T he African Union (AU) held the Seventh Ordinary Session of its Assembly of Heads of State and Government in Banjul, Gambia on 1-2 July. The Assembly was well attended, signifying the importance that our continent attaches to the AU. And indeed, the Assembly addressed a number of issues that are of critical importance to the future of Africa.
The collapse of the colonial system on our continent accelerated with the independence of Sudan in 1956, followed by the liberation of Ghana in 1957 and Guinea (Conakry) in 1958. This process of liberation generated great hopes among the African masses that now that they had the possibility to exercise their right to self determination, they would build a new Africa of liberty, peace and prosperity.
However, in many cases, the few decades following the liberation of the majority of the African countries painfully disappointed the hopes of these African masses. Instead of liberty, peace and prosperity, many countries experienced the precise opposite. In many countries, the people fell victim to military dictatorship, war and repression, and growing poverty.
However this did not mean that the forces of liberty, peace and prosperity had been defeated for all time. Throughout the years of the existence of the Organisation of African Unity (OAU), from 1963, until it was replaced by the African Union in 2002, certainly in its documents, the OAU regularly reaffirmed the commitment of Africa to the objectives of liberty, peace and prosperity.
The impetus towards the achievement of these goals has increased over the last few years. The Constitutive Act that created the AU spelt out a number of specific measures in this regard, thus going further than the vision contained in the OAU Charter. At its last Assembly in 2001, the OAU also authorised the institution of the New Partnership for Africa's Development (NEPAD), to give effect to various decisions it had taken in earlier years focused on Africa's socio-economic development.
It should therefore come as no surprise that the July 2006 Banjul Assembly attended to some of the challenges Africa is committed to address, to deal with some of the negative features of the post-colonial years. Specifically, I refer here to the impending prosecution of the former President of Chad, Hissène Habré, and the establishment of the African Court on Human and Peoples' Rights.
Chad became independent in 1960, with François Tombalbaye as its first President. However, an armed uprising against the government started in 1963, following the banning of opposition parties. Ultimately President Tombalbaye was killed during a coup d'etat in 1975, and General Felix Malloum became President. After further conflict, Malloum was removed, and was replaced by General Goukouni Oueddei in 1979.
He, in turn was removed by Hissène Habré in 1982. Nevertheless violent conflict continued, also drawing in Libya, France and the United States, which supported one or another of the belligerents. The conflict continued and Hissène Habré was overthrown in 1990 by the current President of Chad, Idriss Deby, who has since been elected thrice. Habré fled to Senegal, where he remains to this day.
This story of coup and counter-coup in Chad exemplifies precisely the terrible legacy that our continent and the AU are determined to relegate to the past. This same legacy of armed seizure of power and rule by force is what led the Banjul Assembly to discuss the future of Hissène Habré.
For a number of years, some Chadians and human rights groups have accused Habré of crimes against humanity, torture, war crimes and gross violation of human rights, allegedly committed while he was President of Chad. In this regard, Habré is accused of systematic torture and the murder of up to 40,000 political opponents.
In 2000, the Senegalese courts ruled that Habré could not be tried in Senegal for offences committed in Chad. However, last year, Belgium indicted Habré for these alleged crimes, using extra-territorial legislation that has now been repealed. It then applied to the Senegalese courts to extradite Habré to Belgium to face trial. The Senegalese courts refused to rule on the application. The Senegalese government then decided to ask the AU to decide how this matter should be handled.
At its Khartoum Assembly in January this year, the AU decided to establish a 'Committee of Eminent African Jurists' to advise the next (Banjul) Assembly on how to respond to the Senegalese request. The Khartoum Assembly however went on to direct that one of "benchmarks" that should guide the Jurists is "adherence to the principles of total rejection of impunity"
Here we should take note of the fact that the Constitutive Act of the AU calls for "respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities". The Khartoum Assembly also requested the Jurists to "make concrete recommendations on ways and means of dealing with issues of a similar nature in future".
Accepting the recommendations of the Jurists, the Banjul Assembly directed that Habré should be tried in the Senegalese courts. Among other things, it said that Senegal was obliged to do so by virtue of its obligations under the UN Convention Against Torture.
In their Report to the Banjul Assembly, the Jurists said:
"The rejection of impunity was accepted in total by the Summit. The Committee (of Jurists) sees no difficulty since this is a principle that has been recognised since World War II and is now upheld worldwide following the establishment of the International Criminal Court...Africa must take account of recent developments in the international criminal law arena, such as the Pinochet, Taylor, etc., cases have demonstrated.
"The Committee considered that Hissène Habré cannot shield behind the immunity of a former Head of State to defeat the principle of total rejection of impunity that was adopted by the Assembly. The Committee also considered that in view of the nature and gravity of the crimes alleged against him, Hissène Habré cannot benefit from any period of limitation (i.e. prescription)...
"Chad is...under an obligation to provide all the required judicial assistance, more particularly as far as access of victims and witnesses is concerned...All African countries that have ratified the Convention Against Torture are eligible as venues to try this case...Habré should be tried by an African member State - Senegal or Chad in the first instance, or by any other African country...
"The African Court on Human and Peoples' Rights, whose Protocol has already entered into force, and the Court of Justice of the African Union whose Protocol is still under the ratification process, do not have jurisdiction to hear criminal matters at the present time. Therefore these two institutions cannot hear the Habré case...
"The African Court should be granted jurisdiction to try criminal cases. The Committee therefore recommends that the on-going process that should lead to the establishment of a single court at the African Union level, (combining the Court of Human and Peoples' Rights and the African Court of Justice), should confer criminal jurisdiction on that court. The Committee further recommends that the text should be adopted through the quickest procedures possible."
The decisions taken by the Khartoum and Banjul AU Assemblies, and the recommendations of the Committee of Eminent African Jurists, unequivocally demonstrate the determination of the African continent to ensure that our peoples should never again fall victim to tyranny and the denial or violation of their human rights.
They send a powerful message to all governments on our continent that Africa will not, again, stand by as any of these governments commits crimes against or in any way abuse the people.
To emphasise this point, the 11 judges of the African Court on Human and Peoples' Rights were sworn in during the Banjul Assembly. This court should therefore soon be operational. We are proud that one of our Judges-President, the Hon Bernard Ngoepe, was also chosen to serve as one of the 11 judges.
This Court has been formed to adjudicate matters that arise from the African Charter on Human and Peoples' Rights. Among others, the Charter says:
"Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained."
The Protocol governing the establishment of the Court goes on to say: "If the Court finds that there has been violation of a human or peoples' right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation. In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary...The States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution."
Our movement cannot but salute and support the far-reaching decisions taken by the AU to put in place concrete measures and institutions to prohibit and punish tyranny and violation of human rights. These objectives have been a central feature of the goals of our movement since its foundation 94 years ago.
In his famous Address at the Founding Conference of the ANC on 8 January,1912, Pixley ka Isaka Seme said: "The white people of this country have formed what is known as the Union of South Africa - a union in which we have no voice in the making of the laws and no part in their administration. We have therefore called you to this Conference so that we can together devise ways and means of forming our national union for the purpose of creating national unity and defending our rights and privileges."
The 1943 "Africans' Claims" said "there (shall) be established peace which will afford...all peoples and races the means of dwelling in safety within their own boundaries, and which will afford the assurance that all men in all lands shall live out their lives in freedom from fear, want and oppression."
The Freedom Charter said: "The people shall govern. All shall be equal before the law: no one shall be imprisoned, deported or restricted without a fair trial; no one shall be condemned by the order of any Government official...All shall enjoy equal human rights."
All these aspirations, for whose realisation many of our people sacrificed their lives, have now been incorporated in our country's Constitution. This reality obliges us, at all times, to continue to respect the commitment made in the Constitutive Act of the AU, and confirmed by the Khartoum and Banjul Assemblies, "to promote and protect human and peoples' rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law."
