates the African Commission to draw to the attention of the Assembly of Heads of State and Government the existence of serious violations of human and peoples’ rights which may lead to specific action. However, this mandate can only be exercised with the consent of the affected member state.
23 Article 4/2 of the Charter
24 Article 4(h) of the Act
25 Kithure Kindiki, The Normative and Institutional Framework of the African Union Relating to the Protection of Human Rights and the Maintenance of International Peace and Security: A Critical Appraisal, African Journal of Human Rights, Volume 3 Number 1, 2003, pp. 97-117

was adopted by the OAU in 1998.26 However, the establishment of the Court actually took place after the coming into being of the AU when the Protocol came into force in 2004. This could be considered another important development in the regional human rights framework that followed the establishment of the AU.
Finally, we should note that the AU has incorporated the various human rights organs established and operating under the OAU into its structure. These are the Mechanism for Conflict Prevention, Management and Resolution (incorporated July 2001) as well as the African Commission and the African Committee of Experts on the Rights of the Child (both incorporated in July 2002)
4.4 The Impact on the Ground
It has been twelve years since the AU took over as the regional organization in Africa. This does not afford sufficient time for a realistic assessment of the impact of the transition from the OAU on the status of human rights on the ground. Such an attempt is further complicated by the fact that the reality of human rights in Africa is a function of various factors most of which are beyond the control of the AU.27 At the outset, one should note that the African human rights system is in a constant interplay with international and national human rights systems that are given effect in diverse national and local contexts. Issues relating to the socio-economic context at the global, regional and national levels are also important.
The developments in the African human rights system following the transformation of the OAU into the AU have for the most part taken place in the recognition of human rights as a continental issue in the AU Constitutive Act and some normative developments along the lines already pursued by the OAU. The implications of these changes to the situation on the ground appear to be limited. For instance, the fact that the AU has a mandate to intervene in cases of gross human rights violations within the specifically identified circumstances does not mean that it has been effective in doing so. The responses of the AU to recent developments in Northern Africa, Sudan and South Sudan leave much to be desired. The adoption of new regional human rights
26 The Protocol to the ACHPR on the establishment of the African Court on Human and Peoples’ Rights (adopted 1998 and came into force 2004)
27 Paul J. Magnarella, Achieving Human Rights in Africa: The Challenge for the New Millennium, African Studies Quarterly, Volume 4, Issue 2, Summer 2000, p. 17

instruments under the auspices of the AU also lacks the immediate effect in practice since the process of domestication and implementation still has a long way to go. Similarly, the establishment of the African Court has not yet borne fruits to ordinary citizens of members states. In general, the effect of the transition to the AU on the ground is still to be seen.
5 Conclusions
The establishment of the AU should primarily be seen as a continuation of the establishment and operation of the OAU. As such, the achievements of the AU could be traced back to the achievements and experiences of former regional body. For instance, the adoption of the ACHPR still remains the most crucial development in the normative aspect of the regional human rights system. Similarly, the establishment of the African Court on Human and Peoples’ Rights, which is a significant development in the institutional aspect, resulted from processes initiated long before the coming into being of the AU.28
However, there have been some clear areas of improvement over the OAU that have come about as a result of the transition to the AU. To begin with, the AU has made human rights an explicit part of its mandate through the Constitutive Act. The preamble to the Act, its objectives and principles clearly show a shift from the OAU’s emphasis on state sovereignty and non- interference in the context of decolonization and economic independence. Progress has also been made by the AU in terms of strengthening the normative and institutional framework for the promotion and protection of human rights in Africa.
Based on the developments after the coming into being of the AU in the African human rights framework, one could confidently expect things to improve on the ground. One would expect improved protection of human rights on the continent. However, achievements in this respect are diminished by a number of factors. First, the persistent poverty that provides a context for the poor human rights performance of African states is still an issue across the continent. While improvements in economic performance have been observed in recent years, abject poverty is a reality for most Africans. The situation is aggravated by the prevalence of corruption, conflict
28 The resolution by the Assembly of Heads of State and Government that led to the drafting of the Protocol took place in 1994 in Tunis. Similarly, the African Commission recognized the need for a protocol to the ACHPR on the rights of women back in 1995.

and other socio-economic ills. Secondly, African human rights institutions still lack the resources and political capital to ensure respect for human rights by African states and non-state actors. This problem, which is among the causes attributed to the failure of the OAU to make progress in the human rights arena, still persist. Strong implementation and enforcement mechanisms are urgently needed to address these issues. Finally, the AU needs to address new and emerging challenges from new processes such as globalization to realize its goal of promoting and protecting human rights.
The most important factors for the future effectiveness of the African human rights system relate to the commitment of the AU and individual states to translate the regional normative framework on human rights into practical measures geared towards the realization of the rights of their citizens. Such commitment is best expressed in terms of addressing barriers to the implementation of human rights at various levels. These include working towards creating a culture of human rights, addressing the socio-economic causes of violations, creating and implementing a system of accountability for violations by state and non-state actors, and re- defining the relationship between states and regional human rights institutions into one of partnership. More specific forms of expression would be ratifying all relevant international and regional instruments and regular reporting on the implementation of commitments under regional human rights instruments. The allocation of adequate resources for the effective functioning of the African Commission, the African Human Rights Court, and other monitoring institutions is also essential.
Another possible area of improvement towards the effectiveness of the African human rights system is a clear position on the role of non-state actors, especially civil society, in the promotion and protection of human rights. This amounts to a recognition of the obvious and visible constructive role played by non-state actors. Moreover, clarifying the role of civil society and other actors would work towards achieving the stated objective of participation of the African peoples in the activities of the Union.
List of References
Bience Gawanas, The African Union: Concepts and implementation mechanisms relating to human rights, pp. 135-163, 2010

EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, Human Rights in Africa -A New Perspective on Linking the Past to the Present, 41 McGill Law Journal, pp. 219-854, 1996
John Akokpari, The OAU, AU, NEPAD and the Promotion of Good Governance in Africa, EISA Occasional Paper Number 14, November 2003
John C Mubangizi, Some reflections on recent and current trends in the promotion and protection of human rights in Africa: The pains and the gains, African Human Rights Law Journal, Volume 6 Number 1, pp. 146-165, 2006
Kithure Kindiki, The Normative and Institutional Framework of the African Union Relating to the Protection of Human Rights and the Maintenance of International Peace and Security: A Critical Appraisal, African Journal of Human Rights, Volume 3 Number 1, 2003
Konstantinos D. Magliveras and Gino J Naldi, The African Union—A New Dawn for Africa? International and Comparative Law Quarterly, 51, pp 415-425, 2002
Magnus Killander, African Human Rights Law in Theory and Practice, in Sarah Joseph & Adam McBeth (eds) Research Handbook on International Human Rights Law Cheltenham, UK: Edward Elgar, pp. 388-413, 2010
Michelo Hansungule, Towards a More Effective African System Of Human Rights: “Entebbe Proposals”, paper presented at the First International Conference on: The Application of the Death Penalty in Commonwealth Africa organized by the British Institute of International and Comparative Law held on 10th to 11th May 2004 Entebbe, Uganda, 2004
Paul J. Magnarella, Achieving Human Rights in Africa: The Challenge for the New Millennium, African Studies Quarterly, Volume 4, Issue 2, Summer 2000
Rachel Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge University Press, 2004
Richard Gittleman, The African Charter on Human and Peoples' Rights: A Legal Analysis, Virginia Journal of international Law, Volume 22 Number 4, pp. 667-714, 1982
Vincent O. Nmehielle, Development of the African Human Rights System in the Last Decade, 2007

List of Instruments
Charter of the Organization of African Unity (adopted 1963 and came into force 1963)
Constitutive Act of the African Union (2000/2001)
African Charter on the Rights and Welfare of the Child (adopted 1990 and came into force 1999)
Protocol to the African Charter on Human and Peoples’ Rights on the African Human Rights Court (adopted 1998 and came into force 2004
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 2003 and came into force 2005)
AU Convention for the Protection and Assistance of Internally Displaced Persons (adopted 2009 and came into force 2012)
Protocol to the ACHPR on the establishment of the African Court on Human and Peoples’ Rights (adopted 1998 and came into force 2004)
Grand Bay Declaration and Plan of Action, April 1999, Grand Bay, Mauritius

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