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.

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. 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).

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.

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). 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. 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. As for the UN, as of 1979, the Economic and Social Council (ECOSOC) had granted consultative status to more than 700 NGOs.

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.

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, 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,

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.

Developing policy recommendations based on comprehensive, in-depth research is not an easy task. Whether a recommendation is accepted by policy makers – and that is what matters in real life and what can (in our case) move us a step forward in addressing the difficult past – often depends on factors beyond the researchers’ control. This is one of the reasons why academic researchers, approaching the complexity of the social world in ways that are not straightforward, are often reluctant to write short and concise policy recommendations, even though they are aware that serious engagement in the process can have immense benefits for society (CARDI, 2012). In addition, researchers are often not adequately trained to communicate research findings in forms other than academic publications, even though publishing shorter, more widely understood texts is an important element in maximizing impact.

Finding a middle ground in making recommendations, which some may also view as watering down recommendations, is a process that takes time. However, if the recommendation is based on solid evidence on the one hand and does not fundamentally challenge the interests of key stakeholders on the other, the recommendation is more likely to be adopted. It should come as no surprise that this is difficult to achieve, especially in countries with a troubled past that are targeted by these recommendations.

This chapter explains the logic used to move from research findings to specific policy recommendations and is therefore organized as follows. First, it explains the process of creating the first version of the recommendations, which was based solely on the project's research findings. The second section explains how relevant interlocutors (policy makers and stakeholders) were involved in the process of revising the earlier versions of the recommendations. The third and final section describes how some of the interlocutors were additionally recruited for interviews and how some other perspectives from people who were not directly involved in this process were included in the final version of the recommendations.

Drafting the first version of the policy Recommendations

The RePAST research consortium had the aforementioned considerations in mind when thinking about how to compile the policy recommendations; they were to be written for the EU as an institution and for seven countries struggling with difficult pasts (Bosnia and Herzegovina, Cyprus, Germany, Ireland, Kosovo, Poland and Spain).